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Badal Chandra Sadhukhan Vs. Debendra Nath Dey - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal612,145Ind.Cas.892
AppellantBadal Chandra Sadhukhan
RespondentDebendra Nath Dey
Cases ReferredWalsh v. Lonsdale (l
Excerpt:
- .....homestead and other structures. the defendant's grandfather took what purports to have been a permanent lease of the land for residential purposes from the then proprietors, the mridhas, in march 1883. the lease was created by a document, which however was not a registered one. certain persons, the mitras, subsequently purchased the interest of the mridhas and eventually granted a permanent lease of the land to the plaintiff in 1326. in 1927 the plaintiff instituted the present suit alleging that the defendant was a tenant-at-will and purporting to have served on him a notice to quit. the defendant denied the plaintiff's title, asserted his own mourashi mokurari right and challenged the service of the notice. the courts below have been concurrent in plaintiff's favour. the defendant.....
Judgment:

Mukerji, J.

1. This is an appeal from a suit which was brought to eject the defendant from a considerable plot of land on which stand their homestead and other structures. The defendant's grandfather took what purports to have been a permanent lease of the land for residential purposes from the then proprietors, the Mridhas, in March 1883. The lease was created by a document, which however was not a registered one. Certain persons, the Mitras, subsequently purchased the interest of the Mridhas and eventually granted a permanent lease of the land to the plaintiff in 1326. In 1927 the plaintiff instituted the present suit alleging that the defendant was a tenant-at-will and purporting to have served on him a notice to quit. The defendant denied the plaintiff's title, asserted his own Mourashi Mokurari right and challenged the service of the notice. The Courts below have been concurrent in plaintiff's favour. The defendant has appealed.

2. Much of the arguments advanced on behalf of the appellant was directed to establish the admissibility of the unregistered lease on which is based the defendant's title. The document is certainly admissible for all collateral purposes, but such admission would not really help the appellant in proving its terms on which his title rests. Under the Transfer of Property Act, 1882, by which the tenancy is governed, a permanent lease could be created only by a registered instrument. The document not being registered it could not create any title in defendant's favour. It cannot be construed as an agreement to lease; but even if it could be so construed it would require registration before it could be put forward as an agreement on the basis of which a claim for specific performance could be made to protect the defendant from eviction on the principle of Walsh v. Lonsdale (l882) 21 Ch D 9. For the purpose of the appellant's defence, either as having created a permanent title in him or as entitling him to a permanent lease, the document must be regarded as useless.

3. The appellant has next invoked the aid of Section 182, Ben. Ten. Act, as affording him protection on the ground that his tenancy is to be governed by the incidents of his utbandi raiyati holding in the village. I have read the evidence such as there is in this connexion, but I do not find that it has been established that at the time when the present tenancy was created the appellant's grandfather who took this tenancy had an utbandi raiyati holding. And even if he had any such holding at the time, the very fact that this particular tenancy had a distinct and definite origin, only the terms of the tenancy not being capable of proof, would, in my opinion, prevent the applicability of Section 182, Ben. Ten Act. Certain Dakhilas have been relied on behalf of the appellant as showing that his rights were Mourashi and Mokurari. So far as the Dakhilas from the Mridhas are concerned, the two Courts have taken the view that they are fabricated. As regards the Dakhilas granted by the Mitras, in which permanency is indicated, the relevant word really seems to have been interpolated as both the Courts have thought.

4. When the origin of the tenancy is known and the document by which it purports to have been created and which as the primary evidence of the transaction is ruled out, oral evidence as to the terms of the tenancy is not admissible, nor can attendant circumstances be looked into to find out what its nature or incidents were. Indeed Section 107, T.P. Act, would be defeated if such a course was permissible. That the intention of the Mridhas was to create a permanent tenancy is more than clear. But the law will stand in the way of that intention fulfilling its purpose, as the purpose was sought to be effected in a way which the law does not permit. Ignorance of law is no excuse. It is not open to the defendant to plead an estoppel against the Mridhas against the statute and none can operate against the plaintiff in so far as the defendant has been put to proof of his title.

5. But there is a question of equitable estoppel which arises by reason of the fact that the defendant, acting though he may have been under an inoperative deed and led into the belief that he had obtained a permanent tenancy in the land, has spent money on it in raising permanent structures. This equitable estoppel must be, in my judgment, equally operative against the plaintiff as it was against the Mridhas or the Mitras. Giving effect to this equitable estoppel I hold that the decree passed by the Courts below should be conditional on the payment by the plaintiff to the defendant of the value of the structures at their present market-price.

6. The appeal is allowed to this extent that the decree of the Subordinate Judge would be set aside and the case would foe sent back to his Court so that the question of valuation may be gone into there, and the value being assessed a decree should be made in plaintiff's favour conditional on his paying the amount to the defendant within a given time. The decree for costs made by the Court of appeal below will stand. There will be no order for costs in this appeal. Future costs in the Court of appeal below will be in the discretion of that Court.


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