Arun Kumar Mitra, J.
1. The suit being title suit No. 282/1974 for recovery of possession from trespassers, permanent and mandatory injunction and damages was decreed on contest with cost against the defendant Nos. 1 to 3 and ex parte without costs against the defendant No. 4.
2. One Jugal Kishore Ghosh was the owner of the disputed lands described in the schedule of the plaint measuring about 41 Decimals of area. The said land was duly retained by the said Jugal Kishore Ghose under Section 6(1) of West Bengal Estates Acquisition Act, 1953.
3. The said Jugal Kishore, a Hindu governed by the Dayabaga School of Law died intestate on 8th Agrahayan, 1376 B.S. leaving behind his widow Smt. Radha Bonodini Ghose and three daughters namely Smt. Panchubala Ghose, wife of late Sridhar Chandra Ghosh, Sm. Sandhya Rani Ghosh wife of Shri Gobardhan Ghosh and Sm. Anandamoyee Konar wife of late Bishnupada Konar as his heirs and legal representatives. After the death of the said Jugal Ghose, each of his aforesaid heirs became owners of undivided 1/4th share of the suit property.
4. By a unilateral document and/or patta executed by said Jugal Kishore Ghosh on May 20, 1968 in favour of M/s. East India Moviton Private Ltd., the said Jugal Kishore agreed to grant in favour of the M/s. East India Moviton Pvt. Ltd. a perpetual lease in respect of the suit property on the terms and conditions contained in the said unilateral document.
5. No effective lease, however, could be created by the said Jugal Kishore on the following circumstances :--
(a) At no point of time, M/s. East India Moviton Pvt. Ltd. came into existence as the alleged company was never incorporated and floated.
(b) In the premises stated in Clause A above, the said unilateral document having been executed by the said Jugal Kishore against a non-existent legal entity, no right title or interest whatsoever in favour of any person either legal or actual was or could be created by the said unilateral document.
(c) Further no valid lease could be made by execution of any unilateral document only by the lessor.
(d) By reason of the fact that the alleged company M/s. East India Movitone & (P) Ltd. never came into existence, it could neither take possession of the leasehold property nor could it enter into any agreement with the said Jugal Kishore Ghosh or perform any part of any contract as envisaged by the said unilateral document or otherwise.
(e) In the facts hereinafter the said nonexistent company would not and in fact did not execute any document accepting the said offer of said Jugal Kishore for a lease and as such at no point of time any valid lease between the parties as contemplated by Section 107 of the Transfer of Property Act came into existence.
6. The heirs of Jugal Kishore Ghosh werenot aware of the fact that East India MovitonPvt. Ltd. never came to an existence. Thesaid heirs proceeding on the basis of existence of the said M/s. East India MovitonPvt. Ltd. filed title suit No. 191/1974 forrecovery of Khas possession of the suit property and for other consequential relief orreliefs on the ground that the patta a unilateral document and the said company nothaving executed any other document accepting the offer contained in the said patta novalid lease came into existence at any pointof time and, as such, the said company hasno right or title to possess the suit propertyand the said company is a trespasser in thesuit property. Alternatively, it was stated inthe plaint that the said M/s. East IndiaMoviton Pvt. Ltd. failed and neglected to payany rent in respect of the suit property for aperiod for more than three years since afterthe death of said Jugal Kishore Ghosh andalso failed and neglected to start cinemabusiness or any other business in the suitproperty within five years of the said pattaand, as such, the said lease if at all therewas any, stood automatically revoked andcancelled.
7. The plaintiffs in the said suit also filed an application for injunction against the said M/s. East India Moviton Pvt. Ltd. and obtained an interim Injunction. Subsequently, the defendant No. 1 describing himself as partner of the defendant No. 3 filed an application under Order 39, Rule 4 of the CPC for variation of the interim order of Injunction wherein, it was alleged that the limited company, namely, M/s. East India Moviton Pvt. Ltd. has since been converted into defendant No. 3 firm the defendant No. 3 firm is constructing the cinema hall in the suit premises.
8. In the changed circumstances, the plaintiffs were advised to get the said suit withdrawn with a liberty to file a fresh suit in respect of the same subject matter, and the said suit was withdrawn. By a deed of sale dated June 10, 1974, the plaintiffs purchased all the right, title and interest of Smt. Radha Binodini Ghosh wife of the deceased Jugal Kishore Ghosh and also Smt. Panchubala Ghosh and Smt. Sandharani Ghosh daughter of said Jugal Kishore thereby became owners of undivided 3/4th share of the suit property, excepting the one forth share of Anandamoyee, who sold her share to one Nemai Chand Garai, defendant No. 4 in this suit.
9. Sometimes, after the death of said Jugal Kishore, the defendant No. 2 held out himself to be a lessee of the suit property on the basis of the said Patta of Jugal Kishore, the said defendant had no actual control over or possession of the suit property at the material time. Since about four months back, the defendant Nos. 1 and 2 wrongfully trespassed into the said suit property and started constructing a cinema hall in the suit premises. At no point of time, the defendant paid any rent to deceased Jugal Kishore or to the predecessor of the plaintiffs. In fact, heirs and successors of the deceased Jugal Kishore including the predecessors of the plaintiffs never received any rent from the defendants in respect of the suit property on any account. Each one of the defendant are trespassers and no notice for eviction on the said trespassers is necessary. By reason of purchase of undivided 3/4th share of the suit property, the defendants are entitled to decree of the said eviction of the trespassers. In view of the fact that the defendants are illegally carrying on construction in the suit, the plaintiffs are entitled to mandatory injunction against the defendants directing the defendant to dismantle and remove the said con-struction from the suit property the plaintiffs also prayed for permanent as also temporary injunction from restraining the defendants from changing the nature and character of the suit property or from starting any trade or business therein. The cause of action of the suit insofar as the plaintiffs are concerned arose on June 10, 1974 when the plaintiffs purchased 3/4th share of the suit property and has been continuing day to day thereafter. Even if it is contended that the cause of action of the suit arose on and from the date of execution of Patta by the deceased Jugal Kishore which was executed on May 20, 1968 and no part of the plaintiff's claim is barred by the law of limitation.
10. The plaintiffs, therefore, prayed for a decree for recovery of Khas possession of the suit land against the defendant Nos. 1, 2 and 3 or their men, agents and servants oh their eviction from the said land. Plaintiffs prayed for permanent injunction for restraining the defendants and/or their men, agents and servants from entering into the suit land or from carrying any further construction therein. The plaintiffs prayed for mandatory injunction directing the defendants under (and) their men, agents and servants to dismantle the construction, if any, made by the defendants and/or their men, agents or servants In the suit land. The plaintiffs further prayed an enquiry into the damages suffered by the plaintiff's due to the unlawful and forcible occupation of the suit land by the defendants and/or their men or agents and a decree for such sum as the plaintiffs are held to be entitled from the defendants by way of damages.
11. The Defendant Nos. 1 and 2 contested the suit by filing written statement. The said defendant Nos. 1 and 2 denied inter alia the material allegations in the plaint.
They contended that Jugal Kishore Ghosh since deceased let out the disputed land to M/s. East India Movitone Pvt. Ltd. represented by its promoters of the said prospective company. Defendant No. 1 has subsequently converted his firm, and constituted the partnership with Defendant No. 2 under the name of the Defendant No. 3 that is East India Movitone Pvt. Ltd. It has also been stated that though Jugal Kishore Ghosh retained the suit land under Section 6(1) of the West Bengal Estate Acquisition Act, 1954 the State Government claiming that the land had since been vested to the State demanded rent from them and they paid the rent to the State Govt. It has also been stated that the proceeding for conversion of the agricultural land into land for non-agricultural purpose was held and tenancy thereof held by the defendant has become a non-agricultural. The defendants further stated that the proposed company although could not come into existence due to some legal difficulty the lease in question was executed in favour of the promoters of the company that is the present defendants who formed the partnership firm. The defendant contended that by paying rent to the Government, they have become the tenant under the State Govt. and such as, the plaintiffs have no right, title and interest in the suit land. They also contended that they are in possession of the suit land under the said lease of Jugal Kishore Ghosh since 20-5-68 and on obtaining permission from the District Magistrate, 24 Pgs. For the business of cinema exhibi-tion started constructing cinema hall for which they have already invested more than Rs. 70,000/-. As the plaintiffs can claim the superior interest in the suit property after lease the State Govt. to whom the defendants pay rent should have been made party. The defendants also contended that Smt. Anandamoyee Kokar one of the daughters of Jugal Kishor Ghosh who inherited 14th share of the suit land should have been made another party to this suit. The defendants, therefore, contended that the suit is harassing and should be dismissed with cost.
12. Seven issues were framed by the learned Trial Judge and the Trial Court decreed the suit in the manner as stated above. The appeal preferred by the defendant was dismissed. The defendants thereafter, preferred second appeal before the High Court and this High Court by its judgment and decree dated May 30, 1989 set aside the judgment of the Courts below and remanded the matter to the Trial Court for disposal in accordance with the directions contained in its judgment.
13. Challenging the judgment of this High Court, Civil Appeal No. 6006/1994 (1999 AIR SCW 4756) was preferred before the Hon'ble Supreme Court. Before the Hon'ble Supreme Court, the learned senior Advocate Mr. Tapan Roy appearing for the appellants/plaintiffs urged that the High Court was totally wrong in setting aside the judgment of the Courts below and remand-ing the matter to the trial Court without following mandatory requirement of Section 100 of the Code of Civil Procedure that is without formulating substantial questions of law and without formulating such a question or questions of law the High Court could not have remanded the matter for wholesome trial. The learned senior Advocate for the appellants/plaintiffs relied on the decision of the Hon'ble Apex Court reported in. : 2SCR12 (Panchu Gopal Barua v. Umesh Chandra Goswami). Consequently, the learned Advocate for the appellant, there contended that in the facts and circumstances of the case, the matter be remanded to the High Court for disposal in accordance with law bearing in mind, the requirements prescribed under Section 100, CPC.
14. Mr. Banerjee learned counsel appearing for the respondents sought to support the impugned judgment and submitted that although the High Court have not formulated the substantial questions of law but from the discussions appearing on behalf of the High Court, it is quite clear that substantial questions of law were raised which were not either discussed or considered by the trial Court as well as the First Appellate Court. Mr. Banerjee, therefore, submitted that the High Court was wholly justified in remanding the matter. The Hon'ble Supreme Court however allowed the appeal and set aside the judgment of the High Court dated 30-5-89 and remanded to the High Court for disposal as indicated in the judgment delivered by the Hon'ble Supreme Court on February 11, 1999 : (1999 AIR SCW 4756).
15. The Hon'ble Supreme Court in the said judgment observed :-
'That the High Court while exercising its jurisdiction under S. 100, CPC has not formulated a substantial questions of law. The plain reading of the Section 100, CPC would make it clear that High Court is required to frame a substantial questions of law at the beginning of the hearing itself and/or if substantial question of law or questions of law are already raised in the Memorandum of Appeal then it is obligatory upon the High Court to hear the learned Counsel for the parties on such substantial question of law or questions of law the judgment of the High Court does not disclose that any such substantial question of law or questions of law, were raised at the initial stage and the learned Advocates for the parties were heard accordingly.
The approach of the High Court, in our opinion, is contrary to the mandatory provisions of the Section 100. CPC. On this short ground, we are of the opinion that the judgment of the High Court is unsustainable and has got to be set aside and accordingly, we do so. Mere quashing of the judgment would not solve the problem because ultimately, the High Court will have to consider as to whether any substantial question of law or questions of law are raised in the Memorandum of Appeal and if such a question of law or questions of law arise on the basis of the pleadings of the parties and materials on record the High Court would formulate the substantial question of law or questions of law if they arise as indicated above and they will hear the parties and dispose of the'same in accordance with law. As this litigation is pending since 1974, we request the High Court to dispose of the second appeal as expeditiously as possible preferably within six months from the date of production of the certified copies of this judgment. It is expressly made clear that all contentions are kept open.'
16. After the said judgment of the Hon'ble Supreme Court, this appeal was mentioned before this Court on November, 2001 and immediately the matter was brought in the list on 22-11-01 and the learned counsel for parties prayed for adjournment of this appeal for 10 days. The matter was heard on 15-1-02, 16-1-02, 18-1-02, 29-1-02 and on 13-2-02.
17. Hence, in pursuance of the direction given in Civil Appeal No. 6006/1994 by the Hon'ble Supreme Court this appeal is taken up for hearing and before taking up the appeal for hearing, three questions which appear to be substantial questions of law were formulated and were circulated to the learned counsel for both the parties for the purpose of making submissions on those three points. The said three substantial questions of law which has been framed by this Court are as follows :--
(1) whether a contract, entered into with an organisation having the name of the company ultimately not incorporated or not commenced (though the persons signing the contract on behalf of the proposed company ultimately formed partnership) will be invalid as decided by the learned trial Court and also the learned appellate Court below relying upon (1953) 1 All ER 708 or the same will be amenable to the provisions of Specific Relief Act which is Indian Legislation and relevant in the context.
(2) Whether deed dated 10-6-74 executed by successor-in-interest of original Landlord Jugal KIshore Ghose confers absolute right, title and interest upon the plaintiffs in respect of the 3/4th share of the property or in confers a contingent interest as provided under the Transfer of Property Act.
(3) Whether after the conversion of the land under Section 72 of the Non-agricultural Tenancy Act, the provisions of Section 3-A of West Bengal Land Reforms Act will come into play and this suit land will be treated as vested in the state.
18. Insofar as the first question is concerned, it is submitted by Mr. Banerjee, learned counsel appearing for the appellants/defendant Nos. 1 to 3 that both the Courts below failed to consider that the lease document executed by Jugal Kishore Ghosh during his lifetime is a valid document and the said lease document executed on 20th May, 1968 conferred absolute right on the lessees. Mr. Banerjee further submits that the lease document was executed in favour of East India Movitone (P) Ltd. and though the said organisation was not a private limited company incorporated under the Companies Act but the promoters of the said company who actually were the lessees constituted a partnership firm and started acting in terms of the said lease document.
19. According to Mr. Banerjee, Jugal Kishore used to accept rent from the defendants/appellants and even if after the death of Jugal Kishore, rent was accepted by the predecessors of the present plaintiffs.
20. According to Mr. Banerjee, both the Courts below went on wrong relying on the decision reported in (1953) All ER 708 (New Borne v. Sensolid Great Britain Ltd.) and by holding that any contract signed in the name of a company with prospective Director's signature is a nullity that is the contract in the name of a non-existing company is a nullity. Mr. Banerjee submits that both the learned Courts below did not act in accordance with law by relying on the said decision when the law of this country is clear and specific on the points. Mr. Banerjee submits that answer of the question is there in Specific Relief Act. Mr. Banerjee relied upon the provisions of Sections 15H and Section 9 of the Specific Relief Act and submitted that the contract executed with a non-existing company if ultimately is incorporated by the same promoters then the Contract is a valid one inasmuch as the contract was to be executed with the private limited company and ultimately, the same promoters incorporated the same company. In this regard, Mr. Banerjee placed reliance on a decision reported in : AIR1969Mad462 (Weavers Mills v. Balkis Animal). According to Mr. Banerjee the lease document was executed in favour of East India Movitone Private Ltd. and ultimately, its promoters Shri Murari Ganguly and Shri Pashupati Ghosh constituted a partnership firm under the same name, and, as such, the contract is a valid one,
21-22. Now on the question as to whether the deed dated 10-6-1974 executed by the successor-in-interest of original landlord Jugal Kishore in favour of the present plaintiffs confers absolute right, title and interest upon the plaintiffs in respect of the 3/4th share of the property or it confers a contingent interest as provided under the Transfer of Property Act.
23. On this score, Mr. Banerjee submits that this is not a valid transfer in view of the provisions of Section 54 of the Transfer of Property Act and this document confers no vested right on the transferees and it confers only contingent interest. Mr. Banerjee in this regard placed reliance on the decision reported in : 1SCR607 (Smt. Rukhamanbai v. Shivram). Mr. Banerjee in this regard also placed reliance on another decision reported in : AIR1996SC2260 (Usha Subbarao v. B. N. Vishveswaraiah).
24. Now according to Mr. Banerjee since no right or vested interest accrued in favour of the plaintiffs by virtue of this deed the suit is not maintainable at the instance of the plaintiffs.
25. On the third question, it is the submission of Mr. Banerjee that the lease document which was executed by Jugal Kishore contained certain terms and acting on such terms the defendants/appellants prayed for permission from the District Magistrate for construction of the cinema house and Section 72 of the Non-agricultural Tenancy Act provides for conversion of agricultural lands into non-agricultural tenancy in certain cases and the defendants/appellants herein prayed for conversion and conversion was granted by the authority.
26. Now, according to Mr. Banerjee, the effect of conversion has been provided in Section 3-A of the West Bengal Land Reforms Act 1955 (as amended). According to Mr. Banerjee, the effect of consequence of conversion is, as provided in said Section 3-A of the West Bengal Land Reforms Act, is that, the rights and Interest of all 'non-agricultural tenants and under tenants under the Non-agricultural Tenancy Act 1949 shall vest in the State free from all encumbrances and after the vesting of the land by virtue of the said conversion, the plaintiffs have no right, title and interest in and over the said land. Mr. Banerjee further submits that the appellants/defendants have deposited rent to the Government and have become direct tenants under the Government, as such, at the instance of the plaintiffs the suit is not maintainable.
27. Mr. Roy appearing for the plaintiffs/ respondents submits that the alleged deed of lease on which the defendants/appellants intended to rely upon to establish or to assert their right, title and interest is a unilateral document executed by Jugal Kishore and it was not accepted by East India Movitone (P) Ltd. which did not at all come into existence at that point of time and, ultimately, also private limited was not incorporated and a partnership firm was formed. According to Mr. Roy defendant Nos. 1 and 2 claimed to be the promoters of the company but neither the company was ultimately promoted nor such promoters had any independent right in the matter of execution of a contract. Mr. Roy submits that the said unilateral document was to be executed with the company as it appears from the document itself and intention of the document maker was also very clear. Mr. Roy submits that if the provision of Sections 9. 15 and 19 of the Specific Relief Act, 1963 are read together with its preambles, it would be amply clear that the principles of the English decision reported in (1953) 1 All ER 708 does not make much difference. Mr. Roy further submits that the unilateral document executed by Jugal Kishore if is to be accepted as a lease then Section 105 which defines the term 'lease' makes it very clear and there was no acceptance of the thing demised by any alleged lessee. For the purpose of the company acceptance and communication are very much necessary.
28. According to Mr. Roy, the other part of the point that the suit is not maintainable at the instance of the plaintiffs or the transfer by the heirs of Jugal Kishore was not a valid transfer under Section 54 of the T. P. Act was not at all raised before the trial Court or the first appellate.Court and the Issue No. 1 before the trial Court was 'is the suit maintainable' and the answer to this issue is 'this issue is not pressed by the defendants at the time of hearing and, as such, this issue is decided in favour of the plaintiffs' and in the first appellate Court also no dispute was raised concerning the disposal of the Issue No. 1 in favour of the plaintiffs and, as such, the appellants/defendants cannot be permitted to raise this issue in this second appeal and this is a new plea which is not permitted. Insofar as the third point is concerned, Mr. Roy submits that Section 3-A of the West Bengal Land Reforms Act is not attracted in the instant case inasmuch as this amended Section 3-A of the West Bengal Land Reforms Act has been Introduced with effect from 12th May, 1989 that is long after the suit as well as the first appeal were decided. That apart, Mr. Roy pointed out when making submissions on Section 72 of the Non-agricultural Tenancy Act that the first line of the Section provides that a tenant holding a land may apply for conversion and the definition of a tenant has been given in Section 3(2) of this Act and the defendants appellants were and are never the tenants within the meaning of the said Act. That apart, the information slip exhibited on behalf of the plaintiffs go to show that the land is not vested whereas as counter to this, the document submitted by the defendants/appellants is a letter from a J.L.R.O. who has no authority to say as to whether a land is vested or not. Mr. Roy further submits that this Issue was also not. there before the trial Court or the first appellate Court and consequently, this is also impermissible to be raised in the second appeal.
29. Mr. Roy also submits that under Section 72 of West Bengal Non-agricultural Tenancy Act for conversion applicant must be a tenant and here as it appears that the applicant is a non-existent company and the application as such cannot be said to be maintainable in itself. According to Mr. Roy only deposition of rent in respect of certain land does not confer any right or interest in the depositor and in this case also no right, title and interest accrued in favour of the appellants/defendants and according to Mr. Roy the instant appeal should be dismissed.
30. Heard and considered the submissions made by the learned counsel for the respective parties, Considered also the judgments of the trial Court as well as the first appellate Court in the light of the pleadings, as well as the evidence adduced by or on behalf of the respective parties.
31. The judgment referred to and relied upon by both the Courts below is the'judg-ment reported in (1953) 1 All ER 708 (supra) observed :--
'The contract was made, not with the plaintiff, whether as agent or as principle, but with a limited company which on the date of making of the contract was not existent, and, therefore, it was a nullity and the plaintiff could not attach it or sue on it as his contract.'
32. In the above case, the plaintiff was the promoters and prospective director of the limited company which at the material time had not been registered. A contract for the supply of goods to the defendant was signed under the name and style 'Leopold New Borne (London) Ltd.' and the plaintiff's name 'Leopold New Borne (London)' was written underneath. It was in an action for breach of the contract brought by the plaintiff against the defendant, and in this context, the Hon'ble Court held as above.
33. In the instant case, the document on which the defendant appellant relied upon that is the document executed by Jugal Kishore Ghosh in the year 1968 is a unilateral document. The document is an exhibit which goes to show that it was executed in favour of East India Moviton (P) Ltd. and the document contained certain terms. No-one signed showing acceptance in the document on behalf of the East India Moviton (P) Ltd. As it also appears from the document itself, following are the terms which called for compliance and the non-compliance of which attracted penal impact.
34. Annual rent was fixed at Rs. 480/-per month to be paid to the executor and lessor @ Rs. 40/- per month against valid receipt and it was stipulated that no pay- ment would be considered valid without receipt and in this regard it was also stipulated that Radha Binodini wife of Jugal Kishore will get the rent and after the death of Jugal Kishore, Shri Pashupati Ghosh will act as rent collecting agent and after his death will collect and pay the rent to said Radha Binodini against receipt. The default clause in this regard was there in the document to the extent that successive non-payment of three years lease rent will make the lease liable to be treated as cancelled.
35. Another condition which was stipulated in the said unilateral document that within five years if the said property under document was not used for construction of cinema hall or any other purpose the said document of lease will be cancelled and the possession will go back.
36. Two other vital things appeared from this unilateral document, (i) the document is a registered one and the stamp was purchased in the name of East India Moviton (P) Ltd. having office at 71, S. N. Roy Road, Behala, Calcutta-38 and in place of the name of lessee also it has been written 'East India Moviton (P) Ltd. Head Office 71, S. N. Roy Road Behala, Calcutta-38.'
37. There is no mention in the document that who is the promoter of the said lessee company or who has accepted the said lease on behalf of the company. Now the term 'lease' have been defined in Section 105 of the Transfer of Property Act which runs as follows :--
'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time express or implied or in perpetuity in consideration of a price paid or promised, or of money, a share of crops service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such term.'
From the above definition, it is clear that three essential items must be there to make a lease valid or good (1) there must be a lessor, who has got legal right to execute the lease (2) There must be a thing demise which is demisable and the third is acceptance which is clear from the last few words of the definition clause 'who accepts the transfer on such term.'
38. In Woodfall's 'landlord and tenant' (16th Edition) it has been observed that a lease is the outcome of the rightful separation of ownership and possession. A lease, therefore, is not a mere contract but is a transfer of interest in land and there must be acceptance of the things demise and of the state by the lessee.
39. In the instant case an unilateral document of lease was executed by the original owner Jugal Kishore Ghosh in favour of East India Moviton (P) Ltd. which alleged company was not in existence and which never came into existence.
40. Mr. Banerjee as stated above has placed reliance on a decision reported in : AIR1969Mad462 (Weavers Mills v. Balkis Ammal) and according to Mr. Banerjee paragraph 16 of this judgment makes it clear that a lease will be a valid lease if it is executed in favour of a company accepted by the promoters and subsequently ratified by the company after its incorporation. According to Mr. Banerjee in the instant case Murari Ganguly and Pashupati Ghosh were the promoters of East India Moviton (P) Ltd. and ultimately since the private limited could not be formed these promoters formed partnership and acted upon the aforementioned unilateral document of lease and this acting upon can be termed as a valid acceptance of the lease. With respect to the submissions of the learned cbunsel, I am unable to accept this contention inasmuch as in the unilateral document it was not stated who are the promoters of the company. That apart, company was never formed. It is well known that a private limited company has got independent legal entity. But partnership firm as formed here has no independent legal status. Paragraphs 16 and 18 of the said decision relied on by Mr. Banerjee in this regard are quoted hereinbelow :--
'There is very little guidance in the Companies Act, 1913 and the new Act to decide the question before us. One of us in W.P. Nos. 475, 555 and 1249 of 1960 (Mad), Nandi Transport (P) Ltd. v. S.T.A.T., had occasion to consider in a different context the legal implications in relationship of a promoter and the company under incorporation. There was there an elaborate consideration of that matter with reference to authorities. A Division Bench in appeal W.A. Nos. 85 and 86 of 1963 (Mad). Palaniswami v. Nandi Transports (P) Ltd. and etc, arising out of those petitions also covered the question in some detail. But, for our present purpose, we think it is not necessary to cover the entire ground. A promoter according to Cockburn C.J. in Twycross v. Grant. (1877) 2 CPD 469 is one who undertakes to form a company with reference to a given project and to set it going and who takes the necessary steps to accomplish that purpose. 6 Halsbury's Laws of England, 3rd Edn. Page 91 and Palmer's Company Law 19th Edn. 322, elaborate this idea. In the writ petitions, one of us after referring to these authorities summed up the position of a promoter :--
'A Promoter' therefore, is a compendious term given to a person who undertakes, does and goes through all the necessary and incidental preliminaries, keeping in view the objects, to bring into existence an incorporated company. This process leading to the genesis of a company may include a variety of things, not the least of them, I think, being some of the steps taken by a promoter to ensure commencement, within a reasonable time, of the business, for the carrying on of which the company is formed. He makes purchase of movable and immovable assets, enters into contracts involving rights and obligations and applies to authorities for a variety of things, all on behalf of the company to be formed'. As to the exact legal status of promoters, the statutory provisions, both in England and in this country are silent in most part except for a couple of sections in the Specific Relief Act, both old and new ones. It appears that a promoter is neither an agent nor trustee of the company under incorporation but certain fiduciary duties have been imposed on him both under the English Companies Act 1948 and the Indian Companies Act, 1956. He is not an agent because there is no principal and he is not a trustee as there is no cestui que trust in existence. There can be no agent for a non-existing principal, nor a trustee for a non-existing cestul que trust. It is on this ground that the doctrine of ratification by the company was regarded as inapplicable to the actual promoter vis-a-vis the company under incorporation. We do not refer to the earlier view held in 1821 in England which assumed that Corporation could on its Incorporation ratify, or hold the promoter personally liable as it liked. The dictum of Lord Cottenham in Edwards v. Grand Junction Rly. Co., (1836) 1 My & Cr. 650, at p. 672 that if the company and the projectors cannot be identified, still it is clear that the company have succeeded to, and are now in possession of, all that the projectors had before, they are entitled to all the rights and subject to all their liabilities, does not appear to have been endorsed as correct in every respect by the House of Lords after 1856. In Kelner v. Baxter, (1866) 2 CP 174, it was held that a contract entered into by a promoter could not be ratified by a company after its incorporation. Willes, J. one of the learned Judges who decided that case observed at page 184 --
'I apprehend the company could only become liable, upon a new contract. It would require the assent of the plaintiff to discharge the defendants. Could the company become liable by a mere ratification? Clearly not. Ratification can only be by a person ascertained at the time of the act done by a person in existence either actually or in contemplation of law'. Lord Davey in Natal Land and Colonisation Co. Ltd. v. Pauline Colliery Syndicate 1904 AC 120, speaking for the Judicial committee stated that a company could not by adoption or ratification obtain the benefit of a contract purporting to have been made on its behalf before the company came into existence and that in order to do so a new contract must be made with it after its incorporation on the terms of the old one. Sections 21(f), 23(h) and 27(e) of the Specific Relief Act, 1877, were perhaps based on the doctrine of Lord Cottenham that a company after its incorporation was a successor to and took the place of the promoters in relation to contracts entered into by them for the purpose of the company and warranted by the terms of the incorporation. Though the first two sections do not seem to be rested on any theory of agency or trust. Section 27(e) was possibly founded on some kind of quasi agency or of trust. To this extent, the Indian Legislature in enacting the Specific Relief Act, 1877, would appear to have departed from the English view in (1866) 2 CP 174 and 1904 AC 120. These sections in the Specific Relief Act are concerned with executory contracts and cannot possibly be applied to conveyances of immovable properties in favour of promoters of a company under incorporation.'
'That section says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The Transfer of Property Act is not exhaustive of the kind of transfers. We are inclined to agree with the proposition of Ramaswami J., in Sarandaya Pillai v. Sankarlinga Pillai (1959) 2 Mad LJ 502 at p. 503 namely, that the test, therefore, in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see it is expressly required by law to be in writing. If the transaction is a transfer of property and there is no express provision of law requiring it to be in writing. Section 9 will enable it to be made without writing. If on the other hand, the transaction is not a transfer of property and there is no express provision of law requiring it to be in writing, the general principle referred to above will enable it to be validly made without writing. The learned Judge, if we may say so with respect, rightly pointed out that Section 9 underlines the general principle that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abundanti cautela.
While we accept the position that a promoter is neither an agent nor a trustee of the company under incorporation, we are inclined to think that in respect of transactions on behalf of it, he stands in a fiduciary position. For the plaintiff company Sections 92 and 94 of the Indian Trusts Act, 1882, were relied upon. It seems to us that neither of these sections is of assistance to it. These sections, as we think, contemplate transactions as between persons in existence. In any case, it seems to us that no trust as defined by Section 3 of the Act is brought about by the purchases made by the promoters. The legal position of a promoter in relation to his acts, particularly purchase of immovable properties on behalf of the company under incorporation, is a peculiar one not capable of being brought into any established or recognised norms of the law as to its character as an agent or a trustee. But, at the same time, it is impossible, to our minds, to deny that he does stand in a certain fiduciary position in relation to the company under incorporation. When he does certain things for the benefit of it, as for instance, purchase of immovable properties, he is not at liberty to deny that benefit to the company when incorporated. We are prepared to hold that in such a case the benefit of the purchase will pass on to the company when incorporated. 6 Halsbury's Laws of England, 3rd Edn. Paragraph 194, says that a promoter stands in a fiduciary position with respect to the company which he promotes from the time when he first becomes until he ceases to be a promoter thereof. It is also pointed out that a promoter may acquire assets as a trustee for a company. Though the cases relied on for these propositions were of the year 1877 or thereabouts, we do not see why the principle of the dictum of Lord Cottenham should not, in justice and equity, be invoked to clothe the promoter with the mantle of fiduciary position with respect to the company under incorporation with the implication that when incorporated the company will succeed to the beneficial acts transacted on its behalf by the promoter.'
41. In fact, the said alleged lease deed was a unilateral document admittedly there is no acceptance of the terms of the lease. Even, if, the terms of that unilateral document on which the appellant intends to rely, includes default and penal clause and evidence on record as adduced by the appellant attracts default clause inasmuch as no document could be produced by the appellant in the trial Court showing payment of rent regularly to Jugal Kishore Ghosh or after his death to Radha Binodini. Therefore, where is the acceptance and if acceptance assumingly is also there allegedly by the action of the defendants as submitted by Mr. Banerjee then also the unilateral document got struck off and attracted cancellation. Over and above any document of lease registered in favour of non-existent legal entity cannot be termed to be valid lease.
42. I, therefore, am also unable to accept the contention of Mr. Banerjee that the unilateral lease document executed by Jugal Kishore to be a valid one and the defendant in my opinion cannot derive any right or interest out of this invalid document.
43. Now Mr. Banerjee has further submitted that when Indian Legislation is there which is very much applicable in the instant case any English decision cannot be accepted and according to Mr. Banerjee when there is specific provision in Indian legislation Mr. Banerjee placed reliance on Section 15th of the Specific Relief Act, 1963. Now let us see what Section 15th says and for the sake of discussion and convenience. Section 15th is quoted hereinbelow :--
'When the promoters of a company have, before its incorporation entered into a contract for the purposes of the company, and such contract is warranted by the terms of the Incorporation, the company :-- provided that the company, has accepted the contract and has communicated such acceptance to the other party to the contract.'
44. The object of this provision is very clear. For any reason whatsoever, the incorporation of a company could not be completed and it is being incorporated and there is urgency in executing a contract the promoters of the company named in the prospectus of the company for and on behalf of the company as promoters can execute a contract, when ultimately the said company after incorporation has got a scope to accept and thereby to ratify the stand of the promoters. This is not the case here. In the instant case an unilateral document was executed in favour of a non-existent private limited, company and no such company ultimately came into existence to ratify the stand or even if to support the terms of the document. Here two persons ultimately formed a partnership, not a private limited company and claimed themselves to be promoters, self styled and wanted to place the partnership firm in the place of the company and this proposition cannot be accepted and, as such, I find that there was no document constituting a valid lease in the eye of law in favour of the defendant appellant. Had there been any contradiction in between a judgment delivered by a Court of law not of our country and the law laid down by our legislation then obviously it goes without saying that our legislation remains acceptable to us. But here the principle and ratio of the judgment does not create any difference to the principle of law laid down by our Indian Legislation.
45. Now again on the first point, Mr. Banerjee has further submitted that the sale deed executed by the heirs of Jugal Kishore in favour of the plaintiffs out of which the plaintiffs claim to have derived right, title and interest and wanted to evict his clients as trespassers is not at all a valid sale deed for a valid transfer under Section 54 of the Transfer of Property Act, 1882.
46. Section 54 of Transfer of Property Act, 1882 is quoted herein below :--
'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.'
47. According to Mr. Banerjee, the sale deed is not a sale deed at all and the plaintiffs/respondents herein have no right to maintain the suit for eviction of the defendants as trespassers. It would appear that full consideration was not paid at the time of registration of the sale deed.
48. It appears from the sale deed of 1974 executed by three heirs of Jugal Kishore by transferring 3/4th interest which they had in and over the land in favour of the plaintiffs, which is an exhibit that the heirs of Jugal Kishore detailed the entire position of the land in a sale deed and accepted part of the total consideration and agreed to receive the rest of the consideration on fulfilment of certain terms and there was no default clause in the said sale deed and, as such, the said sale deed cannot termed to be invalid. In the sale deed itself, nowhere it has been stated that if the transferees that is the plaintiffs herein fail to pay the balance amount of consideration of Rs. 10,000/- then the sale deed will be liable to be cancelled and in the sale deed itself, there is mention of litigations and the transferees were delegated power and/or authority by the executants of the sale deed to conduct those litigations that means the transfer by the transferers was voluntary and having full intention to transfer. It is well settled that the validity of the document is to be gathered from the intention of the document maker. Here the maker of the sale deed clearly intended to transfer 3/4th share with all its rights, title and interest in favour of the transferees plaintiffs.
49. That apart, the first issue framed by the learned Munsif was 'is the suit maintainable'? Now in discussing this issue and on answer to this issue the learned Munsif observed 'Issue No. 1--this issue is not pressed by the defendants at the time of hearing and, as such, this issue is decided in favour of the plaintiff.
50. Therefore, it is clear that defendants did not make any submission regarding maintainability of the suit and on the contrary waived their rights by not pressing the issue of maintainability.
51. Before the learned trial Judge or before the learned appellate Court below, it was never argued that the suit is not maintainable however, as discussed above, the sale deed being valid the plaintiffs have become owners of undivided 3/4th shares of the suit property by virtue of their purchase from three heirs of late Jugal Kishore.
52. Mr. Banerjee in this regard has cited two decisions being (i) : 1SCR607 (Rukhamanbai v. Shivram) and (ii) : AIR1996SC2260 (Usha Subarao v. B. Vishveswaraiah) and Mr. Banerjee placed reliance on : 1SCR607 mentioned above. Said paragraph 18 of the said decision runs as follows :--
'It was next contended that in any event the appellant having been given a life estate with the vested remainder in her children. She had no vested interest in the property during her lifetime but her interest would be contingent interest and therefore even during her lifetime, the children would be the owners and as they were minors the date of statutory purchase would be postponed under Section 32-F. Looking to the terms of the deed of settlement, subject to the limitations therein prescribed the appellant had a vested interest with a right to take over management on attaining majority and to deal with the property in her own way. Assuming without deciding that she had no right to Will, gift, sell or encumber the property yet assuming she did deal with it in the manner prohibited it would nonetheless be binding during her lifetime. The property would devolve on the heirs named in the deed and the devolution would take place on her death. Therefore, upon a pure literal construction of deed coupled with intendment of the settlement it is difficult to accept Mr. Sanghi's submission that her interest in the property during her lifetime was contingent interest. This will further be borne out by the provision contained in Section13 of the T.P. Act inasmuch as she was given life or limited interest and the remainder to her children none of whom was in existence at the time of transfer. Even if transfer is in favour of unborn person at the date of transfer to be valid there has to be a prior interest created by the very transfer. This prior interest though limited would not be contingent but vested interest. In fact the interest of future born children would be contingent till the death of the appellant. The deed of settlement cannot be construed as a transfer in favour of unborn person, yet it settles property on trust and the unborn children, under trust may be beneficiaries but they can claim interest only after the death of the appellant and no interest in her lifetime. Under the deed of settlement an interest is created in favour of the children of the appellant and the interest would take effect on the happening of specified uncertain event--uncertain as to time--namely, the death of the appellant, then till the death of the appellant the interest of the children would be contingent. It is nothing short of spes successionls. Mr. Sanghi, however, referred to Rajes Kanta Roy v. Santi Debi, : 1SCR77 and urged that by a parity of reasoning we must hold that the interest of the appellant was a contingent interest. In that case one Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed his three sons as shebaits. After the death of one of his sons, widow of the deceased son instituted a suit against other members of the family for a declaration that she as an heir of her deceased husband was entitled to function as shebait, in place of her husband. The suit ended in a consent decree recognising the right of the widow as a co-shebait. Subsequently the settler Ramani and his two other sons filed a suit against widow of the pre-deceased son for a declaration that the consent decree was null and void. During the pendency of the suit the settler Ramani executed a registered trust deed in respect of his entire property. The eldest son was appointed trustee to hold property under trust subject to certain powers and obligations. The second suit which was pending at the death of settler Ramani ended in a consent decree. One of the terms of the consent decree was that widow of the pre-deceased son gave up her rights under the earlier consent decree by which she obtained status of co-shebait and she was paid Rs. 475/- per month as allowance. Complaining of a default in the payment of allowance she filed an application for execution to realise the arrears and she sought attachment and sale of certain properties. The eldest son filed an objection contending that under the settlement of trust his Interest in the property was a contingent till the debts are paid and as the pre-condition is not satisfied the contingent interest is not attachable. Negativing this contention, it was held that the determination of the question as to whether any interest created by trust deed is vested or contingent has to be guided by the principles recognised under Sections 19 and 21 of the T.P. Act and the Indian Succession Act. After referring to certain English authorities and text-books by writers it was held that the question is really one of Intention to be gathered from a comprehensive view of all the terms of a document. After examining all the terms of the deed of trust this Court held that even though the debts were not discharged the appellants, namely, the sons acquired a vested interest and not a contingent one.'
This decision deals with vested interest or contingent Interest derived by virtue of execution of a deed under Sections 19, 21 and 23 of the Transfer of Property Act. The fact of this case is totally different on the instant case inasmuch as in the decision of Rukhmanbhai (supra) the appellant was given a life estate with the vested remainder in her children, she had no vested interest in the property during her life time but her interest would be contingent and, therefore, even during her life time the children would be the owners and as they were minors the date of statutory purchase would be postponed under Section 32(F) of the Transfer of Property Act, 1882 but this will not be the case here. In the instant case, the three owners/ co-sharers being the heirs of Late Jugal Kishore transferred 3/4th right, title and interest in favour of the plaintiff herein, and only condition in the deed was that, out of the total consideration balance will be given later on. So in the instant case, the purchasers have acquired vested interest and not contingent interest.
Mr. Banerjee placed reliance on paragraphs 8, 12 and 14 of the decision reported in : AIR1996SC2260 the said paragraph runs as follows :--
'For the purpose of determining the date of vesting of the interest in the bequest it is necessary to bear in mind the distinction between a vested interest and a contingent interest. An interest is said to be a vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interest. The transfer of Property Act, 1882 as well as the Indian Succession Act, 1925 recognise this distinction between a vested interest and a contingent interest. Vested interest has been thus defined in Section 19 of the Transfer of Property Act, 1882 :
19. Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation--An intention that an interest shall not be vested is not to be inferred from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
'By virtue of Section 119, in a case where bequest is if a vested interest and by the terms of the bequest the legatee is not entitled to immediate possession of the thing bequeathed, the right to receive It at the proper time becomes vested in the legatee on the testator's death and in the event of the death of the legatee without having received the legacy the said right to receive it passes to the legal representatives of the legatee. This is, however, subject to a contrary intention being expressed in the Will. But in the case of a contingent bequest, Section 120 prescribes that the legacy vests in the legatee only after the happening or not happening of the contingency which means that in the event of the legatee dying prior to happening of that contingency no interest passes to his legal representatives. Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the Court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear. (See Rajes Kanta Roy v. Santl Devi (SCR at p. 90). As regards Wills the rule is that 'where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift and accordingly, it vests at the testator's death or at the earliest moment after that date which is possible in the context'. (See : Halsbury's Laws of England, 4th Edn. Vol. 50 para 589 at p. 395.)'. 'We must, therefore, construe the Will to find out the intention of the testator in this regard. With regard to construction of Wills the law is well settled that Intention has to be ascertained from the words used keeping in view the surrounding circumstances, the position of the testator, his family relationship arid that the Will must be read as a whole. (See Gnanambal Animal v. T. Raju Ayyar (SCR at p. 955), Navneet Lal v. Gokul (SCR at pp. 927, 928). If the Will is thus read, it is found that under the Will Smt. Nadiga Nanjamma was vested with the management of all the properties specified in Schedules 'A', 'B', and 'D' but she had no power to dispose of any of those properties by sale, gift. Will, mortgage or hypothecation. She was entitled to take the produce of the lands mentioned at Items 2, 3 and 4 in Schedule 'A' and use the same for the maintenance of herself and her children. She was also entitled to use the interest, dividends and income of the properties mentioned in Schedules 'B' and 'D' for the same purpose. With regard to properties mentioned in Schedule 'C', the testator has directed that where Upanayanams and marriages were to be performed for the children during their minority and income from other sources of his property was insufficient to meet the expenses, Smt. Nadiga Nanjamma could withdraw from the thrift deposit account of the said child not more than Rs. 300 for Upanayanam and not more than Rs. 500 for marriage of the child. As regards properties mentioned in Schedules 'B' and 'D', it was provided that Smt. Nadiga Nanjamma was entitled only to transact the operations of conversion, encashment of payment of further calls on shares, as the case may be, and she had also power to reinvest the same in suitable securities but the corpus in each case had to be kept intact and only the interest, dividend or other incomes of the said shares could be used by her for the maintenance of herself and her children as stated above. With regard to the house mentioned at Item 1 of Schedule 'A', it was directed that Smt. Nadiga Nanjamma and the children were entitled to live in it during the lifetime of Smt. Nadiga Nanjamma and that it would not be partitioned during her lifetime. As regards the lands mentioned at Items 2, 3 and 4 in Schedule 'A', it was provided that during the minority of the children Shri C. Nagapa, Advocate and one of the Executors and Trustees of the Will, shall be in possession of the lands and shall make arrangements for the cultivation of the said lands, for the collection of produce therefrom, for the payment of Kandayam over the same and for the delivery of all produce from the lands to Smt. Nadiga Nanjamma and her children. As regards partition of the properties, it was provided that if any of the sons after attaining the age of majority demands partition during the lifetime of Smt. Nadiga Nanjamma, he would be entitled to get his share of the thrift deposit account in the Bank of Mysore Limited, Bangalore City; standing in his name as mentioned in Schedule 'C' and he would also get his portion in properties mentioned at Items 2, 3 and 4 in Schedule 'A' and his portion in properties specified in Schedule 'A' and that the partition would be determined according to the prevailing Hindu Law in force at that time, It was further provided that after the lifetime of the testator and his wife, Smt. Nadiga Nanjamma, all the properties mentioned in Schedule 'A' 'B' and 'D' shall be divided equally among 'my surviving children'. With regard to properties mentioned in Schedule 'B', it is stated in the Will that the said properties stood in the name of Smt. Nadiga Nanjamma and that income from those properties shall be used for the maintenance, education, Upanayanam and marriage of children, during their minority and after sons of the testator attain the age of majority, the income from the properties mentioned in Schedule 'B' only shall be used by Smt. Nadiga Nanjamma, for her own maintenance if she lives separate from any of her major sons and that the said properties shall be liable to partition after the demise of Smt. Nadiga Nanjamma among her surviving children.'
In this decision of Usha Subbarao (supra) the fact of the case was that a will was executed bequeathing properties movable and immovable in favour of the five sons of the testator. At the time when the said Will was executed all the five sons of the testator were minors. In the Will, the testator made the following provisions regarding guardianship of the minor sons :-- 'if some of my sons happen to be still minors at the time of demise of myself and my wife, the said Nadiga Najamma my major son shall be the guardian and manager of minor sons, persons and properties. If all my sons, however, happen to be minors at the demise of myself and my wife, the above-named Nadiga Najamma, I appoint the following gentlemen as guardians during my children's minority :-- (1) Mr. C. Nagappa, B.A. LLB, Advocate, Lakshmi Bilas Agrahat, Mys'ore, (2) Mr. B. Sreekanta Rao, 9, Third Road, Chamarajpet, Bangalore City, (3) Mr. B. Ramaswariah, Retired School Headmaster, 2, Sunkalpet, Bangalore City, (4) Mr. M. B. Vrada Rajengar, Bangalore City and (5) Mr. B. R. Subbarao, Tutor, University College, residing at 1493, Kothwal Ramanna Street, Mysore.'
Here in this case, the case of the appellant is that the respective shares in the vari-ous properties of the testator vested in the five sons of the testator as per the Will, on the date of death of the testator that is after the death of her husband, B. N. Subbarao the appellant is entitled to the share of the property that has vested in him prior to his death in accordance with the Will.
Now in this case, the Hon'ble Supreme Court after discussing the provisions of Sections 90, 91, 119 and 120 of the T.P. Act clarified the position regarding vested interest and contingent interest. But in the instant case, the facts are totally different and here from the document of sale itself the intention of the document maker can be gathered and the language of the sale document is clear and this document does not confer any contingent interest.
That apart, Mr. Roy appearing for the respondent/defendant argued that this plea was never taken before the Courts below and submitted that as per the decision of the Hon'ble Supreme Court reported in : AIR1997SC2517 (Kshitish Chandra Purkait v. Santosh Kumar Purkait) the appellants are not permitted to take new plea at the second appeal stage. The Hon'ble Supreme Court in this case has observed (Para 7 at p. 2520) :--
'Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions. In the present case, no such question of law was formulated in the memorandum of appeal in the High Court and Grounds (6) and (7) in the memorandum of the second appeal on which reliance is placed did not formulate any substantial question of law. The learned single Judge of the High Court also, as it transpires from a perusal of the judgment under appeal, did not formulate any substantial question of law in the appeal and dealt with the second appeal, not on any substantial question of law, but treating it as if it was a first appeal, as of right, against the judgment and decree of the Subordinate Court. The intendment of the legislature in amending Section 100 CPC was, thus, respected in its breach. Both the trial Court and the lower appellate Court had decided the cases only on questions of fact, on the basis of the pleadings and the evidence led by the parties before the trial Court. No pure question of law nor even a mixed question of law and fact was urged before the trial Court or the first appellate Court by the respondent. The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor can-vassed in the subordinate Courts and that too by overlooking the changes brought about in Section 100 CPC by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal. To say the least, the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.'
53. The plea that the suit is not maintainable at the instance of the present plaintiffs inasmuch as the sale deed executed by the heirs of Jugal Kishore in respect of 3/ 4th share of the property in favour of the present plaintiffs is not a sale deed at all and this sale deed did not confer vested interest in favour of the plaintiffs was not taken by the defendant at the trial Court and no issue was framed on this score and on the contrary the issue No. 1 as to whether the suit is not maintainable or not was not made pressed.
54. In my view, therefore, in view of the decision of the Hon'ble Supreme Court in the matter of Khsitish Chandra Purkait (supra) this plea taken by the defendant cannot (be) permitted to adopt at his second appeal stage. Now let us see in the alternative whether the lease deed a unilateral document executed by Jugal Kishore the document on which the defendants claimed right over the suit property is a valid lease deed or not.
55. The unilateral deed of lease executed on 20-5-68 by Jugal Kishore (presently deceased) is admittedly a document signed by Jugal Kishore unilaterally and no acceptance markings on behalf of the alleged lessees are there. It is also admitted that in the alleged lease deed the lessee was in favour of East India Moviton (P) Ltd. having its office at 71, S. N. Roy Road, Behala, Calcutta-30 and there is no indication in the alleged lease deed that Murari Mohan Ganguly or Pashupati Ghosh were the promoters and/or are the promoters ,and any of the defendants acting as promoter of the company has accepted the alleged lease. It is, therefore, the fact that the alleged lease deed was executed by Jugal Kishore in favour of a non-existent company which never saw the light of the day. Mr. Banerjee strenuously tried to argue relying on the aforementioned decisions cited by him that if the lease deed is executed even in favour of non-ex-isting company and the promoters act on behalf of the company and subsequently the deed is registered, it becomes as good as an execution in favour of an existing company and the decision of Hon'ble Madras High Court is based on the fact that the document was executed in favour of the company which was being incorporated and the promoter of the said company accepted the document and ultimately the said company after being incorporated ratified the said document but in the instant case, the unilateral document which is an exhibit goes to show that there is no acceptance on behalf of anybody and no private limited company was ultimately formed even and, in fact, two persons who wanted to form a private limited company ultimately formed the partnership firm. The case is totally different. Mr. Banerjee on behalf of the appellant tries to convince this Court that acceptance of the document was made by the two partners of the company in the document is not required inasmuch as the defendants applied for mutation obtained rent receipt by paying rent to the JLRO and these actions show acceptance. But again, it is observed that mere deposition of rent before the JLRO or mere application for mutation does not prove acceptance of a document.
56. It also appears from the said unilateral document which is an exhibit that there were certain conditions specified in the deed which were to be fulfilled by the lessee such as lessee would pay lease rent @ 40 per month and the lessor will grant receipt and no payment will be considered to be valid without receipt and successive three years non-payment of rent will make the lease liable to be cancelled. Another condition was there that within five years from the date of execution of the said lease document cinema hall was to be constructed or the suit land was to be used failing which the possession would go back and the lease would be liable to be cancelled. Third condition was that Radhabenodini wife of Late Jugal Kishore would get rent after the death of Jugal Kishore and Pashupati Ghosh will act as rent collector who will deposit the same with Jugal Kishore and after his death with Radhabenodint.
57. The defendant could not prove by any evidence that the aforementioned conditions were fulfilled. If that becomes so question is that if this document executed unilaterally was not accepted and the terms were not complied can be termed to be valid lease deed, the answer is in the big negative.
58. Now, let us Come to the conclusion on the three points on substantial question of law :
59. The argument advanced by Mr. Banerjee that after the promulgation of the Indian Legislation the principles of the judg-ment delivered by Foreign Court if contradicts with Indian Legislation then the Indian Legislation will prevail that proposition is never disputed. Mr. Banerjee relies on the provisions of Section 9 and Section 15(h) of the Specific Relief Act. Provisions of Section 9 and Section 15(h) of the Specific Relief Act have been discussed above. The English decision reported in (1953) 1 All ER 708 enunciate the principle that there cannot be a contract with a non-existent company but how Section 15(h) of this Specific Relief Act, 1963 is going to help Mr. Banerjee's contention inasmuch as proviso Clause of Section 15(h) clearly says that provided the company has accepted the contract and has communicated such acceptance to the other party to the contract. Here in Section 15(h) promoters of a company before its incorporation is to enter into a contract and such contract is warranted by the terms of incorporation and the company has to accept and communicate its acceptance to the other party to the contract after its incorporation. In this case, who are the promoters of the company, where is the incorporation, how the contract has been entered into for the purpose of the company and how the terms of contract is warranted by the terms of incorporation or where is the acceptance and communication of acceptance by the company that is formal ratification by the company after its incorporation. Nobody acted as promoter here nor the company was ever incorporated nor the question of acceptance or communication of acceptance by the company after its incorporation does arise inasmuch as the company did not see the light of the day. So the entire argument of Mr. Banerjee on this point fails.
60. Now on the second score of submission as to whether the deed dated 10-6-74 executed by successor-in-interest of original landlord Jugal Kishore confers absolute right, title and interest upon the plaintiffs in respect of 3/4th share of the property or it confers a contingent interest as provided under the Transfer of Property Act also in view of the discussion made above goes in favour of the respondents.
61. Now on the third score of submission as to whether after the conversion of land under Section 72 of the Non-agricultural Tenancy Act, 1949 the provisions of Section 3A of West Bengal Land Reforms Act, 1956 will come into play and this suit land will be treated as vested in the State or not.
62. Mr. Banerjee submits that the suit land was converted from agricultural land to non-agricultural land under Section 72 of the Non-agricultural Tenancy Act, 1949 and in view of the provisions of Section 3A of the West Bengal Land Reforms Act as amended the land will be treated as vested and the suit is not maintainable without making the State Govt. a party. Mr. Banerjee in this regard relies on the report of JLRO on the basis of which an order was prepared dated 31-1-69 the first paragraph of which is as follows :--
'Seen the report of the JLRO. The JLRO's reports that total area of the land in question measuring. 41 acres appertaining to Plot No. 786 Mouza Sajua, P. S. Bishnupur has been recorded as Sail but the present character of the land is 'Danga'. The JLRO further reports that out of .41 acres of the land proposed for conversion 31 acres have already been converted, a tank has already been excavated on .07 acres of land, the JLRO further reports that there is no L. A. proceedings on the land. In the circumstances, the permission for conversion sought is granted under Section 72 of the NAT Act.....'.
63. A contrary document has been filed on behalf of the respondent/plaintiffs which is an information slip dated 1-8-74 which describes the land as not vested. Now let us see first the provisions of Section 72 of the Non-agricultural Tenancy Act, 1949 which is quoted hereinbelow :--
'(1) A tenant holding any land not being non-agricultural land which is situated within any area to which this Act extends or his landlord, may apply to the Collector for the conversion of such land into a tenancy to which the provisions of this Act apply and, on receipt of such application, the Collector shall, by order in writing, direct such conversion subject to payment such rent not exceeding twice the rent for time being payable for such land, as the Collector may fix:
Provided that no landlord shall be entitled to apply under this sub-section for such conversion of any land except in the case where such land is being used by the tenant by whom it is held for any purpose not connected with agriculture or horticulture without the express or implied consent of the landlord :
Provided further that no order under this sub-section shall be passed without notice, the prescribed process fee for which shall accompany the application,--(i) in the case where such application is made by a tenant, to the landlord or the entire body of landlords and to the co-sharer tenants, if any, and (ii) in the case where such application is by a landlord, to the co-sharer landlords, if any, and to the tenant or if there be more than one tenant to all such tenants.
(2) Every order passed under Sub-section (1) directing the conversion of any land which is not non-agricultural land into a tenancy to Which the provisions of this Act apply shall state the date from which such conversion shall have effect arid shall specify the rent which shall be payable in respect of the tenancy into which such land is converted and the rent so specified shall not be enhanced during a period of not less than fifteen years from the date of such order.
(4) An appeal shall lie to the Commissioner of the Division from any order of the Collector under this section if it is presented within thirty days from the date of such order and is accompanied by the prescribed fee and the decision of the Commissioner on such appeals shall be final.
(5) Notwithstanding any thing contained in any other law for the time being in force or in any contract, where any land which is not non-agricultural land is converted into a tenancy to which the provisions of this Act apply, by an order under this section such land shall with effect from the date on which such conversion takes effect become non-agricultural land and the non-agricul-tural tenant of such land shall for the pur-poses of this Act be deemed to have held it as such a tenancy with effect from the date on which such tenant or his predecessor in interest was first inducted into the land.'
64. The definition of tenant under Non-agricultural Tenancy Act, 1949 has been provided in Section 2 (5) of the Act runs as follows :--
'non-agricultural tenant' means a person who holds non-agricultural land under another person and, is, or but for a special contract would be, liable to pay rent to such person for that land but does not include a person who holds any premises or part of any premises, situated on non-agricultural land and erected or owned by another person, and who is, or but for a special contract would be, liable to pay rent for such premises or such part of the premises to such person.'
65. Now who has applied for conversion as tenant and the applicant is admittedly East India Moviton (P) Ltd. (which appears from records) which is a non-existent company.
66. Another aspect of this argument advanced by Mr. Banerjee is repelled from the fact that the suit was decreed in 1978, first appeal was decreed in 1980 and Section 3A of West Bengal Lad Reforms Act, 1956 on which Mr. Banerjee wants to rely upon has been introduced by the West Bengal Land Reforms Third Amendment Act, 1986 published in the Calcutta Gazette Extra Ordinary dated 12-5-89.
67. In any view, the provisions of Section 3A of the West Bengal Land Reforms Act on which Mr. Banerjee wanted to rely upon have no retrospective effect and since the amendment has no retrospective effect it cannot be made applicable in the instant case.
68. In that view of the matter, the third contention of Mr. Banerjee also fails. In view of the above discussions, all the three points advanced as substantial question of law go in favour of the respondents/plaintiffs and consequently the appeal fails and is dismissed.
69. The cost of the appeal will be borne by the respective parties. The decree will be drawn up accordingly.