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Durgi Nikarini Vs. Goberdhan Bose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal64,24Ind.Cas.183
AppellantDurgi Nikarini
RespondentGoberdhan Bose
Cases ReferredKelly v. Patterson
Excerpt:
landlord and tenant--tenant brought on land by lessee for term of years-expiry of lease-tenant holding over-acceptance of rent by second lessee-position of tenant-creation of new tenancy-transfer of property act (iv of 1882), sections 2, clause (c), 106, 116-'legal representative', meaning of-mode in which rent reserved-presumption. - .....she is protected by the operation of section 116. that section provides that if a lessee or under-lessee of property remains in possession thereof, after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary) renewed from year to year or from month to month, according to the purposes for which the property is leased, as specified in section 106. the appellant seeks to bring her case within the scope of section 116, by proof that she as under-lessee remained in possession of the property after the determination of the lease, that is, the ijara granted to her lessor. this may be conceded......
Judgment:

1. This is an appeal by the defendant in a suit for ejectment after service of notice to quit. The question in controversy is whether the notice was sufficient in law. The plaintiff has treated the defendant as a tenant from month to month, entitled to 15 days' notice to quit. The defendant contends that she is a tenant from year to year entitled to six months' notice to quit. The question for determination thus is, what is the true status of the defendant as tenant?

2. The land in dispute is comprised in the Bhukailash Debutter Estate and has been let out to ijaradars for a term ever since the 16th December 1870. The first ijara lease expired on the 9th July 1884, and, upon the expiry of the successive ijaras, fresh ijara leases were granted, so that the present ijaradar is the seventh in the series. The defendant came into occupation under a verbal lease on some date, not ascertained, between 1870 and 1884. It has been assumed for the purposes of the present case that her tenancy commenced before 1882 : that is, before the Transfer of Property Act came into operation. In a litigation now pending between the Bhukailash Debutter Estate and the present ijaradar, a Receiver has been appointed to take possession of the property. The Receiver holds the property for the benefit of the person who may ultimately be determined to be entitled to it and he has commenced this litigation for ejectment of the defendant after service of notice to quit. No question has been raised as to the authority of the Receiver to maintain the present action, and it may be assumed that the Receiver represents the ijaradar if the ijara is still in existence : he may, on the other hand, be taken to represent the superior landlord, if the ijara has terminated.

3. As regards the status of the defendant, we have the fundamental fact that she came into occupation as a tenant before the Transfer of Property Act came into force and was brought upon the land by an ijaradar who himself held for a limited term. Now, it cannot be disputed that when a tenant has been brought on the land by a landlord who is himself a lessee for a limited term of years under the proprietor, prima facie his right would come to an end upon the expiry of the lease of his landlord. This was recognised in the case of Ooma Tara Debia v. Peena Bibee 2 W.R. 155. and was subsequently confirmed by Sir Richard Couch, C. J., in the case of Harish Chunder Roy Chowdhry2 Sree Kalee Mookerjee 22 W.R. 274. The learned Chief Justice stated that it was familiar law that a lessee could not make an under-lease for a longer time than his own lease, though he might sub-let the land for as long a time as he had himself, unless there was a restriction either by agreement or by law against sub-letting : but he could not give a greater interest than he had himself in the land. The same view was adopted in the cases of Sheo Nandan Roy v. Ajodh Roy 26 C. 546 : 3 C.W.N. 336. and Henderson v. Squire 4 Q. B. 170 : 10 B. & S. 183 : 38 L.J.Q. B. 73 : 19 L.T. 601 : 17 W.R. 519. Consequently, when the first ijara, during the continuance whereof the land was settled with the defendant by the ijaradar, expired on the 9th July 1884, his interest as a tenant terminated, for it is not contended that the land was agricultural, in which event the principle recognised in the cases of Atal Rishi v. Lakshmi Narain Ghose 2 Ind. Cas. 417 : 10 C.L.J. 55. and Madan Mohan Singh v. Raj Kishori Kumari 17 Ind. Cas. 1 : 17 C.L.J. 384. might have been invoked. The tenancy was created for residential purposes, and in the case of a tenancy of this description, as soon as the lease of the ijaradar expired the interest of the sub-lessee also ceased to exist.

4. It appears, however, that after the termination of the first ijara, the defendant continued in occupation of the land and was treated as a tenant by the next ijaradar who accepted rent from her. What, them, was the legal effect of this transaction? The plaintiff-respondent maintains the view that a new tenancy was created in favour of the defendant when the new ijaradar obtained his title with effect from the 10th July 1884, and that such new tenancy was affected by the provisions of the Transfer of Property Act then in force. The appellant has strenuously contended, on the other hand, that the tenancy created before the Transfer of. Property Act, continued unaffected by the Transfer of Property Act even after the termination of the lease of the ijaradar. Reliance has, in this connection, been placed upon the terms of Clause (c) of Section 2 of the Transfer of Property Act which provides that nothing contained therein shall be deemed to affect any right or liability arising out of a legal relation constituted before the Act came into force or any relief in respect of any such right or liability. But, in order to entitle the defendant to avail herself of the beneft of this provision of the law, it is necessary for her to establish that, her right, as it exists at present, arose out of a legal relation constituted before the Transfer of Property Act came into force : in other words, that the tenancy created by the first ijaradar continued in operation even after the termination of the first ijara : This, indeed, is the proposition broadly formulated and strenuously maintained by the appellant. Reference has been made particularly to the case of O'Keefe v. Walsh 8 Ir. Rep. 184. in support of the contention that if upon the termination of the tenancy of the sub-lessee, he is allowed to continue in occupation for a length of time, although no rent is actually paid, there may be a presumption of tacit renovation of the contract : in other words, that when a tenant continues in occupation after the expiry of his lease and is accepted as a tenant by the new landlord who has succeeded to the interest of his grantor, he is for all purposes in the same position as if his original tenancy has continued. This contention is too broadly formulated and is not supported by the authorities. Amongst other cases, reference may be made to the decision of Lord Ellen-borough in Digby v. Atkinson 4 Camp. 275 : 16 R.R. 792. There the tenant held over after the expiration of the term and the Chief Justice ruled that he impliedly held subject to all the covenants in the lease which were applicable to what was described as his new situation. There had been, in that case, an enhancement of rent : but the Chief Justice held that the mere advance of rent made no difference : the advanced rent incorporated the old terms with what he called the new contract. A similar view was taken in Morrogh v. Alleyne Jr. R. 7 Eq. 487.

5. where it was ruled that the acceptance of a lessee by the remainder-man would import into the new tenancy a covenant by the lessee to repair. The view that a new tenancy is created in favour of the sub-lessee who continues in occupation after the expiry of the lease of his immediate landlord is also supported by the decision in Henderson v. Squire (4). It is thus plain, on first principles, that when the ijara expired, the tenancy of the defendant also came to an end, and that the true effect of the acquiescence by the second ijaradar in the continuance of his possession and the acceptance of rent from him was to create in him a new tenancy. The provisions of Clause (c) of Section 2 of the Transfer of Property Act are consequently of no avail to the defendant.

6. It has been next contended on behalf of the appellant that if her position be deemed to have been affected by the Transfer of Property Act, she is protected by the operation of Section 116. That section provides that if a lessee or under-lessee of property remains in possession thereof, after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary) renewed from year to year or from month to month, according to the purposes for which the property is leased, as specified in Section 106. The appellant seeks to bring her case within the scope of Section 116, by proof that she as under-lessee remained in possession of the property after the determination of the lease, that is, the ijara granted to her lessor. This may be conceded. But the appellant has further to establish that the lessor or his legal representative has accepted rent from her. It is conceded that the lessor, that is, the landlord of the ijaradar has never accepted rent from her. But it has been argued that the second ijaradar who accepted rent from her was a legal representative of the lessor. We are not prepared to accept this contention as well-founded. The expression legal representative is not defined in the Transfer of Property Act. But it clearly implies a person who occupies the same position as the lessor. Unquestionably, it cannot include the second ijaradar who had transferred to him only a fraction of the interest possessed by the lessor. , If the Legislature had intended to include in the expression legal representative' an intermediate lessee, the section might have been differently framed, and the expression 'lessor or any one claiming under him' might have been appropriately used to express the intention of the Legislature. We hold that the appellant has not established that either the lessor of the ijaradar or a legal representative of such lessor has accepted rent from her. Consequently, she has not brought her case within the operation of Section 116.

7. But even if it had been established that rent had been received from the defendant by the legal representative of the lessor, the section would not have been of any real assistance to her. The effect of the section is that the lease, that is, the lease of the person from whom rent is accepted (in other words, either a lessee or an under-lessee), is renewed from year to year or from month to month, according to the purpose for which the property is leased as specified in Section 106. In the case before us, the property had been leased for a purpose other than agricultural or manufacturing : and, consequently, if Section 116 applied, the tenancy must be regarded as terminable after service of notice for fifteen days. It is not necessary, however, to determine the question of the applicability of Section 116 or to examine whether the provisions of Section 107 of the Transfer of Property Act are applicable to cases where a tenant holds over under Section 116 and a lease is renewed from year to year by operation of law. We have only to deal with the case on the assumption that Section 116 has no application. If that section has no application, as we hold it has not, what is the position of the defendant? A new tenancy was created in her favour on the 9th July 1884. That tenancy was neither for agricultural nor for manufacturing, but for residential purposes. Consequently, under Section 106 the lease must be deemed to have been a lease from month to month terminable by fifteen days, notice expiring with the end of a month of the tenancy.

8. But it has been argued that there was either a contract or a presumption to the contrary within the meaning of Section 106, inasmuch as the parties must be deemed to have continued the terms of the original tenancy created before the Transfer of Property Act cams into operation. There is clearly no force in either branch of this contention. It is not contended that there was any express contract to the contrary within the meaning of Section 106. It has been contended, however, that as laid down in Mati Lal Karnani v. Darjeeling Municipality (10) 18 Ind. Cas. 844 : 17 C.L.J. 167., the contract to the contrary need not be express and that in this case there was an implied agreement to the contrary because the rent had been claimed annually, in other words, the argument is that whenever rent is claimed annually, the presumption is that the tenancy is from year to year. It may possibly be accepted as a proposition generally true that, as indicated in Wilkinson v. Hall (11) 3 Bing. (n. c.) 508 : 4 Scott. 301 : 3 Hodges 56 : 6 L.J. (n. s.) C.P. 82 : 132 Bug. Rep. 506 : 43 R. R. 728., the mode in which rent is expressed to be reserved affords a presumption that the tenancy is of a character corresponding thereto. The rule, however, is not of universal application, and it was pointed out by Justice Maule in Atherstone v. Bostock (12) 13 L.J.C.P. 113 : 2 Man. & G. 511 : 133 Eng. Rep. 850. that the presumption of yearly taking from the rent being paid yearly does not apply to the case of lodgings : and the same view is supported by the case of Wilson v. Abbott (13) 3 B. & C. 88 : 4 D. & R. 693 : 2 L.J. (o. s.) K. B. 215 : 107 Eng. Rep. 667. In the case before us, the defendant has not produced the rent receipts : her plea is that they have been burnt, and there is thus no evidence to show that there was an actual agreement that the rent, under the new contract, should be paid annually. There is also no evidence to show that there was an implied agreement that the new tenancy should be from year to year. Indeed, no rent has over been paid to the present ijaradar, who has sued to recover rent on the footing that it was payable monthly.

9. No assistance is derived by the defendant from the decision in Kelly v. Patterson (14) L.R. 9 C.P. 681 : 43 L.J.C.P. 320 : 30 L.T. 842. upon which much stress was placed. In that case, the question for decision was stated by Lord Coleridge in these terms : 'Is it a true proposition of law to say that wherever one is in possession of land or premises as tenant and his tenancy comes to an end, either by efflux of time or by the death or end of title of his lessor, so that either his own lessor or the representative of his lessor or any independent owner of the property can, without notice, eject him and the person entitled to eject him does not do so, but receives rent from him without explanation or stipulation, the person so receiving rent is to be assumed to have adopted the person so in possession as his tenant upon the terms on which that man held in the demise originally made to him?' After this statement of the question for decision, the Chief Justice pointed out that the difficulty of affirming the proposition as a general one is that in some cases the owner is assumed to assent to the terms of a contract of which neither he nor any one through whom he claims or for whom he is responsible has had any knowledge. The difficulty of negativing the proposition is that the owner does adopt the person in possession as his tenant : and, if it is not to be assumed that he adopts him as tenant on the terms on which he held, there seem to be no other terms on which he can have adopted him. This is of no assistance to the appellant for two reasons. In the first place, the Chief Justice had to consider the question of the terms upon which the tenant was accepted as such after the expiration of the tenancy. In the second place, there is no real difficulty in the case before us, where there is a statutory provision under Section 106 that the tenancy is to be deemed to be of a particular description, namely, if, as hero, it is a tenancy for residential purpose, it is to be deemed a tenancy from month to month, whereas if it is a tenancy for agricultural or manufacturing purposes, it is to be deemed a tenancy from year to year. There is thus no possible escape from the conclusion that the defendant is a tenant from month to month, that her tenancy was liable to be terminated by 15 days' notice to quit, and that it has been so terminated by a legally sufficient notice.

10. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.

11. It is conceded that this judgment will govern the other appeal (Second Appeal No. 232 of 1914) which is also dismissed with costs.


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