Research › Browse › Judgment

Calcutta High Court · body

1907 DIGILAW 47 (CAL)

F. W. Higgins v. Nobin Chunder Sen

1907-02-26

body1907
JUDGMENT 1. On the 10th February 1897 A. O. Sarson executed a lease of the land, dwelling-house, and building, covered by this litigation in favour of the Respondent, Nobin Chunder Sen. The lease was for a period of five years; but it gave the lessee the option of quitting the premises even during the period of five years on giving a month's previous notice to quit. The rent was fixed at Rs. 36 per mensem, including rates and taxes and all other charges. If there were no other covenant in the instrument, there would have been no difficulty in construing the document; but the 4th paragraph of the lease stated-" The lessee shall be entitled to continue to hold and possess the said premises on the conditions as reserved hereinbefore even after the expiration of the said period of five years and so long as he desires to do so without any interruption or hinderance on the part of the lessor." The Respondent occupied the premises for five years, and he may be deemed to be still in occupation in virtue of a decree under sec. 9 of the Specific Relief Act. He is claiming to hold as a tenant in perpetuity under the aforesaid covenant in the 4th paragraph of the lease. 2. The Plaintiff-Appellant has purchased the demised premises from Sarson. On the 8th September 1902, he gave the Respondent a notice to quit from and after the 30th September 1902. The Respondent, however, did not give up possession and was dispossessed by the Plaintiff, whereupon he brought a suit under sec. 9 of the Specific Relief Act and obtained, as already mentioned, a decree for possession on the 27th February 1904. 3. The present suit was instituted on the 18th March 1904, and the Plaintiff asked that the execution of the decree obtained by the Respondent under sec. 9 of the Specific Relief Act might be stayed by an injunction until the disposal of the present suit. He also asked for a declaration that the Respondent's right to remain in occupation as a tenant expired at the end of the month of September 1902, pursuant to the notice given by him (Plaintiff) and that the Respondent might be ejected, if necessary, from the premises by an order of the Court, and for costs and further relief's. 4. He also asked for a declaration that the Respondent's right to remain in occupation as a tenant expired at the end of the month of September 1902, pursuant to the notice given by him (Plaintiff) and that the Respondent might be ejected, if necessary, from the premises by an order of the Court, and for costs and further relief's. 4. The main contention raised on behalf of the Defendant was that the 4th paragraph of the lease created a permanent tenancy and that he was not liable to be ejected on a notice to quit such as was served on him in September 1902. It is not necessary for us to refer to the other defences as no contention has been raised before us with reference to them. 5. The lower Court has held, following the decision in Vaman Shripad v. Maki I. L. R. 4 Bom. 424 (1879), that the lease created in favour of the Respondent a right enabling him to remain in possession during his lifetime and that the Plaintiff would be entitled to possession on the death of the Defendant and not before. 6. The main question argued before us by the learned Counsel appearing for the parties relates to the construction of the lease. It is contended on behalf of the Plaintiff that the lease was really one for five years, with an option to the lessee to quit on a month's previous notice, and that the right to hold over given by the 4th para, created in the lessee the interest of a tenant from month to month; and that such tenancy could be terminated by a notice such as was given by the Plaintiff. 7. Our attention has been called to the real evidence on the record as well as to some of the documents in order to show that the true intention of the parties was that the lessee would have no other right except the right of a tenant from month to month after the expiry of five years. 7. Our attention has been called to the real evidence on the record as well as to some of the documents in order to show that the true intention of the parties was that the lessee would have no other right except the right of a tenant from month to month after the expiry of five years. It is not necessary for us to express any opinion as to the real and documentary evidence adduced with the object of proving the intention of the parties, as we do not see that there is any ambiguity in the written instrument of lease and as we may construe the lease independently of the extraneous evidence adduced to prove the intention of the parties. When a document is clear and unambiguous, extraneous evidence is ordinarily inadmissible and, in our opinion, the document in this case can bear only one construction and that coincides with the view taken by the lower Court. The covenants in the documents may appear to be one sided, and it might be that the lessee exercised undue influence over the lessor who has been found by the lower Court to be a man of weak intellect, whereas the Defendant was Personal Assistant to the Commissioner and occupying a position far above that of his lessor Sarson but the present action is not one for the rescission of a contract on any ground which would invalidate it for want of free consent or misconception on the part of the lessor. The action is based on the covenants in the lease and we are obliged to discard as irrelevant any evidence showing that undue influence was exercised by the leasee. 8. Turning now to the covenant and the 4th para of the instrument it appears to us that the authorities are almost entirely in favour of the view which was taken by the High Court at Bombay in the case of Vaman Shripad v. Maki I. L. R. 4 Bom. 424 (1879) already alluded to. The lessee could hold and possess so long as he desired to do so without any interruption on the part of the lessor after the period of five years. 424 (1879) already alluded to. The lessee could hold and possess so long as he desired to do so without any interruption on the part of the lessor after the period of five years. The wish must be personal and it must be for as long as the lessee, and not the lessor, would desire, that is, during the lessee's lifetime, or until due surrender by the lessee by means of a month's notice during his lifetime. The rule of construction, is that a doubtful grant must be construed in favour of the grantee. The grant in this case must, therefore, be construed as one ensuring to the benefit of the lessee, as long as he wishes to have the benefit of it, and not limited at the option of the grantor. It is not necessary for us to refer to many cases on the subject. Browne v. Warner 14 Ves. 156 (1807), Kusel v. Watson 11 Ch. Div. 129 (1879), Austin v. Newham L. R. (1906) 2 K. B. 167. They have accepted the interpretation which the learned vakil for the Respondent contends is the correct construction of the lease. The authorities cited by Mr. Sinha do not exactly touch the question. Warner v. Browne 8 East. 167 (1807), Bichardson v. Landridge 4 Taunt. 128 (1811) turned more upon the mode of creation of the document referred to in them and the provisions of the Statute of Frauds. We are, therefore, of opinion that the case has been rightly decided by the lower Court and we accordingly dismiss this appeal with costs.