Krishna Arpan Fund, Meerut v. District Board, Meerut
1947-05-08
SINHA
body1947
DigiLaw.ai
JUDGMENT Sinha, J. - This is a Plaintiff's appeal and arises out of a suit for possession and recovery of Rs. 275-3-0 for use and occupation of a plot of land. The plot lies in the town of Meerut and is used for a public purpose-Nauchandi fair The land was originally let out by one Kishen Sabai, the predecessor-in interest of the Plaintiff to the Municipal Board of Meerut; which used to run the fair. Subsequently, the management of the fair was assumed by the District Board. On the 29th at February 1892, Kishen Sahai executed a lease in favour of the Municipal Board This is Ex. 19 There is a corresponding Qabuliat, which is Ex. 20. According to the Plaintiff it was only a tenancy at Will, which was created by the lease and it is open to it to claim the ejectment of the District Board. 2. The defence, in substance, was that it was not a tenancy at will, determinable at the instance of the lessor and the right of ejectment did not vest in the lessor, the right of abandonment or evacuation, on the other hand, vested in the lessee. It was also pleaded that the lease was an agricultural lease. 3. The learned Munsif found that it was not an agricultural lease and the two documents, the lease and the qabuliat, amounted to a permanent lease. He, however, found that the constructions raised by the Board were only Kachcha constructions of the total value of Rs. 2,513. 4. The learned Civil Judge agreed with the learned Munsif as regards the nature of the tenancy and dismissed the appeal. The Plaintiff, Krishna Arpan Fund, Meerut, which represents the original lessor, is not before me in second appeal. 5. The learned Counsel for the Appellant contends that almost all the premises, formulated by the learned Munsif and accepted by the learned Civil Judge, from which a conclusion adverse to the Plaintiff has been deduced were wrong. Before I address myself to his argument, 1 would like to quote the terms of the lease. It is in vernacular and the relevant portion is this: Lease by Lala Kishan Sahai Rai Bahadur, Rais, Meerut...... 6. Then follow certain details which it is not necessary to mention.
Before I address myself to his argument, 1 would like to quote the terms of the lease. It is in vernacular and the relevant portion is this: Lease by Lala Kishan Sahai Rai Bahadur, Rais, Meerut...... 6. Then follow certain details which it is not necessary to mention. (a) I grant a lease in favour of the Board which will come into effect from the beginning of 1299 Fasli on this condition...I, or my heirs, shall have no right to claim ejectment of the land in dispute till the continuance of the exhibition. The only right possessed by me and my successors is the right to claim rent. (b) The committee (board) may leave the land whenever it likes. It will be the owner of the materials of the constructions This condition will be in force as long as this lease subsises(sic). 7. The Courts below held that the fact that the lease was executed for building purposes and its origin was known, raised a presumption in law that it was a permanent lease. Add to these, the condition that the right of abandonment lay with the lessee and the lessor had no tight to eject, the Plaintiff cannot claim eviction. 8. The learned Counsel for the Appellant assails the first proposition and relies upon Bajrang Sahai v. Mulia,1911 A W R (Rev ) 903. There is no general rule of law that a lease for the purpose of putting up a permanent construction must be deemed to be a permanent lease. 9. The constructions in this case, it is argued, are not even permanent constructions. They consist of a sort of a platform, which is surrounded by a boundary wall raised with bricks but plastered with mud, the pointing of the wall alone has been done with lime. There are a number of iron sheets and the total value of the entire construction has been found to be only Rs. 2,513, including labour. 10. The learned Counsel for the Respondent controverts this position, but, in view of the fact that it is only the land, which was required for the exhibition, the nature of the constructions is not of much consequence. But even assuming that it is so, it is really the terms of the lease, which must determine the right of the parties. They leave no option with the lessor. 11.
But even assuming that it is so, it is really the terms of the lease, which must determine the right of the parties. They leave no option with the lessor. 11. As for the second proposition, the learned Counsel argues that he can claim the right of ejectment on the strength of what is technically known in English law as the doctrine of mutuality, in other words, the right of the lessee to leave the site, a* his will imlies a corresponding right of ejectment in the lessor. Reliance is placed by him on page 117, paragaph 130, of Halsbury's Laws of England, volume 20, Hailsham edition (1936). A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant, and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also, for every less(sic) at will must in law be at the will of both parties". The italics are mine. 12. Also upon Coke on Littleton, Ch. 8, 5. 68; It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also, lor it cannot be only at the will of the lessor, hut it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor , and so are all the books that seem prima facie to differ, clearly reconciled. My italics and on Ram Lal Sahu and Another Vs. Mt. Bibi Zohra and Others, AIR 1941 Patna 228 . 13.
My italics and on Ram Lal Sahu and Another Vs. Mt. Bibi Zohra and Others, AIR 1941 Patna 228 . 13. That the doctrine of mutuality is not a doctrine of universal application is plain from the third part of Section 110 of the Transfer of Property Act (Act No. 4 of 1882) which says ; Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable. the lessee and not the lessor, shall have such option. 14. This is only an adoption by the Indian Legislature of the law as it prevailed in England that- A lease for a term of years may contain an option for the parties or one of them to determine the lease at a stated time or times before the expiration of the term, Usually such an option is exerciable by the lessee only, and if the lease is silent as to the person who is to excercise it, it can only be exercised by the lessee " (Halsbury, page 69, paragraph 77). 15. The learned Counsel contends that the present is not a lease for a term of years. It is no doubt so, but it is for a definite purpose, namely the exhibition-the Nauchandi fair. It is nobody's case that the fair is no longer held on the land in dispute. There is, to my mind-at least for the purposes of this case-no real distinction between a lease for a term of years and a lease for a definits purpose. The principle which leaves the option with the lessee rather than with the lessor, appears to be this. The lease might be taken for some definite purpose and the lessee might have for its achivement, embarked upon an ambitious scheme, which can materialise only if and so long as certain conditions exist, or if sufficient time is allowed to elapse. The object, in the case before me is an object of public utility. The purpose and the intention of the parties are clearly revealed by the deed itself. That intention must, as far as possible, be respected unless the law intends otherwise. Here there is no conflict between the two, there is, on the other hand, a complete identity of intention. 16.
The purpose and the intention of the parties are clearly revealed by the deed itself. That intention must, as far as possible, be respected unless the law intends otherwise. Here there is no conflict between the two, there is, on the other hand, a complete identity of intention. 16. The passage on which the learned Counsel for the Appellant relied says: ...and although upon its creation it is exressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at will must in law be at the will of both parties. 17. The law, the aid of which is sought to be invoked is law of implication. The doctrine, as its very name suggests, presupposes some gap, which the law intervenes to fill in. Here there is no gap. In other words if the language of a deed is explicit, there is no room for a rule of law based on implication. Here the language is singularly free from all obscurity or complication. It does not merely leave the option of quittance with the lessee and is then silent, leaving either imagination or some theory or fiction of law to do the rest. It expressly denies the lessor a right of ejectment. Not only that. It also expressly says that bis only right is the right of receiving rent. 18. The language being clear and the rights well defined there is, to my mind no room for any fiction of law or the doctrine of mutuality. 19. It is next argued that a lease for a term of years, within the meaning of the third part of Section 110 of the Transfer of Property Act, is not the same thing as a lease with a condition or for a purpose. 20. Section 111, Clause (b) of the Act furnishes an answer to this contention. It says inter alia that A lease of immoveable property determines- (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event-by the happening of such event. Italics mines. 21.
20. Section 111, Clause (b) of the Act furnishes an answer to this contention. It says inter alia that A lease of immoveable property determines- (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event-by the happening of such event. Italics mines. 21. By this the Act has obliterated the distinction between a lease for a term of years and a lease "where such time is limited conditionally." The purpose or condition is the raison d'etre of the lease and the time limit is only calculated to subserve the end. 22. It is also argued that it is a tenancy at will, even though there was a time fixed and reliance is placed upon Khuda Bakhsh v. Sheo Din,(1888) 8 All 405. 23. Apart from the fact that it was the case of a lease executed on the 26th of June, 1880, that is before the Transfer of Property Act (Act No. 4 of 1882) had come into force, there is a vital distinction between that case and the case before me. There the option of ejecmect was with the lessor in express terms and the learned Judges of this Court, therefore, held that this condition, notwithstanding the term fixed, stamped the lease with the incidents of tenancy at will. 24. The case may be approached from yet another point of view. The lessee was a public body. An exhibitor of a fair is one of its statutory obligations Among the duties prescribed Section 21 (K) of the U. P. District Boards Act (No. 10 of 1932) mentioned the following; the institution, holding and management of fairs, agricultural shows and industrial exhibition, the breeding and the medical treatment of cattle, horses and other animals, and all measures tending to the improvement and assistance of agriculture and industries. 25. Nauchandi fair is an ancient institution and finds a prominent place in the Meerut Gazetteer by H. R. Nevill. Volume IV, 1904, edition. The learned author describes it in these terms, at page 274. This fair has its origin in a religious ceremony in honour of the new moon, which lasted for two days only. In 1880 this period was extended to seven days, but it was not until 1883 that it began to assume an aspect of more general utility In that year the late Mr.
This fair has its origin in a religious ceremony in honour of the new moon, which lasted for two days only. In 1880 this period was extended to seven days, but it was not until 1883 that it began to assume an aspect of more general utility In that year the late Mr. F. N. Wright was the Collector of the district, and by his efforts the Government horse show was added and a committee set on foot for the encouragement of manufactures and agriculture. From that date the fair has grown in importance and popularity. 26. The lease was intended to serve a purpose of great and growing public utility. 27. Where the terms of a deed are simple and the language is plain, there can be no room for controversy. The language of the deed before me is simple and plain and there should be no room for controversy. It is only by invoking the doctrine of mutuality that the Appellant wants it to be construed in his favour. It is one of the accepted methods of interpretation that a grant should, as far as possible, be construed in favour of the grantee The principle of construction which has been so strenuously contended for, viz , that the terms of a grant are to be construed as favourably as possible for the grantee, the Court is not disposed to controvert, per Wilde C. J, In re Stroud 1849) 8 C. B. 603, at p. 529 In the first place it is to be obsererved that all deeds are to be construed most strongly against the grantor; per Lord Romilly, M. R Johnson v. Edgware, &c. Ry. Co. (1865) 35 B. 480 at p. 484. (Nortion on Deeds, p. 118). 28. In my opinion, where, as here, the grantee is a public body and the grant is intended for the benefit of the public the above rule of law laid must apply with much greater force. 29. There is yet another aspect of the case. The grant was made for a definite purpose, a purpose of great public utility. Was it the intention of the parties at the time of the grant, that the object should fail or be made to fail at the sweet will of the grants ?
29. There is yet another aspect of the case. The grant was made for a definite purpose, a purpose of great public utility. Was it the intention of the parties at the time of the grant, that the object should fail or be made to fail at the sweet will of the grants ? Or was it their intention that the lessee should not be hampered by the lessor in the discharge of a public duty ? The entire tenor and language of the deed show that the lease-was not to terminate so long as that purpose continued. 30. I have, therefore, come to the conclusion that the view taken by the Courts below is right and I dismiss this appeal with costs Leave to appeal under Letters Patent is granted.