AMULYA KUMAR SUR v. DILIP KUMAR SUR — 1975 DIGILAW 311 (CAL)

M. M. DUTT, R. K. SHARMA ( 1 ) THIS appeal is at the instance of the defendant no. 1 and it arises out of a suit for partition and khas possession. ( 2 ) THE property in suit is a tract of land know as "ghoshaler Abad' comprising within it a jalkar. The plaintiff, since deceased, the predecessor-in-interest of the respondents nos. 1 (1) to (7), and the defendants were co-sharers of the suit property in Mourasi Mokurari right. The defendant no. 1 has 10 annas share equivalent to 5/24th share and the respondents including the respondents nos. 1 (1) to 1 (7) have 6 annas share equivalent to 9/24th share in the suit property. Out of the 9/24th share, the plaintiff had 4/24th share. The 6 annas or the 9/24th co-sharers including the plaintiff, granted a Dar Mourasi Mokurari lease to the defendant no. 1 by an unregistered agreement to lease dated March 29, 1936 at an annual rent of Rs. 846-15-2 pies. Out of the amount of rent defendant no. 1 was to pay a sum of Rs. 171-15-2 pies to the superior landlords and pay the balance sum of Rs. 675/- to the 6 annas co-sharers including the plaintiff in proportion to their respective shares. Clause 12 of the agreement to lease, inter alia, provided that in case of default of payment of rent for three consecutive years the lease would stand cancelled that the defendant no. 1 has been in possession of the whole of the suit property, namely, 6 annas share thereof by virtue of the said agreement to lease as a Dar Mourasi Mokurari tenant, and 10 annas share thereof belonging to him in Mourasi Mokurari right. During the pendency of the Dar Mourasi Mokurari lease in favour of the defendant no. 1, the plaintiff purchased 1/24th share of the defendant nos. 3 to 6 by a registered kobala dated September 7, 1949. After such purchase, the plaintiff's share became 5/24 in the Mourasi Mokurari interest. It was alleged by the plaintiff that the defendant no. 1 defaulted to pay rent to him in respect of his share for three consecutive years, namely, from 1354 B. S. to 1357 B. S. , and that, accordingly, he was entitled to treat the lease as cancelled and to take possession of his share in the Mourasi Mokurari interest along with the other co-sharers having 4. 1 defaulted to pay rent to him in respect of his share for three consecutive years, namely, from 1354 B. S. to 1357 B. S. , and that, accordingly, he was entitled to treat the lease as cancelled and to take possession of his share in the Mourasi Mokurari interest along with the other co-sharers having 4. 24th share by virtue of clause 12 of the agreement to lease providing for the right of re-entry of the lessors in case of failure of the lessee to pay rent for three consecutive years. The plaintiff by the letter of his lawyer dated October 22, 1954 demanded khas possession of his 5. 24th share from the defendant no. 1. It was contended by the plaintiff that the lease in favour of the defendant no. 1 was void and that in any event, it stood extinguished on the failure of the defendant no. 1 to pay rent for three consecutive years. It was further contended that he was entitled to treat the lease as non-existent and to take khas possession of his 5/24th share in the suit property on partition with the remaining defendants. On the aforesaid allegations, the plaintiff instituted the suit for khas possession of his share in the suit property on partition by metes and bounds, treating the lease of the defendant no. 1 as inoperative and void. ( 3 ) THE defendant no. 1 appellant alone contested the suit. His defence was that the Dar Mourasi Mokurari lease in his favour was quite legal and valid. The terms of the lease were affirmed by the parties in a joint petition of compromise filed in Rent Suit No. 16 of 1942 of the 4th Court of the Subordinate Judge at Alipore. It was contended that the plaintiff having instituted suits for rent on the basis of the lease and that having realised the amounts decreed in such suits, he was precluded from avoiding the lease. Further, his contention was that even assuming that the plaintiff had the right of re-entry, the said right was not exercised in accordance with law. It was submitted by him that the suit for eviction on the ground of non-payment of rent could be avoided by payment of rent and, as such, the suit was not maintainable. He was also ready and willing to pay the amount as would be directed by the Court. It was submitted by him that the suit for eviction on the ground of non-payment of rent could be avoided by payment of rent and, as such, the suit was not maintainable. He was also ready and willing to pay the amount as would be directed by the Court. By an additional written statement, it was contended by him that the interest of the plaintiff in the suit property having vested in the State of West Bengal under the provisions of West Bengal Estates Acquisitions Act 1953, his claim for partition was barred, and the suit was not maintainable. ( 4 ) THE learned Subordinate Judge came to the finding that the lease in favour of the plaintiff not having been registered was invalid and inoperative in law. He overruled the contention of the defendant no. 1 advanced at the hearing of the suit that his possession was protected by the doctrine of part performance of contract as embodied in section 53a of the Transfer of Property Act. It was held by the learned Subordinate Judge that in view of clause 12 in the agreement to ease, the plaintiff was entitled to re-enter and get khas possession of his share in the suit property on partition thereof by metes and bounds. The lawyer's notice dated October 22, 1954 was held by him to be a valid exercise of option of re-entry by the plaintiff. Upon the said findings, he decreed the suit in a preliminary form. Hence, this appeal by the defendant no. 1. ( 5 ) MR. N. C. Chakrabortti, learned Advocate appearing on behalf of the defendant no. 1 appellant has strenuously urged that the interest of the plaintiff in the suit property having vested in the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953, the suit was not maintainable at his instance. There can be no doubt that the party who alleges the vesting of the interest of the other party and the non-maintainability of the suit on that ground, the onus lies on him to prove the same. It is contended on behalf of the appellant that as the plaintiff had only the rent receiving interest, he was an intermediary within the meaning of the definition of the term under section 2 (i) of the West Bengal Estates Acquisition Act. It is contended on behalf of the appellant that as the plaintiff had only the rent receiving interest, he was an intermediary within the meaning of the definition of the term under section 2 (i) of the West Bengal Estates Acquisition Act. Under Section 2 (i) "intermediary" means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a leas and a sub-lease. It thus appears from the definition that a non-agricultural tenant is not an intermediary. The term "non-agricultural tenant" has been defined in section 2 (k) of the said Act as meaning a tenant of non-agricultural land who holds under a proprietor, a tenure-holder, a service tenure-holder or an under-tenure-holder. Under section 2 (j), "non-agricultural land" means land other than agricultural land or other than land comprised in a forest. Section 2 (b) defines "agricultural land" as meaning land ordinarily used for purposes of agriculture or horticulture and includes such land, notwithstanding that it may be lying follow for the time being. The combined effect of the definitions of these terms is that if a land is non-agricultural land, that is, not ordinarily used for purposes of agriculture or horticulture, the person who holds such land under a proprietor, a tenure-holder, a service tenure-holder or an under-tenure-holder is a non-agricultural tenant. In paragraph 5 of the written statement, it has been categorically stated by the defendant no. 1 that the property in suit is a jalkar for a long time. It is also not disputed before us on behalf of the appellant that the suit property was a jalkar on the date vesting under the said Act and is being used as such. There can be no doubt that ordinarily land comprised in a jalkar is non-agricultural unless it is included in an agricultural holding and used for agricultural purpose. It is not the case of the appellant that the property in suit which is a jalkar, was ever used for agricultural purposes; on the other hand, it is the contention of both parties that it is a jalkar from long before the date of vesting. In these circumstances, it must be held that the property in suit is non-agricultural in character. In these circumstances, it must be held that the property in suit is non-agricultural in character. The plaintiff and his co-sharers were lessees in Mourasi Mokurari right in respect of the suit property, holding under the proprietor thereof. In the absence of any other evidence, prima facie it appears that the respondents nos. 1 (1) to 1 (7) who are the legal representatives of the plaintiff and their co-sharers are non-agricultural tenants in respect of the suit property. ( 6 ) IT is, however, contended by Mr. Chakrabortti that a non-agricultural tenant who was not in actual possession of the non-agricultural land comprised within the tenancy on the date of vesting, is also an intermediary. We are unable to accept this contention. The definition of the term referred to above, does not provide that the non-agricultural tenant must also be in actual possession. As soon as it is found that a person is a non-agricultural tenant in respect of the land, he goes out of the mischief of the Act, notwithstanding the fact that he was not in actual possession and had different grades of tenants under him on the date of vesting. In this connection, we may refer to a decision of the Supreme Court in (1) Shibsankar Nandy v. Prabartak Sangha, AIR 1967 SC 940 . In that case, one of the questions that a came up for consideration before the Supreme Court was, whether the respondent no. 1 was entitled to make an application for pre-emption under section 24 of the West Bengal Non-agricultural Tenancy Act, 1947. The respondent no. 1 was admittedly not in possession of the land in dispute. The Supreme Court observed as follows:"counsel however contended that the first respondent having merely the right to receive rent, it was an "intermediary" within the meaning of Act 1 of 1954, that under that Act the interest of such an intermediary vested in the State on the extension of that Act to Chandernagore and therefore the Association had no locus standi to apply for transfer. This contention also cannot be accepted, for an "intermediary" as defined in S. 2 (i) of that Acts means "a proprietor, tenure-holder, under-tenure-holder, or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee". This contention also cannot be accepted, for an "intermediary" as defined in S. 2 (i) of that Acts means "a proprietor, tenure-holder, under-tenure-holder, or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee". It is thus obvious that the 1st respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interest in the land in dispute vested in the State or that therefore it was not entitled to apply under Section 24". The above decision of the Supreme Court clearly laws down that even if on the date of vesting a non-agricultural tenant was not in possession of the land and had only the rent receiving interest, still he cannot be held to be an intermediary within the meaning of the definition of the term under section 2 (i ). There is therefore, no substance in the contention of Mr. Chakrabortti that as the plaintiff was not in actual possession of the property in suit, he was an intermediary and that his interest vested in the State. The appellant has, therefore, failed to discharge his onus as to the vesting of interest of the plaintiff in the State under the provisions of the West Bengal Estates Acquisition Act, 1953. ( 7 ) THE next question to be considered is as to the validity of the lease. There is no formal document of lease but the lease was sought to be created by Ext. 3 which is an agreement to lease. An agreement to lease may operate as a lease when there is a present demise. It is not disputed that by virtue of Ext. 3 the defendant no. 1 took possession of the suit property. By Ext. 3 therefore there was a demise. Under the first paragraph of section 107 of the Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent can be made only by a registered instrument. Admittedly Ext. 3 by which a permanent lease was sought to be created in favour of the defendant no. 1 was not registered. It is, accordingly, hit by the first paragraph of section 107. Admittedly Ext. 3 by which a permanent lease was sought to be created in favour of the defendant no. 1 was not registered. It is, accordingly, hit by the first paragraph of section 107. The effect of non-registration of Ext. 3 is that it is inoperative as a lease. ( 8 ) ON behalf of the defendant no. 1, it is contended that although Ext. 3 is inoperative as a lease on the ground of non-registration thereof, the possession of the defendant no. 1 of the suit property is protected by the doctrine of part performance under section 53a of the Transfer of Property Act. There can be no doubt that in such cases section 53a applies, but in order to invoke the provision of section 53a, the following conditions are to be satisfied: (1) there must be a valid contract to transfer from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract; (3) the transferee has done some act in furtherance of the contract; (4) the transferee has performed or is willing to perform his part of the contract. Mr. Ghose, learned Advocate appearing on behalf of the respondent, submits that as section 53a has not been pleaded in the written statement of the defendant no. 1, he is not entitled to raise the plea of the doctrine of part performance. In a Full Bench decision of this Court in (2) Piru Charan Pal v. Minor Sunilmoy Neme, AIR 1973 Cal. 1 (F. B) it has been held that the defendant can raise the defence under Section 53a even if the section is not specifically mentioned in the written statement, provided all ingredient facts of the section are pleaded. One of the ingredient facts or conditions of section 53a is that a transferee is ready and willing to perform his part of the contract. It has been already noticed that the case of the defendant no. 1 is that the lease created by Ext. 3 is quite legal and valid. It is not his case that although Ext. One of the ingredient facts or conditions of section 53a is that a transferee is ready and willing to perform his part of the contract. It has been already noticed that the case of the defendant no. 1 is that the lease created by Ext. 3 is quite legal and valid. It is not his case that although Ext. 3 is inoperative as a lease, his possession is protected as he has performed or is willing to perform his part of the contract. In the sub-paragraph to paragraph 11 of the written statement, it has been stated as follows:"the plaintiff has not exercised the option of re-entry according to law assuming that he has such a right. The defendant submits that the suit for eviction on the ground of non-payment of rent can be avoided by payment as provided in law and as such the present suit is not maintainable and this defendant is ready and willing to pay the amount as would be directed by the Court. "it is clear from the above statement that a case for relief against forfeiture under section 114 of the Transfer of Property Act has been sought to be made out. The said statement as to the readiness and willingness of the defendant no. 1 to pay the arrears of rent is not an unconditional statement but is a conditional one, namely, that only if the Court directs. In order to avail of section 53a, there must be an unconditional statement in the written statement as to the defendant's readiness and willingness to perform his part of the contract. In our opinion, the defendant has not pleaded the ingredient facts so as to attract section 53a. Firstly, the said statement has been made with reference to the provision of section 114 of the Transfer of Property Act providing for relief against forfeiture and secondly, the same is not an unconditional offer to pay the arrears of rent. Further, the relief under section 53a being an equitable relief, the defendant no. 1 having admittedly not paid rent to the plaintiff for three consecutive years and having compelled him to realise past arrears of rent by the institution of rent suits, in our opinion, there is no equity in favour of the defendant. We would accordingly, hold that the defendant no. 1 having admittedly not paid rent to the plaintiff for three consecutive years and having compelled him to realise past arrears of rent by the institution of rent suits, in our opinion, there is no equity in favour of the defendant. We would accordingly, hold that the defendant no. 1 is not entitled to any relief under section 53a of the Transfer of Property Act. ( 9 ) THE next important question is whether the plaintiff is entitled to rely on clause 12 of Ext. 3, providing for forfeiture of the lease for non-payment of rent by the defendant no. 1 for three consecutive years. It has been already found that Ext. 3 not having been expressed in proper legal form, it is inoperative as a lease, far less as a permanent lease. No relationship of landlord and tenant between the plaintiff and the co-sharers on the one hand and the defendant on the other can be said to have been created by Ext. 3 which is inoperative as a lease. But apart from Ext. 3, in view of the admitted payment and acceptance of rent such a relationship of landlord and tenant between the parties can be presumed. The presumed tenancy or the tenancy by implication of law created by the admitted payment and acceptance of rent is a monthly tenancy as contemplated by the provision of section 106 of the Transfer of Property Act. (See (3) Ram Kumar Das v. Jagdish Chadnra Das, AIR 1952 SC 23 ). While conceding that it is a monthly lese, Mr. Ghose submits that the plaintiff was entitled to rely on the forfeiture clause in Ext. 3. We are unable to accept this contention. Ext. 3 is invalid as a lease and, as such, neither party can refer to or rely on any of the terms embodied therein. Nor the terms of Ext. 3 can be proved by oral evidence, for that will be hit by the provisions of section 91 of the Evidence Act. The position has been considered by P. N. Mookerjee J. in (4) Indramoni Dassi v. Sm. Snehalata Dutt, 59 CWN 1150. Nor the terms of Ext. 3 can be proved by oral evidence, for that will be hit by the provisions of section 91 of the Evidence Act. The position has been considered by P. N. Mookerjee J. in (4) Indramoni Dassi v. Sm. Snehalata Dutt, 59 CWN 1150. Mookerjee J. has observed: 'it cannot, however, exclude proof of the terms of any other transaction, not connected with or referable to the said document even if a relationship, similar in nature to the one, contemplated by the defective document, arose between the parties as the result of this different transaction. " In support of the said observation, he has relied on a decision of the Privy Council in (5) Port Canning and Land Improvement Company Limited v. Katyani Debi, 46 LRIA 279. In pot Canning's case, the facts were that the plaintiff-company sued the defendant for enhancement of rent in respect of the Mourasi lease created under a memorandum. The memorandum was unregistered and it was held to be inadmissible in evidence. The defendant relied on the memorandum to show that the rent was not enhanceable but, as the memorandum was held to be inadmissible in evidence, she was not allowed to rely on the terms of the memorandum creating the lease. The defendant, however, was allowed to rely on an entry in the settlement books of the plaintiff-company which supported the defendant's case that the rent was not enhanceable after a particular year. Relying on the above observation of P. N. Mookerjee J. and the decision of the Privy Council in Port Canning's case, it has been urged by Mr. Ghose that the plaintiff is entitled to prove the forfeiture clause from some other document not connected with Ext. 3. He has drawn our attention to Ext. 6 (a), which is a copy of the order of the Revenue Officer under section 44 (1) of the West Bengal Estates Acquisition Act, 1953. In the order, it has been inter alia started by the Revenue Officer as follows:"on the other hand O. P. Prasanta Kumar Sur states that there was a condition in the agreement between the parties that unless the objector pays rent for consecutive three years interest of the objector will extinguish and the jama will come under khas "it is contended by Mr. Ghose that the agreement referred to in the said order of the Revenue Officer is not the agreement to lease, Ext. 3. He submits that it should be considered as a different transaction not referable to Ext. 3. We are unable to accept this contention. The order, Ext. 6 (a) must be read as a whole. In the first part of the order, the Revenue Officer expressly refers to the agreement dated April 29, 1936 which is Ext. 3. The agreement referred to in the order of the Revenue Officer quoted above is undoubtedly the agreement, Ext. 3 and not any other agreement as contended by Mr. Ghose. In these circumstances, we do not think that there is any substance in the said contention of Mr. Ghose. ( 10 ) APART from what has been stated above, the lease which has been created by implication of law by the admitted payment and acceptance of rent in a monthly lease as contemplated by section 106 of the Transfer of Property Act. Such a lease can be terminated in the matter as laid down in section 106, unless there is a contract to the contrary. In order to determine a monthly lease a lessor is not to assign any reason therefor or to prove that the lessee has broken a condition as to payment of rent or any other condition. The lessor will be entitled to determine the lease by serving a notice to quit under section 106 of the Transfer of Property Act. It is true that the provision of section 106 of the subject to the contract to the contrary but if a contract is such that it makes a lease to be a lease for a term of years, in that case, it must comply with the requirement of section 107 of the Transfer of Property Act. If in a case, it is agreed between the parties that the lease cannot be terminated by the lessor for three years unless the lessor commits default in payment of rent, it may be a contract contrary to the provision of section 106, but the nature of the lease will not be a monthly lease but a lease for three years. In such a case, the question of forfeiture of the lease will arise if the lessee commits default provided the lease is created in accordance with the provision of section 107. In such a case, the question of forfeiture of the lease will arise if the lessee commits default provided the lease is created in accordance with the provision of section 107. In the instant case, we have already held that Ext. 3 having been hit by the provision of section 107 for want of registration, is inoperative as a lease. Even assuming that the plaintiff has been able to prove the agreement as to the forfeiture of the lease, apart from Ext. 3, still such an agreement cannot be given effect to, for it will tantamount to a lease for three years requiring compliance with the provision of section 107. In these circumstances, there is no substance in the contention of Mr. Ghose that the forfeiture clause will remain effective in spite of the facts that Ext. 3 is inadmissible in evidence as creating a lease and that there is only a monthly lease which is presumed by implication of law in view of the admitted payment and receipt of rent. ( 11 ) THE monthly lease, which has been presumed, has not been determined in accordance with section 106 of the Transfer of Property Act. The notice dated October 22, 1954 (Ext. 5) was insufficient as a notice to quit, for it did not terminate the monthly lease of the defendant No. 1 on the expiry of the month of the tenancy nor was it given on behalf of the remaining co-sharers of the plaintiff. The position, therefore, is that there is no permanent lease in favour of the defendant No. 1 relating to the 6 annas or 9/24th share of the suit property, but by implication of law there is a subsisting monthly lease in his favour terminable by all the lessors having in the aggregate 9/24th share. ( 12 ) THERE is much substance in the contention of Mr. Chakrabartti that as the lease has not been determined in accordance with the law, the plaintiff who leased out his own share in the suit property to the defendant no. 1 could not be said to be in joint possession with him as the 10 as co-sharer in the Mokurari Mourasi interest and, as such no decree for partition could be passed in his favour in respect of his 5/24th share. To allow the claim for partition of the respondent nos. 1 could not be said to be in joint possession with him as the 10 as co-sharer in the Mokurari Mourasi interest and, as such no decree for partition could be passed in his favour in respect of his 5/24th share. To allow the claim for partition of the respondent nos. 1 (1) to 1 (7), the legal representative of the plaintiff will be to evict the defendant no. 1 from the suit property which cannot be done so long as the monthly lease of the defendant no. 1 will be subsisting. In order to get a decree for partition, the said respondents and the remaining co-sharer lessors of the 6 annas Group will have to terminate the lease of the defendant no. 1 in accordance with section 106. Before that no such decree for partition as claimed can be passed. The learned Subordinate Judge has not considered the points discussed above regarding the termination of the interest of the defendant no. 1 as a lessee under the plaintiff and the other co-sharer lessors. ( 13 ) IN these circumstances, we set aside the judgment and decree of the learned Subordinate Judge and dismiss the suit. The appeal is allowed, but in view of the facts and circumstances of the case, we direct each party to bear his own cost both in this Court and in the court below. Sharma J. : I agree. Appeal allowed.