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2012 DIGILAW 256 (CAL)

Ram Gopal Agarwalla v. Dinesh Chandra Nandy

2012-03-28

ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA

body2012
Judgment ASHIM KUMAR BANERJEE, J. 1. ONE, Gouri Sankar Dey, was the owner of premises no.125, B.K. Paul Avenue, Calcutta. He entered into a Deed of Lease with one Ram Gopal Agarwalla, son of Biseswar Agarwalla, whereby a portion of the said premises in question being one flat at northern side of premises no.P-51, since renumbered as premises no.125, B.K. Paul Avenue, Calcutta consisting of three bed rooms, one kitchen, one bath and one privy at a monthly lease rent of Rs.175/- per month for a period of 25 years commencing from Bengali calendar month Shraban 1363 B.S. and ending in Ashar 1388 B.S. The said Deed of Lease was executed by the parties and was duly registered on August 28, 1956 at the Office of the Registrar of Assurance, Calcutta. 2. IN terms of Section 3 of the West Bengal Premises Tenancy Act, 1956 the mischief of the said Act stood excluded in performing the said Deed of Lease. Gouri Sankar Dey died during the subsistence of the said lease. His heirs conveyed the property being the said premises no.125, B. K. Paul Avenue, Calcutta to Gour Chandra Nandy, Dinesh Chandra Nandy and Santi Sudha Nandy vide Deed of Conveyance dated October 1, 1973. The lease stood determined by efflux of time on the last day of Ashar 1388 B.S. The new owners issued a notice dated June 17, 1981 through their advocate asking Ram Gopal Agarwalla to deliver vacant possession of the premises in question. Ram Gopal Agarwalla duly received the said notice as would be appearing from the exhibits. Ram Gopal Agarwalla did not vacate despite notice resulting in filing of the eviction suit being Title Suit No.1591 of 1981 by Nandys? being the new owners. During the pendency of the said suit Gour Chandra Nandy died leaving his surviving heirs being the plaintiff no.1(a), (b) and (c). Ram Gopal Agarwalla contested the suit by filing written statement. He claimed holding over as a tenant having protection under the said Act of 1956. He also took the plea of defect in the service of notice. The plaintiff proved the Deed of Lease executed by Gouri Sankar Dey in favour of Ram Gopal Agarwalla. The Deeds of Conveyance executed by the heirs of Gouri Sankar Dey in favour of Nandys and the ejectment notice served upon Ram Gopal Agarwalla including the postal acknowledgment. He also took the plea of defect in the service of notice. The plaintiff proved the Deed of Lease executed by Gouri Sankar Dey in favour of Ram Gopal Agarwalla. The Deeds of Conveyance executed by the heirs of Gouri Sankar Dey in favour of Nandys and the ejectment notice served upon Ram Gopal Agarwalla including the postal acknowledgment. The defendant, on the other hand, executed rent receipts issued by Subh Karan Agarwalla, electric bill in the name of Ram Gopal Agarwalla and birth certificate certifying birth of a female baby by Santi Benia, wife of Ram Gopal Agarwalla, residing at 55, B.K. Paul Avenue, Calcutta. Dinesh Chandra Nandy, plaintiff no.3, deposed as P.W. 1 asserting that the defendant paid rent upto Baisakh 1388 B.S. He also proved the sale documents. According to him, the notice was duly served as would appear from the acknowledgment. He also deposed that the security deposit for two months was adjusted against Jaistha and Ashar being the last two months rent. Ram Gopal Agarwalla examined himself as D.W. 1. He denied of any document being prepared for his stay at the said premises. He contended that one Subh Karan Agarwalla was a tenant under the plaintiffs and he was sub-tenant under him. He subsequently changed his version and admitted his relationship with Gouri Sankar Dey and contended that he became a direct tenant under Gouri Sankar Dey at the rate of Rs.135 per month. He also admitted execution of the Deed of Lease. He, however, asserted that it was not acted upon. He also deposed that since Jaistha 1388 B.S. he had been depositing rent with the rent controller. However, up till January, 1956, he paid rent to Subh Karan Agarwalla. He, however, could not justify the existence of Subh Karan Agarwalla. 3. ON the strength of the above evidence, the learned Judge of the Court below decreed the suit. The learned Judge held that the status of the defendant as sub-tenant had no legal sanctity. The learned Judge, however, found justification in the contention of the defendant on the issue of service of notice. He was, however, of the view that the notice was superfluous in view of the legal position. 4. BEING aggrieved, Ram Gopal Agarwalla filed the instant appeal which was heard by us on the above mentioned dates. Mr. The learned Judge, however, found justification in the contention of the defendant on the issue of service of notice. He was, however, of the view that the notice was superfluous in view of the legal position. 4. BEING aggrieved, Ram Gopal Agarwalla filed the instant appeal which was heard by us on the above mentioned dates. Mr. Rabindra Nath Dutta, learned counsel appearing for the appellants, contended before us that assuming the lease of 25 years was subsisting, it stood determined on the transfer of the ownership. He contended that Gouri Sankar Dey died during the subsistence of the said lease. His heirs conveyed the property to Nandys without any reference to the Deed of Lease. He contended, no letter of attornment was issued by the heirs of Gouri Sankar Dey in favour of Nandys to be served upon the defendant/appellant. In absence of such letter of attornment or any Deed of Assignment assigning the lease in favour of Nandys, the lease should be deemed to have been determined with effect from October 1, 1973. The plaintiffs admitted receipt of rent after the said date. Hence, the defendant being the tenant was entitled to the protection under the said Act of 1956. Mr. Dutta further contended that as a consequence of the above, it was incumbent upon the landlord to issue appropriate notice under Section 13(6) of the said Act of 1956 and/or Section 106 of the Transfer of Property Act, 1882. The notice so issued by the learned Advocate for the landlords being the respondents herein was contrary to the provisions of Section 13(6) and/or Section 106 as referred to above. According to him, one full calendar month notice must be given. It was a tenancy in respect of a Bengali calendar month. The notice dated June 17, 1981 was received by the tenant on June 30, 1981 being the middle of the Bengali month. The suit was filed on August 10, 1981. Hence, one full Bengali month was not available. 5. HENCE, the suit was bad. In any event, the notice dated June 17, 1981 received by him on June 30, 1981 did not give one full calendar month time while determining the tenancy. To support his contention, Mr. Dutta relied on two decisions in the case of Satish Chandra Makhan and Ors. Vs. Govardhan Das Byas and Ors. 5. HENCE, the suit was bad. In any event, the notice dated June 17, 1981 received by him on June 30, 1981 did not give one full calendar month time while determining the tenancy. To support his contention, Mr. Dutta relied on two decisions in the case of Satish Chandra Makhan and Ors. Vs. Govardhan Das Byas and Ors. reported in All India Reporter 1984 Supreme Court Page-143 and in the case of Sukesh Chandra Ghose Vs. Bindu Basini Debya and Ors. reported in 1981 Volume-II Calcutta High Court Notes Page-177. 6. PER contra, Mr. Roy, learned counsel appearing for the respondents, contended that the lease was governed by the Transfer of Property Act, 1882. Since it was a lease of 25 years, the mischief of the said Act of 1956 stood excluded. Similarly, Section 106 of the Transfer of Property Act, 1882 would have no application as the lease stood determined by efflux of time. On the plea of non-service of letter of attornment, Mr. Roy contended, since the entire interest in the property was transferred in favour of Nandys, the lease stood automatically assigned in favour of the new owners and no notice was necessary. While replying, Mr. Dutta contended that the new owners were entitled to issue appropriate notice of eviction only on the grounds mentioned under Section 13 of the Said Act of 1956 that too, after three years of purchase. The case of sub-tenancy so advanced by the appellant before the learned Single Judge was not urged before us. From the evidence we find, Ram Gopal Agarwalla did admit the Deed of Lease. The Deed of Lease clearly stipulated that it would terminate on the last day of Ashar 1388 B.S. Hence, Gouri Sankar Dey or his heirs were entitled to possession of the flat in question on the expiry of the said period. If we look to the Deed of Lease, we would find that Gouri Sankar Dey executed the lease to bind himself as well as his heirs, administrators as also assigns. Hence, on the eventuality of the death, his heirs became entitled to the benefit of the said lease. The heirs conveyed the entire property including the flat in question through several Deeds of Conveyance in favour of Nandys. Hence, there was devolution of interest by Deys in favour of Nandys. 7. Hence, on the eventuality of the death, his heirs became entitled to the benefit of the said lease. The heirs conveyed the entire property including the flat in question through several Deeds of Conveyance in favour of Nandys. Hence, there was devolution of interest by Deys in favour of Nandys. 7. QUESTION, thus, remains as to whether the lease stood determined on such transfer. Our answer is in the negative as is clear from the contents of the lease. Lease was nothing but an agreement between the parties. Ram Gopal Agarwalla was also a party to the said lease. 8. HE agreed to bind himself. HE also agreed to accept binding of Gouri Sankar Dey and his heirs, administrators and assigns. On the devolution of interest and on the eventuality of such transfer, the lease stood assigned. In this regard, we may refer to Section 109 of the said Act of 1882. It provides, if the lessor transferred the property leased or any part thereof, the transferee, in absence of a contract to the contrary, shall possess all the rights the lessor had in the property. It was, however, provided that the transferee would not be entitled to arrears of rent prior to the date of transfer. In view of such provision, Nandys stepped into the shoes of Deys and question of automatic determination of lease on such eventuality did not arise. It did not come on record whether there was any intimation to the lessee. However, from the conduct of the parties, it is clear that the lessees had knowledge of such transfer. Otherwise they would not have paid rent to the new lessors. We, thus, hold that Nandys were entitled to the benefit of the lease and such lease continued irrespective of transfer of ownership by Deys in favour of Nandys. Question now remains whether the suit was bad for non-service of notice and whether the Ram Gopal Agarwalla was entitled to the protection under the said Act of 1956. The lease was of 25 years. Section 3 of the said Act of 1956 clearly provides that provisions in relation to rent and provisions of Sections 31 and 36 shall apply in case of a lease entered after December 1, 1946 for a period not more than 20 years. The lease was of 25 years. Section 3 of the said Act of 1956 clearly provides that provisions in relation to rent and provisions of Sections 31 and 36 shall apply in case of a lease entered after December 1, 1946 for a period not more than 20 years. Sub-section 2, inter alia, provides that notwithstanding anything to the contrary in sub-section 1 shall apply to all premises held under a lease entered into after the ordinance of 1965; provided such lease was for a period not less than 20 years. On a combined reading of Section 3, we find that the mischief of the said Act would not have any application in a lease entered into for a period more than 20 years. The present lease was for 25 years. It was executed much prior to 1965 Ordinance and in any event it could not have any application as the period was more than 20 years. 9. SIMILARLY, Section 106 did not have any implication as it was not a case of determination of tenancy under the lease. It is rather guided by Section 111(a) where a lease of immovable property is automatically determined by efflux of time limited by the Deed itself. Hence, Section 106 would have no application. No notice was contemplated under Section 111(a), inter alia, for possessing the property. The learned Judge held that the notice was superfluous. 10. THE decision in the case of Satish Chandra Makhan and Ors. (supra) would have no application in the instant case as it was a case under Section 106 where a lease was determined through notice served during subsistence of the lease. It was a case under Section 111(g) where the lessor claimed forfeiture on account of a breach of condition by the lessee. In the decision in the case of Sukesh Chandra Ghose (supra) the tenant had protection under the said Act of 1956. Hence, the learned Single Judge held that a notice under Section 13(6) was a must and non-service would be fatal for the suit for eviction. None of these decisions would apply in the case in hand. 11. THE appeal fails and is hereby dismissed without however any order as to costs. Lower Court Records, if arrived, be sent down at once. Urgent Xerox certified copy of this order, if applied for, be given to the parties on their usual undertaking.