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2012 DIGILAW 710 (CAL)

Tara Chatterjee v. P. R. Dasgupta

2012-08-02

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. This second appeal is directed against the judgment and decree dated May 23, 1986 passed by the learned Assistant District Judge, 4th Court, Alipore in Title Appeal No.748 of 1985 thereby reversing the judgment and decree dated July 24, 1985 passed by the learned Munsif, 2nd Court, Alipore in Title Suit No.61 of 1980. The plaintiff/appellant herein instituted the Title Suit No.61 of 1980 for ejectment, mesne profits and other reliefs against the defendant/respondent herein from the premises in suit on the ground of efflux of time as provided in Section 111(a) of the Transfer of Property Act. According to the plaint case, in short, a registered Deed of Lease for 21 years was executed between the original lessor and the defendant/respondent on March 28, 1959, effective from February 1, 1959 with the option to the lessee to surrender the lease after the expiration of 3 years on giving the lessor a 3 calendar month notice in writing. The said lease deed was registered on April 18, 1959. The defendant/tenant did not exercise that option of surrender after the expiry of 3 years and so, the lease continued till the completion of 21 years. The suit property originally belonged to Parvati Chakraborty and on her death her husband, a daughter (plaintiff) and a son Dhrubesh Chandra Chakraborty inherited the suit property. There was an amicable partition and as such, the plaintiff/appellant got the suit property at 6, Nandi Street, Calcutta. Thereafter, the plaintiff gave a Letter of Attornment and the defendant accepted the plaintiff as his landlord and he paid rent to the plaintiff accordingly for the premises in suit. Thereafter, the plaintiff/appellant herein served a notice dated November 26, 1979 upon the lessee asking the lessee to deliver vacant possession of the said premises w.e.f. February 1, 1980. The lessee did not comply with such a notice and as such, the lessor was compelled to file the suit. The defendant/lessee is contesting the said suit contending, inter alia, that since the lease was determinable at the option of the lessee, it was a tenancy-at-will and so, the provisions of the West Bengal Premises Tenancy Act, 1956 would apply. The notice dated November 26, 1979 was not a valid notice to quit and as such, the defendant has the right to continue in possession and pay the monthly rent accordingly for the premises in suit. The notice dated November 26, 1979 was not a valid notice to quit and as such, the defendant has the right to continue in possession and pay the monthly rent accordingly for the premises in suit. So, the suit should be dismissed. On the basis of the evidence on record, the learned Trial Judge decreed the suit. The First Appellate Court reversed the said finding and observed that the plaintiff was not entitled to claim any relief whatsoever in respect of eviction of the defendant and mesne profits as granted by the learned Trial Judge. However, the plaintiff would get costs of the suit. The appeal preferred by the defendant/tenant was, thus, allowed on contests. Being aggrieved, this second appeal has been preferred by the plaintiff. The following substantial questions of law have been framed for decision: (1) Whether or not the learned Lower Appellate Court was correct in its finding that Exhibit-1, the lease deed in question, was only for a period of 3 years and not for a period of 21 years simply because of the fact that the said lease deed contained a provision whereby the lessee was given the option to surrender and/or determine the lease after the expiry of three years on giving the lessor three calendar months’ notice in writing, irrespective of the fact as to whether or not the said lessee actually exercised the right of surrender of the lease. (2) Whether or not the learned Lower Appellate Court committed an error in not holding that the said lease was for 21 years and, therefore, the notice under Section 13(6) of the West Bengal premises Tenancy Act, 1956 was not necessary. (3) Whether or not the learned Lower Appellate Court has decided the issue with regard to mesne profits correctly in favour of the respondents in the present appeal in the facts and circumstances of the case. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that admittedly, there was a registered Deed of Lease for 21 years effective from February 1, 1959 and it was executed between the original owner and the defendant on March 28, 1959 and registered on April 7, 1959. The said lease marked ‘Ext.-1’ lays down an option to the lessee for termination of the lease after expiry of 3 years on giving a 3 month notice to quit in writing. The said lease marked ‘Ext.-1’ lays down an option to the lessee for termination of the lease after expiry of 3 years on giving a 3 month notice to quit in writing. The said Deed of Lease did not give any right to the lessor to terminate the lease before the expiry of 21 years. So, the option was given only to the lessee for early termination after the expiry of 3 years. In order to appreciate the matter in issue, it will be fit and proper to lay down hereafter the provisions of Section 3 of the West Bengal Premises Tenancy Act. “3. Certain provisions of the Act not to apply to certain leases.-(1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act, 1908, where – (a) such lease has been entered into on or after the 1st December 1948, and (b) Such lease is for a period of not more than 20 years and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965: Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease.” Therefore, in view of the said situation and the provisions of Section 3 of the 1956 Act, I am to consider the true meaning of the lease. It is not in dispute that after the death of Parvati Chakraborty, the plaintiff got the suit property by way of an amicable partition and attornment had been done and in consequence, the defendant paid rent to the present plaintiff as his landlord. It is not in dispute that after the death of Parvati Chakraborty, the plaintiff got the suit property by way of an amicable partition and attornment had been done and in consequence, the defendant paid rent to the present plaintiff as his landlord. It is the specific statement of the defendant/tenant that he paid rent to the present plaintiff after the death of the original lessor. The plaintiff was considered as the landlord of the lessee in respect of the premises in suit and it was not at all an issue before the Lower Courts. Mr. A.C. Kar, learned Advocate appearing on behalf of the plaintiff/appellant, has referred to the observations made by the learned Trial Judge and the learned First Appellate Court and thus, he has argued that since no option of termination was given to the lessor and the lessee though an option was given, he did not exercise such option till the completion of 21 years, the said lease in question cannot be termed as tenancy-at-will and as such, the provisions of the West Bengal Premises Tenancy Act would not apply to terminate the lease. The lease should be treated as one for 21 years and as such, the suit will not be governed by the provisions of the West Bengal Premises Tenancy Act, 1956 but by the provisions of the Transfer of Property Act and as such, the lessor would be at liberty to get possession after efflux of time under the provisions of 111(a) of the Transfer of Property Act. In respect of his contention, Mr. Kar has referred to the decisions of Savita Dey v. Nageswar Majumdar & anr. reported in AIR 1996 Supreme Court 272, Pabitra Kumar Roy & anr. v. Alita D’Souza reported in AIR 2006 Supreme Court 3355: (2006)8 SCC 344 , Mahindra & Mahindra Ltd. v. Sm. Kohinoor Debi reported in 93 CWN 773 and Smt. Parul Nag & ors. v. Sri Ranjan Sen & ors. reported in 1999(2) CLJ 506. By referring these decisions, Mr. Kar has contended that a lease for a fixed term of 21 years with the right or option in favour of the lessee of earlier termination should remain a lease for the period fixed, as the option creates, enlarges, limits or extinguishes no right, title or interest, until exercised. Mr. reported in 1999(2) CLJ 506. By referring these decisions, Mr. Kar has contended that a lease for a fixed term of 21 years with the right or option in favour of the lessee of earlier termination should remain a lease for the period fixed, as the option creates, enlarges, limits or extinguishes no right, title or interest, until exercised. Mr. Prabal Mukherjee, learned Advocate appearing for the respondent/lessee, has referred to the decisions of Pabitra Kumar Roy & anr. v. Alita D’souza reported in (2006) 8 Supreme Court Cases 344 particularly the Paragraph No.s 18-22, Juthika Mulick (Smt) & anr. v. Dr. Mahendra Yashwant Bal & ors. reported in (1995)1 SCC 560 particularly Paragraph No.s 9 and 31 and Punalur Paper Mills Ltd. v. Central Bank of India reported in 1995(1) CHN 468 . By referring the decision of Pabitra Kumar Roy & anr. (supra), Mr. Mukherjee has contended that the intention of the legislature in amending Section 3 appears to have been to prevent landlords from using long term leases as a camouflage for excluding them from the protection of 1956 Act and yet retaining the right of prior determination. Sub-Section (2) appears to have been enacted to prevent such abuse, inasmuch as, once the lease was determined before the fixed period, it attracted the proviso thereof. By referring the Paragraph No.s 18-22, he has also contended that the lease deeds for periods of 20 years or more would stand excluded from the operation of the 1956 Act except in matters relating to Sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or the tenant. So, the suit is not maintainable under the provisions of the Transfer of Property Act. With due respect to Mr. Mukherjee, I hold that this submission cannot be accepted because of the fact that in the said decision, the tenant availed the benefit of Section 114 of the Transfer of Property Act (similar to Section 17 (4) of the 1956 Act)in the earlier suit and so the tenant was prevented by the principle of estoppel from raising a defence in the later suit under Section 3(2) of the 1956 Act. The later suit was to be governed by the provisions of the Transfer of Property Act. The later suit was to be governed by the provisions of the Transfer of Property Act. Not only that, the said decision interpreted the different clauses of Section 3 of the 1956 Act and in dealing with so, lays down the discussion of the decisions of Savita Dey (supra) and Mahindra & Mahindra Ltd. (supra) so far as they are concerned with Section 3(2) of the 1956 Act. In this regard, the conclusion has been made in Paragraph No.22 of the said decision and this is quoted below: “22. The law is clear that lease deeds for periods of twenty years or more would stand excluded from the operation of the 1956 Act except in matters relating to Sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or of the tenant. In other words, if such a lease is terminated before its fixed period expired, the proviso to Section 3(2) would be attracted as a defence against eviction. If, however, the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would cease to be operative and the clause for prior determination would no longer be available as a defence against eviction.” It may be noted herein that the lease in question is not governed by the provisions of Section 3(2) of the 1956 Act because of the fact that the said lease was executed prior to the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 effective from August 24, 1965. Thus, I hold that this decision does not support the contention of the defendant/respondent at all. The decision of Juthika Mulick (Smt) & anr. (supra) referred to by Mr. Mukherjee particularly the Paragraph No.s 9 and 31, I hold, cannot be made applicable in the instant case, because in the instant case, there was no condition that the lease was capable of being made certain on happening of a certain event in future, that is, death of the lessee as in the case of Juthika Mulick (Smt) & anr. (supra) before the expiry of 20 years though the lease was for more than 20 years. So, the Act was made applicable. The other decision, that is, Punalur Paper Mills Ltd. (supra) (Single Bench decision of this Hon’ble Court) referred to by Mr. (supra) before the expiry of 20 years though the lease was for more than 20 years. So, the Act was made applicable. The other decision, that is, Punalur Paper Mills Ltd. (supra) (Single Bench decision of this Hon’ble Court) referred to by Mr. Mukherjee, I hold, is with regard to ‘sooner determination’ as referred to in Paragraph No.s 7 to 10 and 15 which also lay down the effect of Mahindra & Mahindra (supra) and Savita Dey (supra) referred to by Mr. Kar with reference to leases for more than 20 years executed prior to the Ordinance of 1965. In the Deed of Lease in question before me, the element of ‘sooner determination’ is not available in favour of the plaintiff/appellant herein. So, the decision of Punalur Paper Mills (supra), I hold, is not applicable in favour of the defendant/respondent at all. The decision of Savita Dey v. Nageswar Majumdar & anr. (supra) is the appropriate in the instant situation according to my opinion. The registered lease having been executed prior to the enforcement of the Ordinance in 1965 for a period of 21 years, without any reservation of the right to terminate the tenancy at the option of the lessor, the lease is terminable only by efflux of time for the period limited thereby. The landlord is entitled to get possession and also for mesne profits from the date of expiry of lease under the provisions of the Transfer of Property Act. The landlord is not required to adopt the recourse under the provision of the 1956 Act to get the reliefs of eviction and mesne profits. The decision of Pabitra Kumar Roy & anr. v. Alita D’souza (supra) also supports the contention of the appellant that in spite of such option, it will be treated as a lease for 21 years since the lease was not terminated earlier by the tenant. The parties having submitted to the jurisdiction of the Court under the provisions of 111(a) of the Transfer of Property Act and having obtained such benefit by the lessee, the defendant/respondent cannot claim protection under the provisions of the West Bengal Premises Tenancy Act, 1956. Therefore, this decision also favours the plaintiff/appellant herein. The decision of Mahindra & Mahindra (supra), I hold, is apposite in the instant appeal. In order to realise the situation elaborately, the observations made therein in Paragraph No.13 is quoted below: ”13. Therefore, this decision also favours the plaintiff/appellant herein. The decision of Mahindra & Mahindra (supra), I hold, is apposite in the instant appeal. In order to realise the situation elaborately, the observations made therein in Paragraph No.13 is quoted below: ”13. We do not think that a premises held under a lease for a fixed term ceases to be so held for the purpose of the Transfer of Property Act or the Registration Act or s.3(1) of the West Bengal Premises Tenancy Act solely because the lessee has been given the right or option to quit the demised property at any earlier stage. A lease for immovable property for any term exceeding one year, can, under s. 107 of the Transfer of Property Act and s.17(1)(d) of the Registration Act, only be made by a registered instrument and the same would nevertheless remain one for such period fixed, even though the lessee has a right or option to put an end to it at any time before the expiry of that period. A lease for, say, 21 years would not cease to be, but would remain, such a lease in the eye of law even if the lessee has been given an option to terminate it earlier. If a lease for a fixed term with the right or option for renewal in favour of the lessee remains a lease for that fixed term only, until the option is exercised, a lease for a fixed term with the right or option in favour of the lessee of earlier termination should also remain a lease for the period fixed, as the option in each case creates, enlarges limits or extinguishes no right, title or interest, until exercised.” The same is the view also expressed in the case of Smt. Parul Nag & ors. v. Sri Ranjan Sen & ors. (supra) cited by Mr. Kar. I hold that this decision is also fully applicable in the instant situation because the registered Deed of Lease was executed in 1959 for a period of 21 years with an option to the lessee to terminate and such an option was not exercised by him and the lessor was not given to terminate the lease at his will before 21 years. The respondent cannot get the benefit of West Bengal Premises Tenancy (Amendment) Ordinance, 1965 and as such, the West Bengal Premises Tenancy Act has no application to the tenancy in question. This is a Division Bench Judgment of this Hon’ble Court and it fits the exact situation in this appeal. In that view of the matter, the First Appellate Court, in my view, was not correct in its finding that the lease between the parties was only for a period of 3 years and not of 21 years. Similarly, its observation that it matters little whether the lessee wanted to exercise his option after 3 years or not, is not proper. When, such a term to determine lease has not been exercised by the lessee and the lease continued upto the period for which the lease was executed, the lease would be considered as one of 21 years under a registered Deed of Lease executed in the year 1959, that is, prior August 24, 1965. In such circumstances, according to the provisions of Section 3(1) of the said Act, the concerned lease would not be governed by the provisions of 1956 Act but by the provisions of the Transfer of Property Act as they had agreed. The learned First Appellate Court was, therefore, wrong in deciding the substantial question of law as framed as No.1. Under the circumstances, no notice of eviction under Section 13(6) of the 1956 Act, is, at all, necessary. So, the decision of the First Appellate Court that a notice under Section 13(6) of the 1956 Act is a must, cannot be supported at all. The learned First Appellate Court has, therefore, committed a substantial error of law in deciding the substantial question of law, that is, Point No.2. So far as mesne profits are concerned, from the catena of decisions such as AIR 1996 SC 272 , AIR 1977 SC 2270 , AIR 1999 SC 882 filed by the appellant and the decision of Punalur Paper Mills Ltd. v. Central Bank of India (supra) filed by the respondent No.2, I hold that the plaintiff is entitled to mesne profits from the date of expiry of the said lease. The ascertainment of the quantum of mesne profits is to be done. In the case of Punalur Paper Mills Ltd. (supra), a Special Referee was even appointed to assess the mesne profits. The ascertainment of the quantum of mesne profits is to be done. In the case of Punalur Paper Mills Ltd. (supra), a Special Referee was even appointed to assess the mesne profits. In the instant case, the plaintiff/appellant would get mesne profits under Order 20 Rule 12 of the CPC from the date of the expiry of the lease, that is, from February 2, 1980 till the recovery of possession, the quantum of which shall be determined in a separate proceeding. The learned Trial Judge has granted mesne profits for Rs.1,000/-at present. This has no basis at all. Anyway, both the parties have made much argument in this respect and in order to avoid anomaly, since there is no basis for calculation of such amount, I am of the view that such portion of the order relating to ‘mesne profits of Rs.1.000/-at present’ passed by the learned Trial Judge should be set aside. Both the Courts below, according to my opinion, have failed to address the issue of mesne profits properly. The substantial question of law on Point No.3 is, thus, answered. All the three substantial questions of law are, thus, decided. In the result, this second appeal succeeds and is, therefore, allowed. The judgment and decree dated May 23, 1986 passed by the First Appellate Court is hereby set aside. The Title Suit be and the same is decreed on contests with costs. The plaintiff/appellant herein do get a decree for recovery of khas possession against the defendants/respondents herein by evicting the defendants/respondents from the premises in suit. The defendants/respondents herein do deliver khas possession of the suit premises in favour of the plaintiff/appellant herein within 30 days hereof, failing which the plaintiff/appellant herein will be at liberty to execute the decree through the Court. The plaintiff/appellant herein do also get a decree of mesne profits against the defendants/respondents herein from February 2, 1980 till the recovery of khas possession of the premises in suit, the quantum of which shall be determined in a separate proceeding under Order 20 Rule 12 of the CPC. The judgment and decree of the learned Trial judge dated July 24, 1985 is modified to the extent indicated above. However, there will be no separate order as to costs in this second appeal.