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Haralal Das And Anr. v. Pashupati Charan Biswas And Ors.
Factual and Procedural Background
The plaintiff leased premises No. 91/1A, Baithak Khana Road, to defendant No. 1 (Monoranjan Majumdar) by an indenture (Ex. 4) dated 1 January 1948 for a three-year term ending the last day of December 1950, with a renewal option for the lessee provided the lessor did not require the premises for his own use. On 30 November 1950 the plaintiff served a notice on defendant No. 1 requiring him to vacate at the expiry of the lease. Defendant No. 1 replied on 15 December 1950 that he had sub-let the premises to defendants Nos. 2, 3 and 4 and that the lessor could take possession subject to those sub-leases.
The plaintiff instituted a suit for ejectment on 16 January 1951 alleging reasonable requirement of the premises for his own occupation. Defendant No. 1 did not contest; defendants Nos. 2 to 4 contested inter alia on grounds that the plaintiff's claim of reasonable requirement was false, that the sub-tenants had become tenants and therefore required separate notices to quit, and that they were joint lessees/co-tenants requiring service of notice on them as well.
The trial court overruled the defendants' defenses and granted a partial decree for ejectment against defendants Nos. 2 and 3 (first and second floors), dismissing the claim against defendant No. 4 (ground floor). That decree was affirmed on appeal. Defendants Nos. 2 and 3 brought this second appeal.
Legal Issues Presented
- Whether the notice to quit served on defendant No. 1 was legally sufficient in view of section 110 of the Transfer of Property Act and principles discussed in Benoy Krishna Das v. Salsiccioni.
- Whether, on determination of defendant No. 1's tenancy by efflux of time (section 111, Transfer of Property Act), the sub-tenants (defendants Nos. 2 and 3) became statutory tenants under section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and therefore required a notice to quit before suit.
- Whether the plaintiff proved a reasonable requirement of the premises for his own occupation (sufficiency of evidence to establish change of circumstances and necessity).
Arguments of the Parties
Appellants' Arguments (defendants Nos. 2 & 3; advanced by Mr. Mukherji and supplemented by Mr. Gopal C. N. Choudhury)
- That the notice to quit served by the plaintiff was defective because, relying on section 110 of the Transfer of Property Act and Benoy Krishna Das v. Salsiccioni, the lease should be deemed to last through the whole anniversary day from the date of commencement; therefore the tenancy subsisted until midnight of 1 January 1951 and the notice requiring vacation by end of December 1950 was insufficient.
- That on determination of the tenancy by efflux of time under section 111 of the Transfer of Property Act the sub-tenants became statutory tenants under section 13(2) of the West Bengal Rent Control Act, and thus the plaintiff was required to serve a notice to quit upon them before instituting the suit; absence of such notice made the suit not maintainable.
- That the plaintiff had not proved reasonable requirement: his evidence was meagre (he was the sole witness), and the plaintiff ought to have examined additional witnesses (e.g., his brother-in-law) to prove unwillingness to accommodate the plaintiff's family.
- In supplemental argument, it was said that statutory tenancy of defendant No. 1 required determination by service of notice under section 106 of the Transfer of Property Act; but authorities (Kal Khushroo Capadia and Morrison v. Jacob) were relied on to contend no such notice was required.
Plaintiff's / Respondent's Position (as reflected in the record and findings)
- The plaintiff alleged he and family left the disputed premises during communal disturbances and were residing with his brother-in-law at Sikdarbagan Street; accommodation there was insufficient for his family of 13 and his brother-in-law was no longer willing to accommodate them.
- He served notice on defendant No. 1 requiring vacation at lease expiry on the ground he required the premises for his own occupation.
- The plaintiff primarily relied on his own evidence to establish reasonable requirement and the insufficiency of accommodation at the brother-in-law's house.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Benoy Krishna Das v. Salsiccioni (Judicial Committee) | Principle relied upon by appellants to argue that, under section 110 Transfer of Property Act, a lease should be deemed to last during the whole anniversary day if the date of commencement is relevant (affecting the effective expiry). | The court held this decision (and the principle) did not apply because the indenture (Ex. 4) expressly stated both the commencement and the last day of the lease ("three years commencing from January, 1948, up to the last day of December, 1950"). The court found the second paragraph of section 110 operates when the date of termination is not mentioned; because the expiry date was specified, section 110 and Benoy Krishna's principle were inapplicable. |
| Kal Khushroo Bezonjee Capadia v. Bai Jerlal Hirjibhoy Warden (Federal Court, A.I.R. 1949 F.C. 128) | Cited in argument about whether a notice under section 106 of the Transfer of Property Act was required to determine statutory tenancy. | The court relied on this decision (together with Morrison v. Jacob) in concluding that no notice was required to be served by the plaintiff and that the statutory tenancy under section 12(1) of the West Bengal Rent Control Act would end only under one of the clauses in the proviso to sub-section (1) and not otherwise. |
| Morrison v. Jacob (English Court) [(1945) 1 K.B. 577] | Cited alongside Kal Khushroo Capadia in relation to whether notice under section 106 was required to determine statutory tenancy. | Used to support the court's conclusion that no notice was required and that the statutory protection of tenancy under section 12(1) terminates only by operation of one of the proviso clauses (such as clause (h)) rather than automatically on efflux of contractual term alone. |
Court's Reasoning and Analysis
The court addressed the appeal in three principal legal strands and applied statutory interpretation and the cited authorities strictly as presented in the record.
1. Validity of the notice under section 110, Transfer of Property Act:
- Appellants argued that section 110 required exclusion of the commencement date and effectively extended the lease to the midnight of 1 January 1951; they relied on Benoy Krishna Das v. Salsiccioni. The court examined the lease (Ex. 4) and found both the commencement and the date of expiry expressly stated: "three years commencing from January, 1948, up to the last day of December, 1950." The court explained that the second paragraph of section 110 comes into operation only where the date of termination is not mentioned. Because the expiry date was specified, neither section 110 nor the Benoy Krishna principle applied. The court therefore overruled this contention.
2. Whether sub-tenants became statutory tenants (interaction of section 111 Transfer of Property Act with sections 12(1) and 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950):
- The appellants contended that efflux of time under section 111 caused the sub-tenants to become statutory tenants under section 13(2), requiring the landlord to serve notice to quit before suit. The court analysed statutory protection in section 12(1): a tenant whose lease has expired remains protected from eviction except on certain grounds enumerated in clauses (a) to (i) of the proviso to sub-section (1).
- The court held that "lawfully determined" in section 13(2) cannot mean mere contractual termination under section 111 alone. Rather, both elements must be present: (a) determination of the contractual tenancy (e.g., under section 111) and (b) withdrawal of the statutory protection afforded by section 12(1) (i.e., occurrence of one of the grounds in the proviso). To treat contractual determination alone as sufficient would promote a sub-tenant to tenant status while the original tenant still retained statutory protection, an outcome the court found absurd and inconsistent with legislative intent.
- The court further construed clause (h) of the proviso to section 12(1) (which includes landlord's own occupation or for building/re-building) as an exception: where the landlord requires property for his own occupation or for building/re-building (clause (h)), the sub-tenants are not elevated to tenant status but are liable to be evicted; the landlord may still implead sub-tenants in the suit to give them opportunity to contest, but the court must not consider comparative advantage/disadvantage of landlord and sub-tenant under the explanation to clause (h).
- The court acknowledged an anomaly (sub-tenants must be parties and can contest, yet the court is forbidden from considering comparative advantage as to sub-tenants) but declined to depart from the plain statutory language.
3. Sufficiency of evidence of reasonable requirement (whether plaintiff proved changed circumstances and necessity):
- The trial court found the plaintiff moved to his brother-in-law's house in 1946 due to communal riots and occupied only three rooms there, insufficient for his 13-member family, and that the brother-in-law was no longer willing to accommodate him. The appellant challenged the adequacy of proof since the plaintiff was the only witness.
- The appellate court reiterated that paucity of evidence alone is not a ground for interference in a second appeal; a single credible witness may suffice. The courts below believed the plaintiff, and the appellate court found no error of law in accepting that evidence. The court also noted the reasonableness (probability) that a brother-in-law would not indefinitely accommodate a large family. Thus it held that change of circumstances between letting and institution of the suit had been proved.
4. Relief and practical considerations:
- The courts below, considering the plaintiff's family size and accommodation needs, granted a partial decree for eviction limited to the first and second floors as sufficient for plaintiff's requirement. The appellate court found no legal error in that approach. The appeal was dismissed with costs.
- The court exercised equitable discretion to allow defendant No. 3 four months from the date of judgment to vacate the first floor provided that defendant No. 3 deposited Rs. 90 per month to the trial court to the credit of the plaintiff by the 15th of the following month as damages for use and occupation. The plaintiff may withdraw deposited sums; in case of any month's default the plaintiff may execute the decree immediately.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
Direct effects and orders:
- The partial decree for ejectment against defendants Nos. 2 and 3 (first and second floors) was affirmed.
- Defendant No. 2 had already left; defendant No. 3 is permitted four months to vacate the first floor provided he deposits Rs. 90 per month to the trial court by the 15th of the following month as damages for use and occupation; the plaintiff may withdraw such deposits and may execute the decree on any monthly default.
On broader implications: the court construed the interplay between the Transfer of Property Act (sections 110 and 111) and the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (sections 12(1) and 13(2)), holding that a sub-tenant is elevated to tenant status under section 13(2) only when contractual determination is accompanied by withdrawal of statutory protection under section 12(1). The court nonetheless accepted that where landlord's own occupation (clause (h)) is alleged, sub-tenants are liable to be evicted and need to be impleaded but the court may not consider comparative advantage/disadvantage of sub-tenant under the explanation to clause (h). The opinion applies these statutory constructions to the facts at hand; it does not state that a new binding precedent is being created beyond these adjudications in this case.
Lahiri, J.:— This appeal is direct-ed against a decree for ejectment from the first and second floors of premises No. 91/1A, Baithak Khana Road, against defendants Nos. 2 and 3 who are in occupation of the aforesaid, portions as sub-tenants under defendant No. 1. It appears that by an indenture (Ex. 4) the plaintiff let out the whole of premises No. 91/1A, Baithak Khana Road, to defendant No. 1 (Monoranjan Majumdar) on the 1st January, 1948, for a term of three years expiring with the end of December, 1950. In the lease there was a provision for renewal, at the option of the lessee subject to the condition that the lessor did not require the premises for his own use and occupation. On the 30th November, 1950, the lessor served a notice upon the lessee, defendant No. 1, requiring him to vacate, on the expiry of the lease, that is, by the end of December, 1950, as the lessor required the premises for his own use and occupation. On the 15th December, 1950, the defendant No. 1 sent a reply to the lessor stating that he had sub-let the premises to defendants Nos. 2, 3 and 4 and that the lessor was at liberty to take possession subject to the sub-lease granted to the aforesaid defendants. There- 4 after on the 16th January, 1951, the lessor instituted the present suit for ejectment against defendants Nos. 1 to 4 alleging that he reasonably required the premises for his own occupation. The case made in the plaint is that on account of communal disturbances the plaintiff with his family left the premises in dispute and went to reside in the house of his brother-in-law at Sikdarbagan Street; that the accommodation in his brother-in-law's house was insufficient and that his brother-in-law was no longer willing to accommodate the plaintiff. Defendant No. 1 did not contest the suit but defenddants Nos. 2 to 4 contested it inter alia on the ground that the story of reasonable requirement was false; that defendants Nos. 2 to 4 had become tenants under the plaintiff on the determination of the lease in favour of defendant No. 1 by surrender and therefore the suit was not maintainable without the service of a notice to quit upon them and that though the lease was in favour of defendant No. 1 alone, defendants Nos. 2 to 4 were in reality joint lessees and as such co-tenants with defendant No. 1 and accordingly a notice to quit was required to be served upon them as well.
2. The trial court overruled the defence and granted a partial decree for ejectment against defendants Nos. 2 and 3 alone upon the view that the portions occupied by them would satisfy the requirement of the plaintiff and dismissed the suit against defendant No. 4 who is occupying the ground floor of the premises in dispute. The decree against defendants Nos. 2 and 3 having been affirmed on appeal they have brought this second appeal. The trial court found upon the evidence on record that the defendants Nos. 2 and 3 were not co-tenants with defendant No. 1 and that finding has not been challenged by them. Mr. Mukherji, appearing in support of the appeal, has argued in the first place that the notice to quit served upon the defendant No. 1 is bad in law inasmuch as under section 110 of the Transfer of Property Act the date on which the lease, Ex. 4, was to commence should be excluded and the lease should be deemed to have lasted during the whole anniversary of the day from which the period of three years commenced. Therefore, the notice served by the plaintiff requiring the defendant No. 1 to quit and vacate by the end of December, 1950, was not sufficient in law to determine the tenancy because the tenancy subsisted till the midnight of the first of January, 1951, under the provisions of section 110 of the Transfer of Property Act. Reliance was placed on the decision of the Judicial Committee in the case of Benoy Krishna Das v. Salsiccioni (1) (37 C.W.N 1). It appears to us that this contention is entirely untenable because in this case the dates of commencement and expiry are both mentioned in the lease, Ex. 4. The first paragraph of the lease is as follows: “The period of the lease shall be three years commencing from January, 1948, up to the last day of December, 1950.” The second paragraph of section 110 of the Transfer of Property Act comes into operation when the date of termination is not mentioned in the lease. Where, as here, the date of expiry is specified in the contract between the lessor and the lessee neither section 110 nor the principle of the decision in Benoy Krishna's case (1) will apply. The first point is accordingly overruled.
3. The second point raised on behalf of the appellants is that the tenancy of defendant No. 1 having been lawfully determined otherwise than by virtue of a decree in a suit on any of the grounds specified in clause (h) of the proviso to section 12(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the sub-tenants became statutory tenants under the plaintiff under section 13(2) of the said Act and as such their tenancy should have been terminated by the plaintiff by the service of a notice to quit before the institution of the suit and inasmuch as the plaintiff omitted to do that the suit is not maintainable. It is urged that the tenancy of defendant No. 1 was determined by efflux of time under section 111(a) of the Transfer of Property Act on the 1st January, 1951, and from that date defendants Nos. 2 and 3 acquired a statutory right of tenancy under the plaintiff and the plaintiff was required to determine this tenancy before he acquired the right to get khas possession. This argument overlooks the fact that under the first paragraph of section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, a tenant whose lease has expired is protected from eviction except on certain grounds enumerated in clauses (a) to (i) of the proviso to sub-section (1). Therefore, in spite of the determination of defendant No. 1's tenancy by efflux of time under section 111(a) of the Transfer of Property Act it continued under section 12(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 till the protection was withdrawn on any of the grounds mentioned in clauses (a) to (i) of the proviso to sub-section (1) of section 12. To hold that a subtenant is elevated to the position of a tenant as soon as the tenancy is determined under section 111 of the Transfer of Property Act will be equivalent to allowing the sub-tenant to usurp the status of a tenant even at a time when the original tenant continued to be a tenant under section 12(1) of the Rent Control Act. This is an absurd result which cannot be attributed to the Legislature. The expression “lawfully determined” in section 13(2) of the Rent Control Act, therefore, means the determination of the contractual tenancy under section 111 of the Transfer of Property Act as well as the withdrawal of the statutory protection afforded by section 12(1) of the Act Both these elements must be present in order to constitute lawful determination of a tenancy within the meaning of section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. I have already said that the proviso to sub-section (1) of section 12 of the Rent Control Act specifies various grounds upon which a tenant may lose his immunity from eviction as conferred by the first paragraph of that section. Two of such grounds are that the landlord requires the premises for his own occupation and that he requires the premises for building or re-building. Both these grounds are embodied in clause (h) of the proviso to sub-section (1) of section 12 Reading the different clauses of the proviso to section 12(1) and section 13(2) together, it seems to us that the intention of the Legislature was that the landlord would be entitled to evict the sub-tenants in a case which comes under section 12(1)(h) but the sub-tenants should be promoted to the category of tenants in cases which fall under the other clauses of that section. We accordingly hold that the true meaning of the words used in section 13(2) is that the sub-tenant will acquire the status of a tenant under the landlord only in those cases) where the tenant loses his immunity from eviction on any ground other than those embodied in clause (h) of the proviso to section 12(1) but that the sub-tenant will not acquire that status but will be liable to be evicted when the landlord requires the premises for his own occupation or for the purpose of building or re-building. Mr. Mukherji has suggested that this construction will not remove all the anomalies because under the proviso to clause (h) of section 12(1) the sub-tenants will have to be impleaded in the suit but under the explanation to clause (h) the court will not be entitled to have regard to the comparative advantage or disadvantage of the landlord and of the sub-tenant. It appears to us that under the proviso to clause (h) of section 12(1), the sub-tenants are required to be made parties to the suit for the purpose of allowing them an “opportunity of contesting the claim to decree for ejectment” when the landlord alleges that he reasonably requires the premises for his own use and occupation or for the purpose of building or rebuilding. In the explanation to clause (h) it is provided that in determining the reasonableness of the requirement, the court shall have regard to the comparative advantage or disadvantage of the landlord and of the tenant. The combined effect of the proviso to clause (h) and the explanation is that although the subtenants are required to be impleaded in the suit and although they are allowed the right of contesting the landlord's claim for ejectment on the ground of reasonable requirement, the court will not consider the question of relative advantage or disadvantage in determining the reasonableness to the requirement as between a landlord and sub-tenant. This result is somewhat anomalous but still it follows from the plain words used in the statute. It appears to us that the Legislature was making a distinction between the rights of a tenant and a sub-tenant when they were contesting the landlord's claim for eviction on the allegation of reasonable requirement. In considering the tenant's objection to the plea of reasonable requirement, the court is required to consider the question of relative advantage and disadvantage of the landlord and the tenant but when the claim is resisted by the sub-tenant the court is only to see whether the landlord reasonably requires the premises without having any regard to the comparative advantage or disadvantage of the sub-tenant. It may be that this discrimination between the rights of tenants and subtenants is somewhat unjust or inequitable but we cannot for that reason disregard the plain words of the statute. The second point, therefore, urged by Mr. Mukherji in support of the appeal, fails.
4. The last point argued is that upon the facts admitted and found, the plaintiff has not been able to make out a case of reasonable requirement It is argued that in order to succeed in a suit of this description the plaintiff must prove that circumstances have changed since the letting of the premises and the institution of the suit. The findings arrived at on this point by the court below are that the plaintiff removed to his brother-in-law's house in 1946 on account of communal riots and that in that house the plaintiff is in the occupation of only three rooms which are not sufficient to accommodate the plaintiff's family consisting of 13 members. The plaintiff has further said in his evidence that his brother-in-law is not willing to accommodate the plaintiff any longer. Mr. Mukherji argues that the evidence adduced by the plaintiff is very scanty and that he has not examined anybody besides himself to prove his case. He further argued that at any rate the plaintiff's brother-in-law should have been examined by the plaintiff in order to prove that he was no longer willing to accommodate the plaintiff's family in his house. It is true that the evidence adduced by the plaintiff is meagre but the paucity of evidence on a particular point is not a sufficient ground for our interference in a second appeal. A single witness, if believed, is sufficient to prove the facts alleged by the plaintiff. In the present case, the courts below have chosen to believe the plaintiff and we cannot say that there is any error of law involved in the acceptance of the plaintiff's evidence. Moreover, having regard to the probabilities of the case, it seems to us that a brother-in-law of a person cannot be expected to allow his brother-in-law to remain in his house for ever We, therefore, believe the statement made by the plaintiff to the effect that his brother-in-law was no longer willing to accommodate the plaintiff's family in his house. The change of circumstances between the date of letting out the premises and the date of institution of the suit has therefore been proved by the plaintiff.
5. The trial court has taken into account the number of the plaintiff's family and the accommodation available in the disputed house and after consideration of all the circumstances has granted a partial decree for eviction upon the view that the accommodation in the first and second floors of the premises in dispute would be sufficient for the plaintiff's requirement. We are unable to hold that there is any error of law involved in the findings arrived at by the courts below. The third point raised by the appellant also fails
6. The appeal is accordingly dismissed with costs.
7. Mr. Mukherji has asked for Some time to enable his client to vacate the premises on the ground that they are displaced persons and will require some time to find out suitable accommodation We are told that defendant No. 2, Haralal Das, has already left the house but defendant No. 3 is in occupation of the entire first floor We are prepared to grant four months' time from this date to the defendant No. 3 to vacate the first floor provided he deposits in the trial court to the credit of the plaintiff respondent a sum of Rs. 90 from month to month within the 15th of the following month as damages for use and occupation during the period of his stay.
8. The plaintiff respondent will be entitled, to withdraw the amount if so deposited by defendant No. 3 without any prejudice to his rights in this suit. If, however, there is default in any month, the plaintiff will have the right to execute the decree immediately.
9. Mr. Gopal Chandra Narayan Choudhury, appearing for the appellants, has supplemented the argument advanced by his leader. His argument is that the statutory tenancy of defendant No. 1 was required to be determined by service of notice under section 106 of the Transfer of Property Act but in view of the decision of the Federal Court in the case of Kal Khushroo Bezonjee Capadia v. Bai Jerlal Hirjibhoy Warden (2) (A.I.R 1949 F.C (24 at page 128) and the decision of English Court in the case of Morrison v. Jacob (3) [(1945) 1 K.B 577 at page 581], we hold that no notice was required to be served by the plaintiff and that the statutory tenancy under section 12(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, would come to an end only under one of the different clauses in the proviso to sub-section (1) and not otherwise
Guha, J.:— I agree.
A.K.D.G
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