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Smart Summary

Factual and Procedural Background

Plaintiffs purchased shop-cum-flat No. 13, Sector 22 on 19.12.1963. A registered lease dated 19.12.1963 created a tenancy, effective from 1.1.1964, under which Jatinder Kumar and Ramesh Kumar (defendants 1 and 2) took the premises on rent and were in possession operating a business called “Adam & Eve.” Plaintiffs served a notice dated 7.12.1968 terminating the tenancy effective 1.1.1969 and warning that double rent would be charged as damages if the defendants failed to vacate. The lease term of five years was said to expire on 31.12.1968.

The defendants remained in possession. Plaintiffs instituted a suit claiming recovery of Rs. 28,800 as damages for unlawful use and occupation from 1.1.1969 to 31.12.1969 at Rs. 2,400 per month, and for damages from 1.1.1970 until vacant possession was surrendered or eviction, again at Rs. 2,400 per month.

Defendants 1 and 2 contested the suit and pleaded that, due to disruption in the family business, defendant No. 3 (Govardhan Lal Kapur) took over the business in late December 1965 and that Mahan Singh, attorney of the plaintiffs, recognized the tenancy of defendant No. 3 with effect from 1.10.1965. Defendant No. 3 contested the suit stating that he became sole proprietor and paid rent to Mahan Singh (initially Rs. 1,000 later Rs. 1,200). He admitted receipt of the termination notice but contended it was illegal and alleged that acceptance of rent by the plaintiffs' attorney waived the notice.

The trial Court consolidated inter-linked issues and found that defendant No. 3 (Govardhan Lal Kapur) alone was liable to pay Rs. 78,000 as damages at Rs. 2,400 per month for the period 1.1.1969 to 15.9.1971; the suit against defendants 1 and 2 was dismissed. Plaintiffs appealed by Regular First Appeal; the learned Single Judge reversed the trial Court in so far as it fixed liability solely on Govardhan Lal Kapur and held the appellants (defendants 1 and 2) also liable for the decretal amount. Defendants 1 and 2 filed two separate appeals challenging the Single Judge's judgment, seeking restoration of the trial Court judgment.

Legal Issues Presented

  1. Whether the appellants (defendants 1 and 2) occupied the premises as tenants under the plaintiffs up to 31.12.1968.
  2. Whether the original registered lease deed stood terminated by consent and conduct of the parties and whether a new tenancy with defendant No. 3 came into existence with effect from 1.10.1965.
  3. Whether defendant No. 3 occupied the premises as tenant under Mahan Singh (the plaintiffs' attorney) and not under the plaintiffs.
  4. The central question posed at the outset: which parties (between appellants Jatinder Kumar and Ramesh Kumar and defendant-respondent Govardhan Lal Kapur) are liable to pay the rent and damages for shop-cum-flat No. 13 in Sector 22-D, Chandigarh.

Arguments of the Parties

Appellants (Defendants 1 & 2) — Principal Contentions

  • There was a family disruption and, by a family settlement, the assets and liabilities of the firm Adam & Eve were taken over by Govardhan Lal Kapur, who thereby became the exclusive owner and occupier.
  • By conduct and acceptance of rent by the plaintiffs’ attorney (Mahan Singh), a new tenancy in favour of Govardhan Lal Kapur had come into existence from 1.10.1965, effectively discharging the appellants from liability.
  • They relied on the certified copy of the lease (Exhibit P3) and submissions about parties' conduct to argue that the original lease had been terminated — invoking concepts of express or implied surrender (relying conceptually on Section 111 of the Transfer of Property Act).
  • They pointed to a notice (Exhibit P6/P D6 references in the record) suggesting a different rent figure (Rs. 1,100) to support a claim of a fresh arrangement in favour of Govardhan Lal Kapur.

Defendant No. 3 (Govardhan Lal Kapur) — Principal Contentions

  • He asserted that the partnership firm Adam & Eve handed over possession to him in October 1965 and he took the premises on rent from Mahan Singh as sole proprietor (initially Rs. 1,000, later Rs. 1,200 per month).
  • He admitted receipt of the termination notice but contended that it was illegal.
  • He contended that acceptance of rent by Mahan Singh after December 1968 waived the termination notice and/or recognized his tenancy.

Plaintiffs' Position (as reflected in the opinion)

  • Plaintiffs served a terminating notice dated 7.12.1968 and treated the lease as expiring on 31.12.1968; they claimed damages and rent for continued use beyond that date.
  • Plaintiffs (through their attorney) accepted rent payments from Govardhan Lal Kapur, but the notice and other evidence indicated that such acceptance was without consent and did not amount to recognition of a new tenancy in his favour.
  • Mahan Singh (attorney) consistently maintained that rent remained at Rs. 1,200 and that alleged lower rent or adjustments were explained by security deposit arrangements, not a change in the lease.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Balasubramania Iyer v. Subbiah Thevar, AIR 1965 Madras 417 When a landlord sues to recover arrears of rent from a tenant inducted into possession under a lease, the burden is on the lessee to plead and prove that he had re-delivered possession to the lessor for the period for which rent is claimed. The Court relied on this principle to hold that appellants bore the burden of proof to show re-delivery of possession; absent such proof they remained liable for rent/damages.
Mangadha Shah v. Abdul Chant, AIR 1933 Lahore 278 Oral evidence is not admissible to prove rescission of a lease where the instrument is a registered document; the District Judge's contrary view was erroneous. The Court cited this authority to support the conclusion that oral evidence could not be used to prove rescission of the registered lease deed in the present case (invoking Section 92, Evidence Act).
Ghanya Lal v. Rallia Ram, AIR 1928 Lahore 873 Earlier authority relied upon to support the inadmissibility of oral evidence to vary or rescind certain written instruments. Referenced (through Mangadha Shah) as one of the decisions supporting the proposition that oral evidence was inadmissible to prove rescission of the registered lease.
G.P. Mallappa v. Matam Naga Chetty, AIR 1919 Madras 833 Earlier authority relied upon on the point that oral evidence cannot be used to vary or rescind a written instrument. Relied upon (via Mangadha Shah) to show that oral evidence was not admissible to establish a rescission/modification of the registered lease.
Jagannath Kashiram Tambli v. Shankar Ganpat Shimpi, AIR 1920 Bombay 115 Earlier authority supporting the rule on inadmissibility of oral evidence to prove rescission/variation of written instruments. Used as supporting precedent cited in Mangadha Shah and relied on to bar oral evidence of rescission of the registered lease.
Balwant Singh Walia v. Smt. Maya Devi etc., 1979 CLJ 7 Subsequent oral agreement modifying the terms of an original registered mortgage deed is inadmissible. The Court invoked this decision to reinforce the principle that oral evidence cannot modify or rescind terms of a registered instrument; applied analogously to the registered lease deed in this case.

Court's Reasoning and Analysis

The Court approached the dispute by identifying the legal rules governing surrender (Section 111, Transfer of Property Act) and the admissibility of oral evidence to vary or rescind registered instruments (Section 92, Evidence Act), and by applying these rules to the established facts and documentary record (notably the registered lease Exhibit P3 and notices).

Key steps in the Court's analysis:

  1. The Court considered the modes of determination of lease under Section 111 T.P. Act, especially sub-clauses (e) (express surrender) and (f) (implied surrender). It emphasized that surrender — express or implied — must be to the lessor; handing possession to a third party cannot amount to surrender to the lessor.
  2. Applying the principle from Balasubramania Iyer, the Court held that the burden was on the lessee (the appellants) to allege and prove that during the relevant period they had delivered possession back to the lessor. The appellants failed to discharge that burden.
  3. The Court rejected the contention that acceptance of rent by the plaintiffs' attorney (Mahan Singh) converted the payer (Govardhan Lal Kapur) into a lessee or constituted a waiver of plaintiffs' rights. It held that rent may be paid by any person on behalf of the lessee and that such payment does not, by itself, make the payer the lessee.
  4. The Court addressed the appellants' reliance on oral evidence to show rescission or modification of the registered lease and held such oral evidence inadmissible under Section 92 of the Evidence Act. It relied on Mangadha Shah and the trio of earlier decisions (Ghanya Lal, G.P. Mallappa, Jagannath Kashiram Tambli) and the Division Bench decision in Balwant Singh Walia to support the inadmissibility of oral modification/rescission of registered deeds.
  5. The Court examined disputed points about the rent amount and accepted Mahan Singh's explanation that the contractual rent remained Rs. 1,200 per month and that any alleged Rs. 1,100 figure was explained by adjustments from a security deposit—not by a subsisting new lease in favour of Govardhan Lal Kapur.
  6. On the cumulative application of these principles to the material on record, the Court concluded that the appellants' contentions that the lease had been terminated or that a fresh tenancy in favor of defendant No. 3 had arisen were without merit.

Holding and Implications

DISPOSITION: The appeals filed by defendants 1 and 2 (L.P.A. Nos. 1125 and 1126 of 1983) are dismissed.

Implications:

  • The dismissal upholds the Single Judge's reversal of the trial Court insofar as the Single Judge had fixed liability on the appellants as well; the appellants' challenge to that finding failed and the Single Judge's decision stands.
  • The immediate practical consequence is that the appellants remain liable as determined by the Single Judge (subject to the precise decretal terms in the Single Judge's order as reflected on the record). The Court ordered that parties shall bear their own costs.
  • The Court's reasoning relied on established statutory provisions and settled authorities regarding (a) the requirement that surrender must be to the lessor, (b) the burden on the lessee to prove re-delivery of possession when rent is claimed, and (c) the inadmissibility of oral evidence to rescind or modify registered instruments. The opinion indicates no novel precedent beyond application of these settled principles.

    Jatinder Kumar v. Harmohinder Singh .

    V.K Bali, J. — This order will dispose of L.P.A Nos. 1125 and 1126 of 1983, as common question of law and facts are involved in both the appeals.

    2. The only question posed for decision is with regard to liability to pay the rent and damages of shop-cum-flat No. 13 in Sector 22-D, Chandigarh between appellants Jatinder Kumar and Ramesh Kumar and defendant-respondent Govardhan Lal Kapur.

    3. Facts, in brief reveal that plaintiff purchased shop-cum-flat No. 13 Sector 22 on 19.12.1963 Admittedly, the aforesaid premises were taken on rent initially by Jatinder Kumar and Ramesh Kumar with effect from January 1, 1964, vide lease deed dated 19th December, 1963. The said defendants were already in possession of the property and were carrying on business under the name and style of ‘Adam & Eve’. The plaintiffs served notice dated 7th December, 1968, terminating their tenancy with effect from January 1, 1969. It was clarified in the notice that in case they do not vacate the premises by the date stipulated, they will be charged double the rate of the rent as damages for their use and occupation. It was also stated that in any case, the lease of the premises in question being only for five years, the same was otherwise also to expire by afflux of time, by 31st December, 1968. The defendants did not comply with directions as contained in the notice. This constrained the plaintiffs to institute a suit for recovery of Rs. 28,800/-, as damages for the un-authorised use and occupation of the shop-cum-flat from 1.1.1969 to 31.12.1969, at the rate of Rs. 2400/- per month, as also recovery of damages from 1.1.1970 upto such time the defendants were to hand over the vacant possession or actually evicted from the premises in question, again, at the rate of Rs. 2400/- per month. Defendants No. 1 and 2, who are appellants in two separate appeals filed written statement and contested the matter. The original lease in their favour was admitted but it was pleaded that on account of disruption in the family business, defendant No. 3 Goverdhan Lal Kapur had taken over the business in the latter part of December, 1965 and Mahan Singh attorney of the plaintiffs recognised the tenancy of the said defendants with effect from 1st October, 1965. Defendant No. 3 as well contested the suit, pleading that the partnership firm Adam and Eve handed over the possession in October, 1965 to him as sole proprietor of the said concern and he took the premises on rent from Mahan Singh on monthly rent of Rs. 1000/- which was later on increased to Rs. 1200/- per month. He admitted the receipt of notice dated 7th December, 1968 but pleaded that the same was illegal. He also contested the matter on the plea that the attorney of the plaintiffs had waived the notice by accepting the rent after December, 1968.

    4. The pleadings of the parties as noticed in brief resulted m the issues as reproduced by the trial Court at page 2 of the judgment and inasmuch as the controversy in the present appeals centres around liability of the defendants inter se to pay the rent or damages as the case may be, it is only relevant issues which deserve to be noticed.

    5. Whether the defendants 1 and 2 occupied the premises in suit as tenants under the plaintiffs upto 31.12.1968? OPP

    6. Whether the original lease deed stood terminated by the consent and conduct of the parties and a new tenancy with defendant No. 3 came into existence with effect from 1.10.1965? OPD

    7. Does defendant No. 3 occupy the premises in suit as tenant under Mahan Singh and not under the plaintiffs? OPD-3.

    5. Inasmuch as, the aforesaid issues were inter-linked, the same were rightly discussed together by the trial Court. The findings, however, on the said issues was that it is defendant No. 3 Goverdhan Lal Kapur who was to pay the amount of Rs. 78,000/- as damages at the rate of Rs. 2,400/- per month for the period 1.1.1969 to 15.9.1971 Suit against the appellants i.e defendants 1 and 2 was dismissed, leaving the parties to bear their own costs.

    6. Aggrieved, the plaintiffs agitated the matter by way of Regular First Appeal and the learned single Judge reversed the findings of the trial Court in so far as the same pertained to fixing the liability of Goverdhan Lal Kapur alone and held that the appellants as well are liable to pay the decretal amount. Hence two separate appeals by defendants 1 and 2 challenging the judgment and decree passed by the learned single Judge have been filed with a prayer to restore the judgment and decree passed by the trial Court.

    7. It was not disputed at any stage nor even now in these appeals that the tenancy came into being vide registered lease deed dated 19.12.1963 for a period of five years at the rate of Rs. 1,200/- per month. On the records of the trial Court, certified copy of the lease deed Exhibit P3 was placed according to which the appellants took the premises on lease for a period pf five years from the plaintiffs who were minors at that time whereas the original lease deed which was tagged with another case filed summoned by the learned single Judge clearly mentions that the appellants were the lessees and they had described themselves as owners of Adam and Eve. The case as projected by the appellants before the trial Court was that under the family settlement, the assets and liabilities of firm Adam and Eve were taken over by Goverdhan Lal Kapur who became the exclusive owner of the same and the plaintiffs started accepting rent from Goverdhan Lal Kapur in the later part of the year 1965. One of the grounds on which the appellants succeeded before the trial Court in their plea aforesaid was that in the lease deed, certified copy whereof, is Exhibit P3, it was recited that the appellants had taken the premises on lease for a period of five years. As mentioned above, the appellants described themselves owners of Adam and Eve which was omitted in the certified copy Exhibit P3. The finding of the trial Court based upon Exhibit P3 was, thus, rightly reversed by the learned Single Judge. The appellants, however, on the basis of act and conduct of the plaintiffs as also notice Exhibit D6 dated 1.3.1968 which was issued by the plaintiffs through their counsel as also on the basis of oral evidence still contend that there was disruption in their family and under the settlement that was arrived at, the assets and liabilities of firm Adam and Eve were taken over by Goverdhan Lal Kapur who became the sole proprietor of the same. It requires to be mentioned here that Goverdhan Lal Kapur is the real uncle of the appellants.

    8. The contention of the appellants, as noticed above, is devoid of merit. Section 111 of the Transfer of Property Act provides various modes for determination of lease and it is sub clauses (e) and (f) of Section 111 under which it is sought to be made out that lease in favour of appellant stood determined. Whereas sub clause (e) talks of determination of lease by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lesson, by mutual agreement between them, sub clause (f) puts lease to an end by implied surrender. The express or implied surrender, in the very nature of things, can be only to the lesson and not to any one eke. Mere fact that the appellants handed over the possession of the premises under the name and style of Adam and Eve being run by them as proprietors to Goverdhan Lal Kapur, would not be surrender of lease which, as stated above, could only be by handing over possession of the premises to the plaintiffs. It is too well settled by now that when a suit is filed by a landlord to recover arrears of rent due from a tenant, the burden is upon the lessee to plead and prove that during the period of lease for which rent has been claimed, he had delivered possession of the property back to the lesson, Madras High Court in “Balasubramania Iyer v. Subbiah Thevar,” AIR 1965, Madras 417 held that when a suit is filed by a landlord to recover arrears of rent due from a tenant who was inducted into possession in pursuance of the lease, the burden is clearly upon the leasee to allege and prove that during the currency of the lease and for the period for which rent was claimed, he had delivered possession of the property back to the lesson. Unless, such redelivery of possession of the property to the lesson is established, the tenant will clearly be liable for arrears of rent.

    9. The contention of the appellants that the mere fact that the attorney of plaintiffs Mahan Singh started accepting rent from Goverdhan Lal Kapur, the plaintiffs by their act and conduct, are not entitled to claim ??? or damages from them is misconceived. On the basis of facts as established by evidence in this case, the plaintiffs were entitled to the rent which was coming to them from Adam and Eve and even if the same was through Goverdhan Lal Kapur, they were not concerned with that. The rent can be paid by any one on behalf of the lessee and that cannot make the one who remits the rent as a lessee. Notice Exhibit D6 even though recognises the fact that it is Goverdhan Lal Kapur who was occupying the premises but the same is clearly stated to be against the will and consent of the plaintiffs. The contents of the notice cannot be termed as implied admission on the part of the plaintiffs that it was Goverdhan Lal Kapur who became lessee in the later part of the year 1965.

    10. In so far as oral evidence is concerned, suffice it to say that the same was not even admissible to prove rescission of the lease deed as per provisions contained in Section 92 of the Evidence Act. In Mangadha Shah v. Abdul Chant” AIR 1933 Lahore 278, it was held that the view of the District Judge that oral evidence was admissible under the circumstances to prove the rescission of the lease was erroneous. For taking this view, reliance was placed upon three earlier decisions reported in “Ghanya Lal v. Rallia Ram,” AIR 1928 Lahore 873; “G.P Mallappa v. Matam Naga Chetty,” AIR 1919 Madras 833 and “Jagannath Kashiram Tambli v. Shankar Ganpat Shimpi,” AIR 1920 Bombay 115(2).

    11. A Division Bench of this Court in “Balwant Singh Walia v. Smt. Maya Devi etc.,” 1979 Current Law Journal 7 held that subsequent oral agreement modifying the terms of original registered mortgage deed is in admissible.

    12. The last contention of the appellants that in notice Exhibit P6, it was mentioned that the rate of rent was Rs. 1,100/- per month and that the original lease evidenced thorough Exhibit P3 was for Rs. 1,200/- was enough to show existence of a fresh lease in favour of Goverdhan Lal Kapur has also to be repelled. It is true that Mahan Singh, the attorney of the plaintiffs did state that initially the rate of rent was Rs. 1,200/- per month but he clarified by saving that at no given time, Rs. 1,100/- were settled as rent and in fact a sum of Rs. 3,600/- was deposited with him as security and out of that amount, a sum of Rs. 100/- was deducted every month towards rent and the amount of security was adjusted in three years. The rent, thus, always remained Rs. 1,200/-

    13. Finding no merit in these appeals, we dismiss the same but leave the parties to bear their own costs.

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    Comments

    Jatinder Kumar v. Harmohinder Singh .
    (Mar 2, 1993)