P.N Mookerjee, J.:— This appeal is by the defendant and it arises out of a suit for ejectment, which was instituted on September 16, 1960.
1. The suit is, admittedly, governed by the West Bengal Prmises Tenancy Act, 1956. The notice of ejectment is dated June 10, 1960, terminating, and purporting to terminate the defendant's tenancy, with the expiry of July, 1960. The notice appears to have been sent by registered post and, after several endorsements, it was eventually returned with the endorsement “not claimed”. The ground, taken for ejectment under the above West Bengal Premises Tenancy Act, 1956, was the ground of default in payment of rent and the plaintiff's allegation was that the defendant was guilty of more than four defaults since January, 1960.
2. The suit was contested by the defendant and his defences were: (i) there was no relationship of landlord and tenant between the parties; (ii) that the suit was not maintainable; (iii) that the defendant was not a defaulter, as alleged by the plaintiffs; and (iv) that the notice of ejectment was invalid and insufficient and it was not also duly or properly served. The above defences were overruled by the learned trial Judge and the plaintiff's suit was decreed. Hence this appeal by the defendant.
3. The first two defences are interconnected. The plaintiff in the instant suit was a Hindu joint family business, J.N Chatterjee & Brothers, represented by Rabindra Nath Chatterjee, Karta. It was not disputed by the defendant that he was a tenant under J.N Chatterjee & Brothers but his contention was that it was a joint family business of a Hindu joint family, consisting of the three brothers, Robin, Jatin and Sachin, as disclosed and admitted by P.W 1, and another brother Amar and one Dwarka. According to P.W 1, Dwarka was their cousin and had nothing to do either with the plaintiff's joint family or their joint family business. On the question of Amar, no suggestion was made to P.W 1 in cross-examination, and it was only when the defendant examined himself that he put forward the plea that there was another brother Amar, belonging to the joint family, which owned the plaintiff business. It is also to be noticed that the defendant never mentioned either Dwarka or Amar in connection with deposits of rents, made by him with the Rent Controller. In such circumstances, the learned trial Judge appears to have been right in accepting the evidence of P.W 1 on the point and in holding that the plaintiff J.N Chatterjee & Brothers was a joint family business of the Hindu joint family, having as its membsrs Rabin, Jatin and Sachin, of whom Rabindra was the Karta. Under the circumstances, the relationship between the parties of landlord and tenant is amply proved.
4. It was, however, contended that the instant suit, brought, as it was, by Rabindra as Karta on behalf of the Hindu joint family and as representing the joint family business, was not maintainable. This argument will be opposed to the established law on the point, which is to be found in (1) Kirshen Parshad v. Har Narsis Singh, 38 I.A 45, (2) Lingan-gowda v. Basangowda, 54 I.A 122, (3) Guruvayya Gowda v. Dattatraya Anant, I.L.R 28 Bom. 11, all of which are noticed and the law on the point sufficiently discussed and explained in Mullah's Hindu Law, Section 251. It appears from the said decisions, as noticed by the learned author, and, also, from the recent decision of the Supreme Court ((4) A.I.R 1961 S.C 1277), that, under the Hindu Law, a suit of the present description would be maintainable by the Karta of the Hindu joint family, representing the joint family business. It was, no doubt, open to the defendant to ask for the addition of the other members of the family but such an objection has to be taken at an early stage of the suit. This was not done in the instant case and, accordingly, the instant suit cannot be held to be not maintainable at the instance of the present plaintiff (vide, in particular, (3) I.L.R 38 Bom. 11 (supra) & (4) A.I.R 1961 S.C 1277 (supra).
5. This brings us to the question of the defendant's default. Admittedly, the rents from January to March, 1960 were deposited with the Rent Controller beyond time. The rent for April, 1960 was, no doubt, deposited with the same authority in time but it does not appear to have been preceded by the requisite tender. In the premises, all the above deposits would be invalid. The defendant, then, would be guilty of four defaults or, in other words, defaults in payment of rent for the four months, January to April, 1960.
6. It is, however; contended by the appellant that, at the time of creation of the tenancy, two month's rents were kept in deposit with the landlord. It is difficult to hold from the terms of the document (Ext. A), produced for the purpose, that the said deposit would be available for being credited against the above defaults but, even assuming that such credit could be given, the defendant would still be a defaulter for two months and as, with regard to these two defaults, no step was taken under Section 17 of the above Act and no deposit was made under the said section, the defendant would lose the protection of the Act by reason of Section 13(1)(i) thereof. In this view, the issue of default should also be answered against the defendant.
7. Lastly comes the question of notice. The notice of ejectment, as appearing in the record, appears to be perfectly in order and no objection can be taken to it under the law. On the question of service, the final return of the postal peon was, no doubt, signified by the endorsement that it was “not claimed” but the said endorsement is preceded by several endorsements, from which it is clear that the defendant was residing and was available at the address, to which the notice was sent. In this context, the expression “not claim-ed” must be read as amounting to refusal and, in that view, it would be good service on the defendant. Satya Chorone's case (5) 65 C.W.N 1239, cited by the appellant, lays down nothing to the contrary.
8. The above were the defences, which were taken before the learned trial Judge and which were argued and reitreated before us but, as we have said above, none of them will have any substance in the circumstances of this case.
9. Before us, a further point was raised, namely, that, in any event, the defendant appellant was entitled to relief against forfeiture under Section 114 of the Transfer of Property Act. In support of this contention, reliance was placed on (6) Deo Chand Singh v. Shah Mohammad, 69 C.W.N 399 at pp. 401— 407. With respect, we may point out, however, that there are cogent reasons, which will support a contrary view. In the first place, Section 114, on its terms, would not apply to a case of so-called forfeiture under the West Bengal Premises Tenancy Act, 1956, on account of non-payment of rent. It is not a case of forfeiture of a lease but forfeiture of a special protection granted by the above statute.
10. Support for this view is to be found in the decision of the Supreme Court in (7) Mangilal v. Sugan Chand Rathi, A.I.R 1965 S.C 101, at pp. 104–106, where the distinction between the two classes of cases is succinctly pointed out. Apart from that, it must be rmembered that the relative protection was afforded by the above statute, on terms which are to be found therein, and those terms include also conditions of forfeiture of that protection. When the protection itself is created by the statute, which also prescribes the conditions for the same and provides for its forfeiture under certain circumstances, it is difficult to hold that relief on a wider basis may be available from some other statute, giving relief under different circumstances.
11. In the above view, we are, with respect, unable to agree with the decision on this point in (7) Deo Chand Singh v. Shah Mohammad, 69 C.W.N 399, and we would reject the appellant's claim for relief against forfeiture, sought to be founded upon the said decision.
12. In the premises, this appeal will fail and it will be dismissed subject to this that the appellant will have, in the first instance, time till the end of June next for vacating the disputed premises and making over vacant and peaceful possession thereof to the plaintiff decree-holder, such time to be enlarged till the end of November, 1967, provided the appellant files, in this Court, within three weeks from this date, an appropriate undertaking to vacate the disputed premises and make over vacant and peaceful possession thereof to the decree-holder within the said period, namely, end of November, 1967 and provided, further, that, in either case, the appellant goes on depositing, in the* trial court, to the credit of the decree-holder, a sum of Rs. 100|- per month, month by month regularly, in accordance with the English calendar, within the 15th of the next succeeding month according to the same calendar, on account of current mesne profits and, in default of any two of such deposits, this decree for eviction will become executable at once and the above provision for time, be it the shorter or the longer one, will automatically lapse.
13. The decree-holder will be entitled to withdraw unconditionally all deposits of rents or mesne profits, as the case may be, in respect of the disputed property, either in court or with the Rent Controller.
14. There will be no order for costs in this Court.
D. Basu, J.:— I agree.
S.K.B