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Banwari Barhi & Others v. Ram Ratan Pandey .
Summary of Legal Opinion
Factual and Procedural Background
This second appeal arises from a suit brought by the plaintiff-respondent seeking cancellation of a perpetual lease of a fixed-rate holding granted by his father. The plaintiff alleged the lease was executed by his father as manager but "for no legal necessity." At trial the civil Court dismissed the suit, finding a question of tenancy arose and that the revenue Court had decided the defendant was a tenant, so the civil Court could not entertain the suit. On appeal the lower appellate Court held that Section 273 of the Tenancy Act could not oust the jurisdiction of the civil Court in this case, and allowed the suit, finding the alienation was not for legal necessity and decreeing cancellation of the lease. The present appeal raises five pleas by the appellant (defendant), several of which were considered and rejected by the appellate Court, and the appeal has been dismissed.
Legal Issues Presented
- Whether Section 273 of the Tenancy Act applies to oust the jurisdiction of the civil Court in a suit for cancellation of a perpetual lease executed by the manager (the father).
- Whether the lease was granted in the ordinary course of management such that it could not be avoided.
- Whether a perpetual lease, executed by the father as manager without legal necessity, should be construed as an ordinary year-to-year lease.
- Whether the plaintiff should be put to terms (i.e., denied cancellation) because part of the consideration for the lease was actually paid, with reference to Section 65 of the Contract Act.
Arguments of the Parties
Appellant's (Defendant's) Arguments
- Section 273 of the Tenancy Act applies and thus the civil Court lacks jurisdiction to entertain the suit.
- The lease was granted in the ordinary course of management, implying the father as manager was entitled to transfer the holding.
- The perpetual lease should be construed as an ordinary year-to-year lease (reference made to Basdeo Narain v. Sheikh Muhammad Yusuf).
- Because part of the consideration for the lease was actually paid, the plaintiff should be put to terms before obtaining cancellation (invoking Section 65 of the Contract Act).
Respondent's (Plaintiff's) Arguments
- The lease was executed by the father as manager "for no legal necessity" and is therefore voidable; the plaintiff sued for cancellation.
- The plaintiff remained in possession and sought cancellation rather than possession against the defendant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Basdeo Narain v. Sheikh Muhammad Yusuf. A.I.R 1928 All. 617. | Refusal to give possession to a plaintiff's son where the father had given a perpetual lease without legal necessity; suggestion that a year-to-year lease could have entitled the defendant to possession. | The Court held this decision had no relevance to the present case because the present suit was for cancellation (the plaintiff alleged he remained in possession) and not a suit for possession; therefore the precedent was not applied to deny cancellation. |
Court's Reasoning and Analysis
The Court reviewed the procedural history: the trial Court dismissed the suit relying on a revenue determination of tenancy; the lower appellate Court rejected that approach and held Section 273 of the Tenancy Act did not oust the civil Court's jurisdiction to decide a suit for avoidance of a lease.
On the merits of the pleas raised in the present appeal, the Court addressed each in turn:
- First plea (Section 273): The Court agreed with the lower appellate Court that Section 273 could not be applied to bar the civil Court from adjudicating a suit for avoidance of the lease; this plea was rejected.
- Second plea (ordinary course of management): The appellant maintained the lease was granted in the ordinary course of management. The Court explained that this plea required proof that the father could not deal with the land more profitably himself (for example, by hired servants). No evidence supporting such necessity was offered, and in any event a perpetual lease was "clearly not necessary."
- Plea to construe the perpetual lease as year-to-year: The appellant relied on Basdeo Narain v. Sheikh Muhammad Yusuf. The Court observed it was difficult to see how a void permanent lease could confer a right to possession, but more importantly found the cited decision irrelevant because the present suit seeks cancellation while the plaintiff claims to remain in possession; therefore the precedent did not affect the result.
- Plea based on payment of part consideration (Section 65 of the Contract Act): The Court stated it was unnecessary to decide whether Section 65 applied. If Section 65 did apply, the manager or family who used the money might be liable to restore it, and the defendant could bring a separate suit for recovery. However, cancellation of the lease is a condition precedent to any right of the defendant to recover money paid; thus the defendant could not complain of a decree for cancellation.
Based on this analysis the Court concluded that none of the appellant's pleas prevented cancellation of the lease and that the decree of cancellation was properly made.
Holding and Implications
DISMISSED — The appeal is dismissed.
Implications:
- The decree cancelling the perpetual lease (on the ground it was executed by the father as manager without legal necessity) stands.
- The defendant's contentions that Section 273 ousted civil jurisdiction, that the lease was in the ordinary course of management, and that the perpetual lease should be treated as a year-to-year lease were rejected by the Court on the facts and law as applied in this case.
- As to the payment of part consideration, the Court indicated that any claim for recovery of money paid is a separate matter: cancellation of the lease is a condition precedent to any right to recover money, and the defendant may bring a separate suit for restitution if entitled; the Court did not rule on restitution under Section 65 of the Contract Act in this opinion.
1. This second appeal arises out of a suit brought by the plaintiff-respondent for cancellation of a perpetual lease of a fixed-rate holding by his father on the ground that the lease was executed by his father as manager but for no legal necessity.
2. The trial Court dismissed the suit on a finding that a question of tenancy right arose and as the revenue Court had decided that the defendant was tenant, the civil Court could not deal with this suit.
3. In appeal the lower appellate Court held that Section 273 of the Tenancy Act, could not apply to oust the jurisdiction of the civil Court in a case like this. No doubt the defendant was a tenant if the lease were a valid lease, and it would be a valid lease until avoided by the son.
4. The revenue Court's decision could not prevent the plaintiff bringing a suit for avoidance of the lease. It found that the alienation was not for legal necessity and decreed the suit.
5. In the present appeal five pleas are taken. The first plea is that S. 273 did apply. This plea was rightly been rejected for the reasons stated by the lower appellate Court.
6. The second plea is that the lease was granted in the ordinary course of management. In other words, this amounts to a plea that the father was bound to give the holding to somebody in the ordinary course of management. This plea would depend upon proving that the father could not deal with the land more profitably himself, i.e, by hired servants. No evidence of this was offered, but at any rate a perpetual lease was clearly not necessary. Two other pleas are pressed. One is that as the father being manager was entitled to give an ordinary lease to the defendant, the lease should be construed as an ordinary lease from year to year. I have been referred to a recent, decision of a Bench of two Judges of this Court: Basdeo Narain v. Sheikh Muhammad Yusuf . A.I.R 1928 All. 617., refusing to give possession to a plaintiff's son in a case where the father had given a perpetual lease without legal necessity on the ground that he could have given a year to year lease which would have entitled the defendant in that case to possession. It is difficult to see how if an alienation by way of a permanent lease is void it can give the so-called lessee any right to possession, but it is sufficient for the purpose of this case to say that this is not a case of giving possession. The plaintiff has only sued for cancellation alleging that he is still in possession and the lower appellate Court has accepted the suit as such. So the decision quoted has no relevance.
7. Another point urged is that as part of the consideration was actually paid, the plaintiff should be put to terms before getting the cancellation. It is not necessary in this case to consider whether Section 65 of the Contract Act, applies. If it does apply, the manager or the family, whichever used the money paid by the defendant, might be liable to restore it. If so, the defendant can bring a suit to that effect. What we are dealing at present is the cancellation of a lease which the plaintiff is entitled to avoid. The cancellation of the lease is obviously a condition precedent to any right on the part of the defendant to recover any of the money paid for the lease. He cannot therefore complain of a decree for cancellation.
8. For the above reasons the appeal is dismissed.
P.D/R.K
9. Appeal dismissed.
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