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Advocates
  • Chandra Narayan Laik
  • Ajit Kumar Mukerji
  • Nirmal Kumar Ganguly
  • Advocates.
Judges
  • Banerjee, J.
Acts
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Citation Codes
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citation codes
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Advocates
  • Chandra Narayan Laik
  • Ajit Kumar Mukerji
  • Nirmal Kumar Ganguly
  • Advocates.
Judges
  • Banerjee, J.
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff sued for ejectment, arrears of rent and mesne profits in respect of 4 cottahs 10 chittaks of bastu land in Mouza Baranagore, District 24 Parganas. The defendant had taken settlement of the land by executing a registered Kabuliyat dated 20th Agrahayan, 1346 B.S. (corresponding to 6 December 1938) purportedly creating a five-year tenancy; the defendant erected a hut and occupied the land. The fixed five-year period expired in Kartick, 1351 B.S., after which the defendant held over. The defendant defaulted in rent from Kartick, 1356 B.S. to Chaitra, 1357 B.S. The plaintiff served a notice dated 2 September 1950 (16th Bhadra, 1357 B.S.) terminating the tenancy with the expiry of Chaitra, 1357 B.S.

At trial, the Munsif dismissed the claims for ejectment and mesne profits but granted a decree for arrears of rent in favour of the plaintiff. The plaintiff appealed to the lower appellate court, which upheld the trial court's dismissal of the plaintiff's claim for ejectment and dismissed the plaintiff's appeal. The present appeal is by the plaintiff against that appellate decree.

Legal Issues Presented

  1. Whether the registered, unilateral Kabuliyat executed by the tenant (purporting to create a five-year lease) is operative as a "lease in writing" under section 107 of the Transfer of Property Act.
  2. If the Kabuliyat is not a lease in writing, whether the resulting tenancy is a monthly tenancy and, if so, how the notice to quit must be framed under section 9 of the West Bengal Non-Agricultural Tenancy Act (in particular whether a six months' notice "expiring with the end of a year of the tenancy" applies to a month-to-month tenancy).
  3. Whether the notice dated 2 September 1950 was valid under the West Bengal Non-Agricultural Tenancy Act (specifically compliance with section 9(1)(b) clause (iii) and section 75 where relevant) and therefore whether the defendant was lawfully terminable and ejectable.

Arguments of the Parties

Appellant's Arguments (Plaintiff)

  • The Kabuliyat dated 6 December 1938 (registered instrument) was executed by the lessee alone and was therefore hit by section 107 of the Transfer of Property Act; as a result it was inoperative and should not be treated as a lease in writing.
  • Because there was no valid lease in writing, the defendant held the land without a lease in writing and, by admitted payment and receipt of rent according to the Bengali calendar month, the relationship was a monthly tenancy.
  • As a monthly tenancy, the plaintiff contended the tenancy could be terminated by six months' notice in writing expiring with the end of the (relevant) year — the appellant argued that section 58A of the Transfer of Property Act did not apply because the term fixed under the Kabuliyat had expired long ago.
  • Overall, the appellant contended that the notice to quit should have been effective to terminate the tenancy at the end of the Bengali year 1357 B.S and the defendant should be ejectable.

Respondent/Defendant's Arguments

The opinion does not contain a detailed account of the defendant's specific legal arguments. The record indicates that the defendant raised multiple defences and relied on facts such as erecting pucca structures and continuing in occupation, but the opinion does not set out an itemised list of the defendant's submissions in the manner the appellant's submissions are recorded.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Indra Moni Dasi v. Snehalata Dutt (P.N. Mookerjee, J.) Authority relied upon for the proposition that a unilateral Kabuliyat executed by the lessee alone cannot be treated as a valid lease under section 107 of the Transfer of Property Act. The appellant relied on this judgment to argue that the Kabuliyat in the present case did not create a lease in writing; the court accepted the appellant's legal position that the unilateral instrument was ineffective as a lease and that the tenancy was month-to-month as a result.
Sudhindra Nath Roy v. Haran Chandra Mistry (S.A. No. 879 of 1950) — Division Bench (Das Gupta and Guha, JJ.) Explained that the statutory phrase “a year of the tenancy” in section 9(1)(b) clause (iii) of the West Bengal Non-Agricultural Tenancy Act can apply to a tenancy from month to month by treating any successive 12-month period as a year of the tenancy. The Court treated this Division Bench decision as binding and relied on it to reject the appellant's contention that a month-to-month tenancy cannot have a "year of the tenancy"; the decision supported the conclusion that notice must be six months' notice expiring with the anniversary (year) of the tenancy.
Narayan Chandra Sen v. Sripati Charan Kumar (S.A. No. 425 of 1952) — Division Bench (Das Gupta and Bachawat, JJ.) Followed the reasoning of the earlier Division Bench decision that section 9(1)(b) clause (iii) applies by construing "year of the tenancy" to include a 12-month period even in a month-to-month tenancy. The Court treated this decision as also binding and followed it in concluding that notice terminating a month-to-month tenancy must be six months' notice expiring with the year of the tenancy (the relevant 12-month anniversary), and therefore found the notice in this case defective.

Court's Reasoning and Analysis

The court proceeded in distinct analytical steps, grounded in statutory interpretation and binding precedents recorded in the opinion:

  1. Validity of the Kabuliyat as a lease in writing:
    • The court accepted the appellant's reliance on the authority that a unilateral Kabuliyat executed by the lessee alone does not satisfy the requirements of section 107 of the Transfer of Property Act to create a lease in writing for five years. The judge expressly agreed with the legal position that the instrument did not operate as a registered lease created by both parties.
    • On that basis the court concluded that the contractual arrangement did not effect a continuing lease in writing; instead, by the admitted payment and receipt of rent according to the Bengali calendar month, the relationship between the parties was a month-to-month tenancy.
  2. Applicability of the West Bengal Non-Agricultural Tenancy Act and the form of notice required:
    • Because the land was within Baranagore Municipality and had been held without a valid lease in writing for more than one year but less than twelve years, section 9 of the West Bengal Non-Agricultural Tenancy Act applied. Under section 9(1)(b) clause (iii) such tenants are liable to ejectment only on specified grounds including termination by six months' notice in writing expiring with the end of a year of the tenancy.
    • The appellant argued that a month-to-month tenancy cannot have a defined "year of the tenancy" and therefore a six months' notice expiring with the end of a year of the tenancy was impossible; the court rejected that argument as contrary to the statutory scheme.
    • The court relied on two prior Division Bench decisions (Sudhindra Nath Roy and Narayan Chandra Sen), treating them as binding authority. Those decisions construed the phrase "year of the tenancy" to include a 12-month period for the purposes of the statutory requirement, even where the tenancy is month-to-month.
  3. Application of the statutory rule to the facts:
    • The Kabuliyat showed that the tenancy year ran from Agrahayan to Kartick (anniversary month Kartick). Therefore any valid six months' notice required by section 9(1)(b)(iii) had to expire with the anniversary (the year of the tenancy) in Kartick. The notice in question sought to terminate the tenancy on the expiry of Chaitra, 1357 B.S., not on the expiry of Kartick.
    • Consequently the court held the notice defective because it did not comply with the statutory requirement of expiring with the year of the tenancy. The court also referenced other grounds used by the lower appellate court (for example, failure to comply with section 75 and the fact that the plaintiff failed to execute the lease in the form required by section 107), but the decisive legal point the High Court applied was the statutory notice requirement as construed by the Division Benches.
  4. Outcome of the analysis:
    • Because the notice was legally defective for not expiring with the anniversary (year) of the tenancy, the statutory protection for the defendant applied and the plaintiff could not, on the basis of that notice, obtain ejectment.
    • The court therefore affirmed the appellate court's decision dismissing the plaintiff's appeal against the dismissal of his ejectment claim and dismissed this appeal with costs. The opinion also records that the judge granted leave to appeal to the higher forum under Clause 15 of the Letters Patent.

Holding and Implications

Holding: THE APPEAL IS DISMISSED.

Implications:

  • The appellate decree affirming the Munsif's decree is sustained: the plaintiff's claim for ejectment and mesne profits remains dismissed, while the trial court's decree for arrears of rent (which the trial court had awarded) stands as the appellate challenge by the plaintiff failed. In short, the plaintiff is limited to the arrears of rent decree and cannot obtain ejectment based on the defective notice in issue.
  • The court applied binding Division Bench authority construing section 9(1)(b) clause (iii) of the West Bengal Non-Agricultural Tenancy Act to require that six months' notice expiring with the "year of the tenancy" is applicable even to month-to-month tenancies; thus no new precedent was proclaimed—the opinion follows and applies the earlier Division Bench decisions which the court treated as binding.
  • The practical consequence for landlords: where a tenancy is held without a lease in writing and has lasted more than one year, compliance with the specific statutory form and timing of notice (six months' notice expiring with the year of the tenancy) is mandatory, and failure to comply will render a notice to quit ineffective.

Judge: S.K.B. — The opinion concludes with the dismissal of the appeal with costs and a grant of leave to appeal under Clause 15 of the Letters Patent.

Show full summary ...

    Radha Charan Das v. Pravabati Dassi .

    2. This appeal, at the instance of the plaintiff, is directed against an appellate decree affirming the decree of a learned Munsif.

    3. According to the plaintiff, he is the landlord of 4 cottahs 10 chittaks of Bastu land in Mouza Baranagore, District 24 Parganas. The defendant look settlement of the said land from the plaintiff agreeing to pay a monthly rent of Re. 1/1/-. In evidence of the settlement, the defendant executed a Kabuliyat in favour of the plaintiff. The period of tenancy fixed under the Kabuliyat was for five years. The Kabuliyat bears the date 20th Agrahayan, 1346 B.S (corresponding to December 6, 1938) and was registered according to law. Inducted in the manner aforesaid, the defendant raised a hut on the land and continued in occupation.

    4. The period of the tenancy, fixed under the Kabuliyat, expired in Kartick, 1351 B.S Thereafter the defendant tenant held over. The defendant became a defaulter in payment of rent from Kartick, 1356 B.S to Chaitra, 1357 B.S

    5. It was in these circumstances that the plaintiff caused service of a notice, dated September 2, 1950, (corresponding to 16th Bhadra, 1357 B.S — Ed.) on the defendant, terminating the tenancy with the expiry of the month of Chaitra, 1357 B.S

    6. In the suit, out of which this appeal arises, plaintiff claimed ejectment of the defendant, arrears of rent and mesne profits.

    7. The defendant took a number of defences with all of which I am not concerned at the present moment. The defence with which I feel concerned is whether the notice to quit was bad not being in conformity with the West Bengal Non-Agricultural Tenancy Act.

    8. The trial court dismissed the claim for ejectment and mesne profits but passed a decree for arrears of rent in favour of the plaintiff. The reasons which weighed with the learned Munsif in dismissing the claim of the plaintiff are hereinafter stated:

    (a) “The bastu in suit is admittedly within the Baranagore Municipality to which the provisions of the West Bengal Non-Agricultural Tenancy Act XX of 1949 apply. * * * * Admittedly the defendant took settlement of the bastu land in suit for residential purposes for a limited term of 5 years by this registered lease, dated 6.12.89 (Vide Ext. 4). The present plaint was filed in this court on 4.5.51 Thus apart from any other consideration, 11 years, 4 months and 28 days passed from the date of this lease to the date of the institution of this suit. That being so, whether the defendant has been holding over or possess ing this bastu on a new settlement, her tenancy is governed by the provisions of section 9 of the afore said Act.”

    (b) “We get from sub-section (5) of section 7 of the aforesaid Act XX of 1949 that if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, when such structures have been raised before or after the expiry of the period of the lease, then the tenant, holding such land shall not be evicted except on the ground that he used the land in a manner which renders it unfit for use for the purposes of the tenancy”.

    (c) “Evidence admittedly goes to show that the defendant has been living in the suit land by erecting pucca structures. The structures comprise bed rooms. One kitchen, one verandah, one pucca court-yard, pucca walls round the house, pucca well, pucca service privy, etc.”

    (d) “it is further clear that the plaintiff allowed these structures to be raised by the defendant during the continuance of the lease in writing. That being so, the defendant is not liable to be evicted except on the ground of misuse of the tenanted land, rendering the same unfit for the purposes of the tenancy. But this is not the ground of ejectment according to the plaintiff.”

    9. The plaintiff appealed to the lower appellate court. It was contended before the lower appellate court that the Kabuliyat dated December 6, 1939, executed by the tenant defendant alone and purporting to create a lease for a term of 5 years was hit by the provisions of section 107 of the Transfer of Property Act and was inoperative and should not be treated as a lease in writing. It was therefore argued on behalf of the plaintiff appellant that the defendant held the disputed land without a lease in writing and his tenancy was terminable by six months' notice in writing, expiring with the end of the year, 1357 B.S The court of appeal below repelled the contentions by the plaintiff appellant with the following observations:

    (1) “The learned Munsif has found that the notice (Ext. 1) was defective and bad in law. It did not fulfil the requirements of section 75 of the West Bengal Non-Agricultural Tenancy Act (XX of 1949). The ground taken in the notice to quit was not that the defendant was rendering the land unfit for use for the purpose of the tenancy, but the ground taken in it was that the plaintiff required the land for his own purpose. Even assuming that section 75 of the said Act is not applicable to such a notice, I am of opinion that the notice is bad and illegal for another very cogent reason. The notice (Ext. 1) itself shows that the Meadi lease for 5 years commencing from the month of Agrahayan, 1346 B.S ended with the expiry of the month of Kartick, 1351 B.S Thus the notice itself clearly indicates that the year of the tenancy was from Agrahayan to Kartick and not from Baisakh to Chaitra. But the notice (Ext. 1) sought to terminate the tenancy of the defendant on the expiry of the month of Chaitra, 1357 B.S and not on the expiry of the year of the tenancy in Kartick of that year. The provisions of section 9(1)(b) read with clause (iii) indicate that a non-agricultural tenant holding without a lease in writing cannot be liable to ejectment on the ground that the tenancy has been terminated by the landlord by six months' notice in writing, unless the notice to quit is given asking the tenant to vacate on the expiry of the end of the year of the tenancy. In this case the plaintiff clearly gave a wrong notice seeking to terminate the tenancy on the expiry of Chaitra, 1357 B.S instead of the expiry of the year of tenancy which ended in Kartick.”

    (2) “Moreover the plaintiff cannot take advantage of his own wrong. It was equally the duty of the landlord and the tenant to exe cute the lease (Ext. 4) according to provisions of section 107 of the T.P Act. But the plaintiff having failed to do so the defendant tenant was entitled to protection under section 53A of it”.

    (3) “Then there is ample evidence on the record that the defendant has made substantial pucca structures upon the suit land, and the plaintiff landlord never objected to them. * * * Therefore the plaintiff could not evict the defendant without pay ing compensation according to proviso to section 9(1)(b) read with clause (iii) of it.”

    10. In the view that the learned court of appeal below took of the matter, it dismissed the appeal. It is the appellate decree against which this appeal has been preferred.

    11. Mr. Chandra Narayan Laik, learned Advocate for the appellant, relied on the judgment of P.N Mookerjee, J. in the case of Indra Moni Dasi v. Snehalata Dutt (1) (59 C.W.N 1150) and argued that the unilateral Kabuliyat executed by the lessee alone, could not be considered to be a lease under section 107 of the Transfer of Property Act, As a lease for five years under the Transfer of Property Act could only be made by a registered instrument signed by both the parties, the lessor and the lessee, the express contractual lease in the present case did not take effect in law. But by admitted payment and receipt of rent, according to the Bengali calendar month, a monthly tenancy came into being in favour of the tenant defendant under the plaintiff landlord. Section 58A of the Transfer of Property Act, Mr. Laik further argued, would be of no application, because the term of the tenancy, sought to be fixed under the Kabuliyat, expired long ago.

    12. I agree that the position in law is such as Mr. Laik argues. Therefore, the defendant's tenancy was one from month to month according to the Bengali calendar. But admittedly the tenancy being one governed by the West Bengal Non-Agricultural Tenancy Act of 1949, a question arises as to how should the notice to quit be given.

    13. Section 9 of the West Bengal Non-Agricultural Tenancy Act deals with termination of tenancy by notice. The relevant portion of the aforesaid section is quoted below:

    “9(1). Notwithstanding anything contained in any other law I for the time being in force or in any contract, if any, non-agricultural land has been held for a term of more than one year but less than twelve years—

    (a) ****

    (b) without a lease in writing, or

    (c) **** then the tenant holding such non-agricultural land shall be liable to ejectment on one or more of the following grounds and not otherwise, namely:—

    (i) ****

    (ii) ****

    (iii) on the ground that the tenancy has been terminated by the landlord by six months' notice in writing expiring with the end of a year of the tenancy served on the tenant in the prescribed manner in the case of tenancies of the class specified in clause (b)”.

    14. Admittedly the notice given in the present case was one for six months ending with the expiry of Bengali calendar year 1357 B.S The tenancy as appears from Kabuliyat, Ext. 4, started from the month of Agrahayan, 1356 B.S The question, therefore, is whether such a notice was a good notice.

    15. Mr. Laik argued that where a non-agricultural tenancy was one from month to month, there could not be any notice served terminating the tenancy with the end of the year of the tenancy, because in such a case there would be no year of the tenancy. Therefore such a tenancy would be determined by service of six months' notice terminating on any month of the tenancy.

    16. I am unable to accept this argument. There is nothing in the West Bengal Non-Agricultural Tenancy Act which excludes from its operation monthly tenancies such as the present one is. Thus in a case like the present one notice terminating the tenancy must be six months' notice expiring with the year of the tenancy, that is to say, anniversary of the month of the tenancy in the next succeeding year.

    17. On the point that the provisions of section 9(1)(b) clause (iii) of the West Bengal Non-Agricultural Tenancy Act shall apply even in a case of a monthly tenancy there are two unreported decisions of this Court, one by Das Gupta and Guha, JJ. in S.A No. 879 of 1950 (2) (Sudhindra Nath Roy v. Haran Chandra Mistry) delivered on January 25, 1955 and the other by Das Gupta and Bachawat, JJ. in S.A No. 425 of 1952 (3) (Narayan Chandra Sen v. Sripati Charan Kumar) delivered on August 9, 1955. From the judgment in S.A No. 879 of 1950 I quote a relevant extract:

    “But says, Mr. Mukherjee, that six months' notice in writing expiring with the end of a year of the tenancy is wholly impossible in a case of this nature where the tenancy has been found from month to month. It is argued that when the legislature speaks of a year of a tenancy, it cannot but have contemplated a tenancy from year to year. In my judgment, there is no substance in this contention. Certainly, if a tenancy is from year to year, there is no difficulty whatsoever in finding the year of the tenancy, but it is not right or reasonable to say that unless the tenancy is from year to year, no possible meaning can be attached to the six months' notice in writing expiring with the end of the tenancy. Even where the tenancy is from month to month, 12 months will make a year and when the 12th month has expired, a year of the tenancy has expired. The mere fact that the words ‘year of the tenancy’ may not ordinarily be used in connection with a tenancy from month to month is, therefore, no reason to hold that in using the words ‘six months’ notice expiring with the end of a ‘year of the tenancy’, the legislature must have in mind only tenancies from year to year. If such were the intention of the legislature I have no doubt that proper words would have been used to say clearly that the provisions will apply only to tenancies from year to year. What the legislature has provided is that if any non-agricultural land has been held for a term more than one year, but less than 12 years without a lease in writing, the tenant holding such non-agricultural land shall be liable to ejectment only on the ground that the tenancy has been terminated by a six months' notice in writing expiring with the end of a year of the tenancy served by the landlord in the prescribed manner.”

    18. The other judgment in S.A No. 425 of 1952, (3) followed the aforesaid observations. The aforesaid two decisions, being Division Bench judgments are binding on me.

    19. Applying the principle contained in the aforesaid two decisions I am bound to hold that the notice in the instant case was bad because it was not for six months expiring with the year of the tenancy, that is to say, expiring with the anniversary of the expiration of the month of the tenancy.

    20. I, therefore, affirm the decision by the lower appellate court and dismiss this appeal with costs.

    21. Mr. Laik prays for leave to appeal under Clause 15 of the Letters Patent I grant the leave.

    S.K.B

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    Comments

    Radha Charan Das v. Pravabati Dassi .
    (Apr 27, 1957)