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Smart Summary

Structured Summary of the Opinion (Ejectment Suit)

Factual and Procedural Background

The plaintiff, a minor represented by his guardian, had leased certain fields to the defendant by a registered lease executed on 13-3-1939 for a term expiring on 15-4-1940. On expiry of the lease the defendant refused to deliver possession and the plaintiff brought this ejectment action.

The defendant's pleaded defence was that possession had been delivered to Sohanlal and two others pursuant to a document (Ex. D-10) executed by the plaintiff's guardian on the same day as the lease; those persons admitted receipt of possession and subsequently (29-3-1940) re-leased the property to the defendant (Ex. D-2). After lease expiry, disputes about possession led to Section 145 CrPC proceedings, the Tahsildar being appointed receiver who auctioned the leasehold to the defendant. The defendant was therefore in possession at the date of suit as a lessee of the receiver.

The lower appellate court had given a decree for the plaintiff; the defendant appealed, and the present opinion considers the appeal, various defences raised by the defendant (including reliance on Ex. D-10, claim of agency/attornment to Sohanlal, plea under Section 53-A of the Transfer of Property Act, and an objection under Section 112(2) of the Berar Land Revenue Code concerning record of rights).

Legal Issues Presented

  1. Whether the defendant, who remained in possession after expiry of the lease, can justify retention of possession by relying on the purported delivery of possession to Sohanlal (and subsequent re-lease) or on attornment to Sohanlal.
  2. Whether proceedings under Section 145/146 of the Criminal Procedure Code and the Tahsildar's appointment as receiver (and his lease/auction) operate as a bar to the plaintiff's ejectment suit.
  3. Whether Section 53‑A of the Transfer of Property Act could be invoked by the defendant to justify possession (i.e., whether the requirements of s.53‑A were present and whether the guardian's agreement could be a valid written contract).
  4. Whether the defendant's claim that he was acting as agent of Sohanlal alters the result (including whether the receiver's possession and the identification of the person in possession under S.145 affected the civil suit).
  5. Whether the suit was barred for failure to file a certified copy of the record of rights under Section 112(2) of the Berar Land Revenue Code.

Arguments of the Parties

Plaintiff's Arguments

  • The lease to the defendant expired on 15-4-1940 and on expiry the defendant refused to deliver possession, entitling the plaintiff to ejectment relief.
  • The purported agreement for sale executed by the guardian (Ex. D-10) did not and could not transfer title or create rights that would defeat the plaintiff's title, because a guardian is incompetent to contract away minors' immovable property in the manner attempted.
  • Section 53‑A was not pleaded, and even if raised it would fail because the necessary prerequisites (valid written contract enforceable at law and readiness to perform) were absent.
  • The defendant's reliance on possession under the receiver or attornment to Sohanlal does not constitute eviction by title paramount; therefore the plaintiff's suit is competent and the decree should stand.
  • The objection under Section 112(2) Berar Land Revenue Code is without merit because no record of rights for individual fields was maintained in this category and the plaintiff obtained the available copy from Revenue officers.

Defendant's Arguments

  • The defendant relied on Ex. D-10 (an agreement for sale executed by the plaintiff's guardian), which directed that after expiry of the plaintiff's lease the property might be taken by Sohanlal and others; possession was accordingly delivered to them and the defendant claimed to have been put in possession under their authority.
  • The defendant asserted he had attorned to Sohanlal (and was possibly Sohanlal's agent), and thus asserted a defence of eviction by title paramount or attornment to a third party.
  • The defendant relied on the Section 145 CrPC proceedings (in which a Tahsildar was made receiver and leased out the property) to suggest that the receiver's lease and the criminal proceedings barred the civil suit.
  • The defendant contended he was not a party to the S.145 proceedings except as agent of Sohanlal and suggested that because Sohanlal was not a party to the ejectment suit, the receiver could not have delivered possession to the plaintiff.
  • An objection was taken that the suit did not lie because a certified copy of the record of rights had not been filed in accordance with Section 112(2) of the Berar Land Revenue Code.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
39 Cal. 2321 at p. 237 (Privy Council) That the guardian of a minor is incompetent to bind the minor or his estate by a contract to purchase immovable property. The court applied this principle to hold that the guardian's agreement for sale (Ex. D-10) could not create a valid contract binding the minor; therefore Ex. D-10 did not create a title or an enforceable written contract for s.53‑A purposes.
I.L.R. (1940) Nag. 552 at p. 60 The same rule—applies when the contract is to sell (guardian's incompetence in such contracts). Used to support the conclusion that the agreement for sale executed by the guardian was one which the law did not recognise; consequently S.53‑A could not be invoked on that basis.
I.L.R. (1938) 1 Cal. 13 at pp. 6, 7 Authority concerning limits of a tenant's answer based on third-party title and the principle that without title paramount the lessee must return possession. Cited to show that the defendant's possession cannot be justified by third-party title or equities; possession must be handed back to the lessor absent eviction by title paramount.
I.L.R. (1943) Pat. 5134 at pp. 526 and 527 Authority on the limits of defence by claiming eviction by title paramount/related principles in ejectment actions. Reinforced the court's conclusion that the defendant's plea did not amount to eviction by a paramount title and therefore was not a valid defence to the ejectment suit.
I.L.R. (1938) 1 Cal. 1 at pp. 5, 6 and 7 That attornment to two persons may be commercially convenient, but a tenant cannot plead eviction by title paramount and avoid estoppel under s.116 by pleading attornment to another. Applied to hold that the defendant's attornment or alleged attornment to Sohanlal did not relieve him of the obligation to return possession to the plaintiff on lease expiry and could not be used to escape the estoppel.
I.L.R. (1943) Pat. 513 at pp. 526 to 529 Sets out limits to a defence of eviction by title paramount: the holder of paramount title must have a good title and the tenant's attornment must be under compulsion, not voluntary. Used to conclude that the defendant's attornment to Sohanlal was voluntary (not under compulsion) and therefore did not constitute a valid defence of eviction by title paramount.

Court's Reasoning and Analysis

The court proceeded by focusing on the legal significance of the documentary transactions and the practical realities of possession:

  1. The court accepted the undisputed facts: a registered lease to the defendant (13-3-1939) validly created a tenancy expiring on 15-4-1940; the defendant remained in possession after that date and refused delivery.
  2. The court analysed Ex. D-10 (agreement for sale executed by the guardian) and found that although it recited that the plaintiff's father owed Sohanlal money and that the property would be sold to discharge the debt, it could not operate as a valid contract binding the minor because, applying the Privy Council and related authority, a guardian is incompetent to contract away a minor's immovable property. Consequently the agreement did not confer title or a legally enforceable contract capable of supporting S.53‑A of the Transfer of Property Act.
  3. The court scrutinised the chronology: possession on paper was handed to Sohanlal and others pursuant to Ex. D-10; those persons admitted receipt and then purported to re-lease to the defendant before expiry of the plaintiff's lease (29-3-1940). The court held that a lessee can surrender before expiry if the lessor (or his nominee) consents, but such a transaction requires agreement of all parties (lessor, lessee and lessor's nominee). Here the plaintiff had not agreed to an earlier transfer of possession and subsequently contested it.
  4. Regarding the Section 145/146 CrPC proceedings: the court explained that such proceedings are temporary, designed to prevent breach of the peace and subject to civil court decisions. The Tahsildar's appointment as receiver and his auction of leasehold rights did not bar the civil suit. The court emphasised the distinction between the defendant's capacity as purchaser/lessee from the receiver and his capacity as defendant in the ejectment suit: possession under the receiver would postpone execution until the end of that lease but would not constitute a substantive bar to the suit.
  5. The court considered the contention that the receiver could not deliver possession to the plaintiff because Sohanlal (whose rights were asserted by the defendant) was not a party to the civil suit. The court rejected this, observing that Section 146(1) suspends rights only "until a competent Court has determined the rights of the parties." The Magistrate's order under S.145 identified the person in actual possession as the defendant (Pusaram) and the court emphasised that S.145 cares about actual possession (and risk of breach of the peace), not subtleties of title. Therefore the S.145 proceedings did not preclude the civil determination of title and possession.
  6. On the applicability of Section 53‑A of the Transfer of Property Act the court found two fatal defects: (a) the agreement relied upon (Ex. D-10) was not a valid contract enforceable at law because the guardian could not bind the minor; and (b) the section requires that the party invoking it must plead and show readiness and willingness to perform his part of the contract — a prerequisite not pleaded here. The court therefore refused to allow S.53‑A to be raised.
  7. The court concluded that Sohanlal had no title and no equity to justify possession; accordingly the defendant could not lawfully retain possession after the lease expired. The plaintiff had demanded possession and had not acquiesced in the earlier transfer; the surrender to Sohanlal on 29-3-1940 was not in accordance with the plaintiff's directions in Ex. D-10 (which contemplated possession only on expiry) and thus Sohanlal could not be treated as the plaintiff's nominee who validly accepted surrender before the lease expired.
  8. The court analysed attornment and estoppel principles, relying on authority that voluntary attornment to a third party does not relieve a tenant from his obligation to return possession to the original lessor on expiry, and that a tenant cannot plead eviction by title paramount where attornment was voluntary and no good paramount title exists. Applying that reasoning the court found the defendant's attornment or claim of agency to Sohanlal to be no defence.
  9. Finally, on the procedural objection under Section 112(2) Berar Land Revenue Code concerning a certified copy of the record of rights, the court rejected the objection because the plaintiff had applied for a copy and the Revenue officer (Naib Tahsildar) stated that no record of rights regarding individual fields is maintained in this class of case; the defendant himself admitted this in his written statement dated 6-12-1941.

Holding and Implications

Holding: The appeal is dismissed and the decree in favour of the plaintiff, as given by the lower appellate court, is affirmed.

Implications and immediate consequences:

  • The defendant's retention of possession after the expiry of the lease is unjustified: he neither had title nor a right to possession through Sohanlal or the agreement for sale (Ex. D-10).
  • The S.145/146 CrPC proceedings and the Tahsildar's appointment as receiver (and the receiver's lease/auction) did not operate as a substantive bar to the civil ejectment suit; any lease from the receiver would only postpone execution until its expiry but would not extinguish the plaintiff's right to possession thereafter.
  • Section 53‑A could not assist the defendant because the required written contract was not a valid contract (guardian's incompetence) and the precondition of pleading readiness to perform was absent.
  • The defendant cannot rely on voluntary attornment to escape the plaintiff's title or estoppel; attornment to Sohanlal did not constitute eviction by a paramount title and so was no defence.
  • The plaintiff's failure to file a certified copy of a record of rights under Section 112(2) Berar Land Revenue Code did not invalidate the suit where no such individual-field record exists and the plaintiff procured the available copy from Revenue authorities.
  • No broader new legal principle or precedent was announced by this opinion beyond the application of existing authorities to the facts; the decision's direct effect is to affirm the plaintiff's right to possession and to dismiss the defendant's defences on the particular facts before the court.

Authority citation and factual summaries in this document are drawn exclusively from the provided opinion text and do not add or infer information beyond that opinion.

Show full summary ...

    Pusaram Maniklal Izardar v. Deorao Gopalrao Mali

    1. The suit is for ejectment. The plaintiff is the landlord. On 13-3-1939 his guardian, he being a minor, admittedly leased out the fields in question to the defendant for a little over a year. The lease was to expire on 15-4-1940. There is a registered deed of lease. There is no dispute about these facts.

    2. The plaintiff's case is that on the expiry of the lease the defendant refused to deliver possession and so he sues for ejectment. The defence to the action is that the defendant had delivered possession to three persons, Sohanlal and two others, in pursuance of directions given by the plaintiff's guardian in Ex. D-10, a document executed on the same day as the lease, namely 13-3-1939.

    3. This document is an agreement for sale. The recitals state that the plaintiff's father owed Sohanlal and the others money on a mortgage. In order to discharge the debt the property in suit was to be sold to Sohanlal, etc., but owing to a legal hitch (the property was then under the management of the Collector) it could not be sold forthwith and so this agreement for sale was executed. It was stated in it that the sale would be executed in a month. The agreement then recited that the property had been let out to the defendant Pusaram for a year commencing from that very day and added—

    “After the expiry of the year you may take possession. I have no objection whatever.”

    4. There is no doubt that possession was duly handed over in pursuance of the above directions because there is a receipt to that effect by Sohanlal and the others. They admit receipt of possession. After that they in their turn leased the property to the defendant for another year. The document is Ex. D-2. It is dated 29-3-1940, which it will be observed is some days before the expiry of the plaintiff's lease. That was to expire on 16-4-1940. That would, however, make no difference to its validity. It is open to a lessee to surrender before he need if he so desires, and if the lessor or his nominee is prepared to accept the surrender no one can cavil at the arrangement. Alternatively, seeing that there was a release to the same lessee it would be open to the parties to regard the transaction as having effect from the date of the expiry of the prior lease. Either way it would constitute valid delivery of possession in the eye of the law. But it is essential that all parties to such a transaction should be in agreement, namely the lessor, the lessee and the lessor's nominee. Another complication arises here because, on the expiry of the lease, that is, on 15-4-1940, disputes arose regarding the right to possession. Proceedings under Section 145 of the Cr PC, were accordingly started and the Tahsildar was appointed a receiver and placed in possession of the property. He auctioned the leasehold rights for a year and the defendant purchased. Accordingly the defendant was at the date of suit in possession as a lessee of the receiver. This, however, would not operate as a bar to-this suit.

    5. Section 146 proceedings are only temporary proceedings designed to prevent a breach of the peace. They are subject to the decision of civil Courts. It is only an accident that the defendant purchased the leasehold rights. Had a stranger purchased it would have been no bar to a suit against the defendant. Possession would of course have been postponed till the end of the lease but the suit would have been competent. I cannot see that it makes any difference because the defendant is the leasee. His capacity as lessee from the receiver must be distinguished from his capacity as defendant in the suit. The plaintiff's right to possession would probably be postponed till the end of the lease, if the tahsildar had power to lease and his appointment as receiver was intra vires—points which it is unnecessary to decide here—but thereafter the plaintiff would be entitled to execute his decree. In fact the correct procedure in such a case would be for the defendant to hand back possession to the receiver and for the receiver then to hand over possession to the plaintiff because he has succeeded in the suit.

    6. It was argued that the defendant was no party to the S. 145 proceedings except as an agent of Sohanlal. The dispute there was between the plaintiff and Sohanlal, and as Sohanlal is not a party to this suit there has been no determination of title as between the plaintiff and Sohanlal. Accordingly the receiver would have no power to deliver possession to the plaintiff. It was contended that the defendant was in possession as the agent of Sohanlal, but I am not impressed with this argument.

    7. Section 146(1) of the Cr PC, empowers the Magistrate to attach the property

    “until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof.”

    8. Here a competent civil Court has determined who is the person entitled to possession. This person is, according to his own statement, the agent of Sohanlal. In the argument before me counsel for the defendant relied on the plaintiff's oral statement to the effect that the defendant is Sohanlal's “agent, Yahiwatdar and Mukhtiyar” in respect of all property of Sohanlal situate in Berar. This admission was made in response to the defendant's assertion in his written statement. It is therefore the case of both sides that the defendant is Sohanlal's agent and represents him in matters relating to Sohanlal's property in Berar.

    9. Sohanlal was never in khas possession of the property. The defendant was in actual possession throughout. It is true that technically possession was handed over to Sohanlal under Ex. D10 and then re-transferred to the defendant as a lessee of Sohanlal, but S. 145 is not concerned with the niceties of title. It is concerned with the persons in actual possession who are likely to create a breach of the peace. The order of the Magistrate, Ex. D-6, shows that this person was the defendant Pusaram. It does not matter for the purposes of S. 145 what capacity the defendant occupies or where the title lies. The only question is whether he is in possession or is likely to create a breach of the peace.

    10. The order of the Magistrate is in the following terms:

    “As stipulated therein Pusaram was to handover the possession of those fields to Parwati on 15-4-1940 or 16-4-1940 on the expiry of that lease deed. Pusaram had no mind to give back his possession of those fields to Parwati on or after 15-4-1940. On 16-4-1940 Pusaram was determined to resist her attempt.”

    11. Pusaram was a party to these proceedings while Sohanlal and the others were not. It is immaterial that he was described in the entitling as an agent of Sohanlal. It would be immaterial if he was their agent. In the circumstances these proceedings are no bar to the suit.

    12. Having cleared these matters out of the way, we are left with the fact that the defendant was let into possession as a lessee by the plaintiff. The lease has expired and the defendant is still in possession. It is for the defendant in such circumstances to justify his retention of possession despite the expiry of the lease. He attempts to do so by setting up the rights of Sohanlal and the others. It is evident that Sohanlal had no title to lease to the defendant. The agreement for sale (Ex. D-10) conveyed no title. Therefore, the defendant cannot justify his retention of the property on the ground of title.

    13. It has next to be seen whether it can be justified on the ground that Sohanlal had a right to possession despite his want of title. This can only be on the basis of Section 53-A of the Transfer of Property Act. Now S. 53-A was not pleaded nor are all the factors requisite for its application present.

    14. The section requires, in the first place, that there should be a written contract. That predicates a valid contract—a contract of a type which could be specifically enforced. It would be ridiculous to suggest that a person would have a better right under a mere equity than he would have at law—that he could acquire rights in equity under a written contract which the law would refuse to recognise. According to the Privy Council the guardian of a minor is in-competent to bind either the minor or his estate by a contract to purchase immovable property. See, 39 Cal. 2321 at p. 237. The same rule applies when the contract is to sell. See, I.L.R (1940) Nag. 552 at p. 60. It follows that a contract of this kind to sell a minor's immovable property is one which the law does not recognise. It is a contract which the guardian is incompetent to make and accordingly no contract at all. If that is so, then S. 53-A cannot apply.

    15. Another point as regards this is that it must be shown that the party relying on S. 53-A has either fulfilled, or is prepared to fulfil, his part of the bargain. Now this readiness and willingness must be pleaded. It is a prerequisite to the application of the section. Until it is pleaded no reply is possible. This was not pleaded and an application was put in before me by the plaintiff to the effect that if it had been pleaded, an unanswerable reply could have been made—a reply to the effect that the contract had fallen through and that other arrangements had been made to liquidate the debt to which the contract refers, an arrangement which Sohanlal and his associates had accepted and which was being acted on by both sides. Be that as it may, as the necessary material is not here, I cannot allow the plea of S. 53-A to be raised, particularly as, in view of the Privy Council, it would be of no avail even if it was raised.

    16. Once it is accepted that Sohanlal had no title to lease to the defendant and has no equity or other right which would justify him in retaining possession of the property, it becomes impossible for the defendant to resist the plaintiff's right to possession. But that apart, this is not the sort of answer which can be accepted in an action for ejectment. It does not constitute eviction by title paramount and in the absence of that possession must be handed back to the lessor. See, I.L.R (1938) 1 Cal. 13 at pp. 6, 7 and I.L.R (1943) Pat. 5134 at pp. 526 and 527. But even if that were not so and even if the only question was whether possession in these circumstances can be decreed in a suit for ejectment, it would not trouble us long, for even if technically such a suit did not lie because the defendant had handed over possession to a third party in accordance with the written instructions of the landlord, a simple amendment of the plaint would set matters right. The facts are all here. The plaintiff's title is not disputed, and it is found that the defendant has neither title nor a right to possession. Accordingly, all the plaintiff need do is to ask in the alternative for possession, a prayer which would readily be granted in the circumstances of this case. The difference in court-fees could be made good, and in any event that is not a matter which concerns the defendant—that is something between the plaintiff and the Crown. However,) I do not think it necessary to direct any amendment of the plaint.

    17. The defendant entered into possession under a lease which expired on 15-4-1940. He surrendered possession to a third party on 29-3-1940. It is true he was shown a direction in writing by the plaintiff so to surrender on the expiry of the lease, and it is equally true that if all the parties are agreed, there would be no objection to a surrender to the plaintiff or his nominee before the expiry of the lease, but it is not shown that all the parties were agreeable to this course. The plaintiff did not agree in Ex. D-10; he stipulated there that this should be on the expiry of the lease and it is not shown that he agreed otherwise. On the contrary he demanded possession when the lease expired and that necessitated proceedings under S. 145. He also contests the delivery of possession in this suit. Accordingly the delivery of possession on 29-3-1940 was not in accordance with the plaintiff's directions and so Sohanlal cannot be regarded as the plaintiff's nominee for accepting the surrender of the lease on 29-3-1940. He is no better than a stranger.

    18. Then again, this stranger had no power to re-lease to the defendant, the re-lease, such as it was, made during the continuance of the tenancy created by the plaintiff. The defendant was, therefore, still in possession when the lease expired, and as their Lordships of the Privy Council have pointed out in I.L.R (1938) 1 Cal. 1 at pp. 5, 6 and 7 attornment to two persons may be good business but it involves keeping faith with both. Accordingly a tenant cannot plead eviction by title paramount and escape the estoppel under S. 116 by pleading that he has attorned to another.

    19. If A lets land to B and B enters into possession under the lease, B is bound to return possession to A on the expiry of the lease and he will not be allowed to set up the right or title of a third party. If A directs to surrender possession to 0 that might be a different matter. But here there was no direct communication between A and B. What happened was that A told 0 that 0 could enter into possession when the lease expired but before that happened A changed his mind and demanded possession from his lessee. As I have said, this demand occasioned the S. 145 proceedings. B was accordingly bound to place A in possession. G might or might not have an action against A, but that is no concern of B when A does not agree. Had A kept quiet when the lease expired, that might have been another matter, though even there would have had no chance in a title suit. But he did not keep quiet. He demanded possession. B cannot be heard to say in answer to that demand that 0 has rights against A. Therefore, in my opinion, the suit is competent and the plaintiff is entitled to the decree he has been given in the lower appellate Court.

    20. The limits to a defence of eviction by title paramount are set out in I.L.R (1943) Pat. 513 at pp. 526 to 529. The holder of the paramount title must in such cases have a good title and the attornment by the tenant to him must be under compulsion and not voluntary as here. Therefore, the defendant's plea that he has attorned to Sohanlal is no answer to the plaintiff's claim. A point was taken on behalf of the defendant to the effect that the suit did not lie because a certified copy of the record of rights was not filed. Reliance was placed upon S. 112(2), Berar Land Revenue Code. There is nothing in this objection. The plaintiff did apply for a copy and was given a copy of the only entry which is maintained by the Revenue authorities. The Naib Tahsildar stated definitely that no record of rights regarding individual fields is kept in this class of case, and the defendant himself admitted this in his written statement dated 6-12-1941. The appeal fails and is dismissed with costs.

    D.R/D.H

    21. Appeal dismissed.

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    Comments

    Pusaram Maniklal Izardar v. Deorao Gopalrao Mali
    (Jan 24, 1946)