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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babus Kishori Lal Sarkar and Harish Chandra Ray for the Appellants.
  • Babu Shyama Charan Ray for the Respondents.
Judges
  • Mookerjee
  • Carnduff, JJ.
Acts
  • provisions of sec. 90 of the Indian Evidence Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babus Kishori Lal Sarkar and Harish Chandra Ray for the Appellants.
  • Babu Shyama Charan Ray for the Respondents.
Judges
  • Mookerjee
  • Carnduff, JJ.
Acts
  • provisions of sec. 90 of the Indian Evidence Act
See more information ...
Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This is an appeal brought on behalf of the Defendants in an action for ejectment. The Plaintiffs (Respondents) alleged that the Defendants were tenants-at-will whose tenancy had been terminated by a proper notice to quit and that they nevertheless refused to vacate the disputed land. The Defendants resisted on two principal grounds: (1) that they (or their predecessors) held under a permanent lease dated 23rd May (the opinion refers to this date as "23rd May, 1898" in one place and later as "23rd May, 1848"); and (2) that, if the lease were not established, circumstances existed from which the Court could infer that the tenancy was permanent in its inception.

At first instance the trial Court found the lease genuine and dismissed the Plaintiffs' suit (i.e., found for the Defendants). On appeal the Subordinate Judge reversed that decision and entered a decree for ejectment for two stated reasons: (a) he doubted the genuineness of the lease (though he did not explicitly find it forged); and (b) even if genuine, the lease was not proved to be binding on the landlords because the authority of the person who executed it had not been established. The Subordinate Judge also held that the long occupation and fixed rent were insufficient to infer that the tenancy was originally permanent because the Defendants had not proved erection of substantial/permanent structures on the land.

Legal Issues Presented

  1. Whether the lease dated 23rd May (appearing in the opinion as 1898 in one place and 1848 in another) is genuine and, if so, whether it is binding on the landlords despite questions as to the authority of the person who executed it.
  2. Whether, in the absence of proving the lease, the established facts (long continuous occupation, unvaried rent, treatment of tenancy as heritable, and residential use) permit the legal inference that the tenancy in its inception was permanent.
  3. Whether the nature of the tenancy (permanent or yearly/at-will) is a question of fact immune from interference in second appeal, or a mixed question of law and fact such that an appellate court can review the legal inference drawn from established facts.

Arguments of the Parties

Appellants (Defendants / their Counsel)

  • Asserted that the Defendants held under a permanent lease dated 23rd May (date appears as 1898 in one part of the opinion and as 1848 in another).
  • Alternatively, argued that even if that lease were not proved, the long continuous occupation, fixed rent never varied, the tenancy being treated as heritable, and residential use of the land justified an inference that the tenancy in its inception was permanent.
  • Contended that the Subordinate Judge's reversal was erroneous on both branches of the case and relied on several judicial authorities to support the legal inference of permanency from the facts.

Respondents (Plaintiffs / their Counsel)

  • Maintained that the Defendants were tenants-at-will whose tenancy had been terminated by notice to quit and that they refused to vacate.
  • At the Subordinate Judge level, emphasized doubts as to the genuineness or binding effect of the lease, pointing to the absence of proof of authority of the executant.
  • At this appeal, relied on authorities (including Dulhin Gulab Koer v. Balia Kurmi, Gungadhur v. Ayemuddin and Durga Mohun v. Rakhal) to argue that the question of the nature of tenancy is one of fact and not open to interference in a second appeal; relied also on the decision in Smith v. General Motor Cab Co. to support the factual-character-of-relationship proposition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ubilaik Pal v. Dallial Rai Sec. 90 Indian Evidence Act establishes execution by the persons whose signatures the document bears but does not prove the authority of executants to bind another. The Court accepted this legal proposition but held it was not invoked by the landlords below; landlords had ratified the lease by conduct (accepting rent on majority), so authority was not an open issue here.
Uggra Kant v. Hurro Ckunder Same principle as above regarding sec. 90 and the difference between proof of signature and proof of authority. The Court treated this precedent as supporting the legal position that sec. 90 does not prove authority; nonetheless the Court found landlords could not repudiate the lease given their subsequent ratification.
Durga Mohun v. Rakhal Authority cited for the proposition that certain combinations of facts can support an inference that a tenancy was originally permanent. The Court included this among authorities supporting the inference that, on the established facts, the tenancy in its inception was permanent.
Tarakpada v. Shyama Charan Support for inferring permanent tenancy from longstanding occupation, fixed rent, treatment as heritable, residential use. Relied upon by the Court as part of the body of decisions leading to the conclusion that the tenancy was originally permanent.
Prosuno v. Rutton Same line of authority on inferring permanent tenancy from particular facts. Included among authorities relied on to justify the legal inference of a permanent inception.
Govinda Chandra v. Ayenuddin Support for the inference that long occupation with fixed rent and heritable treatment may point to permanent tenancy. Counted among decisions that make the inference legitimate.
Jahoorulal v. Dear Authority in the same line on the inference of permanence from established facts. Relied upon by the Court as corroborative authority.
Nubodurga v. Dwarka Nath Same line of authority. Used to support the legal inference drawn by the Court.
Dunne v. Nobo Krishna Same line of authority. Cited in support of the Court's conclusion on permanence.
Caspersz v. Sarbadhikari Same line of authority. Relied on as part of the authorities backing the inference.
Nabu Mondul v. Cholim Mullik Same line of authority. Included among the precedents forming the basis for the Court's legal inference.
Beni Madhab v. Jai Krishna Same line of authority. Counted in the series of cases supporting the inference that the tenancy was permanent at inception.
Dulhin Gulab Koer v. Balia Kurmi Cited by Respondent to support the proposition that nature of tenancy is a question of fact. The Court noted expressions in this judgment that apparently support the Respondent but treated the overall issue as a mixed question of law and fact.
Gungadhur v. Ayemuddin Cited by Respondent for the factual character of the nature-of-tenancy question. The Court acknowledged the citation but held the legal-inference aspect is reviewable on appeal.
Ram Gopal v. Shamskhalon Authority for the view that the question of tenancy's nature is a mixed question of law and fact. The Court relied on this decision to justify intervention in drawing the legal inference from established facts.
Naba Kumari v. Behari Lal Holds that the question of nature of tenancy involves legal inference; also indicates that permanent structures, while important, are not essential to infer permanence. The Court relied on this precedent to reject the Subordinate Judge's requirement that permanent structures be proved and to treat the issue as mixed law and fact.
William M. Grant v. Mrs. Robinson (as cited) Cited in the context of mixed questions of law and fact. Referenced to support the proposition that drawing a legal inference from found facts is within appellate purview.
Smith v. General Motor Cab Co. Held that in that context (master/servant v. bailor/bailee) the question was purely one of fact because of conflicting evidence supporting rival factual inferences. The Court distinguished this case on its facts and held it inapplicable as here the facts found justified a legal inference rather than presenting a conflict of evidence.
Dinendta v. Tituram Authority supporting the inference that a tenancy was permanent in its inception under similar facts. Relied upon by the Court as part of the body of authorities making the inference "irresistible" in the present case.
Winterscale v. Sarat Chandra Same line of authority. Used by the Court to support its conclusion on permanence.
Gopal Lall v. Teluck Chunder Same line of authority (Judicial Committee decisions relied on). Relied upon to demonstrate consistency of authority that permits the legal inference of permanence.
Dhunput v. Gooman Same line of authority (Judicial Committee decision). Included among the decisions showing the legal inference is permissible.
Ram Chunder v. Jogesh Chundet Same line of authority. Counted among precedents relied on by the Court.
Suttosurrun v. Mohesk Chandra Same line of authority. Used to support the legal conclusion on permanence.
Upendra Krishna v. Ismail Khan Same line of authority. Relied upon in the Court's synthesis of authorities permitting the inference.
Nilratan v. Ismail Khan Same line of authority. Included among the Judicial Committee and other authorities yielding the inference of original permanence.

Court's Reasoning and Analysis

The Court divided its analysis along the two branches relied on by the Defendants and proceeded as follows.

First branch — the lease and questions of genuineness/authority:

  • The Subordinate Judge did not positively find the lease forged; he doubted its genuineness and held alternatively that even if genuine it was not proved binding because the executant's authority was not established.
  • The Court accepted the legal proposition (drawn from Ubilaik Pal and Uggra Kant) that sec. 90 of the Indian Evidence Act only proves that a document was executed by the persons whose signatures it purports to bear and does not by itself prove authority to bind another.
  • However, the landlords below did not contend that the lease was not binding because the executant lacked authority. Instead, the evidence showed that the lease had originally been granted when the landlords were infants, and that upon attaining majority they ratified the transaction, recognized the predecessor tenant, and accepted rent at the lease rate for many years.
  • Given this ratification and long acquiescence (accepting rent), the landlords could not repudiate the transaction on the ground of want of authority. Therefore the question of executant authority did not arise as a basis to defeat the lease in this case.
  • The Court observed that a remand for a specific finding on genuineness could be necessary in another circumstance, but it was unnecessary here because the appellants would succeed on the second branch.

Second branch — inference of permanence from surrounding facts:

  • Assuming for argument that the lease was not proved genuine, the Court examined the established facts: (a) original tenant Jugarnath in occupation until his death in 1884 (at least 36 years); (b) his successor (his daughter, the second Defendant) in occupation for at least 20 years thereafter; (c) the rent remained small and was never varied during that period; (d) the tenancy had been treated by the landlord as heritable; and (e) the land was let for residential purposes.
  • From these four firmly established facts (occupation >60 years, unvaried rent, heritable treatment, residential letting), the Court held it was legitimate to infer that the tenancy in its inception was permanent.
  • The Court relied on a substantial line of authority reaching the same conclusion and described the combined weight of these decisions as making the inference "irresistible."
  • Respondent counsel argued the nature of tenancy is a question of fact not open to interference in a second appeal; the Court accepted that some expressions in earlier cases may suggest a factual inquiry, but it treated the issue as a mixed question of law and fact (citing Ram Gopal and Naba Kumari among others).
  • The Court drew a distinction from Smith v. General Motor Cab Co., noting that Smith involved competing factual inferences (conflict of evidence) making the question one of pure fact; whereas in the present case the subordinate Court had made specific factual findings (length of occupation, fixed rent, etc.), and the appellate Court was concerned with whether, as a matter of law, those facts justified the legal inference of permanence.
  • The Subordinate Judge had required proof of permanent structures on the land to infer permanence. The Court held this requirement was erroneous: while permanent structures may be an important factor, they are not essential (relying on Naba Kumari v. Behari Lal).
  • Consequently, the decree of the Subordinate Judge could not be sustained on the second branch and the appellants were entitled to succeed on it.

Holding and Implications

Holding: APPEAL ALLOWED. The Court allowed the appeal, set aside the decree of the Subordinate Judge, and restored the decree of the original trial Court (which had found the lease genuine and dismissed the Plaintiffs' suit). The Court awarded costs in all the Courts.

Implications:

  • Direct effect: The original Court's decision in favour of the Defendants is restored; the Plaintiffs' ejectment claim was dismissed at trial and that result now stands following this appeal. Costs were awarded to the successful party in all Courts.
  • On legal principles: The opinion affirms (a) that sec. 90 of the Indian Evidence Act proves execution by the person whose signature appears but does not by itself prove authority to bind another; (b) that longstanding occupation with unvaried rent, heritable treatment, and residential use can legitimately support a legal inference that a tenancy was originally permanent; and (c) that the question of whether those facts suffice to establish permanence is a mixed question of law and fact (and thus open to appellate review insofar as a legal inference is drawn from established facts).
  • The opinion expressly rejects the proposition that proof of permanent structures on the land is an essential prerequisite to inferring that a tenancy was permanent in its inception.
Appeal allowed.

Note: All statements in this summary are drawn directly from the provided opinion text. No additional facts or inferences not present in the opinion have been introduced.

Show full summary ...

    Moharam Chaprasi v. Telamuddin Khan

    This is an appeal on behalf of the Defendants in an action in ejectment. The case for the Plaintiffs-Respondents is that the Defendants who were tenants-at-will were in occupation of the disputed land, that their tenancy has been terminated by a proper notice to quit and that they have nevertheless refused to vacate the land. The Defendants resisted the claim substantially on two grounds, namely, first, that they held under a permanent lease granted to their predecessors on the 23rd May, 1898: and, secondly, that if the lease was not established, there were circumstances from which the Court could draw the inference that the tenancy in its inception was of a permanent character. The Court of first instance found in favour of the genuineness of the lease and dismissed the suit. Upon appeal, the Subordinate Judge has declined to give the Defendants the benefit of the lease for two reasons. He holds, first, that it is doubtful whether the lease is genuine, and, secondly, that if it is genuine, it is not proved to be binding upon the landlords inasmuch as, on the face of it, it appears to have been executed by a person whose authority has not been established. The Subordinate Judge then proceeds to hold that although the Defendants have proved that they have been in occupation of this land for many years at a uniform rate of rent and although the property had descended from the original tenant to his daughter, these circumstances are not sufficient to justify an inference that the tenancy in its inception was of a permanent character, because the Defendants have not proved that they raised substantial structures on the land. In this view, the Subordinate Judge has reversed the decision of the original Court and made a decree for ejectment.

    In support of the appeal, it has been contended that the decision of the Subordinate Judge is erroneous and on both the branches of the case, reference has been made to a number of judicial decisions bearing upon the questions discussed. In our opinion, there is no room for serious controversy that the decision of the Subordinate Judge cannot be supported.

    In so far as the first branch of the case is concerned, as we have already stated, the Subordinate Judge has not explicitly found that the lease is not genuine. He suspects its genuineness and does not come to any specific finding; but he holds that it was not binding upon the landlords, because the authority of the executant was not proved. This view of the Subordinate Judge is clearly erroneous. On the authority of the decisions in Ubilaik Pal v. Dallial Rai(1) and Uggra Kant v. Hurro Ckunder(2), the Subordinate Judge has held that the provisions of sec. 90 of the Indian Evidence Act merely establish that the document was executed by the persons whose signatures it purports to bear; but that cannot and does not prove the authority of the executants to bind the landlord. This view is unquestionably sound. But it must be remembered that the landlords did not suggest in either of the Courts below that the lease was not binding upon them, because it had been executed on behalf of their predecessors by a person who had no authority to bind them in this transaction. The question was not raised for very obvious reasons. No doubt the lease was originally granted on behalf of the landlords who were at the time infants; but upon attainment of majority, they ratified the transaction, recognised the predecessor of the Defendants as their tenant and for many years accepted rent from him at the rate mentioned in the lease. Under these circumstances it was not open to them to repudiate the transaction as wholly unauthorised. No question, therefore, arises in this case as to the authority of the executants to bind the landlords. In this view, it would be necessary for us to remand the case to the Subordinate Judge for a specific finding upon the question of the genuineness of the lease. It is needless, however, to adopt this course, because we are of opinion that the Appellants are entitled to succeed upon the second branch of the case.

    In so far as the second branch of the case is concerned, if we assume for a moment that the lease of the 23rd May, 1848 has not been proved to be genuine, the position is that the origin of the tenancy is unknown. It has been established that the original tenant Jugarnath was in occupation up to the time of his death in 1884. Jugarnath was thus in possession for at least 36 years upon payment of a small rent which was never varied in his life-time. Since his death, his daughter, the second Defendant, has been in occupation for at least 20 years up to the commencement of this suit. It has not been suggested on behalf of the landlords that the rent was ever varied during this period when the successor-in-interest of the original tenant was in occupation. We have, therefore, four facts firmly established in the case; first, that the original tenant and his successor have been in occupation of the land, for over 60 years; secondly, that the rent has never been varied; thirdly, that the tenancy has been treated by the landlord as heritable; and, fourthly, that the land was let out for residential purposes. Upon these facts, we are of opinion that the inference is legitimate that the tenancy in its inception was permanent: [Durga Mohun v. Rakhal(3), Tarakpada v. Shyama Charan(4), Prosuno v. Rutton(5), Govinda Chandra v. Ayenuddin(6), Jahoorulal v. Dear(7), Nubodurga v. Dwarka Nath(8), Dunne v. Nobo Krishna(9), Caspersz v. Sarbadhikari(10), Nabu Mondul v. Cholim Mullik(11), Beni Madhab v. Jai Krishna(12)].

    The learned Vakil for the Respondent has, however, contended that the question of the nature of the tenancy is one of fact and that it is not open to us in second appeal to interfere with the conclusion of the Subordinate Judge upon this part of the case. In support of this view, he has placed reliance upon the cases of Dulhin Gulab Koer v. Balia Kurmi(13), Gungadhur v. Ayemuddin(14) and Durga Mohun v. Rakhal Chandra. It may be conceded that there are possibly expressions in some of these judgments which lend some apparent support to the contention of the Respondent. But it is fairly clear from the decision of the Judicial Committee in the cases of Ram Gopal v. Shamskhalon(15) and Naba Kumari v. Behari Lal(16) that the question is really a mixed question of fact and law. No doubt, the question is one of fact to this extent that we are not in a position to interfere with the findings of the Subordinate Judge as to the length of the tenancy, the fixity of rent, and other similar mailers. But in so far as the Court is invited to draw an inference as to the nature of the tenancy from the facts found by the Subordinate Judge, the question is undoubtedly one of law [William M. Grant…Plaintiff, v. Mrs. Robinson…Defendant, .(17)]. Much reliance was, however, placed by the learned Vakil for the Respondent upon the decision in Smith v. General Motor Cab Co.(18). That case is clearly distinguishable. There the question arose whether the relation between the parties to the suit was that of master and servant or of bailor and bailee. The House of Lords in affirmance of the decision of the Court below held that the question was one of fact and not of law. It was observed that it was not argued by the parties that upon the admitted facts as a matter of law the relation of the parties was that of master and servant or bailor and bailee. One of the parties relied upon certain circumstances which unquestionably supported the view that the relation between the parties was that of bailor and bailee, while his opponent relied upon other circumstances which supported the position that the relation between the parties was that master and servant. As Lord Atkinson put it, there was thus a conflict of evidence and the Court was called upon to discover upon the evidence the true relation between the parties. Here the question is what her upon the facts which have been found by the Court below, it can legitimately be held that the tenancy in its inception was of a permanent character. There can be no doubt that in view of the decision of this Court in the cases of Dinendta v. Tituram(19), Winterscale v. Sarat Chandra(20) and of the Judicial Committee in the cases of Gopal Lall v. Teluck Chunder(21), Dhunput v. Gooman(22), Ram Chunder v. Jogesh Chundet(23), Suttosurrun v. Mohesk Chandra(24), Upendra Krishna v. Ismail Khan(25), Nilratan v. Ismail Khan(26) and Naba Kumari v. Behari Lal, the inference is irresistible that the tenancy in its inception was of a permanent character. The Subordinate Judge himself indeed would have arrived at the same conclusion but for the error into which he fell when he assumed that to bring a case within this rule, it was essential to establish that there were permanent structures on the land. But the decision of the Judicial Committee in Naba Kumari v. Behari Lal shows conclusively that although the presence of permanent structures on the land may be a very important factor, it is by no means essential to establish that the tenancy in its inception was of a permanent character. The decree of the Subordinate Judge cannot consequently be supported.

    The result is that the appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs in all the Courts.

    Appeal allowed.

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    Comments

    Moharam Chaprasi v. Telamuddin Khan
    (Jul 17, 1911)