Namdeo Lokman Lodhi vs Narmadabai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1953 Supreme(SC) 24

SUPREME COURT OF INDIA
27th February 1953
MAHAJAN AND S.R. DAS JJ.
Namdeo Lokman Lodhi - Appellant
Versus
Narmadabai and others - Respondents.
Civil Appeal No. 154 of 1952.
Advocates appeared
Shri C. K. Daphtary, Solicitor-General for India (Shri J. B. Dadachanji, Advocate, with him), instructed by Shri Ramaparkhi Anant Govind, Agent - for Appellant.
Shri V. M. Tarkunde, Advocate, instructed by Shri Rajinder Narain, Agent - for Respondents.

Advocates:
C.K.DAFTARY, J.B.DADACHAN, RAJENDER NARAIN, RATNAPAKHI ANANT GOVIND, V.M.TARKUNDE

Headnote:Object and concept - Application of the act on matters excluded by it - Object — applicability - Leases for agricultural purposes - Notice of intention to determine lease on forfeiture — requirement prior to amendment of this section — lease executed before 1.4.1930 - Leases for agricultural purposes - Applicability — exercise of discretion
       - the provisions of the Act which are but statutory recognition of the rules of justice, equity and good conscience and it is axiomatic that the courts must apply these principles to transactions even though the statutory provisions of the Act are not applicable to such transaction – See decision in Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228. It is erroneous to suppose that every provision in the Act and every amendment effected is necessarily based on principles of justice, seen in every case whether the particular provision of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule.

       – the courts should be very careful in applying statutory provisions and the assistance of the Act as a guide on matters which have been excluded from the purview of the Act by express words should not be invoked, unless the provisions of the Act embody principles of general application – see decision in Namdeo Lokman Lodhi v. Varmadabai, AIR 1953 SC 228.

       – The Sections 105 to 116 of the Act give statutory recognition to principles of justice equity and good conscience and they are applicable to cases not governed by the Act – See Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.

       – As held in Namdeo Lakman Lodhi v. Narmadabai, AIR 1953 SC 228, although Section 106 of the Act does not apply to leases for agricultural purpose by virtue of Section 117, nevertheless the rules is Section 106 and other sections (Sections 105 to 116) in Chapter V of the Act are founded upon reason an equity and they are the principles of English law and should be adopted as the statement of the law in India applicable also to agricultural leases. See also decision in Nirshi Dhobin v. Dr. Sudhir Kumar Mukherjee, AIR 1969 (2) SCA 351.

       – The insistence in this section that notice should be given in writing is intrinsic evidence of the fact that the formality is merely statutory and it cannot trace its origin to any rule of equity. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenant’s breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a Chancery Judge. The requirement as to written notice provided in the section, therefore, cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1.4.1930. Those leases are still governed by the unamended sub–section (g) of this section. All that was required by that sub-section was that the lessor was to show intention to determine the lease by some act indicating the intention. The provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of this Act or to leases executed prior to 1.4.1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach — See decision in Namdeo Lakman Lodhi v. Narmadabai, AIR 1953 SC 228.

       – As held in Namdeo Lakman Lodhi v. Narmadabai, AIR 1953 SC 228, although Section 106 of the Act does not apply to leases for agricultural purpose by virtue of Section 117, nevertheless the rules in Section 106 and other sections (Sections 105 to 116) in Chapter V of the Act are founded upon reason and equity and they are the principles of English law and should be adopted as the statement of the law in India applicable also to agricultural leases. See also decision in Nirshi Dhobin v. Dr. Sudhir Kumar Mukherjee, AIR 1969(2) SCA 351.

       – In exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant — See Namdeo Lakman Lodhi v. Narmadabai, AIR 1953 SC 228.

Judgement

MAHAJAN J. : This is an appeal by defendant 1 from the decree of the High Court of Judicature at Bombay in second Appeal No. 557 of1945, whereby the High Court confirmed the decree of the lower Courts granting possession of land to the respondents on the forfeiture of a lease. The appeal is confined to survey No. 86/2 at Mundhava in Poona district.

2. The principal question arising for decision in the appeal is whether notice as contemplated by S. 111 (g), T. P. Act, is necessary for the determination of a lease for non-payment of rent even where such lease was executed before the coming into force of the Transfer of Property Act. The only other question that falls for determination is whether the High Court should have interfered with the discretion of the lower Courts in refusing relief against forfeiture in the circumstances of this case.

3. The present respondents are the daughter and grandsons of the original plaintiff Vinayakbhat. His adoptive mother was Ramabai. She owned two inam lands at Mundhava which were then numbered Pratibhandi Nos. 71 and 72. Present survey Nos. 86/1 and 86/2 together correspond to old Pratibhandi No. 71. On 1-7-1863 Ramabai, while she was in financial difficulties, passed a permanent lease of both these numbers to one Ladha Ibrahim Sheth. The lessee paid a premium of Rs. 999 for the lease, and also agreed to pay a yearly rent of Rs. 80 to Ramabai during her lifetime and after her death a yearly amount equal to the assessment of the two lands to the heirs of Ramabai. The lease provided that in default of payment of rent, the tenant s rights would come to an end. On 18-8-1870 Ladha Ibrahim sold his tenancy rights to one Girdhari Balaram Lodhi for Rs. 7,999. The sale-deed provided that in default of payment of rent to Ramabai or her heirs, the purchaser would have no rights whatsoever left over the property. On the same day the purchaser passed a rent note in favour of Ramabai. The rent note provided for the payment of the agreed rent in the month of Poush every year, and stated that in case of default the tenant or his heirs would have no right over the land. Defendant 1 and the other defendants are the grandsons of Sethi Girdhari Balaram.

4. In spite of the nullity clause in the lease it appears that the lessee has been more or less a habitual defaulter in the payment of rent. In the year1913, rent for six years was in arrears. Vinayakbhat filed Suit No. 99 of 1913 in the Court of the II class Sub-Judge, Poona, against the present defendants for possession of the demised premises on the ground of forfeiture. A number of defences were raised by them. Inter alia, it was pleaded that as no notice had been given to them the forfeiture was not enforceable. These contentions were negatived but the court granted relief against forfeiture. Defandant was a minor at that time and became a major in or about 1925.

5. In the year1928 again rent for two years was in arrears. Vinayakbhat filed Civil Suit No. 258 of 1928 against the present defendants for possession on the ground of forfeiture. The plaintiff subsequently waived the forfeiture by accepting three years rent which by then had fallen in arrears and costs of the suit.

6. In the year 1931 rent for three years again fell into arrears. The amount was then sent by money order and the landlord accepted it.

7. In the year 1934 again rent for three years remained unpaid. At that time proceedings were started by Government for the acquisition of the old Survey No. 72. The landlord claimed that he was entitled to the whole compensation money as the tenant s rights had ceased by forfeiture for non-payment of rent. Decendant 1 through his pleader sent a notice to Vinayakbhat to come and take the arrears of rent. He agreed and accepted the arrears of rent and the forfeiture was again waived. As a result of this the defendants got Rs. 32,000 by way of compensation for the permanent tenancy rights in old Survey No. 72, while Vinayakbhat got Rs. 1.400 for com

Click Here to Read the rest of this document