1963 Supreme(Pat) 117

PATNA HIGH COURT
H.Mahapatra and Tarkeshwar Nath JJ.
Bulkan Sah
Versus
Ganga Devi Nathani
Appeal from Original Decree No. 504 of 1955 ;
Appeal From Original Order No. 236 of 1959 ;
Civil Revision No. 791 of 1959 ;
Decided On : OCTOBER 07, 1963

A right created in favour of Mandira Mukherjee by the deed of family arrangement dated 9-7-1951 was not a right restricted to her personally within the meaning of Clause (d) of Sec. 6 of the Transfer of Property Act.

Headnote:

Transfer of Property Act, 1882 - Section 6(d) - Lease - Permanent Settlement - Monthly Tenancy - Jurisdiction of Civil Court - Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 - Section 11 - Notice to Quit - Damages - Apportionment.

Fact of the Case:

Plaintiffs, Dhanraj Nathani and Mandira Mukherjee, instituted a suit for ejectment of defendants from the land and structure bearing holding Nos. 534, 535 and 536, within Circle No. 2, Ward No. 8, in the town of Muzaffarpur, and for a sum of Rs. 2741/5/- as damages till the institution of the suit besides future damages. Plaintiffs' case was that Jogendra Chandra Mukherjee was the owner of these three holdings commonly known as Andigola situate in Chatabazar Saraiyaganj, within the town of Muzaffarpur. Jogendra Chandra Mukherjee left two grand-sons, Sachindra Chandra Mukherjee and Achindra Chandra Mukherjee, and a grand-daughter Tamalika Mukherjee, Achindra Chandra Mukherjee was married to Mandira Mukherjee (Plaintiff 2). They were governed by Dayabhag School of Hindu Law and on the death of Jogendra Chandra Mukherjee, these holdings devolved on his two grand-sons In equal shares as their father had died before. Achindra Chandra Mukherjee died on 19-2-1948 and his widow (plaintiff 2) got the share of her husband. On 9-7-1951, she and Sachindra Chandra Mukherjee executed a deed of family arrangement whereby she got these holdings with structures thereon having an area of 1 bigha 6 kathas (specified in schedule 1 of the plaint). Defendants were monthly tenants of the premises in those holdings and they were paying monthly rent to plaintiff 2 and her predecessors-in-interest-at the following rate: Defendants nos. 1 to 4 Rs. 47/- Defendant no. 5 Rs. 42/8/- Defendants nos. 6 and 7 Rs. 15/8/- Rs. 105/- Plaintiff 2 required a sum of Rs. 10,000 for erecting a temple In the name of her husband for the benefit of his soul and for performing sradh of her deceased husband at Gaya and thus she leased out the entire Andigola having an area of 1 bigha 6 kalhas to plaintiff 1 on 18-9-1952 for building purposes on a monthly rent of Rs. 150.00 and delivered possession of the same to the lessee with power to realise rent which had accrued due from the defendants. After the said lease, plaintiff 1 sent his men for making some constructions on the vacant portions which had an area of about 1 bigha, but the defendants in collusion with one another interfered with his possession resulting in a proceeding under Sec.144 of the Code of Criminal Procedure. The Sub-Divisional Magistrate came to the conclusion in his order dated 18-11-1952 that the defendants had no title, but may were in possession and on that ground he made the preliminary order absolute against the plaintiffs. The defendants alleged in that proceeding that they had taken permanent settlement of the entire land from Jogendra Chandra Mukherjee about 40 to 45 years ago and had. Subsequently constructed at their cost buildings on those lands on payment of annual rent of Rs. 564, Rs. 510 and Rs. 186 respectively to plaintiff 2. They claimed to be in possession as permanent tenants and denied to have been monthly tenants of these premises. They (defendant) further set up a case that plaintiff 2 had no right to execute the lease in favour of plaintiff 1 and the said deed was fraudulent and bogus. The plaintiffs alleged that they were entitled to eject the defendants as they had falsely set up a case of permanent tenancy in spite of the fact that they were at best licensees or tenants-at-will. They further averred that the defendants were only monthly tenants with regard to the premises, and the vacant lands were all along in possession of plaintiff 2 and her predecessors. According to them, the defendants forfeited their tenancy and they were liable to eviction. They sent a notice on 12-12-1952 to the defendants determining their tenancy, but the latter neither paid any heed to it nor they vacated the premises and the lands in question.

Finding of the Court:

1. The deed of family arrangement dated 9-7-1951 did not create a right restricted to Mandira Mukherjee personally within the meaning of Clause (d) of Sec. 6 of the Transfer of Property Act and the lease executed by her in favour of plaintiff 1 was not void. 2. Plaintiff 1 had acquired a title on the basis of the lease and the defendants were only monthly tenants of the house and structures and not permanent tenants. 3. The Civil Court had jurisdiction to try this suit and the defendants ware liable to eviction as they had denied the landlords title and not paid rent for two months.

Issues: 1. Whether the deed of family arrangement dated 9-7-1951 created a right restricted to Mandira Mukherjee personally within the meaning of Clause (d) of Sec. 6 of the Transfer of Property Act? 2. Whether the lease executed by Mandira Mukherjee in favour of plaintiff 1 was void? 3. Whether plaintiff 1 had acquired a title on the basis of the lease? 4. Whether the defendants were only monthly tenants of the house and structures and not permanent tenants? 5. Whether the Civil Court had jurisdiction to try this suit? 6. Whether the defendants ware liable to eviction as they had denied the landlords title and not paid rent for two months?

Ratio Decidendi: 1. A right created in favour of Mandira Mukherjee by the deed of family arrangement dated 9-7-1951 was not a right restricted to her personally within the meaning of Clause (d) of Sec. 6 of the Transfer of Property Act. 2. The general rule is that property Is transferable and there should be free alienation and circulation of property, but there are certain exceptions to this rule and Sec. 6 comes in that context. 3. Clause (d) of that section envisages that an interest in property which is restricted in its enjoyment to the owner personally is by its very nature not transferable unless, the restriction is void under Sec.10 of the Transfer of Property Act. 4. The question whether an interest in property is restricted in its enjoyment can be answered by ascertaining the intention of the parties creating such interest as appearing from the recitals in the instrument which created an interest. 5. The deed of family arrangement dated 9-7-1951 indicated that Mandira Mukherjee got absolute interest in some properties (schedule A) whereas life interest in properties specified in schedule B. 6. She placed restrictions on her rights with regard to scheduie B lands relinquishing her absolute interest in respect thereof in consideration of obtaining absolute rights in some other properties. 7. Other parties to the deed accepted that arrangement on these terms. 8. There was an absolute restraint on her in the matter of encumbering the said properties or any portion thereof even for the lifetime and this being so, plaintiff 1, did not acquire a valid title in respect of the properties in question on the basis of the lease in his favour. 9. The trial court was thus not right in granting a decree to plaintiff 1. 10. The defendants were monthly tenants and not permanent tenants of these holdings.

Final Decision: 1. The appeal is allowed in part and the judgment and decree of the trial Court are modified. 2. The suit of plaintiff 2 for the eviction of defendants 5 to 7 is decreed and she is entitled to a decree for arrears of rent against defendant 5 at the rate of Rs. 42/8/- per month from October 1952 and against defendants 6 and 7 at the rate of Rs. 15/8/- per month from August 1952 till the date, of the decree. 3. Thereafter plaintiff 2 will let damages from defendant 5 at the rate of Rs. 42/8/- per month and from defendants 6 and 7 at the rate of Rs. 15/8/- per month till the date possession was taken from them by execution of the decree. 4. The amount of subsequent damage will be calculated in a saparate proceeding on payment of court-fee by plaintiff 2. 5. Plaintiff 1 is not entitled to any relief. 6. The cross objection is dismissed. 7. The miscellaneous appeal is dismissed but without costs. 8. The application in civil revision is dismissed but without costs.