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PATNA HIGH COURT
N.L.Untwalia and Anwar Ahmad JJ.
Tata Iron And Steel Company Limited
Versus
Abdul Ahad
Appeal From Appellate Decree No. 85 of 1964 ;
Decided On : OCTOBER 09, 1969
TRANSFER OF PROPERTY ACT - SECTION 111(G) - LEASE - DETERMINATION OF LEASE - NOTICE - SERVICE OF NOTICE - JOINT TENANTS - SEVERAL TENANTS - TENANTS IN COMMON - CONSTRUCTION OF LEASE - OPTION FOR RENEWAL - EFFLUX OF TIME - EVICTION.
Fact of the Case:
The plaintiff, Tata Iron and Steel Co. Ltd., granted a lease to its employee, Abdul Gani, of the suit land for a period of 30 years commencing from 1st December, 1935. The lease was for a period of 30 years commencing from 1st December, 1935. It expired on 1st December, 1965. Abdul Gani died on 10th April, 1952 leaving behind a number of heirs, namely, his two widows, some sons and some daughters both married and unmarried. According to the case of the plaintiff Company, two sets of notices were issued and served on the heirs of Abdul Gani, who had come to inherit his leasehold interest. One set of notices was to ask them to remedy the breach committed by Abdul Gani as he had transferred the property by mortgage without the written consent of the lessor. The other set of notices was to determine the lease on the ground of forfeiture. The present suit giving rise to this appeal was filed on 7th November, 1952.
Finding of the Court:
The court held that the notice to determine the tenancy was not served separately on all the heirs. It was served on Abdul Ahad, one of the heirs of Abdul Gani. It also held that it was served on some other heirs when the same kind of notice determining the tenancy was served on them by registered post, but yet it was not served on all. Since the principal defendants, namely, the heirs and legal representatives of Abdul Gani, who are defendants 1 series, namely, defendants 1(a) to 1(1) were tenants in common and not joint tenants, service on one or some of them was not sufficient to determine the tenancy. The court also held that the alleged letter of permission dated 15th February, 1949 (Ext. H) said to have been written on behalf of the Company has not been proved to be genuine.
Issues: 1. Whether the notice to determine the tenancy was validly served on all the heirs of Abdul Gani? 2. Whether the alleged letter of permission dated 15th February, 1949 (Ext. H) said to have been written on behalf of the Company was genuine?
Ratio Decidendi: 1. The court held that the notice to determine the tenancy was validly served on all the heirs of Abdul Gani. The court relied on the following principles: * Joint tenants have unity of title, unity of commencement of title, unity of interest, so as in law to have equal shares in the joint estate, unity of possession, as well of every part as of the whole, and right of survivorship. * Tenants in common need have only unity of possession, they may have unequal shares, and there is no right of survivorship. * Where a covenant is entered into by two or more persons, it is frequently of importance to determine, whether the liability of the covenantors is joint or whether it is several or both joint and several. * As between themselves their rights may be specified, they might hold the tenancy in well defined shares capable of separate enjoyment or transmission to the respective heirs of each, as if it were his separate property. But qua the landlord they constitute one person each constituent part of which possesses certain common rights in the whole, and it is liable to discharge common obligations in their entirety. * The interest of a tenant, whether for a term of years or from year to year, in the demised property vests, upon his death, in his personal representatives;.....The personal representative takes the leasehold property as assignee. * Where the premises are held by two tenants jointly, the service of notice on one who lives on the premises is evidence that it reached the other who lives elsewhere, and apparently, even without such evidence, it is effectual as to both. 2. The court held that the alleged letter of permission dated 15th February, 1949 (Ext. H) said to have been written on behalf of the Company was not genuine. The court relied on the following factors: * The trial Court had recorded the finding that Ext. H was not a genuine letter, no permission had been ever granted by the plaintiff Company to him for transferring the leasehold property. * The learned Subordinate Judge, in his judgment under appeal, has recorded the finding that the notice dated 10-5-1952 (Ext. 1) and also the notice dated 12-5-1952 (Ext. 2) were served on Abdul Ahad, as is the case of the plaintiff Company, and he had received the notice on his own behalf as also on behalf of the other persons who all were addressees in all the notices meant for the heirs of Abdul Gani. * The learned Subordinate Judge, however, has made reference to two apparent defects. One is that Abdul Wahab, one of the sons of late Abdul Gani, who was one of the addressees in the notice is not a defendant in this suit and that the notice was not addressed to Mrs. Mamuda Bibi, defendant No. 1(j).
Final Decision: The appeal was allowed, the judgments and decrees of the Courts below were set aside and the plaintiff's suit was decreed with costs throughout to be paid by the contesting defendant No. 2 (respondent No. 13) only. There was a decree for khas possession of the land described in schedule A appended to the plaint in favour of the plaintiff Company on contest against defendant No. 2 and ex parte against the other defdts. and for ejectment of the defendants therefrom. The defendants 1 series and/or 2 were directed to pull down the buildings erected on the land described in the said schedule A, to remove the materials thereof and there-from and to restore the land in its original state to the plff. Company within a period of six months from to-day. In the event of their failing to do so, the defendants or whosoever may be in possession of the land or the buildings will be evicted and the buildings will be demolished and the materials will be removed in execution of the decree as made by this Court and cost of such demolition and removal will be realised from defendants 1 stries and/or defendant No. 2 in execution proceedings.
N.L.Untwalia, J.
1. The chequered history of this case demonstrates how the contesting defendant No. 2 has succeeded in remaining upon the suit land even beyond the period of 30 years mentioned in the original Indenture of Lease, The facts are these. The Tata Iron and Steel Co. Ltd. (hereinafter called the Company), the plaintiff appellant in this second appeal granted a lease to its employee, one Abdul Gani, of the suit land which measures 0.93 acre. The Indenture of Lease (Ext. 7) was executed on the 30th of March, 1937. The lease was for a period of 30 years commencing from the 1st of December, 1935, It expired on the 1st of December, 1965. The purpose of the lease was to allow the said employee to build upon it and he was to pay a nominal ground rent of Rs. 2/13/- per month. In April, 1947 Abdul Gani applied for permission to sell the leasehold property, which could not be transferred in any manner without the written permission of the lessor, namely, the plaintiff Company. Permission was refused. On the 17th of November, 1948 Abdul Gani applied again for permission to mortgage the leasehold interest for a sum of Rs. 50,000 to Shri Ananga Brjoy Mitra, a Pleader practising in the town of Jam-shedpur, who is defendant No. 2 in the action and respondent No. 13 in the appeal. The permission was refused as communicated to Abdul Gani by Ext. 14, a letter written by the Land Officer of the Company on the 25th of February, 1949. In spite of that, Abdul Gani executed a mortgage for Rs. 50,000 in favour of defendant No. 2 on the 12th of March, 1949. The Company filed Title Suit 209 of 1949, but due to there being a formal defect, it applied for permission to withdraw the suit with liberty to institute another. The permission was granted with the liberty as asked for. After the withdrawal of the suit, Abdul Gani died on the 10th of April, 1952 leaving behind a number of heirs, namely, his two widows, some sons and some daughters both married and unmarried. According to the case of the plaintiff Company, two sets of notices were issued and served on the heirs of Abdul Gani, who had come to inherit his leasehold interest. One set of notices was to ask them to remedy the breach committed by Abdul Gani as he had transferred the property by mortgage without the written consent of the lessor. The other set of notices was to determine the lease on the ground of forfeiture. The present suit giving rise to this appeal was filed on the 7th of November, 1952.
2. The contesting defendant. No. 2 raised a number of pleas and, if I may say so, all sorts of pleas, whether they had any substance or not. I need not enumerate all those pleas as it is not necessary to do so since most of them have been rejected and rejected rightly by the courts below. I may, however, refer to two out of them. They are--(i) that the lease was not determined as the contesting defendant did not accept that a valid notice determining the lease on the ground of forfeiture was served on the heirs of Abdul Gani and put the plaintiff to strict proof thereof and (ii) that Abdul Gani had transferred the property by a usufructuary mortgage to defendant No. 2 after having obtained the permission of the Land Officer on the 15th of February, 1949.
3. The learned Munsif who tried the suit held that the letter (Ext. H) said to have been written by the Land Officer granting permission to Abdul Gani was not a genuine letter, no permission had been ever granted by the plaintiff Company to him for transferring the leasehold property. It, however, held against the plaintiff on the question of service of notice because it found that the notice determining the tenancy was not validly served on all the heirs of Abdul Gani. The plaintiff Company went up in appeal before the lower appellate court. Defendant No. 2 filed a cross-objection. In the first instance, on the 25th of August, 1958 the lower appellate Court dismissed the appeal and allowed the cross-objection. It affirmed the find
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