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HIGH COURT OF CALCUTTA
Sankar Prasad Mitra, Salil Kumar Datta
M. S. RAM SINGH - Appellant
Versus
BIJOY SINGH SURANA - Respondent
Letters Patent Appeal 9 Of 1971
Decided On : DECEMBER 17, 1971
SURRENDER OF LEASE - EFFECT ON TENANCY - RIGHT TO CONTINUE SUIT - REGISTRATION OF SURRENDER DEED - ADMISSIBILITY OF UNREGISTERED DEED - SUBSTITUTION OF PLAINTIFF.
Fact of the Case:
The suit was instituted by the original plaintiff, a monthly tenant, for recovery of possession of the suit premises from the defendant, who was a sub-tenant. The original plaintiff surrendered its tenancy to the landlord, who subsequently leased the premises to the substituted plaintiff. The substituted plaintiff applied for substitution in the suit, claiming the right to continue the suit.
Finding of the Court:
The court held that the surrender of the lease by the original plaintiff extinguished its interest in the tenancy and there was no devolution or assignment of interest to the landlord or the substituted plaintiff. Therefore, the substituted plaintiff was not entitled to continue the suit. The court also held that the deed of surrender, being compulsorily registrable under the Indian Registration Act, 1908, was inadmissible in evidence as it was not registered.
Issues: 1. Whether the surrender of the lease by the original plaintiff extinguished its interest in the tenancy? 2. Whether there was any devolution or assignment of interest to the landlord or the substituted plaintiff? 3. Whether the substituted plaintiff was entitled to continue the suit? 4. Whether the deed of surrender was compulsorily registrable under the Indian Registration Act, 1908? 5. Whether the unregistered deed of surrender was admissible in evidence?
Ratio Decidendi: 1. The surrender of the lease by the original plaintiff extinguished its interest in the tenancy, as surrender is an extinguishment of the lessee's interest and there is no devolution or assignment of interest to the landlord or the substituted plaintiff. 2. There was no devolution or assignment of interest to the landlord or the substituted plaintiff, as the surrender of the lease extinguished the original plaintiff's interest and there was no subsisting interest that could devolve or be assigned. 3. The substituted plaintiff was not entitled to continue the suit, as the surrender of the lease by the original plaintiff extinguished its interest in the tenancy and there was no devolution or assignment of interest to the substituted plaintiff. 4. The deed of surrender was compulsorily registrable under the Indian Registration Act, 1908, as it purported to extinguish the right, title, and interest of the original plaintiff in the tenancy, which was valued at over Rs. 100. 5. The unregistered deed of surrender was inadmissible in evidence, as Section 49 of the Indian Registration Act, 1908 provides that a document required to be registered, unless registered, will not be received as evidence of any transaction affecting such property.
Final Decision: The appeal was allowed, the judgment and decree under appeal were set aside, and those of the trial court were restored. There was no order for the costs of the appeal.
( 1 ) THIS is an appeal by the tenant defendant under Clause 15 of the Letters Patent The suit was dismissed by the learned Judge, Third Bench. City Civil Court, Calcutta. On appeal Chittatosh Mookerjee. J. set aside the judgment and decree under appeal and decreed the suit.
( 2 ) THE case in the plaint is as follows: The defendant was a monthly tenant under the plaintiff Oswal Jain and Co. . in respect of certain rooms and one kitchen in the fifth floor of premises No. 7/1c. Lindsay Street, Calcutta (described in the schedule to the plaint and hereinafter referred to as the suit premises) at a monthly rent of Rs. 223. 84p, the tenancy being according to English calendar month. The tenancy was determined by notice to quit, duly served on the defendant, with expiry of September, 1961. It was alleged that the defendant had sub-let his tenancy without the previous consent in writing of the plaintiff and as such was not entitled to any protection under the West Bengal Premises Tenancy Act, 1956. The suit was accordingly instituted on December 7. 1961 claiming a decree for recovery of possession of the suit premises.
( 3 ) THE suit was contested by the defendant who filed a written statement contending inter alia that the plaint was vague and misleading in material particulars and did not disclose any cause of action. It was further alleged that there were two sub-tenants since before the 1956 Act with the knowledge and consent of the landlord. The legality, validity and sufficiency of the notice and its service were also challenged. The defendant in the premises submitted that the suit should be dismissed.
( 4 ) THE suit proceeded in its course and the following issues were framed by the Court on April 2, 1962. 1. Has the tenancy been determined by notice to quit? 2. Has the defendant sub-let, assigned or transferred Ms tenancy with consent in writing? 3. Is the plaintiff entitled to a decree for recovery of possession? 4. To what reliefs, if any. the plaintiff is entitled? on June 28. 1963. Smt. Sukhdevi Kumari Surana filed an application stating that the plaintiff was the lessee of the premises No. 7/10, Lindsay Street. Calcutta under the owners, the Trustees to the Estate of Seth Mannalalji Surana Memorial Trust The plaintiff surrendered his lease with all its existing right on May 15, 1963 and after surrender, the Trustees had leased put the premises to the applicant with right to continue the present suit. In the circumstances the applicant prayed for being substituted in the place of the plaintiff. The application was heard on July 5, 1963 when the defendant contended, as it appears from the order sheet of the suit, that in view of the documents the applicant had not the carriage of the suit although she might be the legal owner of the leasehold property. The trial court on the said date allowed the application without prejudice to the merits of the cases of the parties. The plaint was directed to be amended and was amended recording only that Sm. Sukhdevi Kumari Surana was substituted in place of the original plaintiff, as prayed for by her in her said application. An additional written statement was filed by the defendant after the amendment wherein he contended that the suit was not maintainable by the present plaintiff nor had she the right to proceed with the suit and further there was no relationship of landlord and tenant between the parties. Two additional issues were thereafter framed by the court as follows: 5. Is there any relationship of landlord and tenant between the parties? 6. Has the substituted plaintiff right to continue the suit?
( 5 ) THE suit was tried on evidence along with another ejectment suit between the parties when inter alia, an unregistered deed of surrender dated May 15, 1963 and a registered lease dated July 2, 1963. were proved by the plaintiff's only witness and marked exhibits 7 and 6 respectively. The trial court held that there had been sub-letting as alleged in
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