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HIGH COURT OF CALCUTTA
Bachawat
MURALIDHAR KULTHIA - Appellant
Versus
TARA DYE - Respondent
Suit 150 Of 1945
Decided On : SEPTEMBER 6, 1950
LEASE - Unregistered Lease - Effect - Tenancy at Will - Implied Monthly Tenancy - Notice to Quit - Waiver - Enforcement of Terms of Lease - Estoppel of Tenant to Deny Landlord's Title.
Fact of the Case:
Plaintiff filed a suit for recovery of possession of premises, arrears of rent, and mesne profits. The defendant was in possession of the premises under an unregistered lease executed by the plaintiff's husband. The plaintiff claimed that the relationship between the parties was that of landlord and tenant and that the defendant was liable to pay rent and deliver vacant possession on the expiry of the lease. The defendant contended that the lease was invalid due to non-registration and that she was entitled to relief.
Finding of the Court:
The court held that the unregistered lease was not effective as against the defendant and could not be received as evidence of any transaction affecting the property. However, the court found that there was a tenancy at will implied by law due to the defendant's possession under the void lease and payment of rent. The court also held that the tenancy was converted into a monthly tenancy from the date of the unregistered lease due to payment and acceptance of rent. The court further held that the notice to quit served by the plaintiff was valid and that the defendant was liable to deliver vacant possession.
Issues: 1. Whether there was a valid lease between the parties. 2. Whether the defendant was a monthly tenant under the plaintiff. 3. Whether the tenancy was terminated by a valid notice to quit. 4. Whether the suit was maintainable in the absence of leave from the Rent Controller.
Ratio Decidendi: 1. An unregistered lease is not effective to create a valid leasehold interest in the property. 2. A tenancy at will arises by implication of law when a person is in possession of premises under a void lease and pays rent. 3. A tenancy at will can be converted into a monthly tenancy by payment and acceptance of rent. 4. A valid notice to quit is required to terminate a monthly tenancy. 5. A tenant is estopped from denying the landlord's title during the continuance of the tenancy.
Final Decision: The court decreed possession of the premises to the plaintiff, along with arrears of rent and mesne profits. The court also granted the plaintiff the right to withdraw the moneys deposited in court in pro tanto satisfaction of his claim under the decree.
( 1 ) THIS is a suit for the recovery of possession of No. 11/1, Hari Sarkar Lane, Calcutta, arrears of rent and mesne profits.
( 2 ) IN 1942 one Srichand Khettry, the husband of the defendant borrowed moneys from the plaintiff and executed deeds of mortgage and further charge over the premises in favour of the plaintiff. On 15-6-1943 the total dues of the plaintiff from Srichand amounted to Rs. 6240/ -.
( 3 ) BY a registered conveyance dated 15-6-1943 Srichand sold and conveyed the premises to the plaintiff for the sum of Rs. 7500/ -. The consideration was paid by adjustment of the outstanding dues and by payment of Rs. 1260/- in cash. By a lease dated 15-6-1943 the plaintiff leased the premises to the defendant for a period of 5 years commencing from the last day of July, 1943 and ending on June 30, 1948. By this lease-defendant agreed to pay to the plaintiff a monthly rent of Rs. 40/- as also the owner's and occupier's shares of taxes and the plaintiff was given a right of re-entry in default of payment of six months' rent and the defendant covenanted to deliver vacant possession on the expiry or the sooner determination of the lease. The defendant deposited the sum of Rs. 80/- as advance rent. There is a dispute as to whether this lease is validly registered. By a registered agreement dated 23-9-1943 the plaintiff agreed to convey the premises to the defendant for the sum of Rs. 7625/ -. It was provided that if the purchase would not complete within 30-6-1948 or if the defendant would fail to pay six months' rent under the lease, the agreement would stand cancelled and the earnest money of Rs. 101/- would be forfeited, and the defendant would give vacant possession in terms of the lease. The plaintiff's name has been mutated as owner of the premises in the records of the Corporation of Calcutta in spite of the objections of Srichand.
( 4 ) THERE were negotiations for sale of the premises by Srichand to a client of Messrs. B. N. Basu and Co. but the negotiations fell through. On 29-9-1944 the plaintiff's pleader gave to the defendant a notice to quit on the expiry of the last day of October 1944, and also demanded payment of the sum of Rs. 400/- being arrears of rent for 10 months from December 1943 up to September 1944. In reply, the defendant's pleader asserted that the relationship between the parties was not that of a landlord and tenant and that there was a conditional sale and the defendant would soon release the property on full payment. By way of rejoinder, the plaintiff's pleader sent a letter on 2-11-1944. As there was default in payment of six months' rent the plaintiff by that letter treated the agreement for sale cancelled and forfeited the earnest money and the deposit of advance rent and called upon the defendant to quit and give possession of the premises in terms of the lease. On 12-11-1944 the defendant's pleader sent a reply reiterating her stand. On 2-1-1945 the defendant's pleader informed the plaintiff that the defendant was ready to buy the premises under the agreement dated 23-9-1943 and also enquired as to what amount was due to the plaintiff under the lease dated 15-6-1943. By another letter dated 10-1-1945 the defendant's pleader purported to tender the sum of Rs. 520/- in full payment of arrears from December 1943 upto December 1944 under the lease. This sum of money was not accepted by the plaintiff. On 22-1-1945 this suit was instituted.
( 5 ) THE following issues were settled at the trial:"1 (a) was there a lease as alleged in paragraph 1 of the plaint? if so, is it admissible in evidence? Is the defendant entitled to raise these objections in view of the pleadings? (b) Was there a forfeiture of the lease? If so, was the forfeiture waived? (c) If not, is the defendant entitled to relief? 2 (a) Was the defendant a monthly tenant under the plaintiff? If so, from what date? (b) Was such tenancy terminated by valid notice to quit? (3) Is the suit maintainable in the absence of le
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