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High Court Of Calcutta
M. M. DUTT, R. K. SHARMA
AMULYA KUMAR SUR - Appellant
Versus
DILIP KUMAR SUR - Respondent
First Appeal no. 862 of 1961.
Decided On : 10/03/1975
LEASE - INVALIDITY - NON-REGISTRATION - PART PERFORMANCE - SECTION 53A OF THE TRANSFER OF PROPERTY ACT - MONTHLY LEASE - TERMINATION - SECTION 106 OF THE TRANSFER OF PROPERTY ACT - PARTITION - SUBSISTING LEASE.
Fact of the Case:
The plaintiff filed a suit for partition and khas possession of his share in the suit property, treating the lease of the defendant no. 1 as inoperative and void. The defendant contested the suit, claiming that the lease in his favor was valid and that the plaintiff was precluded from avoiding the lease as he had instituted suits for rent on the basis of the lease and realized the amounts decreed in such suits. He also contended that the plaintiff's interest in the suit property having vested in the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953, his claim for partition was barred.
Finding of the Court:
The court held that the lease in favor of the defendant no. 1 was invalid and inoperative as it was not registered. The court also held that the defendant no. 1 was not entitled to rely on the doctrine of part performance under section 53a of the Transfer of Property Act as he had not pleaded the ingredient facts so as to attract the said section. The court further held that the plaintiff was entitled to rely on the forfeiture clause in the lease agreement as the lease was invalid and, as such, neither party could refer to or rely on any of the terms embodied therein. The court also held that the monthly lease, which had been presumed by implication of law, had not been determined in accordance with section 106 of the Transfer of Property Act and, as such, the plaintiff could not be said to be in joint possession with the defendant no. 1 as the 10 as co-sharer in the Mokurari Mourasi interest and, as such no decree for partition could be passed in his favor in respect of his 5/24th share.
Issues: 1. Whether the lease in favor of the defendant no. 1 was valid and operative? 2. Whether the defendant no. 1 was entitled to rely on the doctrine of part performance under section 53a of the Transfer of Property Act? 3. Whether the plaintiff was entitled to rely on the forfeiture clause in the lease agreement? 4. Whether the monthly lease, which had been presumed by implication of law, had been determined in accordance with section 106 of the Transfer of Property Act?
Ratio Decidendi: 1. The lease in favor of the defendant no. 1 was invalid and inoperative as it was not registered under section 107 of the Transfer of Property Act. 2. The defendant no. 1 was not entitled to rely on the doctrine of part performance under section 53a of the Transfer of Property Act as he had not pleaded the ingredient facts so as to attract the said section. 3. The plaintiff was not entitled to rely on the forfeiture clause in the lease agreement as the lease was invalid and, as such, neither party could refer to or rely on any of the terms embodied therein. 4. The monthly lease, which had been presumed by implication of law, had not been determined in accordance with section 106 of the Transfer of Property Act and, as such, the plaintiff could not be said to be in joint possession with the defendant no. 1 as the 10 as co-sharer in the Mokurari Mourasi interest and, as such no decree for partition could be passed in his favor in respect of his 5/24th share.
Final Decision: The court set aside the judgment and decree of the learned Subordinate Judge and dismissed the suit. The appeal was allowed, but in view of the facts and circumstances of the case, each party was directed to bear his own cost both in this Court and in the court below.
( 1 ) THIS appeal is at the instance of the defendant no. 1 and it arises out of a suit for partition and khas possession.
( 2 ) THE property in suit is a tract of land know as "ghoshaler Abad' comprising within it a jalkar. The plaintiff, since deceased, the predecessor-in-interest of the respondents nos. 1 (1) to (7), and the defendants were co-sharers of the suit property in Mourasi Mokurari right. The defendant no. 1 has 10 annas share equivalent to 5/24th share and the respondents including the respondents nos. 1 (1) to 1 (7) have 6 annas share equivalent to 9/24th share in the suit property. Out of the 9/24th share, the plaintiff had 4/24th share. The 6 annas or the 9/24th co-sharers including the plaintiff, granted a Dar Mourasi Mokurari lease to the defendant no. 1 by an unregistered agreement to lease dated March 29, 1936 at an annual rent of Rs. 846-15-2 pies. Out of the amount of rent defendant no. 1 was to pay a sum of Rs. 171-15-2 pies to the superior landlords and pay the balance sum of Rs. 675/- to the 6 annas co-sharers including the plaintiff in proportion to their respective shares. Clause 12 of the agreement to lease, inter alia, provided that in case of default of payment of rent for three consecutive years the lease would stand cancelled that the defendant no. 1 has been in possession of the whole of the suit property, namely, 6 annas share thereof by virtue of the said agreement to lease as a Dar Mourasi Mokurari tenant, and 10 annas share thereof belonging to him in Mourasi Mokurari right. During the pendency of the Dar Mourasi Mokurari lease in favour of the defendant no. 1, the plaintiff purchased 1/24th share of the defendant nos. 3 to 6 by a registered kobala dated September 7, 1949. After such purchase, the plaintiff's share became 5/24 in the Mourasi Mokurari interest. It was alleged by the plaintiff that the defendant no. 1 defaulted to pay rent to him in respect of his share for three consecutive years, namely, from 1354 B. S. to 1357 B. S. , and that, accordingly, he was entitled to treat the lease as cancelled and to take possession of his share in the Mourasi Mokurari interest along with the other co-sharers having 4. 24th share by virtue of clause 12 of the agreement to lease providing for the right of re-entry of the lessors in case of failure of the lessee to pay rent for three consecutive years. The plaintiff by the letter of his lawyer dated October 22, 1954 demanded khas possession of his 5. 24th share from the defendant no. 1. It was contended by the plaintiff that the lease in favour of the defendant no. 1 was void and that in any event, it stood extinguished on the failure of the defendant no. 1 to pay rent for three consecutive years. It was further contended that he was entitled to treat the lease as non-existent and to take khas possession of his 5/24th share in the suit property on partition with the remaining defendants. On the aforesaid allegations, the plaintiff instituted the suit for khas possession of his share in the suit property on partition by metes and bounds, treating the lease of the defendant no. 1 as inoperative and void.
( 3 ) THE defendant no. 1 appellant alone contested the suit. His defence was that the Dar Mourasi Mokurari lease in his favour was quite legal and valid. The terms of the lease were affirmed by the parties in a joint petition of compromise filed in Rent Suit No. 16 of 1942 of the 4th Court of the Subordinate Judge at Alipore. It was contended that the plaintiff having instituted suits for rent on the basis of the lease and that having realised the amounts decreed in such suits, he was precluded from avoiding the lease. Further, his contention was that even assuming that the plaintiff had the right of re-entry, the said right was not exercised in accordance with law. It was submitted by him that the suit for eviction on the ground of non-payment of rent could be avoided by payment of rent and, as such, the suit was not ma
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