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HIGH COURT OF CALCUTTA
P. N. MOOKERJEE,U. C. LAW, JJ.
Indraloke Studio
Versus
Santi Debi
A. F. O. D. No. 291 of 1956
Decided On : 18-03-1960
EJECTMENT SUIT - [SUBJECT] - TRANSFER OF PROPERTY ACT, 1882 - [ACT SECTION LIST] - S. 5, 105, 107, 114 - [SUMMARY] : Plaintiff filed a suit for ejectment and mesne profits against the defendants on the ground that defendants Nos. 1 and 2 were lessees under him in respect of the suit premises but had forfeited their rights under their respective leases by reason of non-payment of rent and by reason also of unauthorised transfer of the same to defendant No. 3 without his (lessor-plaintiffs) consent, which, in the circumstances, amounted to breaches of conditions of the said leases, entitling him (the plaintiff-lessor), under the express terms thereof, to re-enter and enjoy the said premises. The defendants contested the suit and claimed title through Unity Productions, which was a direct assignee from or lessee from or under the plaintiff. The trial Court decreed the suit. On appeal, the Court held that the assignment by defendant No. 2 to Rohini Kumar Sen Gupta was valid and operative in law as it was not transfer of non-existent property in the eye of law. Contingent interest is property and it is clearly transferable. The transfer to Rohini was, therefore, perfectly valid and operative. It was not transfer of non-existent property in the eye of law. Contingent interest, again, it must be remembered, does not necessarily require a prior interest for its support and does not, always, take effect after the termination of a prior interest. The Court further held that the assignment (Ext. J-1) and the alleged consent letter (Ext. A-6) would lose all importance except for purposes of the aforesaid section. The quastion of S. 53A of the Transfer of Property Act thus assumes, in the instant case before us, paramount importance and we shall turn to it presently in the light of the above three documents, in particular, and the other evidence, relevant on the point. The Court dismissed the appeal with costs contesting to the plaintiffs-respondents.
Fact of the Case:
Plaintiff filed a suit for ejectment and mesne profits against the defendants on the ground that defendants Nos. 1 and 2 were lessees under him in respect of the suit premises but had forfeited their rights under their respective leases by reason of non-payment of rent and by reason also of unauthorised transfer of the same to defendant No. 3 without his (lessor-plaintiffs) consent, which, in the circumstances, amounted to breaches of conditions of the said leases, entitling him (the plaintiff-lessor), under the express terms thereof, to re-enter and enjoy the said premises. The defendants contested the suit and claimed title through Unity Productions, which was a direct assignee from or lessee from or under the plaintiff.
Finding of the Court:
The Court held that the assignment by defendant No. 2 to Rohini Kumar Sen Gupta was valid and operative in law as it was not transfer of non-existent property in the eye of law. Contingent interest is property and it is clearly transferable. The transfer to Rohini was, therefore, perfectly valid and operative. It was not transfer of non-existent property in the eye of law. Contingent interest, again, it must be remembered, does not necessarily require a prior interest for its support and does not, always, take effect after the termination of a prior interest. The Court further held that the assignment (Ext. J-1) and the alleged consent letter (Ext. A-6) would lose all importance except for purposes of the aforesaid section. The quastion of S. 53A of the Transfer of Property Act thus assumes, in the instant case before us, paramount importance and we shall turn to it presently in the light of the above three documents, in particular, and the other evidence, relevant on the point.
Issues: None
Ratio Decidendi: The Court held that the assignment by defendant No. 2 to Rohini Kumar Sen Gupta was valid and operative in law as it was not transfer of non-existent property in the eye of law. Contingent interest is property and it is clearly transferable. The transfer to Rohini was, therefore, perfectly valid and operative. It was not transfer of non-existent property in the eye of law. Contingent interest, again, it must be remembered, does not necessarily require a prior interest for its support and does not, always, take effect after the termination of a prior interest. The Court further held that the assignment (Ext. J-1) and the alleged consent letter (Ext. A-6) would lose all importance except for purposes of the aforesaid section. The quastion of S. 53A of the Transfer of Property Act thus assumes, in the instant case before us, paramount importance and we shall turn to it presently in the light of the above three documents, in particular, and the other evidence, relevant on the point.
Final Decision: The Court dismissed the appeal with costs contesting to the plaintiffs-respondents.
P. N. MOOKERJEE, J. : The suit, out of which this appeal arises, was a suit for ejectment and mesne profits. It was instituted on 19-6-1951, and decreed by the trial Court on 31-5-1956. Against that decree, the present appeal was filed on 24-8-1956.
2. In the suit, which was filed by the predecessor of the present respondent No. 1. there were three defendants, of whom, the appellant Indroloke Studio Ltd., was defendant No. 3 and the present respondents Nos. 3 and 4 were respectively defendants Nos. 1 and 2. The original plaintiff Kanhyalal Kanodia, husband of the present respondent No. 1, Santi Devi, and father of the minor respondent No. 2, Chandra Kumar Kanodia, died during the pendency of the suit in the trial Court, and, in his place, the said respondents Nos. 1 and 2 were substituted as the plaintiffs. The suit, as we have said above, was eventually decreed, and, against that decree, the defendant No. 3 has come up in appeal.
3. The original plaintiff, claiming to be a lessee under the superior holders, whom, for brevity and convenience, we may call the Ghoses, sued to recover possession of the suit property Premises (Municipal holdings) Nos. 20 and 21. Baburam Ghose Road, Tollygunge, 24 Parganas, and also mesne profits from the three defendants, upon the ground, inter alia, that defendants Nos. 1 and 2 were lessees under him in respect of the above suit premises but had forfeited their rights under their respective leases by reason of nonpayment of rent and by reason also of unauthorised transfer of the same to defendant No. 3 without his (lessor-plaintiffs) consent, which, in the circumstances, amounted to breaches of conditions of the said leases, entitling him (the plaintiff-lessor), under the express terms thereof, to re-enter the suit property. In short, the plaintiffs case was that defendants Nos. 1 and 2 had lost their rights in the suit property on account of forfeiture of their respective leases, as aforesaid, and defendant No 3 did not acquire any interest therein inasmuch as the relevant transfers or assignments in his (defendant No. 3s) favour were unauthorised and invalid against the plaintiff, and, accordingly, the latter was entitled to a decree for possession and mesne profits.
4. To turn to the relevant details, the plaintiffs case, as made in the plaint, was as follows :
By two registered indentures of leases, bearing date, 24-11-1944, the plaintiff, as owner in possession of the suit promises Nos 20 and 21 Baburam Ghose Road, Tollygunge, district 24 Parganas, leased out the same to defendants Nos. 1 and 2 for a term of 10 years, with option of renewal to the lessees for a further term of 5 years. The two indentures aforesaid were on similar terms, which included, inter alia, the following :
(a) that the defendants Nos. 1 and 2 as lessees would pay Rs. 300/- as monthly rent for premises No. 20 Baburam Ghose Road and Rs. 250 for premises No. 21 Baburam Ghose Road, aforesaid,
(b) that they would pay such rent regularly in advance without any deduction or abatement whatsoever within the 15th day of each and every month, for which the rent is payable, whether formally demanded or not, in addition to all municipal taxes, Chowkidary taxes and all other outgoings and impositions ;
(c) that they would not, during the period of the lease, transfer, assign, sublet or sub-demise or deal with the said premises in any manner whatsoever without the written consent of the plaintiff, first had and obtained;
(d) that the lease would determine if the defendants Nos. 1 and 2, the lessees, did not pay rent for 2 consecutive months, whether legally demanded or not ; and
(e) that in case there was, on the part of the defendants Nos. 1 and 2, breach of any of the covenants and conditions contained in the said Indenture of lease including those mentioned in items Nos. (a), (b), (c) and (d), the lease would ipso facto determine and the said premises would ipso facto become the property of the Plaintiff, who would, thereupon, be
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