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1975 Supreme(All) 355
Allahbad High Court
GOPINATH
Dharmendra Nath - Appellant
Versus
Jagdish Prakash - Respondent
Decided On : 10/06/1975
S.S. Bhatnagar and S.N. Kekkar, for Appellants; A. Banerji, Shantosh Kumar and Ajai Kumar Banerji, for Respondent.
Headnote:
RENT AND EVICTION - PAYMENT OF RENT - VALIDITY OF TENDER - REMITTANCE OF RENT BY CHEQUE - ACCEPTED MODE OF PAYMENT - POST OFFICE AS AGENT OF PAYEE - BONA FIDE REMITTANCE - NO DEFAULT - EJECTMENT NOT JUSTIFIED.
Fact of the Case:
Plaintiffs, claiming ownership of the disputed accommodation, sought ejectment of the defendant for default in payment of rent and arrears. The defendant claimed to have sent the rent by cheque within the prescribed time, but the cheque was returned by the post office due to an endorsement that it could not be delivered being addressed to four persons. The trial court decreed the suit, but the lower appellate court dismissed the claim for ejectment while affirming the decree for recovery of arrears.
Finding of the Court:
The court held that the remittance of rent by cheque was a valid tender, as payment by cheque was an accepted mode of payment between the defendant and the earlier landlords, and the plaintiffs had not forbidden the defendant from doing so. The court further held that the post office was an agent of the payee and the defendant was not to be penalized for the failure of the post office to deliver the cheque. The court also found that the defendant had bona fide remitted the rent and could not be treated as a defaulter.
Issues: 1. Whether the remittance of rent by cheque was a valid tender? 2. Whether the post office was an agent of the payee? 3. Whether the defendant was in default of payment of rent? 4. Whether the plaintiffs were entitled to recover the rent of the entire premises?
Ratio Decidendi: 1. Payment by cheque was an accepted mode of payment between the defendant and the earlier landlords, and the plaintiffs had not forbidden the defendant from doing so. 2. The post office is an agent of the payee, and the defendant was not to be penalized for the failure of the post office to deliver the cheque. 3. The defendant had bona fide remitted the rent and could not be treated as a defaulter. 4. The defendant had accepted the plaintiffs as landlords of the entire premises, and the plaintiffs were entitled to recover the rent of the entire premises.
Final Decision: The appeal and the cross-objection were dismissed, and the decree of the lower appellate court refusing ejectment was affirmed.
2. The facts leading up to the present appeal are as follows :
One Triloki Nath was the owner of the accommodation in dispute. He sold it in favour of one Mahabir Prasad. Mahabir Prasad by a deed of sale dated 16-6-1961 transferred the property to Smt. Prabha, Km. Veena, Km. Reshmi and Km Nirja. Km. Veena, Km. Reshmi and Km. Nirja are the daughters of Smt. Prabha and were minors on the date of the sale. By a sale deed dated 1-11-1965 Smt. Prabha and her three daughters sold the property to the plaintiffs. The deed was executed by Smt. Prabha and one Dr. Bhagwat Dutt, the father of Smt. Prabha, and the maternal grandfather of the three minor daughters of Smt. Prabha as their de facto guardian. On 16-12-68 the three minors having attained majority ratified the sale deed dated 1-11-1965 and executed a deed of ratification in favour of the plaintiffs. On the basis of these two deeds the plaintiffs claimed to be the owners of the property in dispute. The plaintiffs however shortly after the sale deed dated 1-11-1965 issued the notice of demand against the defendant for the payment of rent. The defendant had been occupying the premises it appears, since 1961, and had been paying rent to the successive owners by cheque. The notice of demand was served on the defendant on 3-1-1966. By a registered letter dated 29-1-1966 the defendant sent a reply to the plaintiffs enclosing a cheque for the rent demanded in full satisfaction of the dues. In this letter the defendant clearly admitted the plaintiffs as his landlords and stated that the cheque was being sent in compliance to the demand for arrears of rent and in full satisfaction thereof. This letter however was not delivered to the plaintiffs. It was alleged by the plaintiffs that this was due to the negligence of the postman who endorsed on the envelop that the letter could not be delivered being addressed in the names of four persons. The rent having thus not been received by the plaintiffs within the prescribed time they issued the notice dated 16-2-1966 under Section 106 of the T. P. Act terminating the defendants tenancy and requiring him to hand over possession of the premises. This notice was served on 3-3-1966. The defendant having failed to vacate the premises the suit giving rise to this appeal was filed, for ejectment and arrears of rent and damages.
3. The defence delivered was that the defendant had sent the rent through cheque within the time prescribed by the notice dated 1-1-1966. The cheque was enclosed with a letter under registered cover addressed in the name of the four plaintiffs. In the letter it was stated that since all the four plaintiffs were the landlords and the rent was demanded by all of them a cheque drawn in favour of all, was being sent. It was thus pleaded that the defendant had not defaulted in the payment of rent and had sent the same within the prescribed period. The suit on the basis of default therefore could not be maintained. It was further pleaded that the notice to quit was defective, in that the original sale deed dated 1-11-1965 executed by Smt. Prabha and Sri Bhagwat Dutt on behalf of the three minor daughters of Smt. Prabha could not pass a valid title to the entire property, the transfer by a de facto guardian of a minor being invalid in l
