dedol-hf/india-case-legal-rag huggingface dataset:
appeal  preferred by Pratap Chandra Deo Dhabal some time  in
1924  and this order of dismissal was affirmed by the  Judi-
cial  Committee  in May 1927.  The Receiver  was  then  dis-
charged  and  the  plaintiff got possession  of  the  entire
estate  in  July  1927.  On April 15,  1937,  the  plaintiff
brought  a  suit for ejectment (being Title Suit  No.  2  of
1937)  against the defendant in respect of this property  in
the  Court of the Subordinate Judge at Chaibassa. The  claim
was  based  substantially upon the terms  of  the  Kabuliyat
executed by the defendant on 24th of December, 1924, and the
suit  was,  in fact, one for ejectment of a  lessee  on  the
expiration of the period provided for in the lease.  It  was
only the renewal clause in the Kabuliyat that was challenged
as  invalid and inoperative, not only because it  was  vague
and  indefinite  but also on the ground  that  the  Receiver
acted beyond his authority in entering into a stipulation of
this character.
36
274
The   defendant  in  his  written  statement  resisted   the
plaintiff's  claim  for possession primarily on  the  ground
that  he had acquired permanent rights in the  land    under
the Prodhan's Patta of 1913 and continuous     occupation of
it  since then for more than 12 years. The     Kabuliyat  of
1924, he attempted to ignore altogether. It was said that it
was  executed  only to avoid trouble and harassment  at  the
hands  of  the  Receiver and that, being  inoperative  as  a
lease,  it could not, in any view, affect the  prior  rights
which he acquired under the Patta of 1913.
     The trial judge decreed the suit. On appeal, the  judg-
ment was reversed by the District Judge and the  plaintiff's
suit  was dismissed simply on the ground that the notice  to
quit that was served on the defendant was ineffectual in law
to determine the tenancy. The District Judge found, first of
all,  that the Prodhan's Patta was void and  inoperative  in
law and could not create any rights in the defendant,  inas-
much as the Prodhan had no authority to settle lands of this
character.  The Kabuliyat of 1924 was also held to be  inef-
fectual as not amounting to a lease as defined by the Trans-
fer of Property Act.  It was held, however, by the  District
Judge  that apart from the Kabuliyat, a tenancy was  created
by payment and acceptance of rent in the years 1925 and 1926
and  after  1926 the defendant occupied the  position  of  a
monthly  tenant  by holding over under section  116  of  the
Transfer  of Property Act. Such tenancy could be  determined
by fifteen days' notice, expiring with the month of tenancy,
but  as the notice, which was served by the  plaintiff  upon
the  defendant, did not fulfil this requirement, the  plain-
tiff's  suit was bound to fail.  The District Judge,  though
he  dismissed the suit, gave the plaintiff a declaration  to
the  effect  that the defendant was liable  to  eviction  on
service  of fifteen days' notice, expiring with the  end  of
the  Bengali month of the tenancy.  Against  this  decision,
the plaintiff took an appeal to the High Court of Patna, and
the appeal came up for hearing before Harries C.J. and  Fazl
Ali J.  The learned Judges affirmed the finding of the lower
appellate court that
275
the Prodhan's Patta did not create any rights in the defend-
ant and that the Kabuliyat of 1924 was also  ineffectual  as
a  lease  to  give the defendant  any  tenancy  right.   The
learned  Judges  further held that  the  defendant  did  not
acquire  any permanent right in the land by prescription  or
otherwise  and that by reason of the payment of rent to  the
Receiver in the years 1925 and 1926 he became a tenant  from
month  to month. In these circumstances the High Court  con-
curred with the District Judge in holding that the notice to
quit  was  insufficient for the purpose of  determining  the
tenancy.   It  seems  that the defendant  made  a  strenuous
endeavour  before  the High Court to establish that  as  the
Patta  of  1913 as well as the Kabuliyat of 1924  were  both
invalid and inoperative, he was never a tenant in respect of
the land in suit and no tenancy could be created by the  two
payments of rent, inasmuch as the Receiver had no  authority
to  receive  them.  It was contended,  therefore,  that  the
plaintiff was in possession of the land as a trespasser  all
along and thus acquired a good title by adverse  possession.
The High Court, though it held definitely that the defendant
was a tenant from month to month, nevertheless kept open the
question  as to whether the payment of rent to the  Receiver
was  tantamount  to payment to the plaintiff.  It  was  held
that  as the notice to quit was defective, that  was  suffi-
cient for dismissal of the suit, and the declaration made in
the  decree of the lower appellate court that the  defendant
was liable to be evicted on service of fifteen days' notice,
expiring with the Bengali month of the tenancy, was directed
to  be  deleted.  This judgment of the High Court  was  pro-
nounced on the 5th of May, 1942.
Soon after this on 18th July, 1942, the plaintiff served
a notice to quit on the defendant, asking him to vacate  the
land  on the 7th of August following, and as  the  defendant
refused to give up possession, the present suit was  brought
on  22nd  July, 1943.  The plaint in the present suit  is  a
very simple one;it proceeds entirely on the findings record-
ed by the High Court in the previous litigation.  The  right
to
276
possession  is  not based on the terms of the  Kabuliyat  of
1024.  The plaintiff avers that by reason of the payment  of
rent on 8th March, 1925, and 16th March, 1926 the  defendant
became a tenant from month to month under him and the tenan-
cy was determined by    a proper notice to quit.
     The  defendant in his written statement raised  several
pleas in answer to the plaintiff's claim.  He reiterated his
rights  under the Patta of 1913 and urged that by reason  of
his holding possession of the land on assertion of a  perma-
nent tenancy right for a long period of time, he acquired  a
valid  title  to the property. As regards the  Kabuliyat  of
1924,  it is said in one part of the written statement  that
the  defendant executed this document under  misapprehension
of facts without knowing the contents thereof. But at anoth-
er place it is stated that the Kabuliyat was binding on  the
plaintiff  and  he was not entitled to institute a  suit  in
contravention  of its terms, without in any event  refunding
the  selami money.  The  defendant admitted, what he  denied
in the earlier suit, that the payments made to the  Receiver
amounted to payments to the plaintiff himself, although this
question  was  left open by the High Court on  the  previous
occasion.  The other pleas raised in the  written  statement
are  not material, except that a specific point  was  taken,
challenging  the sufficiency of the notice to quit that  was
served upon the defendant.
On these pleadings a number of issues were framed.  The
trial judge held on a consideration of the materials  placed
before him that the Prodhan's Patta was a void and  inopera-
tive document and conferred no rights on the defendant.   He
negatived the case, which the defendant attempted to make in
course  of hearing, that the Kabuliyat executed by  him  was
obtained by threat and coercion. It was held by the Subordi-
nate  Judge  in accordance with the decisions of  the  Patna
High Court on the point that the Kabuliyat could not operate
as  a lease under the Transfer of Property Act,  and  conse-
quently the defendant did not acquire the rights of a lessee
under the same. He held, however,
277
that by payment and acceptance of rent  a  new tenancy   was
created  de hors the Kabuliyat, and as the new  tenancy  was
for building purposes, it. was a tenancy from month to month
under   section 106 Transfer of Property Act, terminable  by
fifteen days  notice.  As the notice was proper and,  suffi-
cient,  the  trial  judge  decreed  the  plaintiff's   suit.
Against  this judgment, the defendant took an appeal to  the
court of the District Judge, Purulia, and the District Judge
dismissed the appeal and affirmed the judgment of the  trial
court. It appears that two points were raised by the defend-
ant before the District Judge in support of his appeal:  one
was that the Kabuliyat of 1924 was effective as a lease  and
consequently  the defendant could not be ejected in  contra-
vention  of the terms thereof. At the same time it was  con-
tended that there was no tenancy at all held by the  defend-
ant  under the plaintiff,  inasmuch as the payments made  to
the Receiver could not be regarded as payments to the plain-
tiff.  The first point, the District Judge pointed out,  was
contrary  to the express decisions of the Patna High  Court,
while  the second was contradictory to the  defendant's  own
admission in the written statement.
    The  defendant then came up in Second Appeal before  the
High  Court of Patna and the appeal was heard by a  Division
Bench,  consisting of Shearer and  Reuben JJ.   The  learned
Judges  agreed  in dismissing the appeal and  affirming  the
decree made by the courts below, but the grounds upon  which
they based their decision are not identical.  As regards the
nature  of  the  tenancy created by implication  of  law  in
consequence of the Receiver having accepted payment of  rent
from the defendant, it was held by Reuben J. that when   the
Receiver  accepted rent in 1925, it should be presumed  that
the  parties intended to create a tenancy for one  year  and
when he accepted rent again in 1926, such acceptance amount-
ed to his assenting to the defendant's holding over; and  in
view  of the purpose for which the tenancy was created,  the
defendant from that time became a tenant from
278
month to month under the provision of section 116,  Transfer
of Property Act.  Shearer, J., felt difficulty in  accepting
this  view though in his opinion if a periodic  tenancy  was
created  at  all, it was from  month to month and  not  from
year to year. There are observations, however, in the latter
part of the judgment of Shearer, J., which would go to  show
that in his opinion the creation of two leases, each for one
year,  could be fairly gathered from the admitted  facts  of
the  case.  The learned Judge was not sure, however,  as  to
whether the defendant ever became a tenant of the plaintiff.
He  discussed the nature of the renewal clause contained  in
the  Kabuliyat and held it to be void for  uncertainty.   He
also  negatived  the  defendant's plea on  the  strength  of
adverse  possession.  His conclusion was that whatever  view
might be taken regarding these points, the defendant  had no
valid  defence  to the plaintiff's claim  for  eviction  and
consequently the decision of the courts below was right.  It
is  the propriety of this decision that has been  challenged
before us in this appeal.
      Mr. Setalvad, in support of his client's case, has not
called in aid the Prodhan's Patta of 1913; nor has he placed
any reliance upon the Kabuliyat of 1924 and the covenant for
renewal  contained therein.  He has not disputed  before  us
that  the  payments  made to the Receiver  were  in  reality
payments to the plaintiffs, and has conceded that a  tenancy
could  be  created by implication by reason  of  his  client
having  paid and the Receiver having accepted rents  in  re-
spect  of the suit premises.  His contention,  as  indicated
already, is that by reason of the payment and acceptance  of
rent,  there  were  two tenancies for one year each,  creat-
ed  for   two  successive years; but  the  relationship   of
landlord  and tenant between the parties came to an  end  on
the expiration of the second annual lease.  As there was  no
holding over by the defendant since then as contemplated  by
section 116, Transfer of Property Act, there was no subsist-
ing tenancy at any time after December, 1926, and the plain-
tiff's  suit instituted in the year 1943 was obviously  time
barred.
279
    Mr. De, appearing for the plaintiff-respondent, has,  on
the other hand, contended that the tenancy that was  created
by payment and acceptance of rent in the year 1925 was  from
the beginning a tenancy from month to month under the provi-
sion  of section 106. Transfer   of Property Act.   Alterna-
tively,  he has argued that if a tenancy for one  year  only
was  created in the year 1925, then after the expiration  of
that  one  year's  lease the defendant  held  over  and  the
Receiver's  assent  to  his  continuing  in  possession   is
evidenced  by  acceptance    of rent from him  in  the  year
1926.   The  tenancy thus created would be  a  tenancy  from
month to month under section 116, Transfer of Property  Act.
Lastly,  it is argued that even if two successive  tenancies
were  created   for one year each, the  facts  admitted  and
proved would go to show that the tenant held over after  the
second annual lease and consequently a tenancy from month to
month  came into existence in accordance with the  provision
of  section  116, Transfer of Property Act, even  though  no
rent  was demanded by the landlord after 1926.  The  contro-
versy  between  the parties so far as this  appeal  is  con-
cerned,  therefore,  narrows  down to  the  following  three
points :--
    (1)  What was the nature of the tenancy created  by  ac-
ceptance  of rent by the Receiver from the defendant on  the
8th  of  March, 1925 ?  If it was a tenancy  from  month  to
month, it is not disputed on behalf of the defendant that no
question  of holding over would at all arise and the  plain-
tiff would be entitled to succeed.
    (2)  If in 1925 a tenancy was created for one year,  can
the  landlord's  assent  to the  defendant's  continuing  in
possession be inferred from the fact that rent was  accepted
from the defendant in March, 1926 ?
    (3)  If the  payment and  acceptance of rent  in  March,
1926,  brought into existence a tenancy for  another   year,
was   there   any    subsequent tenancy  created  after  the
second year, although there was no ,demand or acceptance  of
rent by the landlord since then ?
280
     So  far  as the first point is  concerned,  the  courts
below  have proceeded on the view that a registered  instru-
ment signed by the landlord was necessary to create. a valid
lease for ten years.  That view was not questioned before us
and we express no opinion on this point. Proceeding,  there-
fore,  on the assumption that even though the parties  might
have  intended to create a lease for 10 years, no  operative
]ease came into existence, the only facts admitted are  that
the  defendant remained in possession of the land  belonging
to  the  plaintiff with the permission of the  Receiver  who
represented  the  plaintiff's estate, and paid rent  to  the
latter.  From these facts a tenancy could be fairly presumed
and the point for determination is, what was the duration of
the  tenancy that was created in the present  case?  Section
106 of the Transfer of Property Act lays down:
      "In the absence of a contract or local law or usage to
the contrary  a lease of immovable property for agricultural
or manufacturing purposes shall be deemed to be a lease from
year  to year, terminable, on the part of either  lessor  or
lessee,  by  six months' notice expiring with the end  of  a
year  of the tenancy; and a lease of immovable property  for
any  other purpose shall be deemed to be a lease from  month
to  month, terminable, on the part of either lessor or  les-
see,  by  fifteen days' notice expiring with the  end  of  a
month of tenancy."
     The  section lays down a rule of construction which  is
to  be applied when there is no period agreed  upon  between
the parties. In such cases the duration has to be determined
by reference to the object or purpose for which the  tenancy
is  created. The rule of construction embodied in this  sec-
tion  applies not only to express leases of uncertain  dura-
tion but also to leases implied by law which may be inferred
from  possession  and acceptance of rent and  other  circum-
stances.   It  is conceded that in the case  before  us  the
tenancy was not for manufacturing or agricultural  purposes.
The object was to enable the lessee to build structures upon
the land.  In these circumstances, it could be
281
regarded as a tenancy from month to month. unless there  was
a  contract  to the contrary. The question now  is,  whether
there  was a contract to the contrary in the present case  ?
Mr.  Setalvad  relies very strongly upon the fact  that  the
rent  paid here was an annual rent and he argues  that  from
this  fact  it  can fairly be inferred  that  the  agreement
between  the parties was certainly not to create  a  monthly
tenancy.   It is not disputed that the contract to the  con-
trary,  as contemplated by section 106 of the  Transfer  of.
Property  Act,  need not be an express contract; it  may  be
implied, but it certainly should be a valid contract.  If it
is  no  contract in law, the section will be  operative  and
regulate  the  duration of the lease. It has no  doubt  been
recognised in several cases that the mode in which a rent is
expressed  to  be  payable affords a  presumption  that  the
tenancy  is  of a character corresponding there  to.  Conse-
quently,  when  the  rent reserved is an  annual  rent,  the
presumption  would  arise  that the tenancy  was  an  annual
tenancy unless there is something to rebut the  presumption.
But the difficulty in applying this rule to the present case
arises  from  the fact that a tenancy from year to  year  or
reserving  a  yearly  rent can be made  only  by  registered
instrument,  as laid down in section 107 of the Transfer  of
Property  Act(1).   The Kabuliyat in the case before  us  is
undoubtedly a registered instrument, but ex-concessis it  is
not  an  operative document at all and  cannot  consequently
fulfil  the requirements of section 107 of the  Transfer  of
Property Act.
    This  position in fact is not seriously controverted  by
Mr.  Setalvad;  but what he argues is that a lease  for  one
year  certain might fairly be inferred from the  payment  of
annual  rent,  and a stipulation like that  would  not  come
within  the  mischief  of section 107  of  the  Transfer  of
Property  Act.   His contention is that the  payment  of  an
annual  rent,  as was made in the present case,  is  totally
inconsistent with a monthly lease.  We are not unmindful  of
the fact that in
 (1)  Vide Debendra Nath v. Syama Prasanna, 11 C.W.N.  1124,
1126
  37
282
certain  reported cases, such inference has been drawn.  One
such  case has been referred to by Mr.Justice Reuben in  his
judgment(1),  where  reliance  was placed  upon  an  earlier
decision  of the Calcutta High CoUrt(3).     A similar  view
seems  to  have  been taken also in  Matilal  v.  Darjeeling
Municipality(3).
   But one serious objection to this view seems to be   that
this would amount to making a new contract for the  parties.
The parties here certainly did not intend to create a  lease
for  one  year.  The lease was intended       to  be  for  a
period  exceeding  one year, but as the  intention  was  not
expressed  in the proper legal form, it could not  be  given
effect to.  It is one thing to say that in the absence of  a
valid agreement, the rights of the parties would be regulat-
ed  by law in the same manner as if no agreement existed  at
all; it is quite another thing to substitute a new agreement
for the parties which is palpably contradicted by the admit-
ted facts of the case.
    It  would be pertinent to point out in tiffs  connection
that in the Second Appeal preferred by the plaintiff against
the  dismissal  of his earlier suit by the  lower  appellate
court,  the High Court definitely held that the  defendant's
tenancy  was  one  from month to month  under  section  106,
Transfer  of Property Act, and the only question  left  open
was  whether payment to the Receiver amounted to payment  to
the  plaintiff himself. In this suit the defendant  admitted
in  his written statement that payment to the  Receiver  had
the  same effect as payment to the plaintiff, and the  trial
judge  took the same view as was taken by the High Court  on
the previous occasion, that by payment to and acceptance  of
rent by the Receiver, the defendant became a monthly  tenant
under section 106, Transfer of Property Act.  In his  appeal
before  the  District  Judge, which was the  last  court  of
facts,  the only ground upon which the defendant  sought  to
challenge  this  finding  of the trial judge  was  that  the
Receiver was an unauthorised person because of the 'decision
of
(1) Aziz Ahmad v. Alauddin Ahmad, A.I.R. 1933 Pat. 485.
(2) Md. Moosa v. Jaganund 20 I.C. 715     (3) 17 C.L.J. 167.
283
the  Judicial Committee which set aside his appointment  and
consequently  acceptance of rent by such  person  could  not
create  a  monthly tenancy. This shows that it was  not  the
case of the defendant at any stage of this suit that because
one year's rent was paid, a tenancy for one year was brought
into  existence.  We  think, therefore, that  on  the  facts
of  this  case  it would be quite proper to  hold  that  the
tenancy  of the defendant was one from month to month  since
its  inception  in  1924.  This view finds  support  from  a
number of reported cases(1), and in all these cases the rent
payable  was  a  yearly rental.  On this  finding  no  other
question  would arise and as the validity of the notice  has
not been questioned before us, the plaintiff would be  enti-
tled to a decree in his favour. The appeal thus fails and is
dismissed with costs.
                                     Appeal dismissed.
Agent for the appellant: R.C. Prasad.
Agent for the respondents: S.P. Varma,
     Vide Debendra Nath v. Syama Prasanna,  11 C.W.N.  1124;
Sheikh Akloo v. Emaman, I.L.R. 44 Cal. 403.
284
PETITIONER:
BHAGWATI PRASAD SAH AND OTHERS
        Vs.
RESPONDENT:
DULHIN RAMESHWARI JUERAND ANOTHER.
DATE OF JUDGMENT:
07/05/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
FAZAL ALI, SAIYID
AIYAR, N. CHANDRASEKHARA
CITATION:
 1952 AIR   72            1952 SCR  603
 CITATOR INFO :
 R          1964 SC 136  (22)
 RF         1980 SC1173  (23)
ACT:
    Hindu       Law--Joint      family--Presumption       of
jointness--Separation  of one member--Effect  of--Burden  of
proof  of subsequent state of family----Evidence of  separa-
tion--Statement  of  deceased member-- Evidence  Act  (I  of
1872), s. 32 (3).
HEADNOTE:
    Though  the general principle is that a Hindu family  is
presumed  to  be joint unless the contrary  is  proved,  yet
where  it is admitted that one of the coparceners did  sepa-
rate himself from the other members of the joint family  and
had his share in the joint property partitioned off for him,
there  is  no presumption that the rest of  the  coparceners
continued to be joint.  There is no presumption on the other
side  too  that because one member of the  family  separated
himself,  there has been separation with regard to all.   It
would  be a question of fact to be determined in  each  case
upon  the evidence relating to the intention of the  parties
whether there was a separation amongst the other coparceners
or they remained united and the burden would undoubtedly lie
on the party who asserts the existence of a particular state
of things on the basis of which he claims relief.
   Except in the case of re-union, the mere fact that  sepa-
rated coparceners chose to live together or act jointly  for
purposes  of  business or trade or in  their  dealings  with
properties  would  not give them the status  of  coparceners
under the Mitakshara law.
    The  statements of a particular person that he is  sepa-
rated from a joint family of which he was a coparcener,  and
that  he  has no further interest in the joint  property  or
claim to any assets left by his father, would be  statements
made  against the interest of such person, and,  after  such
person is dead, they would be relevant under s. 32(3) of the
Evidence  Act.  The assertion that there was separation  not
only  in respect of himself but between all the  coparceners
would  be admissible as a connected matter and ,an  integral
part  of the same statement.  It is not merely  the  precise