JUDGMENT
Raj Kishore Prasad, J.
1. In this case, the petitioner, Pandit Lal Bihari Tewari, has obtained a rule from this Court, on an application under Articles 226 and 227 of the Constitution, for a writ against the opposite party, for calling up and quashing the order of eviction passed against him, under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (Bihar Act III of 1947), hereinafter referred to as “the Act”, by the Controller on the 16th March, 1953, which was upheld by the Collector on the 7th April, 1953, and by the Commissioner on the 13th August, 1953. Cause has been shown only by opposite party No. 2, Sheo Shankar Prasad, who has filed a counter-affidavit also.
2. The petitioner is the owner of holding No. 10, ward No. 2, lying within the Dinapore Cantonment. On the 17th July, 1951, he executed a registered rehan deed with possession for a term of two years, in respect of this holding, in favour of opposite party No. 2, for a sum of Rs. 10,000/-. The mortgagee, opposite party No. 2, according to his case, was put in possession of the disputed building.
3. On the 3rd February, 1953, opposite party No. 2, the mortgagee, made an application under Section 11 of the Act, before the Controller, for eviction of the present petitioner, and for restoring the possession of the house to opposite party No. 2, His case, inter alia, was that he was put in possession of the house by virtue of the usufructuary mortgage, but, subsequently, he was approached by the present petitioner to be inducted as a tenant, and, as such, orally he was allowed to occupy the house on a monthly rental of Rs. 100/-, but he had defaulted in payment of the rent since the month of May, 1952, and, therefore, he was liable to be evicted.
4. This application for eviction was opposed by the petitioner, and the plea taken by him was that there was no relationship of landlord and tenant between the parties, and, that it was not true that opposite party No. 2 was put in possession of the house as usufructuary mortgagee, in that, the document, which he had executed, in favour of opposite party No. 2, was a simple mortgage, and not a possessory mortgage, and as such the petitioner remained throughout in possession of the house.
5. The Controller, on the 16th March, 1953, held that the transaction of the 17th July 1951 was a usufructuary mortgage, and not a simple mortgage ; and that the relationship of landlord and tenant existed between the parties? and, since the petitioner had defaulted in the payment of rent from May, 1952, he was liable to be evicted. He, therefore, ordered eviction of the petitioner. The petitioner carried an appeal to the Collector, under Section 18 of the Act. The Collector upheld the order of the Controller, and dismissed the appeal. A revision against the above order to the Commissioner was also unsuccessful, as it was summarily rejected on the 13th August, 1953. The petitioner, therefore, has moved this Court for a writ against the aforesaid orders under Articles 226 and 227 of the Constitution.
6. Mr. Jadunandan Prasad, who appeared in support of the rule, contended, in the first place, that there was no relationship of landlord and tenant between the parties, and, there fore, the Act had no application to the petitioner, because the deed dated the 17th July, 1951, was not in reality a usufructuary mortgage, as it purports to be but it was in reality and truth a simple mortgage, and, therefore, the petitioner remained in possession of the building as before.
7. As the question, raised by the parties, as to whether the transaction is a usufructuary mortgage, or a simple mortgage, depends, for its decision, on the terms of the document, I reproduce below its material terms : —
“x x x x I, the executant, have ….. let out in rehan with possession for a term of two years the 18 annas house, together with all the materials, electricity, water pipe etc., well, latrine etc., and all rights appertaining to the house constituting the rehan property. I have received the entire rehan money at the time of admitting execution of this deed…..Hence on receiving the whole and entire rehan money, and on executing this deed I have let out in rehan with possession for a term of two years the 16 annas house, constituting the rehan property mentioned above in column No. 5 of this deed to Babu Shiv Shankar Prasad….. and have put him in possession and occupation thereof as a rehandar, in my place, from today. It is desirable that the said rehandar should himself re-aide in the house let out in rehan to him or should let out the same on rent and should annually appropriate the rent in lieu of profit or the rehan money or should keep the same vacant. I, the executant landlord, have or shall have no connection and concern with the house let out in rehan till the term and till the day of repayment of the entire rehan money….. For the entire expenses, in respect of the house, such as, Chaukidari tax repair etc., tax, electric bill, etc., that is, for all these the person and property of me, the executant shall be held liable. The rehandar has or shall have no connection and concern with the same……… Hence I, the executant, have executed this rehan deed with possession for a term of two years, so that it may be of use when required.”
8. In support of this contention Mr. Prasad has relied particularly on the following terms appearing towards the close of the document:–
“For the entire expenses in respect of the house, such as, Chaukidari tax, repair etc., tax electric bill, etc., that is, for all these the person and property of me, the executant shall be held liable. The rehandar has or shall have no connection and concern with the same…..”
9. His argument is that if the document would have been a possessory mortgage, by virtue of which the mortgagee was put in possession of the house, it is inconsistent that for payment of at least, electric bills, which are payable only by the person in occupation of the house for actual consumption of the units of electricity, the mortgagor would have been made liable. He, therefore, argues that the above clause indicated that really it was a simple mortgage, and not a usufructuary mortgage with possession.
His further argument, therefore, is that the relationship between the parties was that of mortgagor and mortgagee, and the so called monthly rent represented really the monthly interest, which worked out at 1 per cent per mensem, payable on the mortgage money, and to such a case the Act did not apply. In support of his contention, he relied on a Division Bench decision of this Court, in Baijnath Prasad v. Jang Bahadur Singh, 1955 B.L.J.R. 55: (AIR 1955 Pat 357) (A), which was decided by my Lord the Chief Justice, Ramaswami J, as he then was, and Sahai J. .
It was held, in this case, on construction of two documents, namely, the rehan deed dated the 5th July, 1945, and, the lease-back dated the 7th July, 1945, that the mortgage and the lease formed parts of one transaction and the intention of the parties was that the mortgagee would not get possession of the mortgaged properties, but, would only get interest on the amounts advanced by him in the shape of rent. So long as the lease continued; and, therefore, the amount payable under the lease was interest on the mortgage money, and not rent for use and occupation of the mortgaged properties, and as such the mortgagor cannot be, described as tenant within the meaning of the Act, and, therefore, the application filed under section 11 of the Act was not at all maintainable, and the Commissioner had no jurisdiction to direct the mortgagor to vacate the house, and, the order was therefore, liable to be quashed; and it was, accordingly, quashed. In my opinion, there is no substance in the contention of Mr. Prasad, nor, is the above case applicable to the present case, as I shall presently show.
10. The learned Government advocate, in reply, has contended that “electric bill” means not the bill in respect of the consumption of the units of electricity, but it means electric bill which is payable in respect of the house itself, like chaukidari tax etc., which is payable for the house itself, and not for the amenities, enjoyed by the occupier of the house. He, therefore, contends that the document taken as a whole leaves no room for doubt that it is a mortgage with possession, and not a simple mortgage, In my opinion, the contention of the learned Government Advocate is well founded, and must prevail.
11. The document has to be read and construed as a whole. Reading the document as such, there can be no doubt that it was a rehan deed. The document recites in clear terms that the mortgagee had been let out in possession, and he was to continue in possession of the house as long as the entire ijara money was not paid up, and, ijara was not redeemed. The terms relied upon by Mr. Prasad, which have been set out in the earlier part of the judgment, do not at all militate against the view that the document is a mortgage with possession. It is true during the continuance of the mortgage, when the mortgagee takes possession of the mortgaged property, he must pay all charges of a public nature in respect of the house under Section 76 (c) of the Transfer of Property Act, but that is so, in the absence of a contract to the contrary. It is therefore, open to the par-ties to contract out of the provisions of Section 76(c) of the Transfer of Property Act. The above terms, therefore, will not make the transaction a simple mortgage, and not a mortgage with possession. In my opinion, therefore, the document must be held to be a usufructuary mortgage with possession.
12. The ratio of Baijnath Prasad (A) (Supra) will not apply because the mortgagee’s case of subsequent oral lease-back to the petitioner has been accepted by all the Tribunals under the Act, and it has been concurrently, found by all the courts that the relationship of landlord and tenant existed, and that there had been default in payment of the rent. Rs. 100/-which was payable monthly has been found to be rent, and not interest. In the document there is no mention about payment of any interest, or even of any rate of interest, as was the case in Baijnath Prasad (A) (Supra). It only provides that the mortgagee should enjoy the profit of the mortgage money, either by being himself in possession of the house, or by letting it out on rent to others, or even by keeping it vacant. In these circumstances, it was open to the courts below to say that the amount claimed as rent was really rent which represented the profit of the house, and not interest on the mortgage money. The case of Baijnath Prasad (A) (supra), therefore, is of no assistance to the petitioner.
13. The subsequent oral lease-back, and, the relationship of landlord and tenant, is alleged by the mortgagee, both have been accepted by the Tribunal under the Act, because of a chit dated the 13th September, 1951, written by the mortgagee demanding the rent for two months, from the petitioner, on the back of which there was an endorsement by the son of the mortgagor that the rent would be paid within five or seven days. It cannot, therefore, be said that the Controller had no jurisdiction, after he found that the relationship of landlord and tenant was established, and that the petitioner had defaulted in the payment of the rent, to order eviction of the petitioner. The order of the Controller, therefore, on the above ground, cannot be questioned.
14. Finally, it has been argued by Mr. Prasad that the contract for payment of rent of Rs. 100/- by the petitioner to the mortgagee, as alleged by the mortgagee, is illegal, because no ”fair rent” had been fixed, either under Section 5, or Section 6(1) of the Act, and, as such, this letting out of the building by the mortgagee to the petitioner was in contravention of Section 6(2) of the Act, and, as such, the mortgagee was not, entitled to recover any rent from the petitioner, and, therefore, in the eye of law, there can be no default in payment of any rent.
This question has not been raised before any of the courts below, as there is no mention of this objection based on Section 6,(2) of the Act in any of the judgments. Mr. Prasad, however, has drawn our attention to the show cause petition which he filed before the Controller and to the revision application filed before the Commissioner in which the point was taken that the letting out of the building was unlawful, as no ‘fair rent’ had been fixed, in view of Section 6(2) of the Act. He, therefore, contends that when this point was taken, even if it was not pressed, it was the duty of the Controller himself to take notice of Section 6(2) of the Act, which made the agreement illegal.” In this connection, he has relied on a decision of the Court of Appeal. In re, An Arbitration Between Mahmoud and Ispahani (1921) 2 K.B. 716, at p. 729 (B), where Scrutton, L. J. observed as under:
“In my view the Court is bound, once it knows that the contract is illegal to take the objection and to refuse to enforce the contract, whether its knowledge comes from the statement of the party who was guilty of the illegality, or whether- its knowledge comes from outside sources. The Court does not sit to enforce illegal contracts. There is no question of estoppel; it is for the protection of the public that the Court refuses to enforce such a contract.”
Mr. Prasad, therefore, contends that if letting out of the building was absolutely prohibited, and if an act is prohibited by a statute for public benefit, the Court must enforce the prohibition, even though the party does not choose to take the objection.
15. In reply, the learned Government Advocate has submitted that an objection based on Section 6(2) of the Act is not purely a question of law, but a mixed question of fact and law inasmuch as that involves first the investigation of the question as to whether fair rent was fixed or not, either under Section 5 or Section 6(1) of the Act, and, as such, this Court cannot investigate such a question of fact on an application under Article 226, which should have been raised before the Tribunal constituted under the Act. In this connection, an unreported Division Bench decision of this Court ‘in Ramchandra Choudhary v. Harihar Prasad Sahu, Misc. Judl. case No. 369 of 1952 (C), decided by my Lord the Chief Justice, Ramaswami, J., as he then was, and Choudhary, J., D/- 7-1-1954, is, if I may say so with respect, quite apposite. Their Lordships, in a joint judgment, said as hereunder:
“This point was not taken before the House Controller or before the Collector and Commissioner and the determination of the question involves investigation of facts which are not before us. The point cannot therefore be permitted to be raised in High Court in a proceeding under Article 226 …..”
In my opinion, therefore, the question whether Section 6(2) of the Act rendered the letting out of the building by the mortgagee to the mortgagor illegal manifestly a question of fact, which should have been raised before the Tribunal constituted under the Act. This question cannot be decided on the basis of any assumption. The case of In re: Mohmoud and Ispahani (B) (Supra) has, therefore, no application to the present case. It is not, therefore, proper for the High Court to determine the question of fact, such as this, in the course of a proceeding under Article 226 of the Constitution.
16. For the reasons given above, I hold that no case has been made out for issue of a writ under Article 226 of the Constitution, or for interfering with the orders of the Controller, or the Collector, or the Commissioner, under Article 227 of the Constitution. This application must, accordingly, be dismissed, and the rule discharged with costs; hearing fee Rs. 100/-to be paid by the petitioner to opposite party No. 2, who alone has contested the present rule.
Ramaswami, C.J.
17. I agree.