{"id":75176,"date":"1975-11-19T00:00:00","date_gmt":"1975-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indu-bhusan-bose-choudhary-vs-hari-bhajan-singh-and-ors-on-19-november-1975"},"modified":"2018-03-17T16:01:11","modified_gmt":"2018-03-17T10:31:11","slug":"indu-bhusan-bose-choudhary-vs-hari-bhajan-singh-and-ors-on-19-november-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indu-bhusan-bose-choudhary-vs-hari-bhajan-singh-and-ors-on-19-november-1975","title":{"rendered":"Indu Bhusan Bose Choudhary vs Hari Bhajan Singh And Ors. on 19 November, 1975"},"content":{"rendered":"
Patna High Court<\/div>\n
Indu Bhusan Bose Choudhary vs Hari Bhajan Singh And Ors. on 19 November, 1975<\/div>\n
Equivalent citations: AIR 1976 Pat 282<\/div>\n
Author: H Agrawal<\/div>\n
Bench: H Agrawal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
H.L. Agrawal, J. <\/p>\n
1. This is a defendant’s second appeal arising out of a suit for ejectment from a house described in Schedule B of the plaint situated in Mauza Kheshmi, in the District of Dhanbad, on two grounds, namely, default in payment of monthly rentals and personal necessity. Admittedly, the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, have not been made applicable to the area in question and therefore the two grounds for eviction taken by the plaintiffs are not relevant as under the general law the consideration would be quite different.\n<\/p>\n
2. Originally, the suit premises belonged to one Makund Lal Sud. By a registered sale deed dated 19-3-1964, the plaintiffs purchased the same. The defendant was already in occupation of the premises in suit from before on a monthly rental of Rs. 35\/-, and admittedly according to the English Calendar month. The sale deed was taken in the names of all the six plaintiffs, out of whom, four, namely, plaintiffs Nos. 3 to 6 are minors and the two major plaintiffs, namely, Har Bhajan Singh and Hardayal Singh are brothers. After the purchase aforesaid, the tenant defendant and the plaintiffs landlords entered into an agreement on 23-4-1964 (Ext. A) under which it was agreed that the rent of the premises in question would be raised from Rs. 35\/- to Rs. 45\/- per month from the 1st of April, 1964 and that the rent would be received by Har Bhajan Singh, plaintiff No. 1. This agreement was signed, besides the defendant, by the father of the two major plaintiffs, plaintiff No. 1 and some witnesses. It is also necessary to refer to a further stipulation under this agreement on which long arguments were advanced by Mr. S. C. Ghose appearing for the appellant. This agreement provided that the tenant could continue in the premises so long as he desired (wo jabtak chahe makair me rah sekta hai, kiraya deta huye). A notice dated 22-8-1967 (Ext. 1) under Section 106 of the Transfer of Property Act was issued through a lawyer on the instruction of plaintiff No. 1, terminating the tenancy on the expiry of September 1967. It further appears from Ext. B, an office copy of an earlier notice dated 30-3-1964, issued through another lawyer on behalf of all the plaintiffs, immediately on the purchase of the premises in question, to the defendant, demanding possession of the same “within a week from the service hereof”. This notice was issued on behalf of all the plaintiffs, which seems to have resulted in the settlement at the intervention of their well-wishers, evidenced under the deed of agreement (Ext. A) referred to above.\n<\/p>\n
3. The suit was contested by the defendant who denied the allegation of default in payment of rents and personal necessity, etc., with which we are not concerned any more. The other plea was that the agreement in question created a perpetual lease in favour of the defendants and, therefore, the same could not be terminated or determined by the plaintiffs and that he was entitled to live in the house till his lifetime. The validity of the notice Ext. 1 was also challenged on the ground that it was issued on behalf of only one of the plaintiffs who was only a co-sharer and not entitled to terminate the tenancy on behalf of the other co-sharers, unless specifically authorised.\n<\/p>\n
4. The trial Court dismissed the suit on the finding that the tenancy was for life and the notice terminating the tenancy was invalid, having been issued by only one of the plaintiffs. On appeal, the learned Additional Subordinate Judge has decreed the suit. One further contention that appears to have been urged on behalf of the defendant in the court of appeal below, which has been very seriously pressed by Mr. Ghose in this Court, is that the period of commencement of the tenancy in this case would be not according to the English Calendar month, but from the 19th of March, 1964, the date of the purchase of the premises in question by the plaintiffs and therefore, the notice to quit, in any event, must be held to be invalid.\n<\/p>\n
5. The Court of Appeal below, however, held that the agreement in question did not create any perpetual lease or ,a lease up to the life of the defendant, but only a tenancy at will and the defendant could be ejected without any notice. Considering the notice (Ext. 1), it also recorded a clear finding that it was a valid notice. It rejected the defendant’s objection that the notice being only on behalf of plaintiff No. 1, a co-sharer, was invalid, on recording a finding that Har Bhajan Singh (plaintiff No. 1) would be deemed to be authorised on behalf of the other plaintiffs, who was acting as their agent.\n<\/p>\n
6. In this court Mr. S.C. Ghose has seriously pressed this appeal and has raised the following contentions:\n<\/p>\n
1. The tenancy was at the will of the tenant and was not a tenancy at will as such which could be determined at the option of the plaintiffs landlords.\n<\/p>\n
2. The tenancy must be deemed to commence from the date of the plaintiffs’ purchase and, therefore, termination of the tenancy on a date different from the tenancy month was invalid, and,<\/p>\n
3. The notice (Ext. 1) was invalid because it was issued by only one of the co-sharers who was not authorised by the other plaintiffs.\n<\/p>\n
7. I shall take up the last two contentions first. It has already been said that earlier to the notice in question (Ext. 1) dated the 22nd August, 1967, a notice dated the 30th March, 1964, (Ext. B) was issued to the defendant on behalf of all the plaintiffs and, therefore, when the dispute arose between the parties, they arrived at an agreement (Ext. A). On behalf of the plaintiffs it was agreed that the plaintiff No. 1 alone would receive the rents of the premises in question. Mr. Ghose has referred to a statement of plaintiff No. 1 (P. W. 5) that “the notice in the present case was given on my instruction.    I do not hold any power of attorney on behalf of three brothers  ……”.     On this    statement Mr. Ghose contended that the notice under Section 106 of the Transfer of Property Act was essentially by only one of the co-sharers and that there was no evidence that the said co-sharer was either acting as an agent of the other co-sharer or was authorised by them to serve the notice in question and, as such, the notice must be held to be invalid. It does not require much discussion as the proposition is well-settled that one co-sharer cannot give notice to quit unless otherwise authorised by others. At the same time it is also equally settled that where one co-sharer has been acting as the manager on behalf of all the other co-sharers, he can give a valid notice to quit on behalf of all: In support of this point I would refer to some of the circumstances and the authorities. After purchase of the house in question, when a dispute arose between the plaintiffs and the defendant, by the agreement it was settled that plaintiff No. 1 alone would receive the rent of the premises in question. By ibis authority to receive rent, an agency was certainly created by the other co-sharers in his favour. Although the provisions of the Bihar Buildings (Lease Rent and Eviction) Control Act have no application to the present case, reference may be usefully made to the definition of “landlord” in the said Act, where a person receiving the rent for the time being is also deemed to be a landlord. Although I do not intend to base my conclusions on the definition, the element of payment and receipt of rent is surely a relevant consideration to determine the question of Agency. The plaintiffs are all related and belong to the same family. If it was decided by them that only one of them should be made incharge to deal with the premises in question, then giving a notice determining the tenancy, on the failure to pay the rent, is an act in ordinary course of dealing within the meaning of Section 187 of the Contract Act. I do not find anything in the statement of P. W. 5, so emphatically referred to by Mr. Ghose, derogatory to the inference of agency created in favour of plaintiff No. 1 with respect to the suit premises.\n<\/p>\n
8. A Full Bench of the Gujarat High Court in Nanalal Girdharlal v. Gulamnabi Jamalbhai, (AIR 1973 Guj 131) has held that a notice to quit by a co-owner is sufficient if it is given by someone acting as an agent on behalf of the co-owners, and such an authority may be express or implied. If such an agent is acting on the authority incidental to the general agency to manage the demised property, he may give it in his own name. It was stipulated in the agreement (Ext. A) that the tenant has to go on paying rent to the plaintiff No. 1. If, therefore, the defendant committed a default, the authorised agent, namely, plaintiff No. 1 certainly could determine the tenancy as he was accountable to the other co-sharers for the receipt of the rents and if he allowed the defendant to remain in occupation without payment of rent, it would have been a failure of the agent’s duty. The Full Bench relied upon two English cases, namely, Jones v. Phipps, (1868) 3 QB 567 and Lemon v. Lardeur, (1946) KB 613, for the view that where a co-sharer is, by common consent of all co-owners, entrusted with the management of the leased property, he may give notice to quit in his own name and the notice to quit need not show on the face of it that he is acting as agent on behalf of the other co-owners. Apart from the fact that the ultimate Court of fact in the present case has taken the view on the basis of the agreement (Ext. A) and the evidence on the record that Har Bhajan Singh (Plaintiff No. 1) who had given the notice to the defendant would be deemed to be necessarily authorised on behalf of the other co-sharers, which finding is prima facie binding in second appeal; I also, on examination of the materials which have been placed before me, am inclined to take the same view and hold that the notice (Ext. 1) issued by Har Bhajan Singh (plaintiff No. 1), a co-sharer of the premises in question, was a valid and legal notice as he must be deemed to have implied authority in the circumstances of this case on behalf of the other co-sharers.\n<\/p>\n
9. Mr. Ghose placed strong reliance upon a decision of a learned Single Judge of the Calcutta High Court in Bimalendu Bhusan Das v. Firm Mitra and Ghosh, (AIR 1973 Cal 515) in support of his contention that the period of commencement of the tenancy in question must be deemed to be the date of the purchase of the premises in question by the plaintiffs, and not according to the English calendar month. It is true that the Calcutta decision fully supports the contention of Mr. Ghose. In that case, the plaintiffs had purchased the property in  question  on  the    20th  of    September, 1965.    The rent from 1st to 19th September, 1965, was paid to the old landlord and that  from  20th  to  30th  September,   1965, to  the    plaintiffs-purchasers.    Thereafter rent for full months had been paid under receipts according     to English    calendar months,  a situation  almost similar as in the present  case.    It was held  that  the new tenancy in favour    of the plaintiffs commenced from the date of the transfer of the premises for the purposes  of Section  106 of the Transfer of Property Act and,   therefore,   the   notice   expiring   with the end of a calendar month was invalid. I  do not  find  it possible  to  agree  with the view    of the Calcutta    High Court. There are two prominent    circumstances in this  case.    Firstly,     the date    of    the commencement of the original tenancy in force when  the plaintiffs had    purchased the  suit premises was  according  to English Calendar, and, secondly, the purchasing plaintiffs had also taken rent for part of the month of September  1965,  that is, from the 20th to 30th of September, 1965, and, therefore, both the parties agreed to fix  the     period  of the    payment  of    the monthly  rent     according  to the  English calendar.    In my opinion, by the circumstance mentioned  above  and  the  conduct of both the parties, it was sufficiently indicated   that  the   commencement  of     the tenancy  was     intended  according  to  the English calendar month.    I may refer to a decision of the Bombay High Court in the  case   of  P.   Ratnam  Yeshwantraj     v. Vimalchandra     Shiv    Datta,     (AIR   1973 Bom   111)   where   the   plaintiffs   had   purchased the premises in question.    The tenancy month in force between the tenant and the previous owner was according to the English calendar month, although the purchase was effected on a different date. It was  held that in the absence of any evidence to suggest that the date of the commencement of the tenancy was in any way altered,    it would    be the date    of the tenancy which was in force between the    tenant    and    the    previous    owner. Apart from    the decision of the Bombay High   Court,     there  is  a  further   fact  in this case  that  the previous rate of rent which was Rs.  35\/- per month was raised to Rs. 45\/- from the 1st of April, 1964, under Ext. A.    All these    circumstances establish beyond any doubt that both the parties had  agreed  that  from  1st April, 1964,  the tenancy will be governed    according to the English calendar.  I would, accordingly,  reject both     the  contentions of Mr. Ghose urged by him with respect to  the  invalidity of the notice  in question.\n<\/p>\n
10.       Now remains to be considered the first contention, namely,  the    nature of the tenancy created in favour of the defendant     according     to the agreement (Ext. A).    It cannot be disputed that no notice under Section 106 of the Transfer of Property Act is required to be served by a landlord for ejectment of a tenant at will.    In order    to obviate from this position,   Mr.   Ghose  contended   that     the tenancy in  question was not at will,  but was  for  an uncertain period at the will and option of the tenant defendant which could not be determined by the notice in question.    In support of this    contention he placed strong reliance upon two decisions of the Supreme Court,   (i)  Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwala and Sons,  (AIR<\/a> 1950 SC 1) and (ii) Sivayogeswara  Cotton  Press  v.  M.   Panchaksharappa,     (AIR<\/a>  1962  SC    413).    He also referred to a decision of the Allahabad   High  Court  in   B. P.   Sinha  v.   Som Nath,  (AIR 1971 All 297).    The first case, namely, AIR 1950 SC 1, is entirely on a different point.    There the question was as to whether    an    agreement    of lease creating a present demise, but not registered,  was admissible in evidence as     a part performance  of the  agreement, and if the lessee had taken possession of the premises in accordance with the terms of the agreement,    whether he was protected by the application of the principles of part performance within the meaning of Section 53-A of the Transfer of Property Act.\n<\/p>\n
In AIR 1962 SC 413, a land was let out for building purposes under a document of lease.    It was stipulated that for the first period of twenty years, the lessee would pay a sum of Rs. 350\/- as annual rent and thereafter he was at liberty to continue the lease of the said land as long as he might    desire,  but then paying a sum of Rs. 400\/-, as the annual rent, however, giving him further “full liberty to give up the said land, the said road and terminate this lease at any time you may desire  so to     do  after  the  1st  October, 1934”, that is, after the fixed period    of twenty years.    On the death of the lessee, his executors assigned the lease in    the year  1933  and subsequently there    were other  assignments.    The  assignee,    however, continued in possession on payment of yearly rent  which  contained  factory, buildings   and  residential  quarters.     The plaintiff sought to terminate the tenancy by issuing notices    on    various    grounds and thereafter instituted a suit for a declaration that the defendants were tenants at will. The suit was resisted on the ground that the tenancy was a permanent tenancy and, therefore, the defendants could not be ejected. Construing the document of lease and the attending circumstances, the Supreme Court held that the tenancy in question was clearly a tenancy for an indefinite period, and not a tenancy at will. The basic factor which was taken into consideration by the learned Judges of the Supreme Court in coming to that finding was that the land being leased out for building purposes without a fixed period, the presumption was that it was intended to create a permanent tenancy, and the term expressly giving the lessee the right to give up possession at will, was wholly inconsistent with the permanency of the tenancy and did not weaken the presumption raised by the fact that the lease was for building purposes and, therefore, intended to be permanent. In my opinion, therefore, this decision is entirely distinguishable and does not lend support to the contention of Mr.  Ghose.\n<\/p>\n
In the Allahabad case, which seems to be more in point, a learned single Judge of that Court while construing a document of lease under a similar stipulation, namely, option to determine the lease being given to the lessee, it was held, following a decision of the Bombay High Court in Bava Saheb v. West Patent Press Co., (AIR 1954 Bom 257) that such a lease was not a tenancy at will.\n<\/p>\n
11. With great respect to the learned single Judge of the Allahabad High Court, I do not find it possible for myself to agree to his view as the view of this Court is entirely different. Reference may be made in this regard to two Division Bench decisions, namely, Ramlal Sahu v. Mt. Bibi Zohara, (AIR 1941 Pat 228) and Babu Lall Seth v. Gopi Lal Seth, (AIR<\/a> 1957 Pat 490). AIR 1941 Pat 228 was noticed in the Bombay Case, followed in turn by the Allahabad High Court. AIR 1941 Pat 228 was noticed and distinguished by the Bombay High Court. In Ram Lal Sahu’s case (supra), it was clearly held that “when a tenancy is terminable at the will of the tenant it must be held to be terminable at the will of the landlord also”. This decision was followed in the later decision in the case of Babu Lal Seth (Supra) where also the lease stated that “the lessees may remain in the house as long as they please”. It was held that the tenancy was a tenancy at will and it was not necessary to give the tenants a notice to quit in order to become entitled to obtain a decree for ejectment and damages for occupation.\n<\/p>\n
12. In view of the above clear exposition in the two Division Bench decisions of this court, Mr. Ghose contended that the view taken in these decisions must be deemed to be impliedly overruled by the Supreme Court in AIR 1962 SC 413. This argument must be rejected as from the facts and the conclusions of the Supreme Court case already noticed above, it is not possible to take the view that the view expressed by this court in the two cases referred to above has been impliedly overruled by the Supreme Court. It must, therefore, be held that the defendant appellant was a tenant at will and not entitled to any notice under Section 106 of the Transfer of Property Act. In any view of the matter, the tenancy in question must be deemed to be governed according to the English calendar month and it was validly determined by the notice Ext. 1 issued by the plaintiff No. 1, having the implied authority of the other plaintiffs.\n<\/p>\n
13. This appeal, accordingly, fails and is dismissed with costs. Hearing fee is assessed at Rs. 200\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Indu Bhusan Bose Choudhary vs Hari Bhajan Singh And Ors. on 19 November, 1975 Equivalent citations: AIR 1976 Pat 282 Author: H Agrawal Bench: H Agrawal JUDGMENT H.L. Agrawal, J. 1. This is a defendant’s second appeal arising out of a suit for ejectment from a house described in Schedule B of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-75176","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nIndu Bhusan Bose Choudhary vs Hari Bhajan Singh And Ors. on 19 November, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indu-bhusan-bose-choudhary-vs-hari-bhajan-singh-and-ors-on-19-november-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indu Bhusan Bose Choudhary vs Hari Bhajan Singh And Ors. on 19 November, 1975 - 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