Kshiroda Sundari Bhattacharyya vs Bhupendra Mohan Deb and Others

Mehrotra, J.—This appeal has come to this Bench on a reference by a single Judge. The appellant Kshiroda Sundari Bhattacharyya was defendant No. 2 in the suit out of which this second appeal has arisen. Bhupendra Mohan Deb and Nripendra Mohan Deb who are arrayed as respondents 1 and 2 to the present appeal, tiled a suit for ejectment of the defendant from the suit land.

The plaintiffs claimed to be the sole proprietors of the Tea Estate known as Krishna Gobinda Horish Chandra Tea Estate comprising the suit land with all tea plants, factory, sheds, bungalow and all other houses and structures standing thereon. By executing a registered lease dated 24-5-1950 Srimati Lilarani Chanda impleaded as defendant No. 1 in the suit, took the aforesaid tea estate on lease from the plaintiffs and entered into possession thereof.

Under Clause 19 of the lease on breach of certain conditions, the lessors were entitled to re-enter the leased land. A notice was served by plaintiffs on defendant No. 1 Srimati Lila Rani Chanda deter mining the lease and giving her three months'' time to remedy the breach. But the defendant No. 1 lessee failed to remedy the breach and thus the present suit had been brought for ejectment of the lessee.

Defendant No. 1 filed a written statement in which she contested the suit and further alleged that the suit was not maintainable without impleading defendant No. 2 Srimati Kshiroda Sundari Bhattacharyya the appellant as a party. It was also alleged in the written statement that the lease was obtained by fraud and misrepresentation on the part of the plaintiffs and that the defendant No. 1 spent large amount in setting up machineries on misrepresentation of the plantation area by the plaintiff.

The validity of the notice was also challenged. Subsequently the appellant was made a party to the suit and a separate written statement was filed by her. She raised the same points as were raised by defendant No. 1. She further alleged that on the basis of the total area of the grant and the area of the plantation as given in the lease, she entered into an agreement with defendant No. 1 to take up the management of the garden and also to advance a loan of Rs. 20,000/- on mortgage of the garden and that in pursuance thereof she took up management of the (sic) and purchased machineries worth Rs. 20,000/-. After working for sometime she realised that the yield was not as much as it was represented to her, due to the fact that the plantation area was much, less than what was represented in the lease. On a survey made she found that the area of the grant was only 145 acres as against 388 acres and the plantation area was only 61. 32 acres as against 135.25 acres as given in the lease. On these facts it was alleged by the defendant No. 2 that the suit must be dismissed.

Both the courts held in favour of the plaintiffs and decreed the plaintiffs suit. The courts below found that the lessee committed breach of the conditions given in paragraph 19 of the lease and thus plaintiffs were entitled to re-enter the suit land after determining the lease. The court below further held that the notice was valid and that the defendant No. 2 had no right to resist the suit. The present appeal has been filed by defendant No. 2, only. Defendant No. 1 -- the lessee acquiesced in the judgment of the Munsiff and filed no appeal in the court below also.

The appellant before us has canvassed mainly four points, -- (i) that under the terms of the lease the plaintiff No. 1 Bhupendra Mohan Deb himself having been appointed superintendent of the tea estate, the plaintiffs were estopped from setting up the plea of gross mismanagement, (ii) that the forfeiture was waived by conduct of the plaintiffs, (iii) that the notice given for determining the lease does not fulfil the requirements of Section 111(g) and Section 114A of the Transfer of Property Act and that defendant No. 2 was entitled to a notice, and (iv) that the defendant No. 2 being a usufructuary mortgagee from the lessors, could not be evicted from the land without the discharge of the mortgage.

It was also argued by the counsel for the appellant that the finding as to the breach of the terms of the lease is also erroneous. This argument is sought to be supported with reference to some of the documents in the other suit filed by tie defendant No. 2 for damages against the plaintiffs. The appellant however was not permitted to refer to the documents which do not form part of the record of the present case; Moreover, the question is one of fact and this Court in the second appeal will not interfere with the concurrent findings of the two courts below that the lessee committed the breach of the terms of the lease.

In support of the first ground, reference was made to paragraph 9 of the lease which runs as follows:

That one of the lessors Sri Bhupendra Mohan Deb or in his absence the other lessor or in the absence of both, one of their heirs or nominees shall be appointed Superintendent of the Tea Estate by the lessee and the Superintendent shall only supervise all operations of the Tea Estate only to safeguard the lessors, interest and shall have the right of suggestions only for the purpose but the Superintendent so appointed shall have no right of interference with the administration or management of the Tea Estate.

It is difficult to appreciate the argument of the appellant''s counsel that a lessor was appointed the Superintendent of the Tea Estate under Clause 9 of the lease. The lessor or his representative was only entitled to supervise the operations of the Tea Estate with a view to safeguard the lessors interest.

It is clear from paragraph 9 that the Superintendent so appointed had no right to interfere with the management of the Tea Estate. The responsibility for the proper management of the Tea Estate was with the lessee and the right of the lessors to re-enter, the disputed property on the breach of the conditions enumerated in paragraph 19 was not taken away by merely appointing one of the lessors to supervise the operation of the Tea Estate.

The question of estoppel does not arise. Even if the lessor was appointed as Superintendent, he was the agent of the lessee and if any mismanagement is committed by him, it will be the mismanagement of the lessee. The lessee cannot contend if there has been any breach of the conditions of paragraph 19 that the lease is not liable to be determined only because the management was entrusted to the lessor.

Nothing has been shown as to how due to the representation made by the lessors there was some change in the position of the lessee to her detriment. In our opinion there is no substance in the contention of the appellant that there was any waiver by conduct of the plaintiffs. It is urged that the garden could not be properly run in the past also and the plaintiffs never raised any objection to it and thus they waived their right to enforce forfeiture.

The counsel for the plaintiff-respondents has urged with considerable force that any interest carved out of the interest of the lessee would only subsist during the period of the subsistence of the lease. The defendant No. 2 who is a mortgagee -- the transferee of a part of the lessee''s interest, cannot set up the plea that she is entitled to remain in possession of the property even though the lease has beep forfeited and the lessor has acquired the right of re-entry against the lessee.

Briefly put the position is that the decree for ejectment on the ground of forfeiture has become final as against defendant No. 1 the lessee, who has not appealed to this court. It is therefore not permissible for the mortgagee of the lessee to raise the question of the validity of the notice and also the question that there has been no violation of paragraph 19 of the lease so as to give a right to the plaintiff-lessors to re-enter the land. It is clear from the written statement of the defendant No. 2 and from the mortgage deed and the agreement entered into between the lessee and defendant No. 2 that the lessee did not transfer her entire interest to defendant No. 2.

The defendant No. 2 cannot be regarded as an assignee of the lessee''s entire interest. She was admittedly the mortgagee of the property. It is there fore not open to her to set up the plea that even after the forfeiture of the lease, she is entitled to remain in possession of the property. In my opinion the defendant No. 2 also cannot raise the question of the validity of the notice or the question that there had been no breach of the conditions embodied in paragraph 19 of the lease when the decree against the lessee has become final. (6) Section 108(j) of the Transfer of Property Act no doubt gives the right to the lessee to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it, but the lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease. Section 108(sic) provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

By obtaining a decree against the lessee for ejectment it is open to the lessor decree-holder to execute the decree against the sub-lessee and any person who does not become assignee of the entire interest of the lessee need not even be impleaded as a party to a suit for ejectment. Section 115 of the Transfer of Property Act lays down that

the surrender, express or implied, of a lease of immovable property does not prejudice an under lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor. The forfeiture of such a lease annuls all such under-lease except where such forfeiture has been procured by-the lessor in fraud of the under-lessees, or relief against the forfeiture is granted u/s 114.

The latter part of Section 115 just quoted above also makes it clear that all subordinate interests are annulled on the forfeiture of the lease. In the case of Shankerrao Govindrao v. Kisanlal Nagarmal AIR 1950 MP 19 it was held that

where a decree for ejectment is passed against the tenant and the sub-tenant, the latter has a right of appeal; but if the decree has become final as against the tenant, the sub-tenant would be bourn by the decree on the second para of this section (Section 115) and the appeal by the sub-tenant alone would be incompetent.

In this view of the matter it is not necessary to examine the question of the validity of the notice raised by the counsel for the appellant. Her first grievance however is that no notice as required under Sections 111(g) and 114A of the Transfer of Property Act was given to her. These sections require notice to the tenant and there is no provision that a notice is to be given to an assignee of a part of the lessee''s interest. The notice was given in this case to the lessee. It is then urged that the notice given to the lessee was defective and it is open to the mortgagee of the lessee to point put the defect in the notice. Section 111(g) requires that

a lease of immovable property determines by forfeiture, that is; to say, (1) in case the lessee break(sic) an express condition which provides that on breach(sic) thereof the lessor may re-enter(sic), and in any these cases the lessor or his transferee gives notice in writing to the lessee of his, intention to detail mine the lease.

Under Section 114A of the Transfer of Property Act (sic)

Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing--

(a) specifying the particular breach complained of and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach;

and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.

There is no bar under the Act to combine the two notices in one, In the present case notice was given by the lessor to the lessee on 20-7-1953. The notice is as follows:

The undersigned, namely Shri Bhupendra Mohan Dey and Shri Nripendra Mohan Dey, sons of late Bama Charan Dey of village Bahadurpur Dewadi, P. S. Karimganj, District Cachar (hereinafter referred to as the notice giver) give you notice as follows:

The undersigned are the sole proprietors of the Tea Estate known as Krishna Govinda Harish Chandra Tea Estate comprising the land described in the Schedule hereto annexed, together with all tea plants, plantations, factory, sheds, bungalow and all the houses and structures whatsoever standing thereon.

You hold the said property as a lessee under the said notice-givers by virtue of a registered lease executed by you in their favour on 24-5-1950.

You have all along grossly mismanaged the Tea Garden which has resulted in permanent and irreparable injury to the property. The buildings and machinery are being damaged and the plantations are being allowed to go into waste. Besides cattle are allowed systematically to graze over the plantation area for which you receive payment from their owners. You are also causing valuable trees to be cut down which you sell to various persons although you have no right to them. You have thus caused and have been causing irreparable damage to the property.

You have for a long time stopped working the garden and you are not financially in a position to reopen it.

You have not paid the rent due under the lease the amount in arrear at present being.

You have not paid the monthly remuneration payable to Shri Bhupendra Mohan Dey, one of the notice-givers, under clause (9) of the lease from November 1950 and the amount at present in arrear being(sic)

You have not insured your life for Rs. 20,000/- as provided under Clause 11 of the lease.

You have otherwise infringed the terms of the lease and the men in charge of the garden on our behalf have by their conduct brought it into.

Under clause (19) of the aforesaid lease dated 24-5-1950 you have forfeited the lease and are liable (sic) be elected from the property for breach of the conditions of the lease, and the notice givers are (sic) 1961 Assam D.F./5 (2) & 6 (1) entitled to re-enter on the property.

You are accordingly required to remedy the breach failing which a suit for ejectment and for other appropriate reliefs will be instituted against you.

It is contended by Mr. Chaudhury for the appellant that this notice does not specify the breaches committed by the lessee nor requires her to remedy the breaches. It is also urged that this notice only lays down that the defendant lessee has made herself liable to ejectment but does not set out clearly that the lease stands determined on account of the breach. I have already set out the notice in full and paragraph 3 thereof clearly lays down that the defendant lessee grossly mismanaged the tea garden which resulted in permanent and irreparable injury to the property.

This paragraph very explicitly sets out the breach of the condition which entitles the lessor to reenter under paragraph 19 of the lease. Reference is also made in the notice to paragraph 9 of the lease. Paragraph 10 of the notice clearly requires her to remedy the breach. There is therefore no substance in the contention that the notice does not fulfil the requirements of Section 111(g) and Section 114A of the Transfer of Property Act. Even if it be accepted that the appellant has a right to question the validity of the notice, she has not succeeded in my opinion in pointing out any defect in the notice.

The next point to be considered is whether the defendant No. 2 was a usufructuary mortgagee or a simple mortgagee. It is in fact not necessary for the disposal of the present appeal to enter into that question, but on the plain reading of the document Ext. I the document of mortgage between defendant No. 1 and defendant No. 2 dated 8-5-1951 it is clear that it is a simple mortgage. In the preamble of the deed it is clearly set out that the mortgagee (defendant No. 2) agreed to lend money to the extent of Rs. 20,000/- on a simple mortgage for purchases and installation of machineries. In clause (1) of the deed also it is set out that "the mortgagor hereby covenants with the mortgagee to transfer by way of simple mortgage the aforesaid Krishna Gobinda Harish Chandra Tea Estate".

In clause (2) also it is stated the mortgagee will advance the sum or such part of the sum as mentioned above as will be necessary for the purposes of installations and the mortgagor undertakes to pay the sum thus advanced and redeem the mortgage money advanced without any interest till realisation and undertakes further to clear up the dues, by 01-12-1956. The mortgagor under this deed under took personal liability to pay up the amount of the deed which is one of the essential requirements of a simple mortgage. Under a separate deed of agreement the mortgagee was given possession over the tea estate.

But that by itself will not make the mortgage a usufructuary mortgage, We have carefully considered the two documents, together and in our opinion the documents taken together also do not constitute a usufructuary mortgage. As the mortgage is a simple mortgage, the remedy of the defendant if any, was to enforce that mortgage and not resist the decree for ejectment obtained by the plaintiff respondents against the lessee. In the result therefore we see no force in this appeal and it is rejected with costs.

Deka, J.

I agree.