Nirmalendu Bhowmick vs Dwijendra Chandra Ghosh

Bijayesh Mukherji, J.—By this motion u/s 115 of the Procedure Code, 5 of 1908, Nirmalendu Bhowmick, the sole principal Defendant in an action in ejectment, in the first additional Court of the Munsiff at Alipore, governed by the Premises Tenancy Act, 12 of 1956, asks for reversal of an order: Order No. 26 dated October 3, 1964: by which his defence against delivery of possession has been struck out u/s 17, Sub-section 3, ibid.

One Dwijendra Chandra Ghosh, the principal opposite party before me, raised this action in ejectment on December 7, 1963. Formerly, to be exact, upto July 27, 1963, he and his brothers Rukshmini Kanta, Bepin Behari, Jitendra Chandra and Sachindra Chandra were the joint owners of 28/3/1 Nakuleswar Bhattacharji Lane (for short ''28/3/1''), in the southern portion of the ground floor of which the Petitioner Nirmalendu has been a tenant on a rent of Rs. 150 a month. By a registered deed of partition dated July 277 1963, amongst the brothers, ''28/3/1'' fell exclusively to the share of Dwijendra Chandra. Hence the suit by him alone, his brothers having been impleaded as proforma Defendants.

A suit as this is grounded, inter alia, on reasonable requirement of ''28/3/1'' for Dwijendra Chandra''s own occupation, as also on default by Nirmalendu in the payment of rent for months on end nine months in all from December 1961 to August 1962. Of these nine months again, the rent for the first six months: December 1961 to May 1962: was deposited with the Controller, but beyond the prescribed time; and the rent for June to August 1962 was deposited in Court on April 7, 1964, some 122 days after the institution of the suit, the writ of summons of which was served on Nirmalendu qua principal Defendant, first on January 6, 1964, under Order 5, Rule 17 of the Procedure Code and then on March 9, 1964, through registered post, as indeed is the unfailing practice in the subordinate Courts to do by way of abundant caution.

Such then are the facts, not in the realm of controversy and on the foot of which I have been called upon to decide if the learned Munsiff has committed any jurisdictional error in having struck out the Petitioner Nirmalendu''s defence u/s 17, Sub-section (3). The address before me is confined, as indeed it has to be, to the deposit in Court on April 7, 1964, of the rent for June to August 1962.

Mr. Chittatosh Mookerjee, appearing for the Petitioner, makes two submissions, the first of which is:

Partition is a species of transfer of ownership. Ergo, on the principle, laid down by a division of this Court in Sm. Daya Debi Vs. Chapala Debi, , the claim for arrears of rent for June to August, 1962, falling as the arrears do before the partition of July 27, 1963, can no longer be regarded as a claim for rent and cannot necessarily be caught by the provision of Section 17, Sub-section (1). Sub-section (1) thus going out, Sub-section (3), which gets going only when Sub-section (1) is infracted (in the context here), does not reach the Petitioner.

Mr. Sudhis Das Gupta, appearing for the principal opposite party, sees nothing like transfer of ''28/3/1'' in the partition deed of July 27, 1963, by which the joint title of all the brothers to ''28/3/1'' was transformed into a separate title of Dwijendra Chandra only and cites, in support of his contention, the recent Supreme Court decision in V.N. Sarin Vs. Ajit Kumar Poplai,

I am clear in my mind that Mr. Das Gupta''s contention must prevail over Mr. Mookerjee''s. Daya Debi''s case Supra reveals an out-and-out sale of the premises in controversy there, namely, 101, Durga Charan Mitra Street. And what is a sale? It is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised: 5Section 54 of the Transfer of Property Act. Naturally, therefore, the claim for arrears of rent prior to the sale lost its character as rent and became an actionable wrong as defined in Section 3 ibid. That can hardly be predicated of a partition of a joint family property and allotment of part thereof exclusively to one member, just as ''28/3/1'' has been allotted to Dwijendra Chandra in the case in hand. It will be doing violence to language and thought to say that such a one, a co-owner before partition, has acquired ''28/3/1'' by transfer, by sale, nothing like which is to be seen here, as Mr. Das Gupta rightly contends. His has been an acquisition by partition which has transformed his joint title into a separate title. As Gajendragadkar C.J., speaking for the Court, lays down the law on the point in V.N. Sarin Vs. Ajit Kumar Poplai,

The process of partition involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severalty by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of individual coparceners in respect of several items of properties allotted to them respectively.

That then is the true nature of partition which can never be equated with a transfer by sale. But, Mr. Mookerjee contends, the Supreme Court lays down the law so, in the background of Section 14, Sub-section (6), of the Delhi Rent Control Act, 59 of 1958, tabooing recovery of possession of premises by a landlord who has acquired the same by transfer, unless five years have elapsed from the date of such acquisition. That indeed is true. But so what? The law laid down by the Supreme Court on the true nature of partition remains the same. Partition does not create a title, as transfer by sale does. The title of Dwijendra Chandra to ''28/3/1'' is all along there. Before partition it is in one form. After partition it is in another form. That is all. So, no transfer of ownership it is. No transfer of ownership can it be. By parity of reasoning, it matters little that the Supreme Court decision rests on a Mitakshara joint family property, whereas the case in hand turns on a Dayabhaga joint family property which Mr. Mookerjee also makes a point of. Partition is partition, be it under the Mitakshara law or the Dayabhaga law, be it in the background of Section 14 Sub-section (6), of the Delhi Rent Control Act or Section 17, Sub-section (1), of the West Bengal Premises Tenancy Act. What was rent before the partition remains rent after the partition. As pointed out by Mitter J., Waight J. agreeing, in Sonatan Poddar v. Sreenath Chakrabarty (1945) 223 I.C. 422, a partition is neither a conveyance nor an exchange; and the separate allotment is not obtained by another independent title. I owe it to Mr. Das Gupta to record that he has referred me to this case.

In Banarsilal v. Shri Bhagwan AIR 1955 Raj. 167, Mr. Mookerjee refers me to, Dave J. extends the principle of Section 109 of the Transfer of Property Act to a person who becomes the sole lessor after partition. The lessee who was informed so is not allowed to question the right of the sole lessor (after partition) to sue him. That stands on a different footing. By virtue of this decision it cannot be said that what was rent payable to all coparceners before partition lost its character as rent payable to one to whose exclusive share a particular rent-bearing property falls, after partition.

The first submission of Mr. Mookerjee, therefore, fails.

Equally ineffective is his second submission which comes to this:

I did apply u/s 17 for depositing the rent for June to August 1962. So I did on April 7, 1964, leaving open the question of relationship of landlord and tenant between me and Dwijendra Chandra, the Plaintiff. So, here was a dispute I had raised, may be very inartistically. Still the Munsiff was bound to proceed u/s 17, Sub-section (2) and to give me an opportunity of depositing the arrears of these three months in which case Sub-section (3) could not have done me the mischief it has done.

I am unable to agree. In the first place, no semblance of a dispute do I find in the petition of April 7, 1964. On the contrary, its fourth paragraph bears:

That it seems that Jitendra Ghosh (a brother of Dwijendra, the Plaintiff opposite party) has transferred his landlord ship to present Plaintiff, although the Defendant is not satisfied.

It looks like a near-admission on the part of the Petitioner Nirmalendu of Dwijendra Chandra being his landlord, even though it is averred later that the question of relationship is being kept open: which the Court is not asked to decide ever. In the second place, if this be read along with the averment in para. 7 of the written statement and that too between the lines, it looks certain that the Petitioner Nirmalendu was very much aware of all the Ghosh brothers having been the landlords previously. In the third place, in answering the Plaintiff''s petition u/s 17, Sub-section (3) and that too on August 5, 1964, not a word is stated that the Plaintiff was not his landlord. In the fourth place, appearances are in favour of the Petitioner having been informed of such partition on or about October 9, 1963, in the fifth place, on September 24, 1964, when the petition u/s 17, Sub-section (3), was heard, neither party called any oral evidence (vide order No. 25). The Petitioner Nirmalendu was not present even. One Khirode Chandra Datta was. (See the hajira). So, in view of such overwhelming circumstances against him, he did not even care to pledge his oath to say that he did not know the principal opposite party, Dwijendra Chandra, as his landlord. In sum, the Petitioner Nirmalendu was never in earnest about absence of relationship of landlord and tenant between him and Dwijendra and if still I have to spell out a dispute, as I am asked to by Mr. Mookerjee, all I can say is that it will be a sham dispute. So soon as that is said, Section 17, Sub-section (2), fails to be attracted. See the pronouncement of P.N. Mookerjee J., sitting with N.K. Sen J., in Biswanath Roy v. Annapurna Roy (1960) 65 C.W.N. 149 (153) and the cases cited there.

In the circumstances, Mr. Mookerjee cites in vain the decision in Bhagwandas Shaw v. Basanta Lal Khatik Unreported decision dated July 19, 1966 of K.C. Sen and A.C. Sen, JJ. in C.R. No. 1573 of 1965 were there was a real dispute about the landlords: Basantalal Khatik and Dhunilal Khatik both or Basantalal Khatik alone. In the case in hand, I find no dispute and even if I stretch, all. I find is a sham dispute.

Thus, both the submissions of Mr. Mookerjee fail. And the rule fails too. Be it discharged with costs.

Let the records be sent down within utmost expedition.