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Petitioner: ABDUR RAZZAK HOWLADAR VS Respondent: SK. MUHAMMAD SHAFI
P L D 1960 Dacca 923
P L D 1960 Dacca 923
Before Amin Ahmed, C. J. and Asir, J
ABDUR RAZZAK HOWLADAR‑Appellant
versus
Sk. MUHAMMAD SHAFI‑Respondent
First Appeal No. 49 of 1957, decided on 18th August 1959.
Registration Act (XVI of 1908), Ss. 17 (1) (b) & 49‑Unregistered lease deed, also purporting to create pharge in respect of property leased‑Not admissible in evidence if value of subject matter of charge be more than Rs. 100‑Transfer of Property Act (IV of 1882), S. 100.
By an unregistered written agreement between himself and the landlord creating a lease in respect of certain premises for a period of 5 years, the tenant made an advance payment of its. 12,000 by way of loan to the landlord and it was agreed that the amount so paid will be treated as payment of rent in advance accruing due dining the period of two years i.e., 1952 and 1953, out of 5 Years of the lease: The landlord thereafter sold his interest in the premises to the plaintiff who after his purchase instituted a suit against the tenant for recovery of Rs. 12,000 as rent covering the period 1952 and 1953. The tenant, on the basis of the unregistered agreement deed, which he contended could be used .for collateral Purpose, said that under the terms of the lease, the landlord was not entitled to recover rent for 1952 and 1953. The landlord on the other hand contended that the lease‑deed being an unregistered document was not admissible in evidence.
Held, that the sum of Rs. 12,000 was intended to be satisfied by the rents due for 1952 and 1953, i.e , the second and the third year of the lease only. In other words, prima facie it was indicated that the sum of Rs. 12,000 would be a charge on the rents and profits of the premises. If, therefore, the tenant took his stand on that condition as being a condition running with the land so that the plaintiff‑transferee might be bound by such condition, then it had to be regarded as a charge within the meaning of section 100 of the Transfer of Property Act, 1882. In the absence of registration, the value of the subject‑matter of charge being more than Rs. 100, the unregistered agreement deed in so far as it purported to create a charge, apart from the question of it being a lease for 5 years, could not be admitted in evidence to effect a charge in respect of the property conveyed.
D. L. Rahman for Appellant in F. A. No. 49 and Respondent in F. A. No. 47 of 1957.
Moinul Huq for Respondent in F. A. No. 49 and Appellant in F. A. No. 47 of 1957.
JUDGMENT
ASIR, J.‑These two appeals have been heard together on the prayer of the parties. They arise from a decision of the Subordinate Judge, 5th Court, Dacca, in Money Suit No. 11 of 1954, which was decreed in part in favour of the plaintiff for an amount of Rs. 2,404‑11‑0 as against Rs. 16,000 claimed in the plaint. F. A. No. 49 of 1957, is an appeal preferred by the plaintiff in respect of the claim which has been refused by the learned Subordinate Judge, F. A. No. 47 of 1957, is an appeal preferred by the defendant in respect of the amount decreed by the learned Subordinate Judge. This judgment will govern both the appeals.
2. According to the plaintiff, the premises in suit along with other properties were purchased from one Hira Lal Paul who dad inducted the defendant as a tenant on a monthly rent of Rs. 500. The plaintiff's deed of purchase is dated 29th of March 1951, and it was registered on 31st of March 1951. The plaintiff claimed Rs. 15,000 by way of arrears of rent for the period commencing from January 1952 to June 1954. The plaintiff also claimed a, sum of Rs. 1,000 by way of compensation.
3. The defence inter alia was that though the plaintiff became the owner of the premises in question' and the defendant became a tenant under the plaintiff on the basis of the said deed of conveyance yet, there was no demand for any rent from the defendant (sic) and further that a sum of Rs. 12,000 having already been paid to the previous owner Hira Lal Paul for costs of repairs of the godowns and improvement of other structures and it having been agreed between Hira Lal Paul and the defendant that the said sum of Rs, 12,000 would stand adjusted against the rent that might accrue during the period 1952 and 1953, the plaintiff was not entitled to claim rent for this period. As to the period commencing from January to June 1954, it was pleaded that, although the lease was for a term of 5 years, yet the defendant quitted the house sometime in December 1953, and, as such, he was not liable to pay any rent for that period as well. The defendant also claimed that a sum of Rs. 862‑8‑0 paid towards the arrear Municipal taxes was liable to be refunded by the plaintiff.
4. Upon a consideration of the evidence on record, the learned Subordinate Judge found that although the defendant was not in physical possession of the premises in question during the period January to June 1954, yet the defendant possessed the premises through some tenants and, as such, was liable for the rent of this period as claimed by the plaintiff. On the other question as to whether the plaintiff was entitled to get a decree for arrears of rent for the period 1952 and 1953, it was found that the plaintiff had constructive notice of the fact that the defendant was in occupation or possession of the premises and that but for wilful abstention from enquiry or search the plaintiff would have come to know that the defendant had paid the sum of Rs. 12,00() in advance against the rent that might fall due during this period. The payment of the sum of Rs. 862‑8‑0 towards Municipal taxes being not disputed from the side of the plaintiff, the learned Subordinate Judge disallowed the plaintiff's claim for the period 1952 and 1953, and decreed the suit for a sum of Rs. 2,137‑8‑0 deducting Rs. 862‑8‑0 from Rs. 3,000 to which the plaintiff was found entitled by way of arrear rents for the period January to June 1954. The learned Subordinate Judge also gave a decree by way of compensation for a sum of Rs. 267‑3‑0. In all, the plaintiff's suit was decreed for a sum of Rs. 2,404‑11‑0, as stated above.
5. The learned Advocate for the plaintiff‑appellant, Mr. D. L. Rahman, has taken us through the relevant evidence on record and has contended that the plaintiff had no notice of the private arrangement between Hira Lal Paul and the defendant as to the loan or payment of Rs. 12,000 said to have been advanced by the defendant on the basis of the agreement, Exh. A. According to him, this document. Exh. A, which seems to be a deed of lease, dated 12th of December 1950, for a term of 5 years, executed by both Hira Lal Paul and. the defendant as lessor and lessee, being an unregistered document, was not admissible in evidence. He has, therefore, contended that if this document is excluded from our consideration, then there will be no basis for the defendant's claim for adjustment in respect of this sum of Rs. 12,000.
6. The learned Advocate for the defendant‑respondent in F. A. No. 49 of 1957, who is the appellant in F. A. No. 47 of 1957, has on the other hand contended that this document, Exh. A, may be taken into consideration for collateral purpose. He has also contended that the mere fact that the defendant was in possession of the premises concerned would be enough for holding that the plaintiff had constructive notice of the terms and condi tions upon which the tenancy in favour of the defendant had been created by Lira Lal Paul.
Paragraph 11 of Exh. A is in the following terms:
" That the lessee advances to the lessor a sum of Rs. 6,000 (rupees six thousand) only on account of the rent of the first year of the lease and for the purpose of construction of the godowns referred to before further gives to the lessor an accommodation loan of Rs. 12,000 (rupees twelve thousand) only without any interest therein ; such sum of Rs. 12,000 will be satisfied by the rents that would be due for the second and third year of the lease only."
It will appear that the sum of Rs. 12,000 was intended to be satisfied by the rents that would be due for the second and the third year of the lease only. In other words, prima facie it is indicated that the sum of Rs. 12,000 would be a charge on the rents and profits of these premises. If, therefore, the defendant takes his stand on this condition as being a condition running with the land so that the plaintiff‑transferee might be bound by such condition, then it has to be regarded as a charge within the meaning of section 100 of the Transfer of Property Act. In the absence of registration, the value of the subject‑matter of charge being more than Rs. 100, such a document in so far as it purport: to create a charge, apart froth the question of it being a lease for 5 years, cannot be admissible in evidence to effect a charge in respect of the property conveyed by Exh. 1. The learned Advocate for the respondent, Mr. Moinul Huq, being confronted with this difficulty, has argued that the defendant takes his stand upon a plea of payment pure add simple. According to him, if the plaintiff had made reasonable enquiries, he could have discovered that the rent for these two years 1952 and 1953, had been paid in advance to Hira Lal Paul. P. W. No. I H. A. Khondkar has stated in his examination‑in‑chief that neither the defendant nor Hira Lal Paul disclosed that the defendant paid Rs. 12,000 to Hira Lal Paul. His further evidence is that they were not told that Rs. 12,000 would be adjusted towards rent. There seems to be no cross‑examination in regard to this part of the evidence of P. W. No. I. The defendant as D. W. No. I has in his examination‑in‑chief also said that he had no talk with the plaintiff as to how he was in occupation. In his cross‑examination, the defendant as D. W. No I also states that P. W. No. I demanded rent from 1952 and 1953, only and he at once told P. W. No. l that payment for 1952‑53 had been made to Hira Lal Paul. This evidence of D. W. No. 1 cannot convey an idea that the plea of payment in respect of 1952‑53 had been‑ disclosed or communicated to the plaintiff on or about 29th of March 1951, when the transaction as per Exh. 1 took place. In view of section 55 (6) (a), read with section 8 of the Transfer of Property Act, it is clear that the buyer is entitled to the benefit of any improvement in or increase in value of the property, and to the rents arid profits thereof which might accrue after transfer. According to section 55 (4) of the Transfer of Property Act, the seller was entitled to the rents and profits of the property till the ownership thereof passed to the buyer. In the present case, therefore, in view of these provisions 'of law, the plaintiff was entitled to claim rents and profits of the premises In question as soon as the transfer as per Exh. 1 took place in his favour. Nothing has been shown by reference to this document, Exh. 1, that a different intention was expressed or could be necessarily implied. In the usual course of things, therefore, the plaintiff was entitled to get rent for this period unless there was something to show that he had acquiesced in or had timely notice of any other arrangement as between the vendor and the tenant concerned. In view of the evidence on record, as indicated above, it is clear that neither Hira Lal Paul nor the defendant disclosed that there vas any private arrangement between them or that the sum of Rs. 12,000 had already been paid to Hira Lal Paul. The document Exh. A being not a registered document, it could hardly be expected that even if an enquiry by way of search in the Registration Office were made the plaintiff could discover this kind of arrangement between Hira Lal Paul and the defendant. The onus of proving that the plait‑if had timely knowledge of this kind of arrangement between his vendor and the defendant, in order to bind him on the principle of acquiescence, was certainly upon the defendant. It is true that the defendant was in possession of the premises concerned, but that would at best lead to the presumption that the plaintiff had notice of the tenancy right of the defendant and not of any other private arrangement by way of loan advanced or by way of payment of rent before it could accrue at all. The learned Subordinate Judge does not appear to have approached this case from that angle. On the other hand, the learned Subordinate Judge has commented upon the fact that the land was a vacant land and, after the agreement, Exh. A, godowns were constructed by Hira Lal Paul with the money advanced by the defendant according to agreement and then the defendant was put into possession. This kind of observation does not seem to be consistent with tile actual defence taken in the written statement. According to paragraph 11 of the written statement, a further amount of Rs. 12,000 was paid as costs of repairs of the godowns and other structures standing on the said premises with a stipulation to have the said amount of Rs. 12,000 deducted from the arrear rent would be falling due for the next following two years (1952 & 1953). We do not, therefore, think that the learned Subordinate Judge was right in holding that the plaintiff had constructive notice as to like payment of Rs. 12,000 against rent that might fall due to 1952 and 1953, although the transaction as per Exh. 1 took place in March 1951. The conten tion of the learned Advocate for the respondent that the plaintiff had constructive notice or that the plaintiff should be deemed to have acquired the property burdened with this liability of vendor Hira Lal Paul must, therefore, fail.
7. The learned Advocate Mr. Moinul Huq in support of his appeal, F. A. No. 47 of 1957, has contended that the learned Subordinate Judge was wrong in holding that the defendant was in constructive possession after December 1953. P. W. No. 1 has stated that possession of the house was not delivered to them by the defendant. He has also stated that it was not a fact that the defendant quitted possession of the disputed premises towards the end of December 1953. From the evidence of the defendant (D. W No. 1) it appears that he carried on business in jute for about three years commencing from the end of June 1951. On a proper calculation, three years would lead up to June 1954. The defendant, however, in cross‑examination stated that after closure of his jute business he let out the premises in suit to Mainuddin who was his tenant for nine months. Calculating from January, this would take us up till September 1954. From the cross-examination of D. W. No. 3, Rangeswar Saha, one of the attesting witness of Exh.A, it also appears that after Mainuddin, Jute Board came into these godowns and the Jute Board was in these godowns for six or seven months. This witness‑ was an officer of the defendant and left the defendant's service in Ashar, 1362 B. S., which would correspond to June‑July 1955. There, is no reason why the evidence of D. W. No. 3 should not be accepted. The defendant as D. W. 1 has also admitted in cross‑examination that he did not give any written notice at the time of giving up the premises in December 1953. In view of the evidence of D. W. No. 1 and D. W. No. 3, we have no hesitation in holding that the learned Subordinate Judge was right in holding that the defendant was liable for the period January to June, 1954. We do not think there is any substance in the contention of the learned Advocate, Mr. Moinul Huq, that there was error in the relevant finding of the learned Subordinate Judge in this behalf.
8. With regard to the plaintiff's claim for compensation, when it was pointed out to the learned Advocate, Mr. Rahman, that there was no basis or any evidence in support of such a claim, the learned Advocate was fair enough to concede that the claim for compensation of Rs. 1,000 could not be sustained. In our view, therefore, the plaintiff satisfactorily proved that he was entitled to his claim for arrear rents for the period commencing from January 1952, to June 1954. He would, therefore, be entitled to a decree for Rs. 15,000 on this score less the sum of Rs. 862‑8‑0 which is admitted to have been paid by the defendant on behalf of the plaintiff towards the Municipal tax. Out of this, a sum of Rs. 14,137‑8‑0, to which the plaintiff is entitled to a decree in the suit out of which these appeals arise, the learned Subordinate Judge has given him a decree for a sum of Rs. 2,404‑I 1‑0 includ ing compensation of Rs.267‑3‑0. The plaintiff-appellant in F. A. No. 49 of 1957 will, therefore, be entitled to a decree in this appeal for a sum of Rs. 11,732‑13‑0 and he will not be entitled to any compensation as claimed in the plaint.
9. In the result, F. A. No. 49 of 1957, is allowed in part with costs in proportion to the success of the appellant and the judgment and the decrees of the trial Court are modified to this extent that in addition to the decree already passed the suit is decreed also for a sum of Rs. 11,732‑13‑0 with proportionate costs and F. A. No. 47 of 1957 is dismissed with costs.
AMIN AHMED, C. J.‑I agree.
K. B. A. Appeal partly accepted.