SWARNALATA MITRA Vs. DURGA PROSAD

JUDGEMENT

(1.) This is an appeal against the decision of Shri N. Banerji, third additional Subordinate Judge, Alipore, in Title Suit No. 13 of 1947 originally numbered as Title Suit No. 116 of 1943. The Plaintiffs instituted the suit on November 18, 1943, for ejectment of the Defendants from the premises at 1, Lake Place, Calcutta, and for recovery of arrears of rent due in respect thereof at Rs. 400 per month from April 18, 1942, to September 25, 1943 and of compensation for wrongful use and occupation of the premises at the same rate from September 26, 1943, to November 17, 1943. The Plaintiffs also claimed to recover Rs. 800 as damages for the value of glass panes alleged to have been removed by the Defendants from the window sashes of the building. According to the Plaintiffs, their predecessor Raghunath Prosad purchased the premises No. 1, Lake Place, from the owner, Defendant No. 2, Swarnalata Mitra, for the sum of Rs. 64,000 on April 18, 1942, by a registered sale deed. The sale deed was also executed by Defendant No. 1, Nishi Kanta Mitra, husband of Defendant No. 2, Swarnalata Mitra, as a confirming party. On the same date, namely, April 18, 1942, it was agreed between the parties that the Defendants would occupy the premises as tenants at the monthly rate of Rs. 400 for a period of three years from that date on condition that if they defaulted in paying three months' rent the tenancy would terminate and the purchaser would be entitled to re-enter. Further, according to the Plaintiffs the sum of Rs. 1,200 was then deposited with the purchaser as advance rent to be deducted towards the rent for the last three months of the agreed term of the tenancy, namely, three years. The total claim for arrears of rent and damages for use and occupation after deducting the advance rent of Rs. 1,200 was laid at Rs. 6,400.

(2.) The Defendants contested the suit filing separate written statements. There was a common defence taken that Defendant No. 1, Nishi Kanta Mitra, who was a C.P.W.D. contractor in 1942, required money for some war contracts and he approached Raghunath Prosad, predecessor of the Plaintiffs, for a loan of Rs. 64,000 on mortgage of the premises at 1, Lake Place, but Raghunath Prosad was not willing to grant a loan on a mortgage because of the restrictions imposed on money-lenders by the Bengal Money Lenders Act of 1940 and suggested that he might give Rs. 64,000 provided the premises at 1, Lake Place, were sold to him outright; but he agreed to execute a deed of reconveyance provided the entire consideration together with interest at 7 1/2 per cent was repaid to him within a period of three years, the option of reconveyance not to be exercised before the expiry of the period of three months; that the Defendants agreed to the terms proposed and the transaction was thereupon effected and the sum of Rs. 1,200 was also paid to Raghunath Prosad as interest for the period of three months at 7 1/2 per cent but Raghunath Prosad declined to execute a written agreement for reconveyance and so the agreement for reconveyance remained an oral agreement. The Defendants denied that they agreed to remain in occupation of the premises as tenants at the monthly rent of Rs. 400 under Raghunath Prosad and altogether denied that there was a relationship as landlord and tenant. They contended that they were in occupation of the premises in part performance of the contract for reconveyance. They also challenged the notice of ejectment as invalid and insufficient. It may be mentioned here that notice to quit was issued on the Defendants on September 16, 1943, asking them to quit within a period of three days on the ground that the landlords were entitled to re-enter because the Defendants had defaulted for more than three months; and the usual 15 days' notice to quit ending with the month of the tenancy was not given in this case.

(3.) Defendant No. 2, Swarnalata Mitra, took a further defence that she was never informed by her husband that there would be no written agreement for reconveyance and that if she had known this she would not have agreed to execute the sale deed at all and that the sale deed had been obtained by undue influence and was not binding on her.