SUBIMALCHANDRA CHATTERJI Vs. RADHANATH RAY

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for ejectment after service of notice to quit. The case of the plaintiff was that the defendant was a monthly tenant, whose tenancy had been determined by notice to vacate the premises. The claim for ejectment: was resisted by the defendant, on the ground that there was a registered agreement for lease dated 20 April 1917, for a term of 21 years, and that the defendant was not therefore liable,, to be ejected. It is necessary to mention in this connexion that the plaintiffs in the suit were the purchasers at a sale held on 13 November 1928, in execution of a mortgage decree passed on the basis of a mortgage of the premises in question, in possession of the defendant, executed by Jugalkrishna Mallik and Phulkumari Dasee on 25 February 1924. The property in suit belonged originally to one Shyamlal Mallik, who died intestate in the year 1901, leaving him surviving his widow, Phulkumari, who obtained letters of administration, and subsequently adopted Jugalkrishna as a son, by virtue of an authority to adopt. Jugalkrishna after attainment of majority, instituted a suit for possession of the estate of Shamlal Mallik on 22nd February 1917, and the agreement to lease, on which the defendant based his title to be in possession, was executed by Jugalkrishna on 20 April 1917, after the institution of the suit for possession against his mother, Phulkumari Dasee.

(2.) The suit so instituted appears to have been compromised, and it was arranged that Phulkumari was to have a life interest in the estate left by her husband, Shyamlal Mallik ; Jugalkrishna was to get the estate after the death of Phulkumari; that the garden house?the property, from which the defendant-appellant was sought to be evicted?amongst others, was to be managed jointly by Jugalkrishna and Phulkumari, and in case of disagreement between them, by the receiver appointed in the case. According to the findings of fact arrived at by the trial Court, which were not in any way reversed by the Court of appeal below, there was no disagreement between the mother and the adopted son, in regard to the management of this property, and there was collection of rent payable in respect of the same, in accordance with the terms of the agreement to lease; some of the receipts showed that Phulkumari accepted the new rental fixed by the agreement executed by Jugalkrishna, thereby ratifying the agreement. The receiver also received rent at the rate mentioned in the agreement. Plaintiff 1 was the receiver, and the mortgaged property was purchased by the plaintiffs with knowledge of the agreement executed by Jugalkrishna on 20 July 1917.

(3.) A reference to the terms of the agreement to lease is necessary at the stage, and it requires notice that the agreement contained all the material terms of a lease, with a stipulation that a patta shall be granted within four months of the receipt of the permission of the Court for the execution of the same. There was the further stipulation that,; if the executant of the agreement, Jugalkrishna, failed to execute a patta on the terms set out in the agreement, the person in whose favour the agreement was executed, Nalinbihari Chatterji, would be entitled to get the agreement specifically performed with the help of the Court. Jugalkrishna further covenanted that the aforesaid Nalinbihari Chatterji will continue to pay rent and remain in possession after the expiry of the terms of the existing lease, until the patta was executed. It is worthy of notice in this connexion that Jugalkrishna all along promised to execute a patta?he had never refused to do so? Phulkumari died in the year 1925, and Jugalkrishna was, on her death, entitled to execute the patta, in his own right, without the permission of the Court, as contemplated in the agreement to lease.