DURGI NIKARINI Vs. GOBERDHAN BOSE

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for ejectment after service of notice to quit. The question in controversy is whether the notice was sufficient in law. The plaintiff has treated the defendant as a tenant from month to month, entitled to 15 days notice to quit. The defendant contends that she is a tenant from year to year entitled to six months notice to quit. The question for determination thus is, what is the true status of the defendant as tenant?

(2.) The land in dispute is comprised in the Bhukailash Debutter Estate and has been let out to ijaradars for a term ever since the 16th December 1870. The first ijara lease expired on the 9th July 1884, and, upon the expiry of the successive ijaras, fresh ijara leases were granted, so that the present ijaradar is the seventh in the series. The defendant came into occupation under a verbal lease on some date, not ascertained, between 1870 and 1884. It has been assumed for the purposes of the present case that her tenancy commenced before 1882 : that is, before the Transfer of Property Act came into operation. In a litigation now pending between the Bhukailash Debutter Estate and the present ijaradar, a Receiver has been appointed to take possession of the property. The Receiver holds the property for the benefit of the person who may ultimately be determined to be entitled to it and he has commenced this litigation for ejectment of the defendant after service of notice to quit. No question has been raised as to the authority of the Receiver to maintain the present action, and it may be assumed that the Receiver represents the ijaradar if the ijara is still in existence : he may, on the other hand, be taken to represent the superior landlord, if the ijara has terminated.

(3.) As regards the status of the defendant, we have the fundamental fact that she came into occupation as a tenant before the Transfer of Property Act came into force and was brought upon the land by an ijaradar who himself held for a limited term. Now, it cannot be disputed that when a tenant has been brought on the land by a landlord who is himself a lessee for a limited term of years under the proprietor, prima facie his right would come to an end upon the expiry of the lease of his landlord. This was recognised in the case of Ooma Tara Debia v. Peena Bibee 2 W.R. 155. and was subsequently confirmed by Sir Richard Couch, C. J., in the case of Harish Chunder Roy Chowdhry2 Sree Kalee Mookerjee 22 W.R. 274. The learned Chief Justice stated that it was familiar law that a lessee could not make an under-lease for a longer time than his own lease, though he might sub-let the land for as long a time as he had himself, unless there was a restriction either by agreement or by law against sub-letting : but he could not give a greater interest than he had himself in the land. The same view was adopted in the cases of Sheo Nandan Roy v. Ajodh Roy 26 C. 546 : 3 C.W.N. 336. and Henderson v. Squire 4 Q. B. 170 : 10 B. & S. 183 : 38 L.J.Q. B. 73 : 19 L.T. 601 : 17 W.R. 519. Consequently, when the first ijara, during the continuance whereof the land was settled with the defendant by the ijaradar, expired on the 9th July 1884, his interest as a tenant terminated, for it is not contended that the land was agricultural, in which event the principle recognised in the cases of Atal Rishi v. Lakshmi Narain Ghose 2 Ind. Cas. 417 : 10 C.L.J. 55. and Madan Mohan Singh v. Raj Kishori Kumari 17 Ind. Cas. 1 : 17 C.L.J. 384. might have been invoked. The tenancy was created for residential purposes, and in the case of a tenancy of this description, as soon as the lease of the ijaradar expired the interest of the sub-lessee also ceased to exist.