Patna High Court
Musammat Razia Begum vs Shaikh Muhammad Daud on 28 June, 1926
Equivalent citations: 96IND. CAS.558, AIR 1926 PATNA 508
JUDGMENT Dawson Miller, C.J.
1. This as an appeal under the Letters Patent from a decision of Mr. Justice, Ross overruling the decision of the District Judge of Muzaffarpur and remanding the case to the trial Court to ascertain the amount of mesne profits due to the plaintiff from the surviving defendant in the suit.
2. The question for determination in the appeal is whether the plaintiff who obtained a lease of certain property but was not put in possession by his lessor can maintain a suit against the defendant for mesne profits by way of damages for keeping him out of possession of the property. Learned Counsel for the appellant, the surviving defendant in the suit, contends that the demise without possession merely gave the lessee a right of entry or, as it is known in English Law, an interesse termini, which is not sufficient to found a suit in trespass which, he contends, is the cause of action in this case.
3. The circumstances under which this litigation arises are as follows: Mouza Kothia Hussain situate in the Champaran District of this Province formed part of the estate of the late Saiyid Hussain Ali Khan, otherwise known as Saiyid Muhammad Nawab, a well-to-do Muhammadan who died in March, 1914, leaving a daughter, Musammat Razia Begum, by a deceased wife and a widow, Musammat Azizunnissa alias Bibi Bakridan. Before his death he had expressed his intention of granting a mukarrari lease of the said village to his wife, Bibi Bakridan, by way of maintenance and in lieu of her dower-debt. A deed was drafted and approved by him but before it could be executed he died and his property devolved upon his daughter Musammat Razia Begum as his heir under the Shia Law. About a month after his death in April, 1914, Musammat Razia Begum in pursuance of her late father's wish executed a mukarrari patta of Mouza Kothia Hussain in favour of her step-mother for her life at a nominal rental of one rupee per annum and took from her a kabuliyat. Bibi Bakridan's name was subsequently recorded in the Revisional Survey Record of Eights as mulcarraridar of the village and she appointed an agent, one Babujan, to collect the rents on her behalf. Disputes arose between them and early in 1917 she sued Babujan for an account but failed on the ground that she had never in fact acquired possession over the property which had remained in the possession of her step-daughter Razia Begum. It appears that Razia Begum refused to give up possession to her step-mother on the ground that the latter had not remained chaste after her husband's death. The execution of the mukarrari lease is not disputed by Razia Begum and it contains no condition as to defeasance in the event of the lessee ceasing to remain chaste. Bibi Bakridan finding her attempts to get possession unsuccessful executed a sub-lease of her life-interest in the mouza in favour of the plaintiff, Shaikh Muhammad Daud, dated the 25th July, 1917, reserving an annual rent of Rs. 875. By this document the right to the arrears of rent for the three preceding years was also transferred. The plaintiff on attempting to take possession and collect the rents was opposed by Musammat Razia Begum and proceedings were instituted under Section 145 of the Cr.P.C., in which the possession of Razia Begum was upheld. The plaintiff accordingly instituted the suit out of which this appeal arises on the 1st February, 1921, impleading Musammat Razia Begum as principal defendant and Bibi Bakridan as the defendant, second party. In his plaint he prayed for (1) a declaration of his title and, the title of his lessor to the property in suit and possession thereof, (2) mesne profits for the three years preceding the suit and until recovery of possession, and, (3) costs and interest.
4. Bibi Bakridan by her written statement admitted the plaintiff's claim but repudiated liability for his failure to get possession. Musammat Razia Begum contested the suit. She admitted that she executed the mukarrari patta of April, 1914, in favour of Bibi Bakridan but denied that the latter ever got possession, although she made several attempts to do so. She alleged that the patta of July, 1917, granted by Bibi Bakridan to the plaintiff was fraudulent, collusive and nominal, and pleaded that as her step-mother shortly after her father's death turned immoral which she came to know after the execution of the mukarrari, "She did not allow it to take effect" and did not put her lessee in possession but had herself remained in possession ever since her father's death. She does not plead that there was any condition attached to the grant rendering it defeasible in the event of the lessee's unchastity.
5. The Subordinate Judge at the trial found that neither the plaintiff nor Bibr Bakridan ever got possession over the mouza in spite of their efforts to do so, and that Musammat Razia Begum had all along been in possession, and from this he deduces that the mukarrari patta was not given effect to. He did not determine whether the aspersions against the character of Bibi Bakridan were true or not, considering it immaterial as the mukarrari was an unconditional grant. He based his decision on the ground that the plaintiff's lessor had not acquired a perfect title as the mukarrari was not given effect to. Exactly what he means by this expression he does not explain. He also thought that the plaintiff's lease was of a speculative nature and, therefore, gave the transferee no right to retain possession. In support of this conclusion he cites the case of Kalidas Mullick v. Kanhaya Lal Pundit 11 C. 121 : 11 I.A. 218 : 8 Ind. Jur. 636 : 4 Sar. P.C.J. 578 : 5 Ind. Dec. (N.S.) 839 (P.C), which does not appear to support the proposition. He also thought that the, mukarrari lease was more in the nature of a gift than a lease, as a nominal rental only was reserved and without possession it was not perfected.
6. On appeal the District Judge agreed with the finding of the trial Court that possession never passed to the plaintiff or his lessor. He further held, with regard to the mukarrari patta of 1914, that there was a separate oral agreement constituting a condition precedent to the attaching of an obligation under the contract. What the exact terms of the oral agreement were he does not very clearly specify, but it may be gathered from the context that what he meant was an oral agreement amounting to a condition which would have the effect of divesting the property if the lessee afterwards became unchaste, for, he adds. "The document itself does not make any condition about Bakridan's future conduct but such a condition is usual, and Razia has given evidence that her father included such a condition in his instructions to her. Bakridan herself was not put in the witness-box. The karpardaz of Razia (witness No. 8 for the defendant) has corroborated the aspersions cast by Razia on Bakridan's character." The learned District Judge appears to have had no very clear conception of the difference between a condition precedent which would prevent the instrument from taking effect and a condition which would operate as a defeasance after the interest had vested. The result of his judgment is summed up finally in the following words at the end: "It appears that effect was never given to the mukarrari patta, and that Muhammad Daud has come into the affair merely as a speculator. I agree with the Subordinate Judge's finding that the plaintiff failed to establish his title to or previous possession of the disputed village."
7. The plaintiff preferred a second appeal to the High Court which was heard by Ross, J. The learned Judge pointed out that the oral agreement referred to by the lower Appellate Court was not pleaded in the written statement by either defendant and that it was not open to the learned District Judge to find that there was any such oral agreement. In any view he considered that the oral agreement which the lower Appellate Court found to have been proved did not amount to a condition, precedent to the attaching of an obligation under the contract within the meaning of the third proviso to Section 92 of the Evidence Act, and if there -was any oral agreement, it amounted to a condition that the estate vested in the lessee should divest on her becoming unchaste, and evidence of such an oral agreement was not permissible, being in conflict with the written Contract which was an unconditional grant for life. In my opinion Ross, J., took the correct view upon this part of the case. He was also of opinion that the suit could not fail on the ground that the plaintiff's lease was speculative. Here, again, I entirely agree with the learned Judge's, view. There was nothing to show that the lease was not a genuine transaction and a substantial rent was reserved. Nor did the fact that the lessor was out of possession prevent her from transferring her right to her. lessee. The learned Judge further held that the finding that the mukarrari lease was not given effect to, if it had any meaning at all, must mean that neither party considered it binding, but such a view was contrary to all the facts of the case as it had been found that Bibi Bakridan did her best to obtain possession and to make the instrument effective. Pending the appeal to Mr. Justice Ross and before it came on for hearing, Bibi Bakridan died and the plaintiff's term expired. He was, therefore, so longer entitled to possession. The learned, Judge, however, held that this did not prevent the plaintiff from recovery of damages by way of mesne profits from the first defendant, Musammat Razia Begum, for wrongfully keeping the plaintiff out of possession. He accordingly allowed the appeal upon that part of the claim, set aside the decree of the District Judge and remanded the case to the trial Court to ascertain the amount of mesne profits duo from the 1st February, 1918, to the death of the defendant, second party.
8. From that decision the defendant, first party, has preferred the present appeal under the Letters Patent. The only question argued before us is that the suit is not maintainable, being confined, since the death of Bibi Bakridan, to a claim for damages for keeping the plaintiff out of possession of the demised lands. This argument is based upon the English Common Law doctrine that a demise of land without delivery of possession passes only a right of entry, or an interest in the term, known as an interesse termini, and such an interest is not sufficient to entitle the lessee to maintain an action in trespass, since actions of this nature are founded on the actual possession of the plaintiff which is interfered with by the trespasser. I had some doubt whether it was open to the appellant to raise the question at this stage, as the plea is not specifically taken in the written statement and was not argued in the Courts below; but as it was alleged that the mukarrari was not acted on and as all the facts necessary to determine the point are before us, I propose to deal with the legal argument. The Common Law doctrine, so far as I am aware, applies only to a lease for a term of years and is based upon the law relating to English leases of this nature which, for some purposes, regards the lessee before actual entry as not being a tenant, he had, however, a right of entry, a vested interest, which is assignable and which, if he dies, passes to his representatives, lie may maintain an action against third parties for injury to the property, Gillard v. Cheshire Lines Committee (1884) 32 W.R. 943. He may sue his lessor for not putting him in possession, Coc v. Clay (1829) 5 Bing. 440 : 3 Moo. & P. 57 : 7 L.J.C.P. (O.S.) 162 : 130 E.R. 1131 : 30 R.R. 699 Wallis v. Hands (1893) 2 Ch. 75 : 62 L.J. Ch. 586 : 3 R. 351 : 68 L.T. 488 : 41 W.R. 471, and he may sue in ejectment, Doe v. Day (1842) 2 Q.B. 147 : 2 G. & D. 757 : 12 L.J.Q.B. 86 : 6 Jur. 913 : 114 & H. 58 : 57 R.R. 624 in fact, it Would appear that he has a remedy for any infringement of his rights except such rights as arise out of actual possession. But in any event the present claim is hardly one in the nature of an action for trespass. It is one for damages against the appellant for keeping the plaintiff out of possession. The plaintiff's lessor could undoubtedly have sued the appellant for damages for failing to put her in possession. The plaintiff by the sub lease took an interest in the whole term which is equivalent to an assignment and could, therefore, in my opinion, maintain an, action against the appellant for damages for failing to put him in possession. Moreover, I doubt whether the English doctrine would apply to a case like the present where the lease is not one for a term of years. It is rather in the nature of a freehold lease. See Ecclesiastical Commissioners v. Treemer (1893) 1 Ch. 166 : 62 L.J. Ch. 119 : 3 R. 136 : 68 L.T. 11 : 41 W.R. 166.
9. But, whether the view just expressed be right or not, I do not consider that the Common Law doctrine in England which is founded on the view that before actual entry by the lessee he is to be regarded for some purposes as not a tenant, livery of seisin being necessary to complete his title, can be applied to leases in this country, which are governed by the Transfer of Property Act. Under that Act, as pointed out by Das, J., in Midnapur Zemindary Co., Ltd. v. Ram Kanai Singh Deo 91 Ind. Cas. 169 : (1925) Pat. 254 : 7 P.L.T. 188 : 5 Pat. 80 : A.I.R. 1926 Pat. 130 certain leases including those reserving a yearly rent, which includes the present case, can be made only by a registered instrument, whilst all other leases of immoveable property may be made either by a registered instrument, or by oral agreement accompanied by delivery of possession. Under this Act delivery of possession is essential to the vesting of the interest only where the lease is made by oral agreement, and a lease by oral agreement cannot be made where a yearly rent is reserved. Delivery of possession was, therefore, not necessary for the vesting of the interest in the lessee in the present case, and I can see no reason why we should apply a doctrine applicable to certain kinds of English leases to those governed in this country, not by the English Common Law, but by the Transfer of Property Act. In my opinion this appeal fails and should be dismissed with costs.
Foster, J.
10. I agree.