Patna High Court
The Tata Iron & Steel Co. Ltd. vs Abdul Ahad And Ors. on 9 October, 1969
Equivalent citations: AIR1970PAT338, AIR 1970 PATNA 338
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. The chequered history of this case demonstrates how the contesting defendant No. 2 has succeeded in remaining upon the suit land even beyond the period of 30 years mentioned in the original Indenture of Lease, The facts are these. The Tata Iron and Steel Co. Ltd. (hereinafter called the Company), the plaintiff appellant in this second appeal granted a lease to its employee, one Abdul Gani, of the suit land which measures 0.93 acre. The Indenture of Lease (Ext. 7) was executed on the 30th of March, 1937. The lease was for a period of 30 years commencing from the 1st of December, 1935, It expired on the 1st of December, 1965. The purpose of the lease was to allow the said employee to build upon it and he was to pay a nominal ground rent of Rs. 2/13/- per month. In April, 1947 Abdul Gani applied for permission to sell the leasehold property, which could not be transferred in any manner without the written permission of the lessor, namely, the plaintiff Company. Permission was refused. On the 17th of November, 1948 Abdul Gani applied again for permission to mortgage the leasehold interest for a sum of Rs. 50,000 to Shri Ananga Brjoy Mitra, a Pleader practising in the town of Jam-shedpur, who is defendant No. 2 in the action and respondent No. 13 in the appeal. The permission was refused as communicated to Abdul Gani by Ext. 14, a letter written by the Land Officer of the Company on the 25th of February, 1949. In spite of that, Abdul Gani executed a mortgage for Rs. 50,000 in favour of defendant No. 2 on the 12th of March, 1949. The Company filed Title Suit 209 of 1949, but due to there being a formal defect, it applied for permission to withdraw the suit with liberty to institute another. The permission was granted with the liberty as asked for. After the withdrawal of the suit, Abdul Gani died on the 10th of April, 1952 leaving behind a number of heirs, namely, his two widows, some sons and some daughters both married and unmarried. According to the case of the plaintiff Company, two sets of notices were issued and served on the heirs of Abdul Gani, who had come to inherit his leasehold interest. One set of notices was to ask them to remedy the breach committed by Abdul Gani as he had transferred the property by mortgage without the written consent of the lessor. The other set of notices was to determine the lease on the ground of forfeiture. The present suit giving rise to this appeal was filed on the 7th of November, 1952.
2. The contesting defendant. No. 2 raised a number of pleas and, if I may say so, all sorts of pleas, whether they had any substance or not. I need not enumerate all those pleas as it is not necessary to do so since most of them have been rejected and rejected rightly by the courts 'below. I may, however, refer to two out of them. They are--(i) that the lease was not determined as the contesting defendant did not accept that a valid notice determining the lease on the ground of forfeiture was served on the heirs of Abdul Gani and put the plaintiff to strict proof thereof and (ii) that Abdul Gani had transferred the property by a usufructuary mortgage to defendant No. 2 after having obtained the permission of the Land Officer on the 15th of February, 1949.
3. The learned Munsif who tried the suit held that the letter (Ext. H) said to have been written by the Land Officer granting permission to Abdul Gani was not a genuine letter, no permission had been ever granted by the plaintiff Company to him for transferring the leasehold property. It, however, held against the plaintiff on the question of service of notice because it found that the notice determining the tenancy was not validly served on all the heirs of Abdul Gani. The plaintiff Company went up in appeal before the lower appellate court. Defendant No. 2 filed a cross-objection. In the first instance, on the 25th of August, 1958 the lower appellate Court dismissed the appeal and allowed the cross-objection. It affirmed the finding of the trial Court on the question of notice but reversed it on the question of permission and held Ext. H to be genuine. The plaintiff Company filed Second Appeal 1260 of 1958 in this Court. The appeal was allowed on the 14th of March, 1963 and the case was remanded to the lower appellate Court for fresh decision. This time the lower appellate Court by its judgment dated the 16th of October, 1963 has dismissed both the appeal and the cross-objection. It has held that the notice determining the tenancy was not served separately on all the heirs. It was served on Abdul Ahad, one of the heirs of Abdul Gani. It also held that it was served on some other heirs when the same kind of notice determining the tenancy was served on them by registered post, but yet it was not served on all. Since the principal defendants, namely, the heirs and legal representatives of Abdul Gani, who are defendants 1 series, namely, defendants 1(a) to 1(1) were tenants in common and not joint tenants, service on one or some of them was not sufficient to determine the tenancy. This time the lower appellate Court has held in agreement with the finding of the trial Court that Ext. H, the alleged letter of permission said to have been written on behalf of the Company has not been proved to be genuine. The plaintiff Company has come up in second appeal again.
4. Learned Advocate-General appearing for the appellant Company has submitted that on the findings recorded by the courts below the lease was validly determined and a decree for eviction of the defendants ought to have followed. He also submitted that in any view of the matter, the period of the lease having expired long ago, during the pendency of this second appeal, this Court should take notice of this fact and should hold that the defendants are liable to be evicted even on the ground of determination of tenancy by efflux of time. Mr. J. C. Sinha, learned Counsel for defendant No. 2 (respondent No. 13), while combating the points urged on behalf of the appellant tried to support the decision of the lower appellate Court by attacking its finding in regard to the alleged letter of permission dated the 15th of February, 1949 (Ext. H) as being a finding of fact vitiated in law. I shall examine each one of the questions raised in this appeal and record my view on all the relevant points in order to dispose of this appeal.
5. It may be mentioned at the outset that both the sets of notices which were all addressed to the heirs of Abdul Gani one under Section 111(g) of the Transfer of Property Act (hereinafter called the Act) and the other under Section 114-A of the Act were served by two modes. The first mode was personal service on Abdul Ahad, defendant No. 1(a), son of Abdul Gani, who was residing at 64, Vasur Road, Sakchi, Jamshedpur, where some other heirs in the category of the principal defendants were also residing. The other mode of service was to send both the types of notices by registered post to the heirs of Abdul Gani. It is not necessary to refer to the service of the notice under Section 114-A of the Act because on the facts and in the circumstances of this case that was not a notice which was necessary to be issued as contended on behalf of the appellant and not disputed on behalf of the contesting respondent. It has rightly been pointed out that the breach of the term said to have been committed by Abdul Gani in transferring the property by a usufructuary mortgage for a sum of Rs. 50,000 was not capable of being remedied by his heirs and, therefore, a notice under Section 114-A of the Act was unnecessary and redundant.
I shall, however, address myself to the question of service of notice under Section 111(g) of the Act. In this connection, I may first refer to the finding recorded by the lower appellate Court. The notice under Section 111(g) of the Act which was served personally on Abdul Ahad is Ext. 1. The service report of the person who served this notice and who has been examined as P.W. 1 is Ext. 1/b. The receipt granted on the copy of the notice by Abdul Ahad not only for himself but also on behalf of the other addressees of the notice is Ext. 1/a. It is dated the 10th of May, 1952. I may only mention to clear up the confusion which is to be found at places in the records of this case that the notice under Section 114-A of the Act was dated 12-5-1952, and it is Ext. 2. The service report of the serving peon of this notice on Abdul Ahad is Ext. 2/b and the receipt granted by him is Ext. 2/a. Some time later both kinds of notices, as already stated, were sent by registered post. The postal registration receipts were marked Exts. 17 to 17/u and the acknowledgments were marked Exts. 16 to 16/u. The learned Subordinate Judge, in his judgment under appeal, has recorded the finding that the notice dated 10-5-1952 (Ext. 1) and also the notice dated 12-5-1952 (Ext. 2) were served on Abdul Ahad, as is the case of the plaintiff Company, and he had received the notice on his own behalf as also on behalf of the other persons who all were addressees in all the notices meant for the heirs of Abdul Gani. The learned Subordinate Judge, however, has made reference to two apparent defects. One is that Abdul Wahab, one of the sons of late Abdul Gani, who was one of the addressees in the notice is not a defendant in this suit and that the notice was not addressed to Mrs. Mamuda Bibi, defendant No. 1(j).
In regard to the service of notice by registered post, he has come to the conclusion on a consideration of Exts. 16 series and 17 series that notice of Mrs, Jaibunnissa, defendant No. 1(g) was not posted at all and further Ext. 16(b), the corresponding acknowledgment does not contain any signature of the addressee. Ext. 16(r) is also an acknowledgment for Mrs. Jaibunnissa, but there is no signature of the addressee or the stamp of the post office. In other words, the finding recorded by the learned Subordinate Judge seems to be that the series of notices despatched by registered post, in any event, were not served on one or two addressees. The net result of the finding is that the notice to determine the tenancy on the ground of forfeiture was not served on all the heirs of Abdul Gani and since they were tenants in common, the tenancy was not validly determined.
6. Before I proceed to discuss the point of notice any further, I may shortly and briefly dispose of the attack made on the finding of forfeiture now concurrently recorded by the two courts below by "learned counsel for respondent No. 13. He submitted that Ext. H was a genuine document and permission had been granted by the plaintiff Company for transferring the leasehold property by mortgage to the said respondent. After perusing the judgments of the two courts below it is clear that it is a finding of fact recorded by them. Not only that, even on examination of a few salient features of the case, it is further clear that the finding is correct. The trial Court had recorded the finding in clear and specific terms. The learned Subordinate Judge, while affirming the finding, discussed the point with reference to the relevant documents but ultimately recorded the finding, if I may say so, not in a very happy manner as he ought to have done.
He said, to quote his own words, "It is just possible that Abdul Gani who according to the defendants' case was an influential man of this town might have prevailed upon the Land Officer to grant him permission to mortgage the premises to defendant No. 2, and the land officer now finds himself in a tight corner and disowns his own signature. It is also possible that through the help of some officer of the Land Department a letter was fabricated by Abdul Gani as he was in pressing need to secure money on security of his house at Sakchi. Since the onus was upon the defendant to prove that a written permission was obtained by Abdul Gani prior to execution of "mortgage and the defendant has not conclusively proved that Ext. H is a genuine document the benefit must go to the plaintiff in this case and it must be held that defendant has not been able to prove this contention in this suit."
7. In this connection, I may only refer to Ext. 12, which is a letter dated 11-2-1949 written by the Managing Agents of the plaintiff Company through their constituted Attorney to the Chief Town Administrator stating therein that the Agents agreed with him (the Chief Town Administrator) "that permission should not be granted to Mr. Abdul Gani to mortgage his leased premises to a non-employee". It is undisputed that defendant No. 2 is a non-employee of the plaintiff Company. On this letter there is an endorsement (Ext. 12/a) which is dated 14-2-1949, and it says that "Mr. Gani may be informed accordingly". In pursuance of this, the Land Officer, Shri A. K. Basu informed Abdul Gani by the letter (Ext. 14) dated 25-2-1949 with reference to the latter's application for permission to mortgage his house to a non-employee for Rs. 50,000 that he had been directed to convey to him the regret of the Company to permit him to do so. In face of this correspondence, it is difficult -- almost impossible -- to believe that the same A. K. Basu would have granted permission to Abdul Gani on 15-2-1949 as was the case of the contesting defendant, to transfer the leasehold by mortgage to defendant No. 2. Ext. H is in a printed form in which the terms of permission, as it appears, if it is granted, are mentioned. Certain terms are printed and certain terms have been typed in this. It purports to bear the signature of Shri A. K. Basu, the same Land Officer, who informed Abdul Gani on the 25th of February, 1949 that permission had been refused to him. Shri A. K. Basu was examined by the, plaintiff Company and he categorically denied his signature on Ext. H. In such a situation, I am definitely of the view that reading the judgment of the learned Subordinate Judge as a whole, it cannot be doubted that the finding recorded in agreement with the finding of the trial court is that Ext. II is not a genuine although he couched the recording of his finding not in a happy language. I may also add that on a visual test of the signature of Shri A. K. Basu on Ext. 14 (which, of course, is a facsimile signature) and his signature on the plaint of this suit with his alleged signature on Ext. H, I have unhesitatingly formed the opinion that the alleged signature of Shri A. K. Basu on Ext. H is not genuine, it could not be genuine on the facts and in the circumstances of this case. The transfer having been made by Abdul Gani against the express term of the lease, it entailed undoubtedly forfeiture under Clause (g) of Section 111 of the Act.
8. To bring about the determination of the tenancy, however, on the ground of forfeiture even under Clause (g) of Section 111 of the Act, the lessor had to give a notice in writing to the lessee of. his intention to determine the lease. As already stated after withdrawal of the previous suit on the ground of a formal defect, Abdul Gani died. The lease-hold property was inherited by his heirs and, undoubtedly, inter se, as tenants in common. Notice was given or attempted to be given to the heirs of Abdul Gani. But on. the findings recorded by the courts below such a notice was not served on all the heirs of Abdul Gani. It may, however, be mentioned at this stage that none of the principal defendants, namely, defendants 1(a) to 1(1) contested the suit at any stage. None of them filed any written statement. None of them was examined in the suit to challenge the factum or the validity of the service of the notice or to say that the lease was not validly determined by service of notice on one or some of them, It is only defendant No. 2 who somehow or the other persuaded Abdul Gani to execute a mortgage in his favour in March, 1949, contested the suit by challenging the fact of service of notice in such words as he could challenge, namely, by merely putting the plaintiff to the strict proof of the service of notice. It is here that I would iustify the remark with which I have commenced this judgment that defendant No. 2 has succeeded in resisting his eviction and that of defendants 3 and 4, and. even beyond the period of 30 years the period mentioned in the Indenture of Lease.
9. Learned Advocate-General for the appellant submitted that the heirs of Abdul Gani, who inherited the leasehold property, although were tenants-in-com-mon inter se in repard to their interest in the property, vis-a-vis or qua landlord they were joint tenants or co-tenants or co-lessees. Merely because they inherited Abdul Gani's interest as tenants in common so far as their rights inter se are concerned, they did not become several tenants or, as the expression has been used by the learned Subordinate Judge, 'tenants in common' of the plaintiff Company. In that view of the matter, service of notice of determination of tenancy on one or more joint tenants was service on all, and the lease was validly determined. Apart from the said position in law, he also drew our attention to Clause 5(e) in the Indenture of Lease, and reading this clause with the preamble, he submitted that even under this covenant service of notice on any of the heirs of Abdul Gani determining the tenancy had the effect of validly determining it.
10. I may dispose of the slight defect which has been noticed by the learned Subordinate Judge in regard to the point of notice. Abdul Wahab who was one of the sons of late Abdul Gani and who was named as an addressee in the notice is not a party defendant in the suit. There was no plea taken nor was any point agitated at any stage in this litigation that the suit was bad for non-ioinder of one of the heirs of Abdul Gani. Learned counsel for the appellant submitted that if the point would have been taken, the answer could be given. It may be that Abdul Wahab was alive when the notice was given but he was dead when the suit was filed. Since the point was not raised, the question was not investigated, and the defect pointed out in the notice by the learned Subordinate Judge cannot be said to be a defect when Abdul Wahab is not a defendant in the suit. Whether his name was there in the notice or was not there in it is not material at all.
11. In regard to the other defect noticed by the learned Subordinate Judge that it was not addressed to defendant No. 1(j) Mrs. Mamuda Bibi, it was pointed out on behalf of the appellant that since this question was also not agitated at any earlier stage, any answer with certainty cannot be given as to the fact, but in all probability it is a duplication of the name of defendant No. 1(k) who is described as Miss Mamuda Bibi and who was a minor daughter of Abdul Gani. One of the addressees in the notice was Miss Mamuda Bibi. Both defendants 1(j) and 1(k) are described in the plaint as residing at 64 Vasur Road, Sakchi, Jamshedpur, where defendant No. 1 (a) was residing. Exts. I and-I/1 are the judgment and decree respectively of another Title Suit instituted by the Tata Iron and Steel Company Ltd. against Abdul Gani being Title Suit 210/ 27 of 1949/52. It seems that Abdul Gani died during the pendency of that suit and his heirs were substituted in his place. The decree shows that only one Mamuda Bibi was substituted as the minor daughter of Abdul Gani along with the other heirs and not two Mamuda Bibis. I am inclined to accept the argument put forward on behalf of the appellant and think that the name of defendant No. 1(j) is a duplication of the name of defendant No. 1(k) and they are not two different per-sons. Learned Advocate-General, however, made his alternative submissions also in this regard that even assuming that they are two different persons and even assuming that the notice was not addressed to Mrs. Mamuda Bibi, yet since it was addressed to all other heirs showing the intention of the lessor to determine the whole tenancy, the notice valid-ly brought about the determination of the tenancy when it was addressed to all other heirs except Mrs. Mamuda Bibi and was served on one or more such heirs. I shall have the occasion to refer to this point when I come to deal with the main contention put forward on behalf of the appellant in this connection.
12. The expressions 'ioint tenancy' and joint tenants' have been used in , two senses -- one, as it is commonly understood under the English law and in a similar sense has been used in India also. In the book of Woodfall on Landlord and Tenant, 26th Edition, at page 65, it is stated--
"Joint tenants have unity of title, unity of commencement of title, unity of interest, so as in law to have equal shares in the joint estate, unity of possession, as well of every part as of the whole, and right of survivorship."
In the same book at page 66 is stated as to what is meant by 'tenancy in common'. It says - "tenants in common need have only unity of possession, they may have unequal shares, and there is no right of survivorship." The same expressions 'joint tenancy' and 'joint tenants' are used in a different sense vis-a-vis the landlord. But I have not come across any expression to say that the tenants are tenants in common qua the landlord. There is a different kind of expression used for conveying that kind of sense as would be found mentioned in Woodfall's book, 26th Edition, at pages 515 and 518--
"Where a covenant is entered into by two or more persons, it is frequently of importance to determine, whether the liability of the covenantors is ipint or whether it is several or both joint and several."
With reference to many cases it has been discussed as to when it is joint and when it is several. When the liability of the tenants, when there are more than one, is joint then the tenants are called joint tenants and the tenancy is called joint tenancy. But when it is several, it is difficult to describe the tenants as tenants-in-common qua the landlord. Two persons being co-tenants or co-lessees, ordinarily and generally, may be tenants-in-common between themselves, yet qua landlord they may be joint tenants or their liability may be several and, if I may coin the expression they may be called 'several tenants' or the tenancy may be called 'several tenancy'. In the instant case, the Indenture of lease was executed by the plaintiff Company in favour of only one tenant Abdul Gani, his heirs undoubtedly inherited the leasehold property as tenants in common. Can it be said, therefore, that they became several tenants under the plaintiff Company and one single tenancy without the consent of the plaintiff Company was split up into several tenancies, making the heirs of Abdul Gani not joint tenants of the plaintiff but several tenants? To my mind, the answer cannot but be in favour of the plaintiff Company. If by renovation of the contract or the transaction of lease, the lessor agrees to recognize the heirs who inherit the leasehold property as tenants-in-common not as joint tenants but separate from one another, that is to say, if the lessor agrees to make their liability several and does not keep it as joint, they may become separate or several tenants. But until that is done, the tenancy which was single, indivisible or joint at its inception, cannot become a several tenancy because the heirs who inherit the leasehold interest do so as tenants-in-common. That being so, in my opinion, it seems to be a firmly established proposition of law that notice to one of the joint tenants will be deemed to be a service of notice on all such tenants.
13. In Moti Lal v. Kartar Singh, AIR 1930 Lah 515. Tek Chand, J., delivering the majority judgment on behalf of the Full Bench pointed out at page 517 (column 1).
"The rule which has been laid down in the majority of these rulings is that in the case of a 'joint' occupancy tenancy of the kind mentioned in the question the tenants, as between themselves, hold their shares independently of each other, and on the death of any one of them his share passes to his own 'heir' or 'heirs' under Section 89(1) and (2); but as against the landlord they or their 'heirs' taken together constitute a single tenant, and as long as any of these persons is in existence, the landlord cannot claim the share of him whose line has died out."
A passage has been quoted at page 518 (column 1) from the judgment of Lord Halsbury in William White v. Tyndall, [(1888) 13 AC 263]--
"It is true that the parties to whom the demise is made are to hold it as tenants-in-common, but what they covenant to do is to pay one rent, not two rents, and not each to pay half a rent, but one rent."
in support of the view expressed that--
"As between themselves their rights may be specified, they might hold the tenancy in well defined shares capable of separate enjoyment or transmission to the respective heirs of each, as if it were his separate property. But qua the landlord they constitute one person each constituent part of which possesses certain common rights in the whole, and it is liable to discharge common obligations in their entirety."
Referring to the same passage from the judgment of Lord Halsbury Mahajan. J., as he then was, has expressed the same view in almost identical language in the case of Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186 at p. 189 (column 1). In my opinion, if liability to pay rent of the tenants who hold the leasehold property as tenants-in-common is joint qua the landlord, the tenancy will be a joint tenancy and they will be joint tenants for the purpose of service of notice also either under Section 106 or Section 111(g) of the Act.
14. I would now make reference to the decision of the Supreme Court in Kanji Manji v. Trustees of the Port of Bombay, AIR 1963 SC 468. I may very briefly state the facts of that case. In 1942 the Trustees of the Port of Bombay, who were the lessors, granted to More-shwar Narayan Dhotra and Dinshaw Rus-tomji Ogra and their respective heirs, assigns, etc., a monthly tenancy of land together with the buildings standing thereon. The two lessees aforesaid executed a deed of assignment in 1947 assigning their rights in the lease to Rupji Jeraj and Kanji Manji in the year 1956. The lessors sent a notice to Rupji Jeraj and Kanji Manji requiring them to vacate the premises and deliver vacant and peaceful possession of the land by certain date. This notice was not complied with and then a suit for eviction was filed against them. It was. however, found that Rupji Jeraj had died much earlier not only before the institution of the suit, but, as it appears from the fact stated in the said judgment, even before the service of the notice to vacate was given. One of the points argued in the courts below as also before the Supreme Court was that the notice to quit was invalid inasmuch as it had been served only upon one of the lessees, namely, Kanii Manji but not upon the heirs and legal representatives of Rupji Jeraj. This argument had been rejected by the trial Court as also by the High Court of Bombay. Dealing with the identical argument, Hidaya-tullah, J., as he then was, delivering the judgment on behalf of the Court said at page 471 (column 1)--
"The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that '......... the Assignors do and each of them doth hereby assign and assure with the Assignees as Joint Tenants ......'. The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good."
Learned counsel for the contesting respondent tried to distinguish this case by saying that under the deed of assignment the assignees were stated to be joint tenants which deed had been approved and accepted by the Trustees of the Port of Bombay, namely, the lessors. In my opinion, however, the said distinction will not bring about any different consequence in law. Even if the assignees would not have been described as joint tenants in the deed of assignment, without the ap-'proval and acceptance of the Trustees as several tenants they could not but continue to be joint tenants.
15. It will be useful to refer to a few lines in Simonds Edition of Halsbury's Laws of England, Volume 23, which occur at pages 661 and 662 in paragraphs 1382 and 1383. The lines read thus:
"The interest of a tenant, whether for a term of years or from year to year, in the demised property vests, upon his death, in his personal representatives;.....
The personal representative takes the leasehold property as assignee".
The point which I want to emphasise is that a tenancy which was single or joint at its inception will continue to be so even when the interest passes to the heirs by inheritance and they inherit it as tenants-in- common or it passes to the assignee by assignment, unless the joint-ness or the singleness is split up with the approval and acceptance of the lessor.
16. In the same Volume 23 of Hals-bury's Laws of England. Article 1179 at page 527 the law is stated thus--
"Where the premises are held by two tenants jointly, the service of notice on one who lives on the premises is evidence that it reached the other who lives elsewhere, and apparently, even without such evidence, it is effectual as to both."
The latter statement is based upon the dictum of Lord Ellenborough in Doe d. Lord Macartney v. Crick (1805) 5 Esp 196 : 170 ER 784. In that case William Crick and his brother were joint tenants under Lord Macartney. He gave parol notice to William Crick alone to quit the premises and written notice subsequently was also served on both the defendants, which notice was not valid due to certain reason. As the law stood in England then, even parol notice to quit could be given. In regard to that notice, Lord Ellenborough said--
"As the defendants appear to hold the lands jointly, service of notice to quit on one was sufficient."
On the basis of this decision as also by relying on other English decisions, Lord Atkinson delivering the judement on behalf of the Judicial Committee of the Privy Council has said in Harihar Banerji v. Ramshashi Roy. AIR 1918 PC 102 at page 110 (column 2)--
"Well in the case of joint tenants, each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants."
In that case notices had been sent by registered post and on a consideration of the evidence, their Lordships of the Judicial Committee also arrived at the conclusion that the notices had been served on all the principal defendants. Yet the dictum of the Privy Council can very well be pressed into service for relying upon the proposition of law just discussed. This dictum has been followed in India in several decisions vide Bodardoja v. Ajijuddin Sircar, AIR 1929 Cal 651: Vaman Vithal Kulkarni v. Khanderao Ram Rao Sholapurkar, AIR 1935 Bom 247, Mohanlal v. Governor-General in Council, AIR 1945 Nag 255 and Mst. Ramubai v. Jairam Sharma. AIR 1964 Bom 96. In the case of Bodardoja. AIR 1929 Cal 651, the tenants belonged to a Mohammadan family and inter Re they must have been holding the leasehold interest as tenants-in-common but vis-avis the landlord they were holding it as joint tenants. In such a situation, eve-on the finding or assumption that the notices actually were not served on all the joint tenants, service on one or more was held to be good service. The case of Bejoy Chand Mahatab v. Kali Prosanna Seal, AIR 1925 Cal 752 was distinguished on the ground that in that case it had been held that in order to bring about a valid determination of the lease service of notice on one or more of the joint tenants would be sufficient provided the notice is addressed to all the Joint tenants, which was so in Bodardoia's case, AIR 1929 Cal 651. With great respect I ven-ture to accept the view expressed in Be-joy Chand Mahatab's case with some modification, in principle, as also in view of the decision of the Supreme Court in AIR 1963 SC 468 referred above. In the Supreme Court case, as already pointed out, notice to the legal heirs of one of the joint tenants, who was dead, had not been given at all, yet that was not found to be a defect in the procedure of determination of lease. In principle, I am also inclined to think that if one or more legal heirs of a deceased tenant was or were left out due to a bona fide mistake but if the intention is clear enough from the notice addressed to the other heir or heirs that the tenancy was sought to be determined as a whole omission to address the notice to one or more heirs in such circumstances will not make it invalid. One may conceive of a situation when a tenant dies leaving several heirs scattered in the country or even residing in various countries. It may not be possible for the landlord to know the existence or whereabouts of all the heirs. In such a situation, if one or a few is or are left out due to a bona fide mistake, it is difficult to take the view that the notice which was given to the other heir or heirs with the clear intention of determining the whole of the tenancy, as Ext. 1 of this case clearly shows, will not bring about the determination. Apart from the view of fact which I have expressed above with reference to the case of omission of the name of Mrs. Mauda Bibi. defendant No. 1(i) from the notices that really there was a duplication of name in the category of defendants, even assuming that there were two Mamuda Bibis. I think omission of the name of one will not make the notice defective or invalid,
17. In the case of AIR 1935 Bom. 247 Beaumont, C. J., having found at page 251 that out of the group of the tenant defendants notice was not served on three of them, following the decision of the Privy Council in Harihar Banerji's case, AIR 1918 PC 102, pointed out that service of notice to quit on one or the several joint holders affords prima facie evidence that it has reached the rest. The learned Chief Justice also added that the defendants did not go into the witness box to deny that they had received the notice and, therefore, the prima facie presumption must prevail. Similar is the situation in the present case. None of the principal defendants has come to state that the notice which was either personally served on defendant No. 1(a) or served on many of them through registered post did 'not reach him or her as the case may be. In such a situation, taking the law as propounded by the Privy Council that service of notice on one is prima facie evidence that, it had reached the rest, it must be held in this case that the notice had been served on all. In Mst. Ramubai's case, AIR 1904 Bom 96 N. L. Abhyankar, J.. has reviewed, if I may say so with respect, all the relevant authorities and applied the principle deducible from them in the case of the heirs of the tenant some of whom were daughters who had come to inherit a moiety in the leasehold property under the Hindu Succession Act, 1956; obviously, therefore, they had come to inherit it as tenants-in-common and not as joint tenants inter se with the other co-tenants. Yet vis-a-vis the landlord, it was held that even the daughters were the joint tenants and service of notice on one or more of them was held to be good and valid. No case taking a contrary view could be brought to our notice by the learned counsel for the contesting respondent except the decision of a learned single Judge in Anwarali Eepari v. Jamini Lal Roy, AIR 1940 Cal 89. . The learned Judge, in that case, has raid at page 91 (column 2)--
"The notice served on the defendants not having been admittedly served on the heirs of some of the tenants who are dead, it cannot be taken to be valid and sufficient in law to determine the tenancy."
In my opinion, and if I may say so with great respect, the said observation was made per incurium without discussion of the question as to whether the heirs were the joint tenants qua the landlord.
18. I, therefore, hold that the notice to quit served in this case under Section 111(g) of the Act on one or some of the heirs of Abdul Gani was legal and valid and in law had the effect of terminating the tenancy on the ground of forfeiture. This view is further strengthened by the express term in the Indenture of Lease (Ext. 7) itself. Clause 5(e) of the deed reads as follows--
"It is hereby expressly agreed and declared by and between the respective parties hereto as follows: --
x x x
(e) Any notice by way of request, demand or otherwise by this Indenture or otherwise required to be given to or served upon the Lessee may be given or served by being sent by registered post addressed to the Lessee at the ordinary place of business or residence of the Lessee (or any of them) provided such address has been furnished by the Lessee (or any of them) or failing such intimation of address, to the address of the premises hereby demised and shall be deemed to have been received by the lessee on the day on which it would have been delivered in the ordinary course of post and any notice so served shall be deemed to have been sufficiently served on all persons comprised within the expression 'the Lessee'. Any such notice required or permitted to be given or served upon the Company may be given or served by being sent by registered post addressed either to that Company at its registered office or to the said Chief Town Administrator (if any) at his office for the said Area."
In the beginning of the Indenture it is stated that the expression 'the Lessee' shall include 'his heirs, executors, administrators and assigns1. Reading Clause 5(e), which is obviously and undis-putedly a covenant running with the land with the said meaning of the expression 'the Lessee', it is abundantly clear that any notice which is otherwise required to be given or served upon the lessee or his heirs served by registered post on one of them should be deemed to have been sufficiently served on all persons comprised within the expression 'the Lessee'. Under this clause even excluding the per-sonal service of the notice on Abdul Ahad, the service by registered post on many of the legal heirs of Abdul Gani must be deemed to be a sufficient service on all. Mr. J. C. Sinha contended that the clause aforesaid must be confined to a particular kind of notice which was required to be given or served by way of request, demand or otherwise under the Indenture of Lease; it cannot take within its ambit the mode of service of notice under Section 111(g) of the Act. I have no difficulty in rejecting this argument because the word 'otherwise' used for the second time in the beginning of Sub-clause (e) of Clause 5 clearly refers to the service of notice required by law to be given or served. No mode of service is prescribed in Section 111(g) of the Act. In absence of such a prescription, I am inclined to take the view that even under the express term of the Indenture of Lease the service of notice effected on one or more of the legal heirs of Abdul Gani to bring about a determination of the lease on the ground of forfeiture was a sufficient, full and valid service.
19. On my reversal of the decision of the courts below on the point of notice and the consequent termination of the tenancy on the ground of forfeiture, the appeal can be allowed. Resting my judgment primarily on this ground, I would like to add that the second submission made on behalf of the appellant is also well founded and must prevail. Tt is a well-settled principle of law that to shorten the litigation Court can take into consideration the facts or events which have happened during the course of the pending litigation. Although ordinarily and generally rights of the parties are to be determined with reference to the date of the institution of the suit, subseauent events giving rise to new rights or even to new cause of action can also be taken into account for final adjudication of the dispute between the parties provided, of course, the subsequent event either of fact or law is such that there could not be possibly any valid defence if a now suit would have been instituted on the said new fact, event or cause of action. In this connection reference may be made to the cases' of P. V. Janaki v. Kalliani Amma, AIR 1934 Mad 675 which was a case of identical nature with the one in the present suit and of Ram Narain Das v. Governor-General in Council, AIR 1947 Pat 263, Kamakhya Narain Singh v. State of Bihar, AIR 1957 Pat 30 and Gajadhar Lodha v. Khas Mahatadib Colliery,. AIR 1959 Pat 562. As against this learned Advocate for the contesting respondent placed reliance upon the case of Bhola Ram v. Peari Devi, ATR 1962 Pat 168. Without disputing the well-settled proposition of law, as it could not be, on the facts of that case notice of the subsequent event, namely, the passing of the Hindu Succession Act was not taken into account, because of the difficulty of a special fact as pointed out in column 1 at page 177. The fact was that a will executed by Sheodutt had remained unre-voked and under the will, if probated, persons other than the donees under the gift would be entitled to the preperties of Sheodutt.
20. Learned counsel for the contesting respondent, in answer to our query as to what possibly could be the defence of any of the defendants in a fresh suit for eviction on the ground of determination of lease by efflux of time under Clause (a) of Section 111 of the Act, could not indicate any cogent or definite plea which possibly could be taken except pointing out to the clause of option of renewal in the Indenture of Lease. That clause is Clause 4 and reads as follows: --
"And the Company hereby further covenants with the lessee that the Company will on the written request of the lessee made three English Calendar months before the expiration of the term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the Covenant on the part of the lessee herein before contained and provided that the Company shall not have given notice to determine this lease under the provision in that behalf (hereinafter) contained at the expense of the lessee grant to the lessee a lease (hereinafter referred to as the first renewed lease) of the said land for the further term of 30 years at a rent to be mutually agreed upon but not exceeding one and one half times the rent hereby reserved and containing such other terms and conditions as may be mutually agreed upon at the time including the present covenant for renewal provided always tha-any lease (hereinafter referred to as 'the 2nd renewed lease') granted under the option for renewal to be contained in the first renewed lease shall not contain any option for any further renewal the intention being that after the expiration of this present lease the lessee shall only be entitled to two such renewals and provided that the second renewed lease shall be at a rent to be mutually agreed upon but not...............exceeding one and one half times the rent reserved by the first renewed lease."
There are manifest and insurmountable difficulties in taking recourse to this clause, viz-- (i) breach or non-observance of a term of the covenant had already taken place, (ii) the Company had already given notice to determine the lease and
(iii) no written request from the lessee was made three English calendar months before the expiration of the term of the lease. In my judgment, the efore, the decree for eviction can also be made today on this additional and new ground by taking into consideration the fact that the tenancy stood determined on the 1st December, 1965 by efflux of time and for such a determination no notice was neces sary to be given in law.
21. In the result, I allow the appeal, set aside the judgments and decrees of the Courts below and decree the plaintiff's suit with costs throughout to be paid by the contesting defendant No. 2 (respondent No. 13) only. There shall be a decree for khas possession of the land described in schedule A appended to the plaint in favour of the plaintiff Company on contest against defendant No. 2 and ex parte against the other defdts. and for ejectment of the defendants therefrom. The defendants 1 series and/or 2 are directed to pull down the buildings erected on the land described in the said schedule A, to remove the materials thereof and there-from and to restore the land in its original state to the plff. Company within a period of six months from to-day. In the event of their failing to do so, the defendants or whosoever may be in possession of the land or the buildings will be evicted and the buildings will be demolished and the materials will be removed in execution of the decree as made by this Court and cost of such demolition and removal will be realised from defendants 1 stries and/or defendant No. 2 in execution proceedings.
Anwar Ahmad, J.
22. I agree.