Bombay High Court
Lachmandas Bansilal Rathod vs Zumberlal Surajmal Gandhi And Ors. on 21 July, 1972
Equivalent citations: AIR1974BOM115, (1973)75BOMLR678, AIR 1974 BOMBAY 115, 1974 RENCJ 157, 1974 MAH LJ 524, 1973 RENCR 771, ILR (1974) BOM 1273, 75 BOM LR 678
ORDER
1. This is a tenant's petition under Article 227 of the Constitution of India. which was originally filed as Civil Revision Application No. 557 of 1965 and was allowed to be converted into a Special Civil Application under Article 227 of the Constitution. It is directed against the judgment of the Extra Assistant Judge dated September 17, 1964, decreeing the landlord's claim for arrears of rent to the extent of Rs. 1,933-5-4 though confirming the decree of the trial Court dismissing the plaintiff's suit for possession.
2. The trial Court had dismissed the claim for the said amount on the ground that the tenant had under a registered lease deed (Exhibit 34) dated December 18, 1958 executed by the petitioner in favour of the former owner Balubai Dulichand, paid a sum of Rupees 2,500/- towards the rent of the premises at the rate of Rs. 700/- per annum for four years and had agreed to pay Rs. 300/- at the end of the said period. The trial Court held that the plaintiffs, who purchased the property under the register sale deed dated August 20, 1959 (Ex. 33), were not, therefore, entitled to recover any rent from the petitioner observing as follows : -
"The rent note was passed by the Defendant in favour of Shrimati Balubai Dulichand alone. Plaintiff No.1 Surajmal Kasturchand admits in the cross examination that the Defendant had shown the rent note to him before he had taken the sale deed. He further admits to have gone through the entire rent note. After having realised that the rent note was for a yearly tenancy, he stated that Balubai told him that it was nominal, He however, did not take any writing from Balubai to the effect that it was hollow. From the conduct of the plaintiff it is clear that he knew of the rent note and had purchased the property with full knowledge of it. He thus acquiesced in the tenancy agreement that was entered into between the defendant and Balubai. Now, it is not open for him to say that it is bad since one of the co-owners had taken it. It was also canvassed on behalf of plaintiffs that the rent note is hit by Section 18 of the Rent Act since the rent for more than 3 months was taken in advance, I fail to understand how the rent note is bad as the advance rent was taken. Section 18 states that if the premium or advance rent for more that 3 months is taken then the landlord commits an offence under than section. If the tenant so desires he may take out the necessary action under that section. However, at any rate the plaintiff cannot rely upon that provision to base his case that the lease deed is void. That contention is obviously without substance. In view of this. I hold that the tenant has paid Rs. 2,500/- towards the rent to his then landlady Balubai and he is not a defaulter and at this stage the plaintiffs are not entitled to recover any rent"
3. The learned Assistant Judge set aside the said finding for the reasons stated by him as follows.
"Before the sale deed he had already paid the rent in advance for the period mentioned in the suit to Balubai and therefore according to him he was not liable to pay rent as claimed from him. But section 50 of the Transfer of property of any immovable property Act excuses payment of rent and profits of any immovable property which means that the rent or profits should have become due. If before they become due, anything is paid in advance to the former landlord, it is simply loan to him and it cannot be taken as a discharge of the rent becoming due after notice of transfer to the defendant. It was a observed in Katha Bhatt V. Chote Lal. . Relying upon Section 50 of the Transfer of property Act. I hold that what was paid by defendant to with the case of appropriation in respect of tenancies the principle that the appropriation can be made notwithstanding the provisions of section 18, as laid down by Gajendragadkar, J. Supports the argument of Mr. Joshi.
4. Mr. Shrikhande, on the other hand submitted that the decision of a Division of bench of the Patna High Court in Ramlal Marwari V. Mahadeo Marwari. AIR 1922 pat. 339., and a single judge of the Rangoon High court in pale Zabins Rural co-operative Society V. Maung Thu Daw, AIR 1931 Rang 292, have taken a different view. He also submitted that in Tiloke Chand Surana v.J.B. Beattie. AIR 1926 Cal 204, the Calcutta High Court had taken a different view. I have read these cases. I find nothing in the cases to help the argument of Mr. Shrikhande, In the Patna case. after the lessor had lost the right to recover rent, an advance rent was paid and the decision of the Patna High Court is based on the consideration that discharge given by the landlord to the tenant in those circumstances was not a valid discharge. In the Calcutta decision, it was held; "In order to get the benefit of the protection of Section 50, the tenant must pay rent as rent and must not pay rent in advance which in the circumstances, was a mere loan to the lessor". this case actually supports the argument advanced by Mr. Joshi, as in the present case, it is expressly stated in the rent note itself that the amount was paid as rent. the benefit of section 50 must be, therefore, given to the tenant. Rangoon decision which merely refers to those tow decisions. Does not carry the argument of Mr. Shrikhande any further.
5. the learned Assistant Judge relied on a decision of the Rajasthan High court in Katha Bhatt v. Chotey Lal, . Which again does not support the argument that S. 50 will not apply where the amount is paid as advance rent, as contended by Mr. Shrikhande, Mr. Shrikhande himself fairly stated that that decision does not support the argument advanced by him and the learned Asstt. judge was not right in relying on the said decision. That was a case of monthly tenancy. That was not a case like the present one where under the registered rent note itself, an advance rent was paid as rent. being consideration for the lease. The learned Assistant Judge was therefore, not justified in applying the ratio in that decision to the facts of the present case.
6. In the result, the petition succeeds. The judgment and the decree passed by the learned Assistant Judge are quashed and the decree passed by the Joint Civil Judge, Junior Division, on March 29, 1963 is resorted. The petitioner must get his costs throughout, including the costs of his cross-objections. Rule made absolute.
7. order accordingly.