S.C.R.

SUPREME COURT REPORTS 145

acquiesced, during all these years in the construction which the Patna High Court has been placing upon the section from the very next year after the enactment of the statute.

Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature.

The appeals fail and are dismissed with costs, only one set in all of them together.

Appeals dismissed Agent for the appellants: Tarachand Brij Mohanlal.

Agent for the respondent : R. C. Prasad.

RAI BRIJ RAJ KRISHNA AND ANOTHER

S. K. SHAW AND BROTHERS.

(SAIYID FAZL ALI, MEHER CHAND MAHAJAN,

MuKHERJEA and CHANDRASEKHARA ArYAR JJ.J

Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill of 1947), s., 11-0rder of Controller for eviction on the ground of non-payment of rent- Suit to set aside order-Jurisdiction of civil cour:-Q11estion rtihc:her there was non-payment-Finai1ty of Controller' 1 tleeision.

Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is nor.-payment of rent, to order eviction of a tenant. Therefore, even if a Controller has wrongly decided the question whether there has been non-payment of rent, his order for eviction on the ground that there has been non-payment of rent cannot be questioned in a civil court.

Queen v. Comm_iuroners for Special Purposes of IncomeTo1t (21 Q.B, D. 313) and Colonial Bank of Australasia v.

W1'llah (L.R.

S P.C. 417) relied on.

Ramananitan Prasal

Narayan Singh

V• Mahanth Kapildeo RamJeeaud Another

Chandrasekhara.

Aiyar J.

i95I

Feb. 2.

RaiBrij Baj

Kris/1110 aRd

Anothtr ... .S. K. Shaw .and Broth111.

CIVIL

APPELLATE )UR1so1cnoN: Appeal from a judgment and decree of the Patna High Court dated 25th March, 1949, in A.S. 2280 of 1948 reversing an appeallate decree of the Subordinate Judge ip Suit No. 62 of 1948 .

Baldev Sahay (T. K. Prasad, with him) for the appellant.

N. C. Chatterjee (H. f. Umrigar, with him) for the respondent.

1951. February 2.

The judgment of the Court was delivered by

FAZL Au J.-This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit instituted by the respondents. The facts of the case are briefly these. The respondents have been in oceupation as a monthly tenant of several blocks of premises belonging to the api)cllants at a monthly rental of Rs. 112. The tent for the months of March, ApriJ and May, 1942, having £alien into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques. As the aJ?Pellants did not accept the cheques, on 4th August, 1947, the respondents remitted the amount subsequently by postal money order. On 12th August, 1947, the appellants, maintaining that there was non-payment of rent and hence the respondents were liable to be evicted, under section 11 ( 1) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), applied to the House Controller for the eviction of the respondents from the prqniscs.

Section 11 (l)(a) of the Act run& as follows :----.

''Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of section 12, where a tenant is in possession Qf any building, he shall not be liable to be evicted therefrom, whether in execution of .a decree or otherwise, except-

(a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlod, or if he is an employee of the landlord occupying the building .as an employee, on his ceasing to be in such employment;"

On 30th August, 1947, the. respondents, whose money had in the meantime been returned by the, appellants, deposited the rent up to the month of June in the Office of the House Controller. Notwith- standing this deposit, the House Controller passed an <>rder on the 10th November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves liable to eviction by reason of non-payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on the 27th April, 1948, and thereupon the respondents filed the present suit in the Patna Munsif's Court for a declaration that the order of the Controller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction.

The suit was dismissed by the ·. Munsif and his decree was upheld on appeal, but the High Court decred the suit holding that the order of the Rent Controller was without jurisdiction.

The appellants were thereafter granted leave to appeal by the High Court, and they havi: accordingly preferred this appeal.

The High Court has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one.

The main ground on which the respondents have attacked. the order of eviction passed by the House Controller is that in fact there was no non-payment of rent, and, since no eviction can be ordered under the Bihar Act unless non-payment is established, the House Controller had no jurisdiction to order eviction.

On _ ihe other hand, one of the contentions put forward on behalf of the appellants is that there was non; payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it

Rai Brij /lJJj

Erunnaaad

Anothlr

S. K. ShllllJ and Brotn1ts •

!Faz; l Ali].

Rai Brif Raj

Another

S. Jr. Shaw and Brothers1

Fad Ali].

fell due.

It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the respondents to pay the arrears until the 28th June, 1947.

It appears that at the inception of the tenancy, the respondents had paid one month's rent in advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however p_ointed out that the advance payment could be adjusted only for one month's rent, but, in the present case, the rent for three months had become due, and since in a monthly tenancy the rent is payable for month to month, the rent for each month becoming due in the subsequent month, non-payment of that rent at the proper time was sufficient to attract the provisions of section 11 (1)

(a) of the Act. The appellants also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to deciae whether the condition precedent to eviction had been satisfied, and once that decision had been arrived at, it could not be questioned in . a civil court.

This contention was accepted by the first two courts, and the first appellate court dealing with it observed as follows :-

"But the Buildings Countrol Act has authorised the Controller to decide whether or not there is nonpayment of rent and it is only when he is satisfied that there has been non-payment of rent that he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law, and if the court is called upon to decide such question, then such decision cannot be collaterally impeached ( vide 12 Patna 117). In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non-payment of rent and proceeded to pass an order of eviction. I think the Civil Court can have no jurisdiction to challenge the validity of such order."

The High Court did not however accepted this view and after refering to section 111 of the T ra:nsfer of

Property Act, proceeded to propound its own view in these words :-

"Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being 'to prevent unreasonable eviction of tenants' from buildings, it would seem that the expression 'non-payment of rent in section 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law.

The Legislature, therefore, by enacting that a tenant shall not be liable to be evicted 'except for nonpayment of rent' should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction comes to be passed ..... .

If, as contended for on behalf of the respondents, section 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to 'non-payment' of rent and as empowering the Controller to determine as to whether irregular payment of rent amounts to non-payment of rent within the meaning of sub-section (1) of section 11, and subsection (3) of section 18 were to be construed as making the decision of the Controller on thi~ question of law a final one, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants.

The principle of law and equity on which relief against forfeiture for 'non-payment of rent' is based, will have been completely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will

!95!

RaiBrij Raj Krishna and Another v.

S. K. Shaw and Brothers.

Fa:r.1 Ali].

195!

RaiBrijRoj Krishna alCd

.Another

S. Jr.Shau! and Brother1.

Fad Ali].

have been very much cunailcd.

A construction of these provisions, which is calcul_ated to . bring about these consequences,· cannot and is not in accordance with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The contention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of non-payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the

Civil Court must be over-ruled."

It seems to us that the view taken by the High Court is not correct. Section 11 begins with the words "Notwithstanding anything contained in any agreement or law to be contrary," and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self-contained section, and it is wholly unnecessary to go outsiae the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent.

Sub-section

(3) (b) of section 11 provides that the "Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building" and if he is not so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents in the same manner as is provided in the Code of Civil Procedure. Section 18 provides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Division, and it also prescribes the procedure for the hearing of the appeal. Sub-section (3)

of this section st; ltes that "the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision." The Act thus sets. up a complete machinery for investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and

subjec~ only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under section 11.

Such being the provisions of the Act, we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide.

The law on. this subject has been very lucidly stated by Lord Esher M._ R. in The Queen v. Commissioners for Special Purposes of the lncome-Tax(1), in these words:-

"When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.

There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.

But there is another state of things which may exist.

The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do

(I) 21Q.B.D.313, at319.

RaiBrjj Raj Krishna on4

.4.Nothlr

S.K.S/uzaJ ant! Brotlu, s.

Fa1:l .4.li].

!95!

.dnothu

S.K.S/i4W , and Brotlurs.

FazlAliJ.

something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.

In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends ; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."

On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia

v. Willan(1), which is a case dealing with the principles on which a writ of certiorari may be issued :-

"Accordingly, the authorities .... establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conl:!usive of the facts stated therein ; and that the Court of Queen's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found."

There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil court.

It seems to us that on this short ground this appeal must succeed, and we

(!)SP. C. 417, at P 443.

accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the courts below. The appellants will be entitled to costs throughout.

Appeal allowed.

Agent for the appellant : R. C. Prasad.

Agent for the respondent : S. P. Varma.

BADRI NARAIN JHA AND OTHERS

RAMESHWAR DAYAL SINGH AND OTHERS.

rsAIYID FAZL Au, MEHAR CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA A1YAR JJ.]

Landlord and tenant-Merger-One of several ioint holders of mokarrari interest acquiring portion of lakhra; interest-No merger-Partition amongst lessees inter sc--lntegrity of lease, qua lessor, not affected.

If a lessor purchases the whole of the lessee's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest.

A partition inter se amongst several mokarraridars does not in any way affect the integrity of the tenancy or make each

holder of an interest in it a separate holder of a different tenancy, and notwithstanding such partition the mokarraridars remain liable qua the lessor or the payment of the whole rent as one tenant.

White v. Tyndall (13 App. Cas. 263) referred to.

CIVIL

APPELLATE JuRismcnoN : Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950.

S. C. Misra for the appellant.

N. C. Chatterjee (P. B. Gangoli, with him) for the respondent.

Another

S.K. Shaw' and BrolhlTs.

19~1

Feb. 5.

Patna High Court

Tarachand Brij Mohanlal

R. C. Prasad

RAI BRIJ RAJ KRISHNA AND ANOTHER

S. K. SHAW AND BROTHERS

SAIYID FAZL ALI

MEHER CHAND MAHAJAN

MuKHERJEA

Section 11

Control Act, 1947

Ramananitan Prasal

Narayan Singh

Mahanth Kapildeo RamJeeaud

Aiyar

RaiBrij Baj

S. 2280

Baldev Sahay

T. K. Prasad

N. C. Chatterjee

H. f. Umrigar

FAZL Au

Court of Judicature at Patna

28th June, 1947

4th August, 1947

12th August, 1947

section 11

Control Act, 1947

Bihar Act III of 1947

Section 11

section 12

30th August, 1947

27th April, 1948

Patna Munsif

10th November, 1947

Munsif

Rai Brij /lJJj

Erunnaaad

S. K. ShllllJ

S. Jr. Shaw

section 11

Buildings Countrol Act

12 Patna 117

section 111

section 11

section 11

section 11

section 18

RaiBrijRoj Krishna

Lalnarain Sinha

Section 11

Section 11

section 11

Section 16

the Code of Civil Procedure

Section 18

section 11

Esher M._ R.

Parliament

RaiBrjj Raj Krishna

James Colville

Esher

S. P. Varma

BADRI NARAIN JHA

RAMESHWAR DAYAL SINGH

rsAIYID FAZL Au

MEHAR CHAND MAHAJAN

CHANDRASEKHARA A1YAR

High Court of Judicature at Patna

S. C. Misra

N. C. Chatterjee

P. B. Gangoli

S.K. Shaw


S.C.R.

SUPREME COURT REPORTS 153

accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the courts below. The appellants will be entitled to costs throughout.

Appeal allowed.

Agent for the appellant : R. C. Prasad.

Agent for the respondent : S. P. Varma.

BADRI NARAIN JHA AND OTHERS

RAMESHWAR DAYAL SINGH AND OTHERS.

rsAIYID FAZL Au, MEHAR CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA A1YAR JJ.]

Landlord and tenant-Merger-One of several ioint holders of mokarrari interest acquiring portion of lakhra; interest-No merger-Partition amongst lessees inter sc--lntegrity of lease, qua lessor, not affected.

If a lessor purchases the whole of the lessee's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest.

A partition inter se amongst several mokarraridars does not in any way affect the integrity of the tenancy or make each

holder of an interest in it a separate holder of a different tenancy, and notwithstanding such partition the mokarraridars remain liable qua the lessor or the payment of the whole rent as one tenant.

White v. Tyndall (13 App. Cas. 263) referred to.

CIVIL

APPELLATE JuRismcnoN : Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950.

S. C. Misra for the appellant.

N. C. Chatterjee (P. B. Gangoli, with him) for the respondent.

Rai Brij Raj

Krishna and

Another

S.K. Shaw' and BrolhlTs.

19~1

Feb. 5.

Bodri Natayan .. lo,,,.,,

Ramesluo01 Dayal Singh arul 01/urs.

Mahajan].

1951. February 5. The judgment of the Court was delivered by

MAHAJAN J.-Th.is appeal arises out of Suit No. 9 of 1939 instituted in the Court of the Subordinate Judge of Palamau by the appellants against the respondents for a number of declarations in respect to the title to certain lands and for an injunction restraining the respondents from proceeding with a rent suit.

The suit was decreed by the Subordinate Judge but on appeal this decision was reversed by the High Court of Judicature at Patna and the appellants' suit was dismissed.

The salient facts of the case are as follows : Village Darha belonged to a family of Pathaks as their ancestral lakhraj.

Over a hundred years ago the Pathaks granted the entire village in mokarrari to the ancestors of the family of Singhas (defendants' first and second parties) at an annual jama of Rs. 24.

The mokarrari interest eventually devolved on three branches of the Singha family, each branch getting in the following proportions : Parameshwar Dayal and others, defendants' first party, to the extent of six annas ; Bisheswar Dayal Singh, defendants' second party, to the extent of eight annas; and Madho Saran Singh, to the extent of two annas.

Subsequently, the two annas share of Madho Saran Singh was purchased by Hiranand Jha, father of the plaintiffs, jointly with Durganand Jha, and Dharam Dayal. Dharam Dayal was a mere benamidar for Hiranand Jha.

On the 5th June, 1916, Bisheshwar Dayal Singh purchased six anna share in the lakhraj interest from Deolal Pathak and others and on the 9th February, 1917, he purchased another two anna share from Mandi! Pathak.

By virtue of these purchases he came to own the lakhraj interest to the extent of eight anna share.

He already held the mokarrari interest to the same extent which had devolved on him by inheritance.

Some time in the year 1917 or 1918 Hiranand Jha and Durganand Jha, who had acquired by purchase two anna mokarrari interest of Madho Saran Singh

purchased in aecution of a rent decree the raiyati interest in the whole village and came into possession of it.

They thus became mokarraridars of two anna share and raiyats of sixteen annas of the village lands.

In the year 1918, Title Suit No. 59 of 1918 was instituted in the court of the Subordinate Judge of Palamau for partition of the lands situate in several villages and belonging to the family of the defendants' first and second parties.

The Jhas were impleaded as defendants in the suit, being co-sharers in part of the property in suit.

This suit was decreed in the year 1921, and in the final partition an allotment of two annas share in Darha village was made in their favour.

The remaining fourteen anna share excluding khatian 1, 3 and 6 was allotted to the defendants' first party. These three khatians were allotted to Bisheshwar Dayal Singh and in exchap.ge for the remaining portions of his interest in that village he was given some property in village Holeya.

The result of the partition proceedings was that the defendants' first party came to hold fourteen anna mokarrari interest in village Darha, Bisheshwar Dayal Singh's interest was limited to three khatians only, and the Jhas got a separate allotment for their two anna share in the mokarrari.

It appears that some time about the year 1926 the lakhraj interest holders, i.e., the Pathaks and Bisheshwar Dayal Singh, were in default in payment of the cess due to Government. On the 17th August, 1926, proceedings were taken against them for recovery of the cess and their interest was sold in execution of a certificate on the 18th October, 1927, to one Bijainandan Sahay. The sale obviously was of the lakhraj interest.

This was confirmed on the 19th December, 1927; and a sale certificate was issued on the 10th March, 1928.

This was followed by delivery of possession on 15th July, 1928.

Possession was obtained by one Kamta Prasad who had acquired this interest from Bijainandan Sahay on the 20th April, 1928.

On the 1st May, 1933, Kamta Prasad transferred his interest in the village to the plaintiffs who thus became proprietors of sixteen anna share in the village and mokarraridars as to two anna

3-1 S.C. India/68

!951

Badri Naral•

' :Jha and Oth"s

Rameslrwar DayalSingi alid Olhlrs.

Mahajan].

!95!

Batfri Naraiw.

]ha and Others

Ramtshwar Dayal Singh

and Others.

MallajanJ.

share and raiyats of the entire sixteen annas in the whole village.

On the 21st September, 1934, the defendants' first party as mokarraridars brought a suit against the plaintiffs for arrears of raiyati rent for the years 1338- 39 F. to the extent of six annas share and for the years

1340-41 F. to the extent of fourteen anna share claiming that under the partition decree they got . a fourteen anna share in the mokarrari interest in the village.

Plaintiffs contested the suit alleging that Bisheshwar's mokarrari interest had merged in the lakhraj interest that was purchased by him from the Pathaks in the years 1916-17, and that by the sale under the Government's certificate his whole eight anna interest in the village including both the lakhraj and the mokarrari, had passed on to the plaintiffs and that the defendants' first party could only claim rent from them to the extent of the six anna share in the mokarrari.

This plea was disallowed and the defendants' first party's claim for rent was decreed in full. The decree was upheld on appeal and second appeal. The question of title was, however, left open. In the year 1938 another suit for rent was filed by the defendants' first party as mokarraridars to recover fourteen anna share of the rent for the years subsequent to fasli 1341. As a result of this suit, the plaintiffs brought the present suit for declaration and injunction on the allegation that the eight anna mokarrari interest of Bisheshwar Dayal

Singh had merged in his lakhraj interest, that by the certificate sale Bisheshwar Dayal Singh lost all his interest in the village both lakhraj and mokarrari by reason of merger, that the partition decree of the year 1921 was illegal and in any case, under that decree the defendants' first party got only six anna mokarrari interest and were entitled to realize rents from the tenants only to that extent. An injunction was also claimed restraining the defendants from proceeding with the rent suit.

In the plaint, it was alleged that there was a private partition between the mokarraridars by virtue of which the lands of village Darha were divided between the three sets of mokarraridars, each set being

in separate possession of its own separate and defined shares. It was also pleaded that there was another partition between the proprietors of the lakhraj interest, that is, between Bisheshwar Dayal Singh, on the one hand and Deolal Pathak, Neman Pathak and Surajnath Pathak on the other, by virtue of which the lands that were in mokarrari patties of Parmeshwar Dayal Singh and others and Hiranand Jha and Durganand Jha fell in the patti of Dcolal Pathak and others, while the lands that were in the mokarrari patti of the defendants' second party fell in his proprietary lakhraj patti and that as a result of these partitions the mokarrari interest of the defendants' second party merged in his lakhraj interest and under a certificate sale the whole of his interest passed to the plaintiffs.

The trial Judge held that both the partitions alleged by the plaintiffs in paragraphs 5 and 8 of their plaint were proved and that the mokarrari interest of Bisheshwar Dayal Singh merged in his lakhraj interest and that at the certificate sale the purchaser acquired his complete interest both lakhraj and mokarrari along with the eight anha lakhraj interest of the Pathaks and that the defendants' first party were mokarraridars of six anna interest in the village and to that extent were entitled to a decree in their rent suit and could not claim a decree for rent to the extent of fourteen anna share. The High Court in api>cal held that none of the partitions alleged by the plaintiffs were proved and that the mokarrari interest of eight annas could not merge in the lakhraj interest of sixteen annas held jointly by Bisheshwar Dayal Singh with the Pathaks. As a result of this decision the plaintiffs' suit was dismissed.

In this appeal it was contended by the learned counsel for the appellants that the High Coiirt had erroneously held that the two partitions set up by the plaintiffs in paragraphs 5 and 8 had not been proved.

It was argued that the evidence on the record, both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh

Ba4ri Narain

Jha au Ollitrs

Rmn11hwar Dayal Singh

and Othm.

Mahajan].

J95J

Babi Narain

]ha and Others

v. &im1thwa1 Dayal si., h - 01/wr1,

Mafuiiaa].

became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this interest passed on to .the purchaser in execution and that being so, the defendants' first party could oniy maintain a suit for recovery, of rent from the raiyats to the extent of their six anna mokarrari interest.

In our opinion, this appeal can be disposed of on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two courts below.

The plaintiffs' case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It, however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the plaintiffs in their plaint. If the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease . if one of the several lcssccs purchases only a part of the lessor's interest. In such a case the leasehold and the reversion cannot be said to coincide.

It was the plaintiff's case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessee's interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold .. He then purchased a six anna interest in the entire J'C11ersion in the year 1916 and another two anna interest in it in the year 1917.

By these purchases he became a joint owner in the entire lakhraj . holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein.

There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, the mok:irrari interest of Bishcshwar Dayal Singh did not merge in his lakhraj interest.

Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter se partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute , but a single tenant, and qua the landlord they constitute one person, each constituent part of whic_h possesses certain common rights in the whole and is liable to discharge common obligations in its entirety.

In the words of Lord Halsbury in White v.

Tyndal/(1), the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent.

There 'is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. In law, therefore an inter se partition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar wider another contract of lease.

Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy.

In the present case there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord.

Similarly the allegation of partition inter se among the several owners of the lakhraj holding could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding and the different owners in the mokarrari interest.

The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings.

All owners

(I) 13 App. Cas. 263. 21

!951

.Badri Narain

Jlia and Others

Rameshwar Dayal Singh and Others.

Mahajan].

195!

Badri Natain

Jh• and Othm

Rameshwar Dayal Singh and Oth1r1.

Mahajan].

of the lakhraj interest are jointly responsible for payment of the cess to Government and it was because of their default in payment of the cess that the whole lakhraj interest was sold in the certificate sale. In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allegations made m the plaint. On the plaintiffs' own case the lease is still a live one in respect of the six arma interest of the defendants' first party and in these circumstances it is riot possible to hold that it has become extinct to the extent of eight anna interest of- Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties. The leasehold has not in any way been drowned in the rexersion and both lakhraj and mokarrari interest are still intact.

For the reasons given above we agree with the decision of the High Court that Bisheshwar Dayal Singh' s interest in the mokarrari did not merge in his lakhraj interest and that under the certificate sale it did not pass to the execution purchaser; on the other hand, it vested in the defendants' first party by reason of the family partition and they became entitled as mokarraridars to recover rent from the plaintiffs' raiyats to the extent of fourteen annas share.

All that passed at the certificate sale to the execution purchaser and subsequently to the plaintiffs was merely the lakhraj interest of_ the Pathaks and of Bisheshwar Dayal Singh and it could not be that at this sale qua one judgment-debtor a larger interest passed - to the execution purchaser than in respect of the other debtor.

In view of our decision that the doctrine of merger has no application to the facts of the case, the plaintiffs' case is bound to fail.

We accordingly hold that there is no substance in this appeal and we dismiss it with costs.

Appeal dismissed.

Agent for the. appellant : S. P. Varma. ' Agent for the respondent : P. K. Chatteriee.

R. C. Prasad

S. P. Varma

BADRI NARAIN JHA AND OTHERS

RAMESHWAR DAYAL SINGH AND OTHERS

MEHAR CHAND MAHAJAN

MuKHERJEA

S. C. Misra

N. C. Chatterjee

P. B. Gangoli

Rai Brij Raj

Krishna

S.K. Shaw

Bodri Natayan

MAHAJAN

High Court of Judicature at Patna

Darha

Parameshwar Dayal

Bisheswar Dayal Singh

Madho Saran Singh

Madho Saran Singh

Hiranand Jha

Durganand Jha

Dharam Dayal

5th June, 1916

Bisheshwar Dayal Singh

Deolal Pathak

9th February, 1917

Mandi! Pathak

Subordinate Judge of Palamau

Darha village

Holeya

Pathaks

17th August, 1926

18th October, 1927

Bijainandan Sahay

19th December, 1927

10th March, 1928

15th July, 1928

Kamta Prasad

20th April, 1928

1st May, 1933

Rameslrwar DayalSingi

Ramtshwar Dayal Singh

21st September, 1934

Bisheshwar

Bisheshwar Dayal

Singh

Neman Pathak

Surajnath Pathak

Parmeshwar Dayal Singh

Dcolal Pathak

Pathaks

Babi Narain

Dayal

Bishcshwar Dayal Singh

Halsbury

.Badri Narain

Rameshwar Dayal Singh

Mahajan

Badri Natain

P. K. Chatteriee


S.C.R.

SUPREME COURT REPORTS

COL. D.I. MAc PHER:SON

ti.

M. N. APPANNA AND ANOTHER.

fSAIYID FAZL ALI, MuKHERJEA and

CHA.NDRASEKHAllA AIYAR JJ.]

Contract-OOer and acceptanctatement of lowest price and counter-offer disting1111hell.

On receiving an offer from A for the purchase of a house belonging to B, Y w!Jo was looking after . the house c.abled to B that there was an offer of Rs. 6,000 for the house. B sent a cable in reply on the 5th August, 1944, that he would not accept less than Rs. 10,000.

Y conveyed this informatio_n to A on the 9th and on the 14th A wrote a letter to Y stating that he thereby confirmed the oral offer of Rs. 10,000 that he had made to Y on the 11th. On the :6:h Y cabled to B as follows : "Offered Rs. 10,000. May I sell". On the same day, W, another frienJ of B, with whom also B was in correspondence, sent an offer for Rs. 11,000 and B accepted it.

A sued for specific performance alleging that B's cable of the 5th was a counter-offer anJ as he had accepted it on the 14th, there was a concluded contract for sale in his favour on that day.

Held, that the table sent 1>y B on the 5th was a men: statement of the lowest price at . which he would sell and contained no implied contract to sell at that price. A's letter of the 14th was under the circumstances only a fresh offer; and as B had not accepted it ere was no concluded contract in favour of A.

Haruey v. Faeey l1893 J A.C. 552 applied.

CML

APPELLATE JURiso1CT10N.

Appeal from a judgment and decree of the Judicial Commissioner of Coorg, dated 1st April, 1946, in Original Suit No. 1 of 1945.

C.R. Pattabhi Raman, for the appellant..

Jindra Lal, for the respondent.

195L February 9.

The judgment of the Court was delivered by

!95!

Feb.9

FAZL ALI J.--This is an appeal from a judgment Fad ~Ii]~ of the Judicial Commissioner of Coorg in a suit filed bv the first respondent (hereinafter referred to as the plaintiff) against the appellant (hereinafter referred to as . the first defendant) and the second respondent

195!

Col. D.I.

Mae Pherso•

M. N. APP.•••

and amJther.

Fa<l Ali].

(hereinafter referred to as the second defendant), for the specific performance of a contract.

The first defendant owned a bungalow in Mercara known as "Morvern Lodge".

The suit which has given rise to this appeal was instituted by the plaintiff for the specific performance of an alleged contract of sale in respect of this bungalow.

It appears that the first defendant owned certain estates in Mercara, and one Mr. White was an alternative director in one of the estates, and Youngman was the manager of another estate also belonging to the first defendant and was looking after "Morvern Lodge" during his absence.

It seems that about the middle of 1944, the plaintiff asked White if he would cable to the first defendant his offer of Rs. 4,000 for the bungalow, and, on the 1st June, 1944, White sent a cable to the first defendant to the following effect :-

"Have enquiries Mercara bungalow if for sale, wire lowest figure."

On the 24th July, 1944, the plaintiff wrote to the first defendant that he was prepared to purchase the bungalow for Rs. 5,000 and if the offer was acceptable to him, he (the first defendant) should inform the plaintiff to which bank he should issue a cheque in payment of the price. This letter was followed up by a cable from Youngman to the first defendant to the following effect :-

"Have had offer Morvern Lodge rupees ix thousand for immediate possession."

On the 8th August, 1944, Youngman received a cable from the first defendant saying : "Won't accept

Jes~ than rupees ten thousand". On the 7th August, 1944, the plaintiff wrote to Youngman asking him whether his offer had been accepted, and saying that he was prepared to accept any higher price if found reasonable. Meanwhile, on the 8th August, the first defendant sent an airgraph to Youngman, which states inter alia :-

"I got a cable from you a few days ago saying you had had an offer of Rs. 6,000 for Morvern Lodge.

At the same time I got one from White saying value of Bungalow was Rs. 10,000.

So wired you-'W on't accept less than Rs. 10,000'." On the 9th August, 1944, Youngman, wrote to the plaintiff as follows :-

"In reply to your letter, dated 7th August, I received yesterday a cable from Col.

MacPherson regarding your offer of Rs. 6,000, which reads as follows:-

'Won't accept less than rupees ten thousand' MacPherson."

The plaintiff has stated in his plaint that this letter of Youngman was received by him on the 14th August, 1944, and he immediately accepted the "counter-offer made by the first defendant'', and confirmed it ' in writing in a letter addressed to Youngman. In his evidence, however, the plaintiff has stated that he met Youngman on the 11th August after receiving his letter and told him personally that he would. pay Rs. 10,000 for the bungalow and will require immediate delivery.

There was also some talk about the con..,, veyance charges, and ultimately the plaintiff agreed to bear those charges. - Afterwards, he wrote to Youngman a letter on the 14th August in which after refering to the conversation he had with the latter he stated as follows :-

"I hereby confirm my oral offer of ten thousand for the bungalow.

I shall be grateful if you will kindly hurry up with consultation with your lawyersat Madras and make arrangements to receive the money and hand over the bungalow as early as pJacticable."

It appears that three days later, i.e., on the 17th August, one Subbayya wrote to Youngman stating that "he confirmeC:! his offer of Rs. 10,500 made to him (Youngman) the previous day for the purchase of the bungalow", and he expected that the latter had cabled to the first defendant communicating the offer _as promised.

It seems that Youngman did not communicate Subbayya's offer to the first defendant, but sent a cable to him on the 26th August to the following effect:-

t95t

Col. D. I.

Ma& Pherson

M. N. Appanno and Another.

Fal Ali].

Col. D. J.

Mae Ph1rson

M. N. Appanna and Lf.notlur.

Fad Ali J.

"Offered ten thousand Morvern Lodge immediate possession, May I sell." On the same day, White cable to tho first defendant in the followng terms :-

"'Hold offer for Morvern Bungalow rupees eleven thousand cash subject immediately acceptance and occupation. Strongly recommended acceptance."

On the 29th August, Youngman sent an airgraph to the first derendant in which he wrote as follows :-

"Thank you for your airgraph letter of 8th August which reached me on 24th instant.

I cabled you on Saturday an offer of Rs. 10,000 for Morvern Lodge from the would be purchaser who previously had offered Rs. 6,000, but I had a call from White a day or two ago and he tells me that he cabled an offer on the same day of Rs. 11,000. I except you will have answered these and will have accepted White's offer.

If you have decided will you please arrange for a Power-of-Attorney to be prepared as soon as possible."

'• In the meantime, the first defendant sent a cable to White to the following effect :-

"Accept rupees eleven thousand MorVern Lodge occupation permitted when full amount deposited my account Mercantile Bank Madras inform Youngman."

Thereafter, the second defendant paid the amount of Rs. 11,000 and occupied the bungalow.

The question to be decided in this case is whether in view _of the correspondence which has been reprc>· duced, it could be held that there was a concluded contract for the sale "Morvern Lodge" in favour of the plaintiff on the 14th August, as stated by him in the plaint.

The Judicial Commissioner of Coorg who tried the suit held that there was a concluded contract, but, instead of giving to the plaintiff a decree for specific performance, awarded a sum of Rs. 3,000 as compensation to him. Against this decree, the first defendant alone has appealed, after obtaining a certificate under section 109(c) of the Civil Procedure Code from the Judicial Commissioner.

The plaintiff has not preferred any appeal.

The plaintiff's case is that the cable sent by the first defendant on the 5th Augus~, and received by Young- . man on the 8th, to the effect that he would not accept less than Rs. 10,000, was a counter-offer made by him through Youngman to the plaintiff, and the contract was completed as soon as he accepted it. We however find it difficult to hold on the entire facts of the case that there was any concluded contract on the 14th August, 1944, and we are supported in this view by the well-known case of Harvey v. Facey(1), in which the facts were somewhat similar to those of the present case.

In: that case, the appellants had telegraphed to the respondents "Will you sell us B.H.P.?

Telegraph lowest cash price", and the respondents had telegraphed in reply, "Lowest price for B.H.P. £900," and then the appellants telegraphed, "We agree to buy B.H.P. for £900 asked by you. Please send us your title-deed in order that we may get early possession," but received no reply. On these facts, the Privy Council held that there was no contract, and Lord Norris, who delivered the judgment of the Board, observed as follows :-

"The third telegram from the appellants treats the answer of L.M. Facey stating his lowest price as an unconditional offer to sell to them at the price named.

Their Lordships cannot treat the telegram from L. M. Facey as binding him in any respect, except to the extent it does by its terms, viz., the lowest price.

Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell them; it is an offer that required to be accepted by L.M. Facey. The contract could only be completed if L.M. Facey had accepted the appellant's last telegram.

It has been contended for the appellants that L.M. Facey's telegram should be read as saying 'yes' to the first question put in the appellant's telegram, but there is nothing to support that contention. L.M. Facey's telegram gives a precise answer to a precise question, viz., the price. The Contract must appear by the telegrams, whereas the

(I) (1893) A. C. SS2.

Col. D. I.

Mlll: Phmon

M. N. Apparuuz

and Anotlwr

Far.l Ali].

C.I. D. I.

Mae PIITTun

JI. N A/"'4nna

and Anoti\er.

appellants are obliged to contend that an acceptance of the first question is to be implied.

Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry."

The conclusion at which we have arrived is strengthened by certain facts which emerge from the correspondence between the parties. The real question is whether the first defendartt had made a counter-offer in his cable of the 5th August or he was merely inviting offers.

The plaintiff in his letter of the 14th August addressed to Youngman, stated that he confirmed his oral offer of ten thousand for the bungalow, and he did not say in so many words that he accepted the 'counter-offer' of the first defendant. Similarly, in the cable which Youngman sent to the first defendant on the 28th August, he did not state that the latter's offer had, been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and concluded with the words "May I sell?" Neither party thus treated the first defendant's cable as containing a counter-offer.

On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance by the first defendant.

Apparently, the first defendant was in communication not only with Youngman but also White, and both of them rightly thought that no transaction could be concluded without obtaining the first defendant's express assent to it.

Mr. Jindra Lal, counsel for the plaintiff, who pressed his points with force and ability, contended that by the 26th August, 1944, Youngman had come under the influence of the rival bidder or at least that of White who was supporting him, and the cable to the first defendant was deliberately framed by Youngman in such a way as to prejudice the plaintiff. There is however nothing in the evidence to support such an extreme conclusion. On the other hand, Youngman has frankly stated in his evidence that he felt it improper to entertain Subbayya' s higher offer and did

not communicate it to the first defendant. This statement is supported by the cable of the 26th August and, if Youngman can be said to have had any leaning at all, it was certainly in favour of the plaintiff. In these circumstances, it would be difficult to hold that Youngman had deliberately misdescribed the plaintiff's acceptance of the counter-offer as his offer in the cable which he sent on the 26th August to the first defendant.

It seems to us that the view taken by the Judicial Commissioner is not correct, and, as there was no concluded contract, the decree passed by him awarding .

compensation to the plaintiff for breach of contract cannot be sustained. We therefore allow the appeal, set aside the judgment and dtcree of the Judicial Commissioner and dismiss the plaintiff's suit.

Having regard to the circumstances of the case, we make no order as to costs.

Appeal allowed.

Agent for the appellant : M. S. K. Sastri.

Agent for the respondent: Rajinder Narain.

THE STATE OF BOMBAY

ATMA RAM SRIDHAR VAIDYA

[SHRI HARILAL KANIA C.J., SAIYID FAZL ALI, PATANJALI SAsTRr; MuKHERJEA, DAs and

CHANDRASEKHARA AIYAR JJ.)

Constitution of fodia, Arts. 21, 22 (5)-Preventive detention -Duty to communicate grounds and to afford opportunity to make representation-Whether distinct rights-Ground supplied vague -Non-supply of particulars or supply of particulars at later st.7ge -Whether vitiates dttention-furisdiction of court to consider sufficiency of grounds-Preventive Detention A.ct (IV of 1950), s. 3.

The respondent was arrested on the 21st of April, 195(), under the Preventive Detention Act, 1950, and on the 29th of

19Sl

Col. D. I.

Mil() Phersott

M. N. APflanM

and ANJtlrer.

Fazl Ali].

1951 Jan. 25.

COL. D.I. MAc PHER:SON

M. N. APPANNA AND ANOTHER

fSAIYID FAZL ALI

MuKHERJEA

CHA.NDRASEKHAllA AIYAR JJ.

5th August, 1944

C.R. Pattabhi Raman

Jindra Lal

FAZL ALI

Mercara

White

Youngman

1st June, 1944

24th July, 1944

8th August, 1944

7th August, 1944

MacPherson

14th August, 1944

Madras

Subbayya

M. N. Appanna

Fad Ali

Coorg

section 109(c)

Norris

L.M. Facey

L. M. Facey

M. N. Apparuuz

Mae PIITTun

Jindra Lal

M. S. K. Sastri

Rajinder Narain

STATE OF BOMBAY

ATMA RAM SRIDHAR VAIDYA

HARILAL KANIA

SAIYID FAZL ALI

PATANJALI SAsTRr

CHANDRASEKHARA AIYAR

Arts. 21, 22

s. 3

Preventive Detention Act, 1950

29th of

19Sl