Chinnappa Reddy, J. - (1.) The appellant Bai Dosabai obtained two plots of land in Survey Nos. 59 and 63 of Vastrapur from her father-in-law, Jehangirji, by way of gift. On February, 25, 1946, Dosabai executed a deed, styled "a deed of lease" in favour of Indu Prasad Dev Shankar Bhatt, whose successors in interest are the respondents to this appeal. The material terms of the deed were the following:The lease was to be for a period of seven years from January 23, 1946. As a tenant was already in actual possession of the land, the lessee in whose favour the deed was executed was given symbolic possession only. The stipulated rent was Rs.4357-8-3 per year. Rent for two years was to be paid in advance. In fact it had already been paid on January 23, 1946. The future rent was to be paid in advance every year. If the lessee failed to pay the rent the lessor was to demand the same by giving notice of three months. If the lessee continued to default despite the notice, the lessor was entitled to recover the rent with damages and costs. The rent was to be a first charge on the land as well as the structures that might be constructed on the land, the assessee having been given the right to raise constructions on the land or to use it as an open land. On default of payment of rent even after three months' notice, it was provided by clause (4) of the deed that the lessor would be further entitled to take steps in the manner provided in clause 17 of the deed, which we will presently extract. It was also agreed that the lessor would sell the land to the lessee within the period specified in clause 15 of the deed, to which we shall refer immediately, for a price of Rs. 1,29,111-8-0 out of which a sum of Rs. 32,227-14-0 being one fourth of the amount was paid in cash on the very date of the execution of the deed of lease. It was agreed that if the land was acquired under the provisions of the Land Acquisition Act, the lessee should take the entire amount of compensation and pay to the lessor an amount calculated at the rate of Rupees 3-8-0 per square yard whether such amount was more or less than the amount of compensation. Clause 15 provided that if any any time after 2 years and within seven years from the date of execution of the deed the lessee desired to purchase the land for the stipulated price of Rs.1,29,111-8-0 (calculated at the rate of Rs.3-8-0 per square yard), the lessor was bound to execute a deed of sale, in favour of the lessee or his nominees. If the lessee, on calculation, was found to have overpaid the rent up to the date of sale he was to get credit for the same. If the lessee got the deed of sale executed within two years, he would have no claim to get credit for any part of the two years' rent paid in advance, the whole of which was to be returned by the lessor. Clause 17 of the deed, the most important clause for our present purpose was as follows:"(17). If the party of the second part fails to get the sale effected within the specified time, after paying the sale price agreed to by the parties of both the parts as mentioned in para 15 herein above, the party of the first parts shall after giving three months' notice in writing be lawfully entitled to force the party of the second part to get the sale effected. If in spite of giving the notice, the party of the second part fails to pay the balance of the consideration amount and get sale deed executed, the party of the first part shall be entitled to take possession of the said land together with whatever structures the party of the second part may have constructed thereon. After taking such possession, the party of the first part shall be bound to sell the same by public auction at the costs and risk of the party of the second part. if, the amount realised at the public auction mentioned above, is less than the price of the land agreed to in this deed, the party of the first part shall be entitled to recover the deficiency from the second part, and if the amount realised is more, the party of the first part shall pay the surplus to the party of the second part. In this amount Rs.32277-14-0 being the one fourth the consideration amount already paid shall be given credit for without interest by one part to other".
(2.) Thus, a conspectus of the relevant provisions of the deed reveals certain vital terms which may be summarised thus:The lessee was entitled to purchase the land at any time within seven years by paying the stipulated price, a fourth of which was paid in advance. Until the date of sale he was to pay the rent but if the sale took place within two years of the deed, the lessor would not be obliged to return a proportionate part of the advance rent paid by him. If there was default in payment of rent and if the default continued even after three months' notice had been given or if the lessee failed to pay the purchase price and get a sale deed executed in his favour, the lessor was entitled to call upon the lessee, by giving three months notice, to pay the purchase price and take a deed of sale in his favour. If the lessee failed to comply with the notice the lessor was entitled to take possession of the land along with the structures thereon. After taking possession the lessor was bound to sell the same by public auction at the cost and risk of the lessee. If at the auction, a price less than the stipulated price was fetched the lessee was bound to make good the deficiency to the lessor. If the price realised was more, the lessor was to pay the surplus to the lessee. The amount of Rs.32,277-14-0 paid by the lessee to the lessor as advance of one-fourth of the consideration was to be given credit to the lessee. Three peculiar features of the agreement were:(1) Though the lessor was entitled to obtain possession of the lands from the lessee on his committing default, she was not entitled to retain possession of the lands but was under an obligation to sell the lands by public auction, (2) the lessor was to be entitled to the original stipulated sale price of Rupees 1,29,111-8-0 neither more nor less, under any circumstances, and (3) the amount of Rs.32,227-14-0 which was paid by way of advance of one fourth of the consideration was never to be forfeited. Nor was it to be refunded to the lessee. It was to be given credit to the lessee even if he had defaulted in any respect.
(3.) On October 25, 1950 the lessor gave a notice to the lessee (when we use the expression lessee hereafter we include the successors in interest of the original lessee also within that term) demanding payment of rent for the year 1950-51 which was payable in advance but was in default. On March 7, 1951, the lessor gave a second notice to the lessee demanding payment of rent due for the years 1950-51, and 1951-52. The lessee was informed that if the rent demanded was not paid a suit would be instituted to recover possession of the property in terms of clause 15 and 17 of the deed and the property would be sold thereafter by public auction at the cost and risk of the lessee. On June 19, 1952, the lessor issued a third notice to the lessee demanding payment of rent for the three years 1950-51, 1951-52 and 1952-53 and also calling upon the lossee to pay the balance of price within three months from the date of receipt of the notice, and get a deed of sale executed and registered in his favaour. The lessee was further informed that if he failed to do so, a suit would be instituted to recover possession of the property and to sell it by public auction at the cost and risk of the lessee. Thereafter, on November 21, 1952, the lessor filed a suit in the Court of Small Cause at Ahmedabad to recover rent for the period from Jan 23, 1950 to Jan. 22, 1953. The plaint was, however, returned for presentation to the proper Court and it was then filed in the Court of the Civil Judge, Senior Division, Ahmedabad. The lessor with the permission of the Court, amended the plaint so as to include a claim for possession as well as damages in lieu of rent from Jan. 22, 1953 onwards. The present plaintiff, the successor-in-interest of the original lessee who was defendant No. 4 in the suit filed a written statement pleading that he was a tenant as defined by the Bombay Tenancy and Agricultural Lands Act 1948, that his possession could not be disturbed and that the Civil Court had no jurisdiction to pass a decree for possession or for mesne profits. This plea was based on the circumstances that an amendment which came into force on January 1, 1953 made the provisions of the Bombay Tenancy and Agricultural Lands Act applicable to the suit lands. We may also mention here that the Act ceased to be applicable to the suit lands on August 11, 1958, when the suit lands came to be included within the limits of the Ahmedabad Municipality. To continue the narration, the suit filed by the lessor for possession was decreed on December 30, 1955. It must be mentioned here that the lessee himself had filed a suit for possession against the tenant who was in actual occupation of the lands and obtained possession from him on April 30, 1955. The lessee filed an appeal to the High Court of Bombay which was dismissed on March 19, 1958 and a further appeal to the Supreme Court which was also dismissed on Mar. 8, 1965.;