DOSSIBAI NANABHOY JEEJEEBHOY Vs. P.M. BHARUCHA

JUDGEMENT

(1.) HIS Lordship, after setting out the facts, proceeded : The dispute about apportionment between the three claimants has now to be decided. The learned trial Judge held, that the first and the second claimants were entitled to share the amount of compensation and the third claimant was not entitled to share therein. We will presently deal with the method followed by the learned trial Judge and the principles enunciated by him for apportioning the amount of compensation. But before we deal with the question of apportionment it may be necessary to refer to certain preliminary contentions raised on behalf of the first claimant. The first claimant claimed the entire amount of compensation to the exclusion of claimant No. 2 and claimant No. 3. It was urged that the entire interest in the lands as a holder thereof was vested in the first claimant and even though the first claimant had entered into two agreements to lease out the land to the nominee of the second claimant, by the mere agreements the second claimant acquired no interest in the lands under acquisition and accordingly the second claimant could not claim a share in the compensation. It was further urged that the third claimant was claiming a derivative interest, if any, from the second claimant, and if the second claimant was not entitled to any share in the compensation, the third claimant also was not entitled to any compensation.

(2.) IN order to appreciate this argument it may be necessary to determine the legal relation between the parties on October 1, 1947, the date on which the notification for acquisition under Section 4 of the Land Acquisition Act was issued. Under the agreements, dated June 2, 1947, and June 12, 1947, respectively, exhs. 324 and 325, the first claimant had put the second claimant in possession of the lands agreed to be demisd by her, and in pursuance of the agreements claimant No. 2 was in occupation of some of the lands, and the remaining lands were in the occupation of the third claimant under agreements exhs. 326, 327 and 328. It is undisputed that the second claimant had paid the rent which was agreed to be paid by him, and the second claimant was ready and willing to carry out his part of the contract. Claimant No. 2 was, therefore, entitled to claim the benefit of part performance under Section 53A of the Transfer of Property Act and also to claim specific performance of the agreement to lease the lands in the event of the first claimant being unwilling to cary out her part of the contract. It may also be noted that on the date of the notification the first claimant was ready and willing to execute a conveyance on the terms agreed upon and the second claimant was ready and willing to take a conveyance from the first claimant. Again, there is no dispute that the third claimant remained in occupation under an agreement of lease from the second claimant. The third claimant was ready and willing to carry out its part of the contract and the second claimant was also willing to carry out his part of the contract. The third claimant was, therefore, entitled to the benefit of part performance under Section 53A of the Transfer of Property Act and also to obtain specific performance against the second claimant in the event of the second claimant being unwilling to carry out his part of the contract. It is evident that as against the first claimant the second claimant had possession of the lands agreed to be demised and that he was entitled to hold possession of the lands and the first claimant was debarred from enforcing against the second claimant and persons claiming under him any right in respect of the lands agreed to be demised other than the right expressly provided by the terms of the agreement. Similarly, as against the second claimant the third claimant was also entitled to hold possession. If the first claimant, relying upon her title, sought to obtain possession of the lands agreed to be demised to the second claimant, the latter could effectively resist the claim made by the first claimant except a claim arising out of any express terms of the agreement. Even though, therefore, the second claimant had not acquired the interest of a tenant, there being no registered lease, he was entitled to remain in possession as if he had obtained a lease in his favour. Similarly, as against the second claimant, the third claimant had a right to remain in possession as if it had obtained a lease.

(3.) IT was also urged by Mr. Gupte that the second claimant had not transferred the benefit of the contract which he had entered into with the first claimant, and there being covenants under the agreements of lease not to sub -let or assign the demised premises or any part thereof without the consent in writing of the lessor, the occupation by the third claimant could not be regarded as an authorized occupation. As a corollary, it was urged that the second claimant was not in actual possession and the third claimant had no right to remain in possession and, therefore, neither the second claimant nor the third claimant was entitled to claim the benefit of Section 53A of the Transfer of Property Act or even to obtain specific performance of the agreements against the first claimant. It may, however, be noted that Section 53A not only protects the transferee but all persons claiming under him, and the possession of the third claimant must be regarded as possession of a person claiming under the second claimant. In any event, the restrictive clauses, for instance in para. 6(j) in exh. 324 and in Clause 1 of exh. 325 read with para. 6(j) of exh. 324 are only intended to become operative after the lease is executed and not before.