9911796707
TMI Blog1973 (8) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... after the abolition of the Delhi Improvement Trust in 1957, to the Delhi Development Authority under Section 60 of the Delhi Development Act of 1957. The plaintiff also claimed refund of ₹ 5,935.25 ps. which had been retrospectively demanded and realised from him as arrears of enhanced rent from 1.1.52to 30.6.63 after issuing a warrant of arrest dated 2.6.64 against him. Furthermore, the Plaintiff prayed for an injunction to restrain the: appellant, acting on behalf of the lessor, from realising an annual rent in excess of ₹ 365/- for the duration of the lease claimed to be for 90 years. The defendant-appellant pleaded, inter-alia, that the suit was barred by the provisions of-Sec. A53(B)(2) of the Delhi Development Act. Want of notice under Sec. 80 C.P.C., upon the Union of India, a co-defendant, was also pleaded. These questions were decided against the defendants by a learned judge of the Delhi High Court, who tried the case and dismissed the suit on merits, as well as by the Division Bench which had allowed the plaintiff's appeal and decreed by the suit on merits. Questions decided against the defendants at both stages in the Delhi High Court are not before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defective drafting of the lease deed which failed to bring out whatever may have been the real intention, was that they could not get out of the categorical statement in the, lease deed of 17-9-31 that it was- for a total period of 90 years at ₹ 365 per annum. Hence, the defendants admitted this to be correct. But, immediately thereafter, the defendants were faced with the problem that a natural interpretation of covenant 9 of the lease deed, dealing with both with the enhancement and renewal of the lease, laid down that the renewal was to take place only 'at the end of the term hereby granted (i.e. 90 years), and covenant 10 made it clear that the right of enhancement could be exercised, as is naturally to be expected, only when the lease is; renewed. Hence, to meet this difficulty, the defendants, immediately after admitting that the lease was for a period of 90 years, asserted, in paragraph 12 of replies on merits in the written statement, that it was, subject to renewal of the lease at the enhanced rate as provided under the lease . In other words, the renewals were also covered by the initial period of ninety years; but, this makes no sense according to law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annual rent of ₹ 365/- was subject to a periodic increase of rent within this initial period of 90 years, the grantor could have easily said so and would have done it. We all know that, in such cases, a grantee has little choice if he really wants to obtain a lease. The terms and conditions are really laid down by the grantor, which is the Sovereign or the State in such cases, and these terms are generally of a uniform type. If the language adopted in granting the lease is defective, so as to fail to bring out the real intention of the grantor, whatever that intention may have been, the grantee cannot be made to suffer for the defect. Before actually dealing with the principles of construction involved, we will set out the relevant terms of the lease deed so as to indicate what the grantor did here. The operative part of the deed containing the words of demise reads as follows : Now this indenture witnesseth that in consideration of the rent hereinafter reserved and of the covenants on the part of the said Lessee hereinafter contained the said Lessor does hereby demise unto the said Lessee all that plot of land containing by measurement 5444 square yards situated at A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of years as shall be granted, execute to the Lessee a new Lease of the promises hereby demised by way of renewal for a further term as follows:-- (a) At the first renewal .. Twenty years. (b) At the second renewal .. Twenty years. (c) At the third renewal .. Thirty years. Provided always that each such renewed term of years as- shall be granted shall not with the original term of the years and any previous renewals exceed in the aggregate the period of ninety years. 10.The rent of the said premises hereby demised is hereby expressly made subject to enchancement on the second renewal shall not exceed one hundred per cent of that reserved at the first renewal. Leases renewed for the third period provided for in the last preceding clause may be granted at the, then prevailing market rate of rents for building land in the vicinity. The appellant's contention is that the proviso to covenant No. 9 makes the enchancement clause operative within the admitted period of the lease of 90 Years because the original term mentioned there not only stands for the initial 90 years but also includes the periods of renewals within it. It is pointed out that the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole, it would be incorrect to say that the appellant's interpretation involves that the plaintiff becomes a tenant holding over after the first 20 years. The last mentioned argument conflicts with the earlier argument that the lease is renewable after 20 years. Reliance was also placed on a judgment of a learned Judge of the Delhi High Court interpreting a similar lease in the same manner as the lease before us was interpreted by the learned Judge who tried the plaintiff's suit. After having considered all the arguments advanced on behalf of the defendant-appellant, we are quite unconvinced that covenant 9 could apply before the termination of the initial period of 90 years. it is by reading the lease deed as a whole that we find it impossible to concur with a view based upon the decisive effect to be given to a few words in the proviso, to, covenant 9 torn away from the context of the deed read as a whole. We think that convenant No. 9 operates only at the end of the terms of 90 years because it says so. The problem of interpreting the proviso was solved by the Division Bench largely by giving the word with , used in it, one of its several meanings given in the, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rest of the covenant as well as from all other parts of the deed is that it would, if that were done, override not merely the words of demise, giving the duration of the initial lease as 90 years, but would also conflict with the contents of covenant 9 itself. As we have said earlier this covenant clearly says that it will operate only at the end of the first 90 years. If, according to covenant No. 9 itself, the provisions relating to the renewal of the lease and enhancement of rent are to come into effect only at the end of ninety years' grant, how can we shorten it, without ignoring the most essential part of the lease, and give effect to some merely presumed or guessed intention in such way as to override the plain meaning of the language used? Nothing in the proviso to onvenant 9 could reasonably be used to destroy the meaning of the unambiguous opening words of the covenant showing that the whole covenant is meant to operate only at the end of the term hereby granted (i.e. after 90 years). Both sides have relied upon certain passages in Odgers' Construction of Deeds and Statutes (5th ed. 1967). There (at pages 28-29), the First General Rule of Interpretation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on : Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Rao Dhabel Deo [1960] 3 S. C. R. 604 at p. 611; Ramkishore Lal v. Kamal Narian [1963] Supp. 2 S. C. R. v. 417 at p. 425; Forbes v. Git [1922] 1 A. C. p. 256 at r. 259. He also relied on Smt. Bina Das Gupta and Others v. Sachindra Mohan Das Gunta A.I.R. 1968 S. C. p. 39 at p. 42, where the following statement of law in Stavill Eros., Ltd. v. Bethell [1902]-2 Ch. np. 523 at pp. 537-538, by Sterling L.J., was cited with approval by this Court It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the garntor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be, bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails. We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction one of which is found stated in Smt. Bina Das Gupta's case (supra). We may also cite here Raja Rajendira Chand v. Simt.Sukhi A. T. R. 1957 S. C. p. 286 where it was pointed out that the English rule a grant should be construed most favourably to the Sovereign was subject to the exception that, in cases of grants made for valuable consideration, as is the position in the lease before us, the Sovereign's honour must take precedence over the Sovereign's profit. This Court said (at page 292) there : It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the Sovereign authority : and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of these relaxations as have a bearing on the construction of the document before us; thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect not withstanding qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, intended for the payment of development and betterment charges for building according to a plan sanctioned by the Improvement Trust. But, the document gives the history, of the lease from 1931, and, in paragraph 0 of the agreement goes on to provide : In spite of this agreement, the parties hereto shall '-have the same rights as heretofore under the aforesaid lease dated the 17th September, 1931. The plaintiff-respondent had, in paragraph 4 of the plaint, laid defendants who bad accepted consideration and an yearly rent at ₹ 3651- per annum without enhancement until after Ex. P4 was executed in 1955. No mention of any liability to pay enhanced rent is found in the deed of 1955. it was only in June, 1962, that somebody in the appellant's office seems to have suddenly thought of taking advantage of the ambiguous proviso on behalf of defendant appellant so that an enhancement of annual lent from ₹ 365,/- to ₹ 730/. with retrospective effect from 1-4-51 was demanded. This amount was paid by the respondent under protest and after a warrant of arrest had been issued against him. As the plaintiff had not' relied upon an estoppel even though f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
