Ram Labhaya, J.
1. This is a Letters Patent appeal. It arises from a suit for a declaration of title to and possession of the land in suit.
2. The case of plaintiff-respondent was that she had jote settlement of the land through her son, Sri Nitva Mangal Chaudhury, from the Khajanchi Bari Zemindars of the Sylhet District. In 1347 B. S. she mortgaged the land to defendant No. 1, Katai Mia and Farjan Ali father of defendants 2 to 5 for a sum of Rs. 210/-. The mortgage was 'Khai Khalasi' viz, usufructuary. She asked the defendants to hand over the land to her as the mortgage stood extinguished by operation of law. They declined to hand over. Her suit was for recovery of possession without any payment of money.
3. The suit was resisted by defendants. The defence set up was that plaintiff had parted with all her interest in the property. Land in suit had been sold to Farjan Ali and to Katai Mia. The consideration for each sale was Rs. 100/-. Defendants had been in possession under the sales since then. They had been paying rent to the landlord. They denied that they came into possession as mortgagees.
4. The trial Judge found that the land had been sold by the plaintiff to the defendants. The suit was dismissed on that finding. On appeal the learned Judge found that there was no valid mortgage or sale of the property. Plaintiff therefore retained her interest in the property and as her suit was within twelve years from the date of her dispossession, she was entitled to succeed. The decree of the trial court was reversed and the suit decreed. The defendants appealed to this Court. The case was heard by my learned brother Deka J. before him it was argued that the very settlement on which the plaintiff based her case was invalid. There could be no oral settlement.
The settlement should have been by a registered deed in her favour. In the absence of a valid settlement she could not succeed. The second contention raised was that there was surrender of the land in favour of the landlord and that the defendants derived title from the landlord after that surrender. Both these contentions did not prevail and the appellate decision was upheld. The learned Judge allowed leave for a Letters Patent appeal on the ground that there was no Division Bench decision of this court on the question whether an oral settlement of agricultural land was possible in law.
5. The first point that arises for consideration in the case is whether the oral settlement in favour of the plaintiff was invalid. The Registration Act causes no difficulty. Section 17 of the Registration Act hits instruments and not transactions. It enumerates documents registration of which is compulsory. Instruments of gift, other non-testamentary instruments described in Clauses (b) and (c) of Section 17, leases of immoveable property from year to year, or for any term exceeding one year or reserving, a yearly rent, non-testamentary instruments transferring or assigning any decree or order of a court have to be registered.
If therefore there is a document of lease which falls within Clause (d) of Section 17 that instrument would require registration. But if a lease even from year to year or for any term exceeding one year reserving an yearly rent is created by an oral agreement between the parties, it is not hit by Section 17 or any other provision of the Registration Act. An oral lease or settlement of immoveable property would not be hit by the provision contained in the Registration Act in territories where the Transfer of Property Act is not in force. There are however provisions in the Transfer of Property Act which require certain transfers to be effected by registered instruments only. So far as leases are concerned, Section 107 of the Transfer of Property Act lays down that
'a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument,'
This is the provision which requires a registered document for reasons of the specified description. A registered instrument is necessary if the lease happens to be for a lease exceeding one year or it reserves a yearly rent or it is from year to year. Other leases of immoveable property can be made either by a registered instrument or by oral agreement accompanied by delivery of possession. It may be noticed that this section makes no distinction between agricultural land and other immoveable property. It applies to all immovable property. Agricultural land also would be within its scope.
Therefore whenever Section 107 is applicable, a lease from year to year or for any term exceeding one year, or when it reserves yearly rent, will have to be made by a registered instrument. By virtue of provisions contained in Section 117 the provisions of the Transfer of Property Act contained in Chapter V do not apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the official gazette declare all or any such provisions to be so applicable in the case of all or any such leases, together with, or subject to those of the local law, if any, for the time being in force.
The effect of Section 117 is that Section 107 of the Transfer of Property Act which requires a registered instrument for lease in certain cases, will not apply to leases of agricultural land unless the State Government by notification makes that provision applicable. There is not a suggestion that Section 107 has been applied to leases of agricultural land by the State Government in the exercise of its powers under Section 117, Transfer of Property Act. The result is that leases for agricultural purposes are exempt from the operation of Section 107 of the Transfer of Property Act and other provisions of Chapter V of this Act. An oral settlement of agricultural land would be perfectly valid if proved.
The contention that a registered deed is necessary for such a lease has got absolutely no force or validity. If the terms of a lease are reduced to writing the document would require registration if it falls within the scope of Section 17(1)(d). The learned judge of the Court (Deka J.) when dealing with this contention relied on two decisions reported in AIR 1936 Cal. 770 and AIR 1933 Mad 451 respectively. These decisions fully support his view. The learned counsel for the appellant before us has not been able to show that the view that prevailed with him is open to any objection. We entirely agree with him in the view that the settlement in favour of the plaintiff though oral was valid and that it was not hit by any provision contained in the Registration Act or the Transfer of Property Act.
6. It is not disputed that the usufructuary mortgage if any and the sale on which the defendants have relied would be invalid by reason of the fact that on admitted facts both the mortgage for Rs. 210/- and the two sales for Rs. 100/- each had to be effected by registered instruments under the provision contained in the Transfer of Property Act. These transactions were admittedly oral. The mortgage and the sales relied on by both the parties therefore are invalid and cannot be taken notice of or recognised. Plaintiff thus would be entitled to succeed as her right would remain notwithstanding the oral sale if proved.
7. Mr. Choudhuri has contended that not only there was a sale, the plaintiff also surrendered her right in the property to the landlord and it was from the landlord that the defendants derived their title to jote rights in the land. It was found on this point that the endorsement on the inner foil of the rent receipt Ext. 2 was by the husband of the plaintiff and this was not sufficient to terminate the rights of the plaintiff in the land. Besides it was not clear under what circumstances this endorsement was made. The learned Judge was not satisfied that there was necessary authority in the husband to make that endorsement.
In this connection he further observed that the receipt if genuine would demolish the case of sale set up by the defendants. It is difficult to subscribe to this observation. The endorsement as is apparent from the language used in it, was made in pursuance of the oral sale. It supports the version of the defendant so far as the oral sale is concerned. In fact this endorsement was made to give effect to the sale, which the defendants have set up. It is not antagonistic to the plea of sale. But the endorsement does not lend support to the contention now raised before us that a surrender of the tenancy to the landlord was a distinct and separate act.
8. It may be open to the defendants to plead that there was a sale in their favour and also to set up a plea in the alternative that there was surrender to the landlord. But the defendants' plea was that there was a sale & it is under the sale that they were in possession. The endorsement was referred to as evidencing the sale & something that came in consequence of that transaction. It is difficult to conceive that the plaintiff sold her rights in the tenancy to the defendants and then surrendered the land or the tenancy to the landlord. This is not possible. Having sold her rights she would have nothing to surrender. If on the other had she surrendered her rights in land there would be nothing to sell.
But the endorsement after sale would be necessary as it was a sale of non-occupancy rights and landlord's consent to it was necessary. At some stage therefore sale had to be notified to the landlord and he had to grant his recognition. This endorsement appears to have been brought into existence for obtaining landlord's recognition. The surrender in favour of the landlord was not an independent act. There was no such plea. Nor can it be said as observed by my brother Deka J; that the husband had any authority to surrender the tenancy on behalf of the plaintiff. This authority has not been proved. The appellants therefore cannot succeed on the basis of alleged surrender.
9. The learned counsel has also relied on Section 53A of the Transfer of Property Act. He has contended that there was a sale. The terms of the sale appeared in the endorsement. The defendants were in possession. Consideration had been paid and the only defect in the transaction was that there was no registered sale deed. All this is correct. But the case cannot be placed under Section 53A because there is no written contract of sale giving the terms of the transaction. The requirement of Section 53A is that a person should contract to transfer immovable property by writing signed by him or on his behalf. There was no such writing effected either by or on behalf of the plaintiff.
The endorsement is not a writing which embodies the contract of transfer. It was a mere statement to the landlord that the sale had taken place. It was a recital of an accomplished fact. It could not by any stretch of imagination be regarded as a contract between the parties. It is signed by the plaintiff's husband and the learned counsel may contend that it should be presumed that he signed it with authority on behalf of the plaintiff. But it is not possible for him to contend that the writing was a contract of transfer between the parties. The alleged authority of the husband is also not a matter of mere presumption. In these circumstances the application of Section 53A of the Transfer of Property Act also is not attracted.
10. It may be observed that both these pleas,
namely of surrender and of the application of Section 53A,
Transfer of Property Act were not specifically raised. Nor have they been dealt with or disposed of
by the courts below and may not have been considered in this court. In the result this appeal must
fail but in the peculiar circumstances of the case we
direct that parties shall bear their own costs through
Sarjoo Prosad, C.J.
11. I agree.