Ram Labhaya, J.
1. This appeal arises out of an ejectment suit. Plaintiffs' case was that the lease was for a period of five years. The period had expired. A notice to quit had been sent to the defendant. He was also a defaulter. The plaintiffs also asserted that the house was required by them bona fide for personal occupation. All these allegations were repudiated. The learned Munsiff found that the lease deed which was for five years was inoperative by reason of its failure to comply with the provisions contained in Section 107, Transfer of Property Act. He further found that plaintiffs had failed to substantiate their bona fide personal requirement in his view the defendant was not a defaulter.
The only point on which he found in plaintiffs' favour was that the notice sent by the plaintiffs to the defendant was valid in law. The learned Sub-Judge on appeal endorsed all the conclusions reached by the learned Munsiff, except that he found that the notice of ejectment sent by the plaintiffs did not conform to the requirements of Section 106, Transfer of Property Act. He affirmed the dismissal of the suit. The plaintiffs have come up on second appeal to this court. Their learned counsel has argued that
(1) in the circumstances of the case no notice of ejectment was necessary,
(2) in any case a valid notice of ejectment had been served,
(3) plaintiffs had succeeded in establishing their bona fide requirement of the house for personal occupation and that defendant was a defaulter. It is admitted that the lease deed which was executed by the defendant in favour of the plaintiffs was for a period of five years. It was executed on 25th of Chait.
The period of five years ended on 13th April 1945. The suit out of which this appeal arises was instituted on 25th November, 1950, few months' after the expiry of the period of five years. The courts below have concurrently found the lease inoperative. They have held that the document could not be enforced as a lease for five years. A monthly tenancy came into existence by operation of law. Mr. Lahiri contends that even though the lease deed was not signed by the plaintiff landlords it still was operative under the Registration Act. The document was not wholly void or invalid and though parties may not have the rights and the liabilities of the lessor and the lessee as provided for in the Transfer of Property Act, the document of lease was otherwise enforceable.
2. Section 107 of the Transfer of Property Act provides the method and the manner for the making of the lease. It 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. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.' This section further provides that 'where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.' It is not disputed that this requirement has not been fulfilled. The plaintiffs admittedly did not sign the document though it was registered and was for a term of five years. Under the Registration Act therefore the document would certainly be valid. But it is obvious that it is not a lease deed for purposes of Section 107, Transfer of Property Act. Mr. Lahiri argues that it still can be taken as a lease for five years.
If this Contention is correct the specific requirement of Section 107 that a registered lease shall be signed by both the parties would become absolutely nugatory, there would be no need for compliance with this particular requirement and even if one of the parties had not signed it, the document and particularly the terms providing the period of the lease would be enforced. This interpretation of Section 107 would reduce the provisions of Section 107 making signatures of both the parties necessary a dead letter and effect would not be given to them. This could not have been intended. A lease where the Transfer of Property Act is in force can be made only in the manner laid down under Section 107 and where that method or manner has not been completely followed, there is no operative lease for purposes of the Transfer of Property Act.
This Act applies to Assam and therefore it cannot be argued with any force or reason that notwithstanding the failure of the parties to comply with the requirement of Section 107, it is still a lease, the fixed duration of which is an enforceable term. The document may be valid for purposes of Registration Act but the Transfer of Property Act super-imposes a further requirement and would not recognise it as a lease unless it conforms to its requirement. The question came up for consideration before their Lordships of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 S. C. 23. In this case defendant executed a registered Kabuliyat dated 8th December 1924 in favour of the Receiver who was in charge of the plaintiff's estate by which he purported to take a settlement of land in suit for building purposes for a period of ten years at an annual rent.
The first payment of annual rent was made on 8-3-1925 and the second payment on 16-3-1926. After that no payments were made. Their Lordships formulated the question thus :
'The Kabuliyat not being an operative document under Section 107, T. P. Act the question was whether the tenancy created by implication of law was a monthly tenancy under Section 106, T. P. Act'
and they gave the answer in the following terms : 'The tenancy created by implication of law in favour of the defendant should be held to be from month to month since its inception in 1924. The tenancy not being for manufacturing or agricultural purposes it could be regarded as a tenancy from month to month under Section 106, unless there was a contract to the contrary. The stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year but being contained in an inoperative document could not come in the way of raising a presumption under Section 106.' It is clear from this decision that where a lease is inoperative, the defect attaches to it from its very inception. A lease of five years was invalid and inoperative. The tenancy that was created by legal implication would only be a monthly tenancy under Section 106 as the lease in this case was admittedly for residential purposes and not for purposes of manufacture or agriculture.
Mr. Lahiri has not been able to cite any direct authority bearing on the construction of Section 107 or the effect of non-compliance with its positive and mandatory requirement regarding the signature of the parties to a lease. He has however referred us to two decisions of the Allahabad High Court. The first of these is reported in Ganga Sahai v. Badrul Islam, AIR 1942 All 330. In this case a Kirayanama was executed by the tenant who agreed to take a plot of land from the landlord for the purpose of constructing a Katcha house on it and to live in it as a raiyat.
It was agreed that whenever the landlord wanted, he could get the land vacated. It was held that the Kirayanama could not operate as a lease. But it was perfectly legal and having been executed by the tenant he was bound by the terms thereof unless he was able to prove fraud or coercion. The suit was resisted by the defendant on the allegation that he was given a permanent right of occupation in the disputed plot by the former zamindar and a large sum of money had been spent by him in erecting a house upon it and that the suit was in any event barred by Section 60, Easements Act. It would seem that the defendant claimed permanent rights against the terms of the document by which he came to occupy the land. The document was utilised in point of fact for a collateral purpose.
Its use was made for determining the nature of his occupation. It was expressly held that it could not operate as a lease. The plaintiff however was held entitled to ask for possession and the claim about permanent rights made by the defendant was negatived by reason of the terms of the document In Maqbool Ahmad v. Debi, AIR 1949 All. 455 it was held that
'a mere rent note or a qabuliat does not amount to a lease. A person executing the rent note is, however, bound by its terms as a matter of his undertaking although the other party who has not signed the document would not be bound by them'.
Even in this case the use of the document was for A collateral purpose. The defence in this case was that the predecessor in interest of the plaintiffs was the owner of the site and he was not the owner of the houses which had really been built by defendants. Mushtaq Ahmad J., observed as follows :
'It was true, as contended by the learned counsel for the defendants, that a mere rent note or a qabuliat does not amount to a lease within the meaning of Section 105, T. P. Act. It was so held among others in the case of Nand Lal v. Hannuman Das, ILR 26 All. 368. But this alone does not decide the controversy in this case. The defendants having been found to have executed the rent note of 31st December, 1934 on the terms embodied therein they would be bound by those terms, although the landlord who had not signed the document, would not be bound by them. Their possession in its inception was permissive and it retained that character throughout the period that they held it under their agreement with the landlord.'
It is clear that the use of the document was made again for the limited purpose of determining the circumstances under which possession was taken. For such a collateral purpose the document could be used but the terms could not be enforced against the landlord. Even here the document may be used for showing that defendant came to occupy the property as a tenant. But the term of five years is not enforceable. The two authorities relied on by Mr. Lahiri do not support his contention. In fact in both the cases it was held that the documents were inoperative as leases.
Assuming however that there is something in these decisions which may possibly support the contention raised on behalf of plaintiff-appellants, the decisions to that extent would be obsolete in view of the obvious conflict between them and the Supreme Court decision of 1952 (AIR 1952 S. C. 23) which settles the law on the point. In these circumstances there is no getting away from the position that plaintiffs cannot urge that there was a lease for five years and that it terminated when the term of five years expired. In fact no lease for five years came into existence in legal contemplation. The tenancy from the beginning was a monthly tenancy under Section 106. It came into existence by implication of law.
3. The next question that has been argued is that the notice sent by the plaintiffs to the defendant satisfies the requirement of Section 106, Transfer of Property Act and therefore even if the tenancy was a monthly one it was terminated by a valid notice. It is not necessary for us to give any decision on this point. For, the view that we take of the two succeeding contentions makes it unnecessary for us to pronounce on this point.
4. The third question is whether the plaintiffs succeeded in substantiating their allegation that they bona fide required the house for their own occupation. On this point again the concurrent finding of the courts below is against the plaintiffs. The learned Sub-Judge observed that from the evidence on the record it would appear that the plaintiffs failed to make out a case in this behalf and the learned Munsiff was justified in deciding the question against the plaintiffs. The learned Munsiff has given reasons for coming to this conclusion under issue No. 7. He observed that plaintiffs had no business in Silchar town.
He meant that they never had any business at Silchar and he could not accept their version that they now intended to start a new business when in fact they had migrated to Pakistan. They were not even living in Silchar. The facts stated by the learned Munsiff have not been disputed. Mr. Lahiri has merely argued that the learned Judge of the appellate court did not discuss evidence & merely affirmed the finding. But there was not really much to discuss. Facts were in a very narrow compass and he referred to the argument addressed and the conclusion.
In the circumstances we have no reason to think that the conclusion arrived at was erroneous though considering the concurrent character of this finding of fact it would be binding on the parties even if erroneous as Mr. Lahiri has not been able successfully to assail its validity on any ground which would be valid under Section 100 of the Civil Procedure Code. He has not been able to challenge it on the ground that any error of law or procedure vitiates the finding.
5. The last question is whether the defendant was a defaulter. The defence set up in this connection was that plaintiffs were living in Pakistan and the rent was being collected by them when they came to Silchar once in three or four months. The condition of the written agreement between the parties was that the rent would be payable monthly, though no date was fixed for payment. The condition is of an inoperative lease. It has been found as a fact by the lower appellate court that the arrangement for the collection of rent was that plaintiffs visited Silchar and collected it whenever it was convenient to them. It used to be once in three or four months.
Therefore if rent was paid for three or four months it could not have been said that defendant was committing default. Actually the payment could be made only when the plaintiffs came to collect it. It was not possible for the defendant to remit rent to Pakistan to the plaintiffs. They had made no local arrangement for collection of the rent there. It could be paid only when they came. But as the plaintiffs wanted to evict the defendant, they did not come to realise the rent after the expiry of the term of five years. They thought they were entitled to evict and did not collect the rent.
A notice had been sent by plaintiffs to the defendant even before the expiry of five years intimating that he should vacate the house when the term of five years expired. Defendant thus was aware of the plaintiffs' intention and therefore he was more anxious than before, to pay rent. He tried to pay it when he learnt that one of the plaintiffs was at Gauhati. The rent was sent by money order. It was not received. It was then deposited in court. Mr. Lahiri has argued that even this deposit was not within fifteen days of the succeeding month and at least so far as rent for one month was concerned this deposit would not save the defendant from being guilty of default.
This argument however ignores the arrangement between the parties. The arrangement was that rent would be received by the plaintiffs when they came according to their convenience to collect it at Silchar. If therefore plaintiffs did not come to collect it and did not demand it even if the rent had not been deposited as was done it would not be a case of default. There would be no deviation from the arrangement subsisting between the parties for the payment of rent. We think that plaintiffs have failed to make out that the defendant was a defaulter. The finding is not open to any objection in law. The result of the foregoing discussion is that this appeal must fail and is dismissed with costs.
Sarjoo Prosad, C.J.
6. I agree.