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Narayan Ramchandra Patkar and ors. Vs. Gangadhar Keshav Musale - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 866 of 1953
Judge
Reported inAIR1955Bom175; (1954)56BOMLR893; ILR1954Bom1256
ActsTransfer of Property Act, 1882 - Sections 8 and 105; Tenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 4; Registration Act - Sections 17(1)
AppellantNarayan Ramchandra Patkar and ors.
RespondentGangadhar Keshav Musale
Appellant AdvocateB.N. Gokhale, Adv.
Respondent AdvocateM.G. Chitale, Adv.
Excerpt:
.....in decree but respondent gave up contentions on condition that he was to remain in possession of suit property for certain period upon payment of rent - held, construction placed upon decree by additional judge was good in law. - - 6. now, a lease' has been defined in section 105, transfer of property act as meaning a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. ' so, what is necessary to constitute a lease is that there must be a transfer of a right to enjoy such property...........between the parties on 25-2-1946. the compromise decree provides as follows:'the possession of the suit property, along with the cattle-shed of the appellant may be retained with the appellant up to the end of may 1950, on a condition to pay the rent of re. one a year. after the expiry of the said period, the appellant to give possession of the suit property to the plaintiff no. 2 after removing his cattle-shed. if the appellant fails to give possession of the suit land as above, the plaintiff no. 2 do take possession of the suit land, removing the cattle-shed therein at the cost of the appellant by executing the decree of this court. on this condition the appellant has left the contentions in his suit. the appellant do bear his costs of the two courts and pay that of the.....
Judgment:

1. This is a second appeal in execution, which raises a question of law, viz. whether the decree under execution requires registration. The circumstances giving rise to the darkhast out of which the appeal arises are shortly these:

2. On 15-12-1943, the appellants filed Suit No. 727 of 1943 against the respondent to recover possession of the property in suit, which is a field bearing Survey No. 2087, situate at Mouje Kutre in the Chiplun taluka of the Ratnagiri District. On 16-1-1945, the trial Court granted the appellants a decree for possession. From the decree made in the suit the respondent preferred an appeal in the District Court at Ratnagiri, and in the appeal there was a compromise between the parties on 25-2-1946. The compromise decree provides as follows:

'The possession of the suit property, along with the cattle-shed of the appellant may be retained with the appellant up to the end of May 1950, on a condition to pay the rent of Re. one a year. After the expiry of the said period, the appellant to give possession of the suit property to the plaintiff No. 2 after removing his cattle-shed. If the appellant fails to give possession of the suit land as above, the plaintiff No. 2 do take possession of the suit land, removing the cattle-shed therein at the cost of the appellant by executing the decree of this Court. On this condition the appellant has left the contentions in his suit. The appellant do bear his costs of the two Courts and pay that of the pliaintiff-respondents.''

3. Pursuant to the decree in appeal the appellants started execution proceedings against the respondent by Darkhast No. 40 of 1951 and a warrant for possession was issued against the respondent, who, in answer, appeared and applied by Exh. 7 contending that the case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and that he was not liable to be evicted.

4. The executing Court dismissed the appellant's darkhast, and this order was confirmed in appeal by the Assistant Judge, Ratnagiri. From the appellate decree the decree-holders have come up in second appeal.

5. Upon this appeal, Mr. B. N. Gokhale for the appellants contends that upon a true construction of the terms of the decree it should be held that the compromise decree did not create a lease in favour of the respondent. Now, the date of the decree is 25-2-1946, and under the decree the appellant was to continue in possession until the end of May 1950. If the decree creates a lease, the period mentioned in the decree is a period exceeding one year and it is not in dispute that in such a case, if the decree creates a . lease, it would be required to be registered, having regard to Section 17(1)(d), Registration Act.

6. Now, 'a lease' has been defined in Section 105, Transfer of Property Act as meaning

'a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.'

So, what is necessary to constitute a lease is that there must be a transfer of a right to enjoy such property. Mr. Gokhale says that under the terms of the decree no right to enjoy the property as such has been given to the respondent, and that if the respondent has not got a right to enjoy the property, then it is reasonable to say that what the decree created is not a lease but only a licence.

Now, in construing a document of the nature and description as in this case, one has to read the document, as a whole. It would not be right to lay emphasis on a part of the document and to ignore the other part. Mr. Gokhale also says that inasmuch as the appellant agreed to bear his costs of the two Courts, that is suggestive of the fact that what was intended to be created was hot a lease but a licence. He further points out that the suit giving rise to the decree was based upon the allegation that the respondent had denied the title of the appellants, and, therefore, the appellants had treated the respondent only as a trespasser, and so there was no question of treating the respondent as a tenant,

7. Mr. Chitale, on the other hand, says that in the decree, the expression used is 'rent', that the respondent had a right to remain in possession up to the end of May 1950, and that the respondent had given up the contentions in the suit on condition that he was to remain in possession until the end of May 1950, upon his paying the amount of rent to the appellants.

8. Now, documents of the nature and description such as the one in the present case are not always unambiguous. It is possible to emphasise certain recitals in a document and to conclude that the document creates only a licence and not a lease. On the other hand, it is also possible to rely upon some other contents of the document and to conclude that the document creates a lease and not a licence. What one has to do in such a case is to take the document as a whole in order to find out the intention of the parties and then to conclude as to whether on a true construction, the document creates a lease or only a licence.

In favour of the appellants is the circumstance that the opening language of the decree suggests that what was granted to the respondent was permission to occupy the suit land up to the end of May 1950. If, therefore, the intention was that it was only permissive possession, then one is at once met with a difficulty, because what follows id the circumstance in favour of the respondent, namely, that the respondent is to pay the amount as and by way of rent-Now, the expression 'rent' is intended to be used with reference to a tenant. The language of the decree shows that the respondent was to give possession of the suit property to plaintiff. No. 2 and the decree goes on to provide that the appellant accepted this position only upon his giving up the contentions in the suit. This suggests that if the respondent did not have a right to remain in possession and to enjoy the land as such, he would not have given up the contentions which he had raised in the suit. The decree concludes by reciting that the respondent was to bear the costs of both the Courts. This suggests, as is contended by Mr. Gokhale, that it was more by way of permission than by way of a right that the land was allowed to remain in the possession of the respondent.

Therefore, what I have to consider in this case is not whether certain part of the decree is favourable to support the contentions of the appellants or certain other part of the decree is favourable to support the contentions of the respondent. What I have to consider is whether upon reading the decree as a whole, the only reasonable inference is that, only a licence was intended to be created and not a lease. If that is the only reasonable inference, then Mr. Gokhale is obviously right. If, on the other hand, that inference does not reasonably arise, but the language of the decree when construed is capable of the construction that it was a lease which was intended to be created, then there is no question that this decree did create a lease and not a licence.

Looking to the decree as a whole, I am satisfied that this decree does create a lease, and not a licence. I am led to this conclusion not merely for the reason that the expression 'rent' is used in the decree, but for the reason that the respondent had raised certain contentions in appeal and he gave up those contentions on condition that he was to remain in possession of the suit property up to the end of May 1950 upon payment of rent. On the whole, I am satisfied that the construction placed upon the decree by the lower appellate Court is right.

9. The result is that this appeal fails and thesame will be dismissed with costs.

10. Appeal dismissed.


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