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Hormasji Jamshedji Ginwalla Vs. Maneklal Mansukhbhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 717 of 1940
Judge
Reported inAIR1944Bom105; (1943)45BOMLR1010
AppellantHormasji Jamshedji Ginwalla
RespondentManeklal Mansukhbhai
Excerpt:
.....to permanent lease of lands from talukdari settlement officer-claim not based on any registered lease-government resolution sanctioning such lease and referring to correspondence relating to it whether evidence of contract.;under section 53a of the transfer of property act, 1882, the contract, which is required to be reduced to writing and signed, must be proved by primary or secondary evidence and its terms must be determined from the contract itself and not from what purports to be its quotation in another document.;mg. ohn v. mg. po kwe [1938] a.i.r. ran. 356, followed.;banerji v. kuchwar lime & stone company : kalyanpur lime works, limited v. kuchwar lime & stone company (1941) 44 bom. l.r. 324 and ariff v. jadunath majumdar (1931) l.r. 58 i.a. 91 : s.c. 33 bom. l.r. 913,..........resolution is an order of the government dated september 5, 1917, that the arrangement made by the talukdari settlement officer was sanctioned and that arrangement can be gathered from the correspondence referred to in the resolution. the correspondence in point of time begins with a copy of the contents of an order passed by the talukdari settlement officer on the application of manilal maganlal, the predecessor-in-title of the defendant, on december 9, 1916. thereafter there are quotations from a letter by the talukdari settlement officer on july 12, 1917. that letter is presumably addressed to the commissioner of northern division. along with that letter there are summaries of the undertakings given by manilal maganlal to the talukdari settlement officer, and finally there is the.....
Judgment:

Divatia, J.

1. [His Lordship after stating facts and dealing with questions of fact arising in the case proceeded] : Coming to the merits of the case, the defendant must prove that he is a permanent tenant as he has admittedly paid rent to the plaintiff. It is admitted on his behalf that there is no registered lease in favour of his predecessor-in-title. Under Section 107 of the Transfer of Property Act a lease of the suit lands could only be made by a registered document, and unless the lease was registered, he cannot be regarded as holding the land as a lessee. It is also clear that although the defendant might have been put in possession of the estate under an agreement to lease, the doctrine of part performance would not apply to such possession as has been held by their Lordships of the Privy Council in Ariff v. Jadunath Majumdar . The defendant, however, relies upon Section 53A of the Transfer of Property Act and contends, as he did in the lower Court, that he cannot be evicted from the suit lands because his possession satisfies all the ingredients of that section. There is no doubt that if those ingredients are satisfied, the defendant's claim to hold the lands must be upheld because Section 53A which was enacted in 1929 has been held to be retrospective in its operation. The question, therefore, is whether the provisions of Section 53A are satisfied in the present case. Those provisions are that a person must have contracted to transfer for consideration immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; and, secondly, the transferee must have, in part performance of the contract, taken possession of the property and has performed or is willing to perform his part of the contract. In the present case the only document on which the defendant relies for satisfying all the conditions of this section is a Government Resolution which is exhibit 181. This Resolution is an order of the Government dated September 5, 1917, that the arrangement made by the Talukdari Settlement Officer was sanctioned and that arrangement can be gathered from the correspondence referred to in the Resolution. The correspondence in point of time begins with a copy of the contents of an order passed by the Talukdari Settlement Officer on the application of Manilal Maganlal, the predecessor-in-title of the defendant, on December 9, 1916. Thereafter there are quotations from a letter by the Talukdari Settlement Officer on July 12, 1917. That letter is presumably addressed to the Commissioner of Northern Division. Along with that letter there are summaries of the undertakings given by Manilal Maganlal to the Talukdari Settlement Officer, and finally there is the recommendation of that Officer that the arrangement of the lease which he had entered into with Manilal Maganlal should be sanctioned. The Commissioner recommended this arrangement to the Government which ultimately sanctioned it. The substance of the correspondence is to the effect that the three survey Nos. 223, 225 and 226 were leased for a period of fifty years to Manilal Maganlal for the purpose of erecting a ginning factory on an annual rental of Rs. 290, that survey No. 226 was an alienated Vechania number and so long as the present tenure of the land continued the estate would have got nothing out of this number. Then it is stated that in anticipation of Government sanction the Talukdari Settlement Officer had permitted Manilal to enter upon the land and he now sought the sanction of the Government for that arrangement, On December 9, 1916, Manilal had agreed to take the three survey numbers on a total payment of Rs. 290.

2. Now, this correspondence cannot be regarded as primary evidence of the contract itself. The learned Judge seems to be of the opinion that all that was required under Section 53A was proof that there was a contract to transfer for consideration which must have been signed by or on behalf of the transferor, and that this Government Resolution shows that the Talukdari Settlement Officer must have written a letter to the Government under his signature recommending the giving of the lease to Manilal, and therefore the requisite contract was proved. But that cannot in any way satisfy the provisions of the section. The original letter, which the Talukdari Settlement Officer might have written to the Government, is not in evidence nor is the letter written by Manilal Maganlal to the Talukdari Settlement Officer. It is merely an inference that some letter might have been addressed by the Talukdari Settlement Officer either to the Commissioner or to the Government. The Government Resolution cannot be regarded, nor has it been tendered in evidence, as secondary evidence of the contract, and it is difficult to see how such a summary of the arrangement for which sanction had been asked for by the Talukdari Settlement Officer from the Government can be regarded as proof of the contract itself within the meaning of Section 53A. It may be noted further that the Government Resolution itself indicates that a regular document of the lease was to be executed and subsequently registered. There is no such document on the record, nor is there any evidence as to why it was not executed. If a contract requires to be reduced to writing and signed, it itself must be proved by primary or secondary evidence and its terms must be determined from the contract itself and not from what purports to be its quotation in another document. In Mg. Ohn v. Mg. Po Kwe A.I.R. [1938] Ran. 356 a distinction has been made between a writing which is a reduction into writing of a previous oral agreement, which would fall within the provisions of Section 53A, and a writing in which there is a mere reference to a previous oral agreement. It is held that the latter kind of writing is no evidence of the contract or an agreement within the meaning of Section 53A. We are also of the same opinion. Mr. Coyajee on behalf of the plaintiff has relied on a decision of their Lordships of the Privy Council in Banerji v. Kuchwar Lime & Stone Company : Kalyanpur Lime Works, Limited v. Kuchwar Lime & Stone Company : (1942)44BOMLR324 wherein there are some observations to the effect that it was doubtful whether Section 53A of the Transfer of Property Act would apply to a lease, and it is contended relying upon that decision that a lease is not a transfer of immoveable property but it is only a transfer of a partial interest in immoveable property and that a transfer of a partial interest would not fall under Section 53A. We do not think it necessary to decide whether if there had been a signed contract by the transferor in the present case, it would have fallen under Section 53A, because, in our opinion,, the correspondence which is summarized in the Government Resolution cannot be regarded as evidence of the contract, and, secondly, the terms of the contract also cannot be deduced from this correspondence with any reasonable certainty. We, therefore, hold that the Government Resolution on which the defendant relies is no evidence of a contract in writing referred to in Section 53A of the Transfer of Property Act, and apart from that the defendant has no legal basis on which he can claim to hold the land either as a permanent lessee or for a particular period. [After dealing with other points, the judgment concluded as follows] :

3. As a result, therefore, the appeal is allowed with respect to survey Nos. 223 and 225, and it is dismissed with respect to survey Nos. 222 and 226. There will be a decree in the plaintiff's favour for vacant possession in respect of survey Nos. 223 and 225 after the superstructures are removed within three months from today or within one month from the receipt of the record by the trial Court whichever is earlier. The plaintiff would continue to receive what it has been getting in respect of survey No. 226. The plaintiff would be entitled to mesne profits with respect to survey Nos. 223 and 225 from the date of suit till the date of possession. Mesne profits to be ascertained under Order XX, Rule 12, Clause (c), of the Civil Procedure Code. Each party should bear its own costs throughout.


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