Skip to content


S. Hassan Sait Vs. K.P. Mirchandani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 94 of 1949-50
Judge
Reported inAIR1951Kant24; AIR1951Mys24
ActsTransfer of Property Act, 1882 - Sections 105 and 107; Registration Act, 1908 - Sections 49
AppellantS. Hassan Sait
RespondentK.P. Mirchandani
Advocates:Nittoor Srinivasa Rao, Adv.
Excerpt:
.....raised for first time in appeal held, the same includes both question of fact and law and the said question cannot be decided without bearing in mind facts and circumstances without framing any issue, and permitting parties to adduce evidence. - the lease in this case, reading as it does, amounts to no better than a karar or agreement undertaking to pay rs. act, provides that a lease of immovable property is a transfer of a right to enjoy such property for consideration to be paid to the transferor by the transferee who accepts the transfer on such terms. act, there being no transferor nor a transfer of a right to enjoy the property. the essential feature of a lease is that it is a transfer of a right to enjoy immovable property, it would, therefore, follow that the transfer can..........executed by the party who takes the property for use and occupation. the deed is either termed as rent-deed, rent-chit, kirayanama, kabuliat or karar. the lease in this case, reading as it does, amounts to no better than a karar or agreement undertaking to pay rs. 150 for use and occupation of the house. section 105, t. p. act, provides that a lease of immovable property is a transfer of a right to enjoy such property for consideration to be paid to the transferor by the transferee who accepts the transfer on such terms. there is in transfer of immovable property in this case nor is the transferor a party to the document. 3. whether such unilateral agreements bind all the persons coming under the purview of the chapter on lease of immovable property and should be deemed a lease as.....
Judgment:
ORDER

Balakrishnaiya, J.

1. This revision petition arises out of S. C. S. no. 252 of 1948-49 before the District Judge, Civil Station, Bangalore. The petitioner-plaintiff filed a suit for the recovery of Rs. 150 being the rent due for the month of January 1949 on the foot of a written agreement which was filed into Court. The defendant raised a plea that the suit-claim was not enforceable as the written lease was not registered. He also pleaded discharge of the suit claim. When the case came up for evidence the plaintiff sought to amend the plaint by adding a plea that the suit must be deemed to have been based on an oral agreement accompanied by delivery of possession. The amendment was also refused on the ground that the suit for rent cannot be converted into one for use and occupation. The trial Court applying Section 107, T. P. Act, held that the claim on the foot of an unregistered deed is not sustainable. This revision petition is preferred against that order.

2. The learned trial Judge has misdirected himself in applying Section 107, T. P. Act, in the circumstances of the case. The suit agreement runs thus:

'I the undersigned agree to occupy your bungalow ...... from 1-8-1948 for eleven months at a monthly rent of rupees one hundred and fifty (Rs. 150).

I agree to pay the same rent always in advance on or about the 1st day of every month.'

The lease is for 11 months. Section 107, T. P. Act, is applicable only to leases of immovable property from year to year or for any term exceeding one year. The present lease being neither, Section 107 cannot be invoked. The chapter on lease of immovable property codified in the Transfer of Property Act is based on the rules of English law and is not in consonance with the existing practice in India. It is found in practice in India that the agreement of leases is almost invariably executed by the party who takes the property for use and occupation. The deed is either termed as rent-deed, rent-chit, kirayanama, kabuliat or karar. The lease in this case, reading as it does, amounts to no better than a karar or agreement undertaking to pay Rs. 150 for use and occupation of the house. Section 105, T. P. Act, provides that a lease of immovable property is a transfer of a right to enjoy such property for consideration to be paid to the transferor by the transferee who accepts the transfer on such terms. There is in transfer of immovable property in this case nor is the transferor a party to the document.

3. Whether such unilateral agreements bind all the persons coming under the purview of the chapter on lease of immovable property and should be deemed a lease as defined in Section 105, T. P. Act, has been the subject-matter of a number of decisions in India, There was undoubtedly conflict of opinion before the Amending Act of 1929. But subsequent to the amendment the majority view has been that such agreements do not come under or are governed by Section 105, T. P. Act. The interpretation of a similar document came before this Court for consideration is the year 1926 (33 Mys. C. C. R. 26) where a suit was based on a document styled as 'kayam geni karar' for recovery of paddy or its value. It was held following Ahadi Begam v. Asa Ram, 2 ALL. 162, that the document was not a deed of lease of immovable property as defined in Section 105, T. P. Act, there being no transferor nor a transfer of a right to enjoy the property. The Allahabad High Court has been consistent in its opinion from the very beginning and in fact the Amendment Act of 1929 was in consonance with the view that was taken by the Allahabad High Court which was followed in Mysore. In a very recent case, the Allahabad High Court has affirmed its view in Maqbool Ahmad v. Debi A. I. R. (36) 1949 ALL. 455, and the head-note runs as follows :

'A more rent note or a kabuliat does not amount to a lease, The person executing the rent note is, however, hound 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.'

It is also held by the Nagpur High Court in a case reported in Tulsi Ram Raja Ram v. Govinda Ramji, 189 I. C. 753: (A. I. R. (27) 1940 Nag. 143) that

'a lease has to be signed both by the lessor and the lessee and consequently the rent note signed by the intending lessee is not a lease under Section 105, T. P. Act, and would not require registration under Section 107; it may be a lease under the Registration Act according to the definition in Section 2(7) of that Act; but where a rent note is only for a period of 6 months, it does not require registration according to Section 17(d), Registration Act, and is admissible in evidence even if unregistered.'

Relying on the view taken by the Allahabad High Court Bhide J. observed in Taj Din v. Abdul Rahim, A. I. R. (26) 1939 Lah. 423 : (I. L. R. (1940) Lah. 70) as follows:

'The essential feature of a lease is that it is a transfer of a right to enjoy immovable property, It would, therefore, follow that the transfer can only be made by the person who owns the interest to be transferred. A rent deed which is executed by the transferee of the interest to be conveyed by the lease and reciting that the transferee had taken the premises from the transferor and the transferee merely agrees by the terms of the deed to pay a certain rent for a certain period cannot be considered to be a lease within the definition given is Section 105, T. P. Act. Hence, it would not, as a rent deed for less than a year require registration under the Registration Act. It would consequently be admissible in evidence, though unregistered.'

4. The principles laid down in the cases referred to above are clear on the point that a rent deed or karar executed by a transferee and not the owner of the property for a period of less than a year is admissible in evidence and the executant is bound by the terms contained therein. The judgment of the learned District Judge is thus unsustainable and is set aside with a direction that the case be taken on file and dealt with according to law.

5. In the view taken, it is unnecessary to pass an opinion about the sustainability or otherwise of I. A. No. I in the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //