V. Bhargava, J.
1. In this second appeal the following two questions have been referred by a Division Bench for the opinion of this Full Bench :
'1. Whether there can be a valid and enforceable agreement of letting out an accommodation and/or fixation of rent in respect of it before an allotment order is passed in respect of the said accommodation under the provisions of the U. P. (Temporary) Control of Rent and Eviction Act?
2. Is the agreement so far as the fixation of rent is concerned valid in the circumstances of the present case?'
2. The facts found by the first appellate court show that, in the accommodation in question which belonged to the respondent-landlord, there were some earlier tenants against whom the respondent obtained a decree for ejectment. That decree was executed. On, 20th March 1950 in connection with the execution proceedings which were going on arising out of that suit an agreement was arrived at between the appellant and the respondent which was in the following terms :
'It has been agreed between the parties--myself the decree-holder and Daulat 11am. son of Lala Sunder Dass, caste Khatri, resident and shop-keeper at Ghia Mandi, Mathura, that in future Daulat Ram will be a tenant in the shop and he will pay rent at the rate of Rs. 25/-. He will use two electric bulbs of 25 watt power and will pay rent through, money order and will not keep the rent in arrears being at the rate of Rs. 25/- per mensem, Daulat Ram is authorised to keep his goods in the shop and rent will be paid including charges for electricity at the rate of Rs. 26/-; one rupee per mensem has been fixed for electricity. Daulat Ram has kept his goods in the shop without any damage.'
Subsequent to this agreement on the 20th of March 1950 an allotment order was passed on the 24th of March 1950 in favour of the appellant by the District Magistrate under Section 7 of the U. P. (Temp.) Control of Rent and Eviction Act. No rent was paid by the appellant thereafter and about two years later the respondent-landlord presented an application under Section 7-B of the U. P. (Temporary) Control of Kent and Eviction Act for recovery of a sum of Rs. 598/- as arrears of rent at the rate of Rs. 26/- per mensem for the period beginning on 20th March 1950 upto the 20th of February 1952. The rent was thus claimed by the respondent at the rate entered in the agreement quoted above. The appellant inter alia pleaded that this agreement was invalid because no tenancy could be created by an agreement prior to the order of allotment in view of the provisions of Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act andparagraph 5 of the order passed by the District Magistrate of Mathura in exercise of the powers conferred on. him by that provision of law.
The appellant's case thus was that there was no agreed rent at all and the respondent was not entitled to claim arrears of rent until the rent was fixed in accordance with law which would be the reasonable rent determined under the U. P. (Temporary) Control of Rent and Eviction, Act The appellant admitted that he would be liable to pay rent only at a rate represented by the reasonable rent determined under the U. P, (Temporary) Control of Rent and Eviction Act.
3. The two questions referred for opinion, to this Bench involve an interpretation of the agreement, the translation of which has been quoted by us above. In the first question as framed by the Division Bench, it appears to have been assumed that very likely the agreement was an agreement of letting out the accommodation in addition to being an agreement for fixation of rent and that is why the first question is framed so as to determine the validity and enforceability of both--an agreement of letting out and an agreement of fixation of rent in cases where an agreement is entered into before allotment order. A careful perusal of the agreement, which is to be interpreted in this case has led us to the view that this agreement did not in fact create any tenancy and was not an agreement letting out any accommodation. We have examined the original Hindi language of this agreement and we have taken care to bring out meanings as far as possible by making a literal translation of it as quoted by us above.
The terms of the agreement nowhere mention that by the agreement any rights of tenancy are being created in favour of Daulat Ram appellant. All that the agreement said was that Daulat Dam would be a tenant of the shop in future. This sentence is the sentence that is sought to be interpreted on behalf of the appellant as creating a tenancy from the time that this agreement was entered into between the parties and it is urged that since no such tenancy could be created without an allotment order by the District Magistrate, this agreement is void in law in view of Section 23 of the Indian Contract Act. It appears to us that the language used in the agreement should be interpreted as indicating the intention of the parties that in future Daulat Ram would be the tenant of this shop without creating any tenancy in his favour from the time of the execution of the agreement. The words, used in the agreement were
^^vkbUnk nqdkuesa nkSyrjke fdjk;nkj jgsxk A**
If the intention under the agreement had been to make Daulat Ram a tenant from the time when the agreement was executed the language would surely have been different and would have provided that he had become the tenant from the time when this agreement was executed or some other words would have been used which would have conveyed that intention very clearly.
It is also significant that, in a later portion of that agreement, it is said that Daulat Ram had been authorised to keep his goods in the shop. If under this agreement Daulat Ram was being madethe tenant and lessee of this accommodation no question should have arisen of his being authorised to keep his goods in the shop. His rights as a tenant would entitle him to keep his goods in the shop without any authorisation or permission from the landlord. The question o authorisation to keep the goody could arise only if Daulat Ram had not become a tenant. This is another circumstance that clearly indicates that when this agreement was executed it did not purport to create a tenancy in favour of Daulat Ram. It appears to us that this agreement was very likely executed by the parties in contemplation of an allotment order of this shop in favour of Daulat Ram as a tenant and the agreement was executed for the purpose of settling the terms on the basis of which Daulat Ram would be a tenant if and when the allotment order in his favour was passed.
The agreement, therefore, instead of being in contravention of the provisions of the U. P. (Temporary) Control of Rent and Eviction Act and the orders made thereunder making it compulsory to obtain an order of allotment from the District Magistrate, was an agreement in contemplation of such an allotment order meant for giving effect to that allotment order. Though the fact is not mentioned clearly in any of the judgments of the lower courts, we have found on the record a statement of the respondent that the application for allotment was presented by the appellant on 20th March 1950, the very date on which this agreement was entered into between the parties. It was of course the common case of both the parties that the actual allotment order was made on 24th March 1950. The fact, however, that the application for allotment was presented on 20th March 1950 lends further support to our view that, by this agreement, the parties (lid not purport or intend to create a tenancy in favour of the appellant and that this agreement was arrived at with the intention that the appellant would apply for allotment in his favour and, if and when he became a valid tenant, the terms of that agreement would determine the terms of the tenancy between the parties.
In the circumstances, in answering the two questions referred to us by the Division Bench, we have to keep in view the fact that the agreement in question was not an agreement letting out the accommodation but merely an agreement under which the parties had agreed about the fixation of rent and under which in addition the appellant had been given the permission to store his goods in the accommodation for the time being,
4. The first question is in two parts. The first part requires us to express an opinion whether there could be a valid or enforceable agreement of letting out an accommodation before an allotment order is passed in respect of the said accommodation under the provisions of the U. P. (Temp.) Control of Rent and Eviction Act. On our interpretation of the agreement in this case, We are of the opinion that this question does not arise at all. We have held that there was no agreement of letting out any accommodation and, consequently, the question whether there could be a validand enforceable agreement of such a nature does not arise.
The second part of the question is whether there could by a valid and enforceable agreement of fixation of rent in respect of any accommodation before an allotment order is passed in respect of the said accommodation under the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. This part of the first question and the second question, in. the light of the interpretation of the agreement arrived at above, almost merge into one question. The second question is whether the agreement so far as fixation of rent is concerned was valid in the circumstances of the present case. The only really important circumstance which could affect the validity of the agreement was that the agreement was arrived at on the 20th of March 1950, four days prior to the making of the allotment order by the District Magistrate on 24th March 1950. The second part of the first question about the validity and enforeeability of the agreement of fixation of rent as well as the second question about the validity of the agreement for fixation of rent in the circumstances of the present case thus become identical and have to be answered on a consideration of the one identical fact viz. that the agreement was prior to the order of allotment.
We have examined the language of Section 7 of the U. P. (Temporary) Control of Kent and Eviction Act and we have found in it no prohibition to an agreement for fixation of rent between landlord and a person who may later become a tenant under the provision of that section, being arrived at prior to the order of allotment. Paragraph 5 of the notification issued by the District Magistrate of Mathura in, exercise of his powers under Section 7 of the Act was to the following effect :
'5. A landlord shall not let out, nor occupy, nor give on lease any accommodation or part thereof, of which he is landlord and which is or has fallen vacant except with the previous allotment in writing by the House Allotment Officer, Mathura, of such accommodation if any by himself or of any other person or persons.'
It is to be noticed that this order made by the District Magistrate also merely prohibits a landlord from letting out, occupying or giving on lease any accommodation. There is no prohibition in this order by the District Magistrate against entering into an agreement for fixation of rent prior to the making of an allotment order. In fact, neither in the U. P. (Temporary) Control of Rent and Eviction Act, nor in the Rules framed under that Act, nor in any orders made by the District Magistrate of Mathura under the provisions of that Act which have been brought to our notice, is there any prohibition against an agreement for fixation of rent between any landlord and his tenant. The only provision about agreement for fixation of rent between a landlord and a tenant in the U. P, (Temporary) Control of Rent and Eviction Act is contained in Sub-section (1) of Section 5 and that only lays down that, if there is an agreement, the rent shall be payable in 'accordance with that agreement.
It appears to us, therefore, that it was quite Immaterial whether the rent in this case wasagreed upon between the appellant and the respondent prior to the allotment order which made the appellant the tenant or subsequent to the allotment order. If the agreement was prior to the allotment order, it would still be binding on both landlord and the tenant, and rent would be payable in accordance with it, if the contemplated tenancy later comes into existence ultimately by an allotment order made in accordance with the U. P. (Temp.) Control of Rent and Eviction Act and the Rules Or Orders made thereunder. In the circumstances, the second part of the first question mentioned by us above and the second question areanswered in the affirmative.
5. We may make it clear that we have not gone into the question whether if the agreement had been a composite agreement letting out the accommodation as well as fixing the rent it would have been a valid or invalid agreement as that question does not arise in the present case in view of our interpretation of the agreement mentioned above.
6. Let the record be returned with this opinion to the Bench concerned.