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Balwant Singh and ors. Vs. L. Murari Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3294 of 1962
Judge
Reported inAIR1965All187
ActsTransfer of Property Act, 1882 - Sections 106 and 107; Uttar Pradesh (Amendment) Act, 1954
AppellantBalwant Singh and ors.
RespondentL. Murari Lal
Appellant AdvocateK.C. Agarwal, Adv.
Respondent AdvocateG.P. Tandon, Adv.
DispositionAppeal dismissed
Excerpt:
.....to the provisions of section 106 of the transfer of property act as far as the determination of their duration is concerned. in other words, even though the parties failed to carry out their intention by having the terms of the tenancy reduced in writing and getting it registered and no yearly tenancy came into existence, in law because of section 107 of the transfer of property act, yet as far as the applicability of section 106 is concerned, it would be deemed to be from year to year once it is shown that the defendant took the shop in question for manufacturing purposes......has been raised by sri agrawal in regard to the question of the validity of the notice is that no yearly tenancy was created as no registered document creating such a tenancy came into being as required by section 107 of the transfer of property act and the lessor not having executed a registered document, the tenancy would, in law, be from month to month. on this basis it is submitted that even though the lease was for manufacturing purposes it would not be a yearly lease as there was no registered document in respect thereof and for the purposes of section 106 of the transfer of property act it would fall in the category of the leases from month to month. reliance has been placed on a single judge's decision of this court in the case of kishan lal v. lal ram chander : air1952all634 ......
Judgment:

K.B. Asthana, J.

1. This is a plaintiffs' appeal whose suit for ejectment of the defendant from a certain shop of which they were the landlords stands dismissed on the ground of insufficiency of the notice to quit. The only point urged in this appeal is that the view of the learned Judge of the court below that a six months' notice to quit was required for termination of the defendants' lease was legally erroneous.

2. The plaintiff alleged that the defendant had occupied the shop in 1941 on payment of a monthly rent and the tenancy was from month to month. It was further the case of the plaintiff that having obtained the requisite permission from the District Magistrate under the U. P. Control of Rent and Eviction Act for filing of a suit for ejectment he served upon the defendant a notice to quit under Section 106 (as amended in U. P.) intimating that the tenancy would stand terminated on the 'expiry of thirty days or one month from the receipt of the notice. The defence in the main was that the tenancy being for manufacturing purposes a notice of six months was required for terminating the same under Section 106 of the Transfer of Property Act. It appears that a document in writing was executed laying down the terms and conditions of the lease but it was never got registered. The court below has recorded a finding that the shop was leased out to the defendant for manufacturing purposes. It has been proved by cogent evidence that the defendant ran a Dal Mill in the shop. This finding has not been seriously challenged by K C. Agrawal, learned counsel for the plaintiff appellant. Therefore, the decision in this appeal is bound to proceed on the footing that the lease was for manufacturing purposes.

3. The point which has been raised by Sri Agrawal in regard to the question of the validity of the notice is that no yearly tenancy was created as no registered document creating such a tenancy came into being as required by Section 107 of the Transfer of Property Act and the lessor not having executed a registered document, the tenancy would, in law, be from month to month. On this basis it is submitted that even though the lease was for manufacturing purposes it would not be a yearly lease as there was no registered document in respect thereof and for the purposes of Section 106 of the Transfer of Property Act it would fall in the category of the leases from month to month. Reliance has been placed on a Single Judge's decision of this Court in the case of Kishan Lal v. Lal Ram Chander : AIR1952All634 . In the alternative it is submitted that the parties having failed to get any lease deed registered the tenancy which came into existence was a tenancy-at-will and no notice under Section 106 of the Transfer of Property Act for termination of such a tenancy was required in law. For this purpose reliance has been placed on the decision of a Division Bench of the erstwhile Oudh Chief Court in the case of Janaki v. Kanhaiya Lal AIR 1936 Oudh 102.

4. No doubt the ratio of the above mentioned cases supports the contentions of the learned counsel for the plaintiff appellant, but my attention has been drawn to a decision of the Supreme Court to the case of Ram Kumar Das v. Jagdish Chandra Deo AIR 1952 SC 28 by G. P. Tandon, learned counsel appearing for the defendant respondent and having heard K. C. Agrawal at some length I am of the opinion that the decision of the Supreme Court in : [1952]1SCR269 renders the decisions of the above mentioned two eases cited by the learned counsel for the appellant ineffective as precedents. Their Lordships of the Supreme Court have declared that Section 106 of the Transfer of Property Act lays down a rule of construction which is to be applied when there is no period agreed upon between the parties and in such cases the duration has to be determined by a reference to the object or purpose for which the tenancy is created. Their Lordships further declared that the rule of construction embodied in Section 106 applied not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. The law which has been clearly enunciated by their Lordships of the Supreme Court recognises the leases which come into existence by implication as being subject to the provisions of Section 106 of the Transfer of Property Act as far as the determination of their duration is concerned. In the present case though no registered document was executed but it was established that the possession was given to the defendant by the plaintiff, rent was paid and accepted for a long number of years and it had further been proved that the defendant took the shop avowedly for running a Dal Mill. It is manifest that a tenancy was created for a manufacturing purpose.

5. The question which then arises is what would be the period of the notice required to terminate the tenancy in question within the meaning of Section 106 of the Transfer of Property Act? Sri G. P. Tandon for the defendant respondent, has not urged that any yearly tenancy as such was created but he contended that for termination of the tenancy in question when Section 106 is taken recourse to the tenancy being for manufacturing purposes, by the rule of construction embodied in that section a fiction will arise and it would be deemed from year to year. I think there is force in this contention. The observations of their Lordships of the Supreme Court in : [1952]1SCR269 of the report tend to support his contention. As I understand those observations I think the effect of the decision of their Lordships of the Supreme Court is that if a tenancy is for manufacturing or agricultural purposes, despite the fact that no registered lease was executed, the rule of construction in Section 106 of the Transfer of Property Act would require a sis months' notice of termination of that tenancy.

In that case the Supreme Court was considering the question in regard to a tenancy for building purposes which according to Section 106 of the Transfer of Property Act for the purpose of notice will be tenancy from month to month and held that no contract to the contrary could be proved that it was a tenancy from year to year reserving a yearly rent as such a tenancy could be created only by a registered instrument as laid down in Section 107 of the Act. It would be seen that as far as a tenancy arising out of a lease for building purposes is concerned Section 106 of the Transfer of Property Act in terms makes it a monthly tenancy and offers no scope to take recourse to a fiction that it would be deemed from year to year. That is why an attempt was made in that case to show that though the tenancy was for building, purposes the parties had contracted to the contrary to make it yearly. This attempt was frustrated because of Section 107 of the Transfer or Property Act.

But in the present case the tenancy has been found to be for manufacturing purposes, the rule of construction in Section 106 of the Transfer of Property Act itself lays down that it would be deemed from year to year. In other words, even though the parties failed to carry out their intention by having the terms of the tenancy reduced in writing and getting it registered and no yearly tenancy came into existence, in law because of Section 107 of the Transfer of Property Act, yet as far as the applicability of Section 106 is concerned, it would be deemed to be from year to year once it is shown that the defendant took the shop in question for manufacturing purposes. For these reasons I think that the view taken by the learned Judge of the Court below that the tenancy in question was one from year to year for the purposes of Section 106 of the Transfer of Property Act and a notice of six months for its termination was required is correct.

6. The result is that I find no force in this appeal and dismiss it with costs.


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