Skip to content


B.P. Sinha Vs. Som Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3622 of 1963
Judge
Reported inAIR1971All297
ActsTransfer of Property Act, 1882 - Sections 53A, 105, 107 and 115; Rent Control Act
AppellantB.P. Sinha
RespondentSom Nath
Appellant AdvocateR.C. Varma, Adv.
Respondent AdvocateB.C. Dey and ;S.K. Mukerjee, Advs.
DispositionAppeal allowed
Excerpt:
(i) tenancy - lease - section 105 of transfer of property act, 1882 - option to determine lease to lessee and to remain in possession so long as he paid rent - held, tenancy is not at will. (ii) lease - section107 of transfer of property act, 1882 - lease for indefinite period - cannot be treated as confined to specific limit of time so as to exceed one year - registration not necessary. - - , and so requested the appellant to shift to the accommodation in suit on the same terms and conditions as applied to the previous tenancy, that the plaintiff assured the defendant that the latter could live as long as he desired and receive the same facilities which he had enjoyed in the previous accommodation. the appellant's contention, however, is that since there is no indication that the..........stage that the stand of the appellant with regard to this letter is that it was an agreement to lease property and not the contract of the lease itself. that contention is borne out by the pleadings of the defendant in paragraph 26 of the written statement. it is the admitted case of the parties that the appellant was a tenant of the plaintiff in a portion of the main bunglow, the plaintiff wanted to let out that bunglow to the accountant-general and as such requested the appellant to shift to the accommodation in suit to which the defendant agreed. it was in this connection that the plaintiff wrote the letter aforesaid (exhibit a-3) to the defendant, which is the sheet anchor of the appellant in the present case. the letter may be rendered into english as follows:--'i want to let out.....
Judgment:

M.N. Shukla, J.

1. This is a defendant's second appeal. The respondent filed a suit for ejectment of the appellant from flat No. 1 over bunglow No. 3 C. Y. Chintamani Road, Allahabad, and for recovery of Rs. 110/- as arrears of rent along with pendents lite and future mesne profits for use and occupation. The plaint allegations were that the accommodation in suit was constructed in the year 1958 and was let out to the defendant on a monthly rent of Rs. 40/-, that the house being new, the U. P. Control of Rent and Eviction Act did not apply, that as the defendant did not pay rent, notice of demand and ejectment was issued to him, that on receipt of the notice the defendant paid the arrears of rent upto August 31, 1962, but did not vacate the house. Hence, the suit.

2. In defence the appellant contended that he was originally a tenant in the main bunglow and the plaintiff wanted to let out the same to the Accountant-General, U. P., and so requested the appellant to shift to the accommodation in suit on the same terms and conditions as applied to the previous tenancy, that the plaintiff assured the defendant that the latter could live as long as he desired and receive the same facilities which he had enjoyed in the previous accommodation. It was pleaded that the suit was barred by the principle of estoppel and also by the terms of the agreement of lease which were contained in a letter. The appellant stated that he continued to pay rent regularly and had not rendered himself liable to eviction,

3. The plaintiffs suit was dismissed by the trial Court. He preferred an appeal which was allowed by the learned Civil Judge, who decreed the plaintiff's suit. Aggrieved by the same the defendant has preferred this second appeal.

4. The cardinal point to be decided in this case is as to whether the respondent was entitled to eject the appellant in view of the agreement between the parties as expressed in the plaintiff's letter dated 17-6-1958 (Exhibit A-3). The first subsidiary question on which ultimately the decision of this point would depend is as to the nature of the tenancy which came into existence subsequent to this letter. It may be made clear at this very stage that the stand of the appellant with regard to this letter is that it was an agreement to lease property and not the contract of the lease itself. That contention is borne out by the pleadings of the defendant in paragraph 26 of the written statement. It is the admitted case of the parties that the appellant was a tenant of the plaintiff in a portion of the main bunglow, the plaintiff wanted to let out that bunglow to the Accountant-General and as such requested the appellant to shift to the accommodation in suit to which the defendant agreed. It was in this connection that the plaintiff wrote the letter aforesaid (Exhibit A-3) to the defendant, which is the sheet anchor of the appellant in the present case. The letter may be rendered into English as follows:--

'I want to let out my entire bunglow in the western corner of which you live to the A. G.'s Office. I hope you will vacate this. In place of this you will please go to the house behind this Kothi. You will pay Rs. 40/- per month as rent of that and in that you can live as long as you desire and you will receive the same facility which you had in the old house.'

5. A perusal of this letter makes it abundantly clear that it was really speaking an agreement to lease. Relying on its terms the appellant submitted that a lease for lifetime was created in favour of the appellant. It is not disputed that the appellant was occupying the accommodation in suit and was paying rent of the same to the plaintiff who accepted it in the capacity of a lessor. In other words, the relationship of lessor and lessee is admitted to have come into existence between the parties. The contention of the respondent is that a construction of this letter would lead to the conclusion that a permanent tenancy came into existence. According to the appellant on the other hand, the contents or this letter militate against the concept of permanent tenancy. I shall later advert to the legal effect of accepting one or the other of these contentions.

The initial point which has to be decided is as to the real nature of the lease. The immunity which was conferred on the appellant of not being ejected from the accommodation, and his right to stay there as long as he desired are unmistakable from the language of the letter which I have underlined. It cannot be seriously contended on its terms that it was possible for the landlord to eject the tenant any time in the latter's lifetime if the tenant himself still desired to live. Thus, the intention of the parties is clear that a lease for lifetime was sought to be created, and the purpose of the tenancy was to allow the use of the accommodation for residential purposes. It is also clear from the same letter by necessary implication that it reserved to the tenant a right to vacate the premises if he so desired. It is the case of the parties that pursuant to this letter the appellant entered into possession of the accommodation.

6. In these circumstances the respondent contends that such lease must be regarded as a permanent lease, that it would be heritable and the heirs of the lessee would also be entitled to its benefit. The appellant's contention, however, is that since there is no indication that the lessee's rights were also intended to be enjoyed by the heirs and successors of the lessee, the essential ingredient of a permanent lease was absent in the present case. The counsel appearing for the respondent cited some authorities in support of the proposition that the lease which does not specify any definite period must be interpreted as a permanent lease. In this connection be referred to the case of Bai Sona v. Bai Hiragavri : AIR1926Bom374 which ruled as under:--

'Where the terms of the lease provided that so long the lessee goes on paying rent to the lessor, the lessor will not be entitled to get the leased premises vacated, the lease must be held to be a permanent lease and not one determined by the death of the lessee,'

To me it appears that until there is a provision in the lease or it can be otherwise established that the parties intended that the lease should enure for the benefit of the lessee's heirs, the lease should not be deemed to be a permanent lease. The same view appears to have been expressed by the Bombay High Court in a later decision on which the appellant has mainly relied. In Bava Saheb v. West Patent Press Co. : AIR1954Bom257 the Bombay High Court noticed the earlier decision and dissented from it. In that case there were a number of leases and before the expiry of the first lease which was for 30 years, another lease was executed in the year 1900 for 30 years. The material portion of the lease recited:

'At the end of the remaining years out of the agreed period of thirty years the lessee may continue on the premises so long as he chooses or desires provided he went on paying the lessor Rs. 40/- as rent every year.'

This document was regarded as creating a lease for an indefinite period and as such, for the lietime of the lessee. The contention that it was a permanent lease was rejected. Gajendragadkar, J., observed as follows:--(Para 5).

'If the lease is for a definite period and before the period is over, the lessee dies, during the remainder of the period, the leasehold rights enure for the benefit of his heirs, unless the document clearly stipulates that in case of the lessee's death before the expiration of the period the rights of the lessee are not to enure for the benefit of the successors. If the lease is for an indefinite period, it does not enure for the benefit of his heirs. It is usually for the life time of the lesseee himself, unless again it clearly appears from the contract that the benefit of the lease is intended to accrue to the successor of the lessee.

If the lease provides that the lessee would continue in possession of the property so long as he pays rent it is usually regarded as a lease for an indefinite period and as such for the lifetime of the lessee. The condition that the lessee will remain in possession so long as he pays rent gives the tenant the right to continue in possession on payment of rent and imposes an obligation on the landlord to accept the said rent and to allow the tenant to remain in possession so long as the rent is thus paid.'

7-8. The learned counsel for the respondent had also relied upon Ganpat Balaji v. Kasturchand Javeri, AIR 1945 Nag 102 which merely followed : AIR1926Bom374 . Thus, I am of the opinion that the only intention which can be inferred from the letter Exhibit A-3 is that the plaintiff wanted to create a lease for lifetime in favour of the appellant.

9. In the alternative it was also argued on behalf of the respondent that the above letter purported to create tenancy at will and consequently the appellant was liable to vacate on the demand of the plaintiff. There were two grounds on which this contention was advanced. Firstly, it was argued that since by necessary implication the aforesaid letter reserved to the lessee the right to vacate whenever he chose, a corresponding right should also be deemed to vest in the lessor to eject the lessee. Secondly, it was submitted that since the lease required to be compulsorily registered under the law and there was no registered lease in the instant case, the inevitable effect would be the creation of tenancy at will. I shall deal with this part of the contention in the later part of my judgment. So far as the first contention namely that a corresponding right was conferred on the lessor also to determine the lease at his choice is concerned, the respondent's counsel relied on certain old cases. See K. B. Manicka Mudaliar v. T. Chinnappa Mudaliyar, (1913) ILR 36 Mad 557 and Ram Lal v. Bibi Zohra, AIR 1941 Pat 228. But in my opinion they are no longer good law. In Sivayogeshwara Cotton Press v. Panchaksharappa : [1962]3SCR876 , Sinha, C. J., observed as follows:-- (Para 9).

'It is manifest, therefore, on a plain construction of the terms aforesaid of the lease deed that the purpose of the transaction was a building lease, that though there was liberty reserved for the lessee or his successor to give up the leasehold at any time after October 1, 1934, no corresponding right was reserved to the lessor. Thus, there is no room for the controversy which has occupied a large portion of the judgments of the Courts below, that reservation of the right to the lessee to surrender possession at any time imported a corresponding right to the lessor to call upon the lessee to give up possession. It was an advantage specifically reserved to the lessee without any corresponding benefit to the lessor.'

The same view was also expressed in : AIR1954Bom257 wherein it was held that the principle of reciprocity which was applicable to a tenancy at will properly so-called could not be invoked in the case of a lease for indefinite period i.e., one for lifetime. The Bombay decision was ap-proved by the Supreme Court in the case of Sivayogeshwara Cotton Press : [1962]3SCR876 (Supra).

10. The next question is as to whether the lease in the present case can be regarded as tenancy at will on the assumption that it was required to be compulsorily registered and the same having not been done, the result must be the creation of a tenancy at will. For this proposition the learned counsel for the respondent referred to Gur Prasad v. Hansraj, AIR 1946 Oudh 144; AIR 1941 Pat 228 and Ram Chandra Agarwala v. Syameshwari Dasya : AIR1925Cal1171 . In my opinion tenancy at will arises when the lease clearly contains a clause leaving the option on both the lessor and the lessee to determine the lease. Where the right is reserved to the lessee and it is also coupled with a clause permitting him to remain in possession of the leased premises so long as he desires, it cannot be held that the lease was a tenancy, at will. The same view was expressed by Gajendragadkar, J., (as he then was) in : AIR1954Bom257 wherein (1913) ILR 36 Mad 557 and AIR 1941 Pat 228 were noticed and distinguished.

11. I am also unable to accept the respondent's contention that the lease created in the present case was one in respect of immovable property for a term exceeding one year and, therefore, compulsorily required to be registered, and no lease could be created by an unregistered documents, He took strong exception to the admissions contained in the letter Exhibit A-3, and submitted that the lease in question being for a term exceeding one year it was hit by Section 107 of the Transfer of Property Act which provided:--

'A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can, be made only by a registered instrument.'

This contention can be rejected on the preliminary ground that this cannot be advanced in respect of Exhibit A-3 which was, as I have already held, merely an agreement to the lease and not the lease itself. Further, a lease for an indefinite period such as the lifetime of the lessee cannot be treated as confined to a specific limit of time so as to exceed one year. The right incorporated in a lease which permits a lessee to continue to live as long as he desires and also to vacate whenever he desires cannot be circumscribed within any space of time falling short of his whole life, which is an uncertain span. It cannot be said to be for any term exceeding one year, and therefore a lease like the one created in the present case is not hit by Section 107 of the Transfer of Property Act.

12. The same contention was also buttressed by relying on the provisions of Sections 17 and 49 of the Indian Registration Act. The respondent's counsel argued that Section 17 enumerated the documents which the law required to be registered. He relied on clause (d) which refers to leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, for his submission that the lease in the present case was compulsorily required to be registered. I have already held that the lease in this case cannot be considered as being for 'any term exceeding one year'. The bar under Section 49 of the Registration Act cannot also be successfully pleaded on behalf of the respondent. Section 49 of the Registration Act provides:--

'No document required by Section 17 ..... to be registered .....

(a) .....

b) .....

(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.'

Since the document Exhibit A-3 does not come within any of the clauses of Section 17 of the Indian Registration Act, this bar evidently cannot be applied to it.

13. There is, however, yet another reason why this bar would not be applicable to the facts of the present case. In this connection the learned counsel for the appellant strongly relied on the proviso to Section 49 of the Indian Registration Act. which, runs as follows:--

'..... Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'

14. The substance of the proviso is that any unregistered document required by law to be registered may be received as evidence of part performance of a contract for the purposes or Section 53-A of the Transfer of Property Act. This takes me to a very substantial point which was argued on behalf of the defendant in the present appeal. Although Section 53A of the Transfer of Property Act was not invoked in the written statement, yet in substance the plea was embodied in paragraph 26 thereof. The plea was argued before the lower appellate court which dealt with the doctrine of part performance and on an assessment of evidence it arrived at the conclusion that the instant case being one of tenancy at will, the doctrine of part performance could not be resorted to. In my opinion the lower appellate Court was plainly in error in not seriously examining that plea on merits and rejecting it on an erroneous view of law. Section 53A of the Transfer of Property Act runs as follows:--

'Where any person contracts to transfer for consideration any immovable 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 the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.'

It is evident that where a person contracts to transfer any immovable property by writing signed by him and in part performance of the contract the transferee has taken possession of the property and continues in possession, then notwithstanding that the contract which was required to be registered has not been registered, the transferor is precluded from enforcing against the transferee any right in respect of that property other than the right expressly provided by the terms of the contract. The opening words of Section 53-A make it clear that its provisions are applicable both to an agreement of transfer as well as to a contract of transfer. It was held by Ziaul Hasan, J., in Jumman Khan v. Jagannath, AIR 1939 Oudh 85 as follows:--

'Section 53-A applies to contracts of transfer as well as to transfers, and hence the doctrine of part performance would equally apply to a lease, and defects if any of the requirements of Section 107 would be cured by Section 53-A,'

It is not disputed that in the present case the letter Exhibit A-3 was in the plaintiff's own handwriting and signed by him and pursuant to the same the appellant entered into possession of the premises and continued in possession thereon. In such circumstances the statutory defence provided in Section 53-A of the Transfer of Property Act was open to the appellant and he could for that purpose ask the court to look into the document Exhibit A-3 in which the terms of tenancy were clearly set out. In Maneklal v. H. J. Ginwalla and Sons : [1950]1SCR75 an agreement of lease not registered was held as admissible under Section 49 of the Registration Act as evidence of part performance. In that case there was no contract of lease written out and registered but it was lease through the correspondence which had taken place with the Government of Bombay. The letters contained the various terms on which the lease was to be created and they were held to be admissible in evidence and the defendant was allowed to rely on the same in order to resist the action brought by the lessor. It was observed by Mahajan, J., while interpreting Section 53-A of the Transfer of Property Act as follows:--(Paragraph 16):--

'The section is a partial importation in the statute law of India of the English doctrine of part performance. It furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part performance of that contract. In order to find whether the defendant in the present case has satisfied the conditions of the section, it has to be held proved that the Talukdari Settlement Officer contracted to give a lease of the survey numbers in suit to Manilal Maganlal by a writing signed by him and that from this writing the terms of the tenancy can be ascertained with reasonable certainty. It has further to be held established that the transferee took possession of the property or did any acts in furtherance of the contract. It may be mentioned that in cases of lease the legislature has recognised that the equity of part performance is an active equity as in English law and is sufficient to support an independent action by the plaintiff (Vide Section 27-A, Specific Relief Act). This section however, applies to contracts executed after 1st April, 1930 and has no application in the present case; but there can be no manner of doubt that the defence under Section 53-A is available to a person who has an agreement of lease in his favour though no lease has been executed and registered.'

The position was summed up as follows:--

'Where in an action to eject a lessee on the ground that he had no registered deed of lease executed in his favour the defendant lessee takes the plea of part performance and proves that there was a written and signed contract of lease in his favour and that he had taken possession in accordance with the terms of the agreement and had built a factory on the land and also that ho was paying rent to the plaintiffs in accordance with that agreement the defendant is entitled to retain possession in spite of an absence of the registered deed.'

15. Thus after taking into consideration the material facts of the case I am constrained to hold that the lease created in favour of the appellant was a lease for lifetime, that the document Exhibit A-3 being the letter addressed by the lessor to the lessee was merely an agreement to lease, that the appellant was entitled to the protection of the proviso to Section 49 of the Indian Registration Act and also that the plea of part performance embodied in Section 53-A of the Transfer of Property Act was available to him. I am not impressed by the respondent's argument that it was a lease either in the nature of tenancy at will or for 'any term exceeding one year' and was, therefore, hit by Section 107 of the Transfer of Property Act and Section 49 of the Indian Registration Act. The lease for lifetime in my opinion is a species of lease which eludes the clutches of the inhibitions imposed by the provisions of Section 107 of the Transfer of Property Act or Section 49 of the Indian Registration Act.

16. There is, however, one more argument which was advanced on behalf of the appellant namely that the plaintiff's suit was barred by the principle of estoppel. In my opinion the present is a clear case which attracts the bar of estoppel. It cannot be denied that the appellant vacated the accommodation which was earlier in his tenancy at the request of the landlord in order to enable the latter to let out that accommodation to another tenant i.e., the A. G.'s office presumably to enjoy higher rent and having on the request or the landlord altered his position and vacated the portion in his tenancy and shifted to the one in dispute, the plaintiff was estopped in law from taking the position which was at variance with the terms of the agreement which preceded the lease. It was unequivocally provided in Exhibit A-3 that the defendant could live in the premises as long as he desired. Having acceded to the request of the landlord by shifting from the accommodation in which he could live as of right it did not lie in the mouth of the landlord to take advantage of the latter's position and use it against the lessee. The accommodation which was formerly in the tenancy of the appellant was govered by the U. P. Rent Control Act whereas the accommodation in suit to which he shifted on the plaintiff's request was built after 1951 and was, therefore, exempt from the operation of the Rent Control Act. The landlord evidently could not be allowed to take advantage of this unfortunate position and thereby seek to eject the defendant. In these circumstances the suit filed by the landlord must be held to be barred by the principle of estoppel.

17. The result is that this appeal is allowed and the plaintiff's suit is dismissed with costs.


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