1. This second appeal is by the defendant-tenant in a suit for recovery of land on the basis of a Coolicharth, which has been decreed concurrently by both the Courts below and the only two questions are : (1) whether the Coolicharth is not admissible in evidence for want of registration and (2) whether the plaintiff-landlord is not entitled to recover enhanced rent on the basis o an oral agreement between the parties subsequent to Coolicharth.
2. The Coolicharth in question is Ext. A dated 5-7-1120. It was executed by the defendant in favour of the plaintiff and provided for payment of Rs. 120 annually at the rate of Rs. 10 per mensem towards rent for the site purposes. The payment of an advance of three months' rent amounting to Rs. 30 was then received. The defendant finally undertook that on demand at any time he would dismantle the Ghappura erected on the site by his predecessor and give vacant possession.
The question of non-admissibility of Ext. A in evidence was raised by the defendant in the Court below on two grounds first that Ext. A must be taken to reserve an yearly rent within the meaning of the first paragraph of Section 104 of the Cochin Transfer of Property Act, 17 of 1111, corresponding to Section 107 of the Indian Act, and so had to be registered, and secondly and assuming that was not right, it was necessarily 'other' lease by an instrument falling within the second paragraph of Section 107 but again not registered as it should be.
3. The Court below got over the first ground by finding that the intention of the parties under Ext. A was only to fix a monthly rent even though there was a statement as to the annual rent and this was particularly so because the lease was terminable at the option of the lessor. This ground had not been persisted in before us. So we will say nothing more about it. In respect of the second ground the Court below preferred to hold that Ext. A was not compulsorily registrable merely because it evidenced a lease which did not come under the scope of paragraph 1 of Section 107.
Learned counsel for the appellant urges before us that the Court below had in this matter rather misled itself by omitting to notice the amendment of the Cochin Registration Act V of 1084 in terms corresponding to the amendment to Section 49 of the Indian Registration Act in 1929. Learned counsel is right. But then the whole question was irrelevant; For Ext. A, executed as it was by the lessee alone, did not constitute a lease at all within the meaning of either paragraph 1 or 2 to Section 104 particularly in view of the third paragraph to that section framed on the same lines as the corresponding paragraph 9 in Section 107 of the Indian Act
'104 ......... Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.'
That is to say, there is no 'lease' unless it is executed by both lessor and lessee. Before the introduction 'in 1929 of the 3rd paragraph to Section 107, there was a conflict of decisions as to whether a rent note signed by the lessee alone was a lease. One view was that a lease being a transfer under the Act it could not be effected by a document not signed by the transferor. According to the contrary view a rent note signed by the lessee alone was sufficient to operate as a lease under the section if it was accepted by the lessor. See the cases collected, in Chitaley, T.P. Act, 3rd Edn., p. 1789. The effect of the amendment was to settle this conflict. There is therefore no substance in the first contention as to the admissibility in evidence of Ext. A.
4. The second contention as to the defendant's liability for enhanced rent is based by learned counsel on Section 92 of the Evidence Act. But this is to forget Proviso 4 to that section which exempts distinct subsequent oral agreements in rescission or modification except in cases where the contract, grant or disposition of property concerned is by law required to be in writing or hag been registered. The Coolicharthu here evidenced by Ext. A is certainly not required by law to be in writing nor has it been registered. There is therefore no substance in this contention as well,
5. The appeal fails in the result and is dismissed with costs.