1. This is a second appeal by Seth Lal Chand in a suit for ejectment and arrears of rent and damages for use and occupation.
2. The suit was brought by Seth Radha Bal-labh respondent. The case of the plaintiff briefly was that the shop in dispute originally belonged to Bakshi Bhagchand and was purchased by the plaintiff in April, 1947. The shop had been rented out by the previous owner to the defendant-appellant at Rs. 21/- per month for a fixed term of three years which expired on the 2nd of March, 1948. The plaintiff required the shop for his personal use; but as the defendant did not vacate the shop after the period of tenancy was over, the plaintiff served one month's notice on him in January, 1949. The defendant did not vacate the shop even then. Thereupon the plaintiff filed this suit with the permission of the Rent Controller who had granted a certificate to the plaintiff to sue for ejectment. The suit was- resisted by the defendant on various grounds, most of which are, however, not material now.
3. Only two points were urged in second appeal when the matter first came before a learnedSingle Judge of this court in 1955. These points were : --
1. That the notice given by the plaintiff was not in accordance with Section 106 of the Transfer of Property Act and, therefore, the suit for ejectment was not maintainable, and
2. That the plaintiff had failed to prove that he required the property in dispute for bis own bona fide use.
4. The first question as to notice was considered by the learned Single Judge to be of sufficient importance and he, therefore, referred the appeal to a Division Bench. The appeal then came before a Division Bench in November, 1956. The Division Bench was of the view that it was necessary to frame an issue as to whether the plaintiff required the shop for his own bona fide use. Consequently, an issue on this point was remitted to the court below for evidence and finding.
That finding has been received and the court below has held that the plaintiff did require the shop for his bona fide use. The appeal has come up now for final decision. We shall take the second point first. So far as that is concerned, we are of opinion that the view taken by the lower court as to the plaintiff's need of the shop for his bona fide use is correct. Learned counsel for the appellant though he formally objected to the finding of the lower court on the new issue, was unable to point out any good reason which could induce us todiffer, from the finding of the lower court.
It is enough to say that the plaintiff is a business man and, in order to carry on his business, has a number of shops in his possession on rent. In the circumstances, if he wants this shop, which he bad purchased for his personal use, and probably intends to give up one of the rented shops, he requires the shop, in our opinion for bona fide use of himself and members of his family. The fact that his son has purchased another shop makes no difference, because his son is major and separate from him. We, therefore, decide this point against the appellant.
5. We now come to the first point which is really the bone of contention in this case. The trouble has arisen in this way. A Kabuliat was executed by the defendant on the 2nd of March, 1945. That Kabuliat stipulated that the rent would be Rs. 21/- per month, that the term of the lease would be three years and the defendant would not vacate the shop for three years. The Kabuliat also provided that the plaintiff would be entitled to get the property vacated on one month's notice.
This Kabuliat was neither registered nor signed by the plaintiff. The contention of the appellant is that in view of Section 107 of the Jaipur Transfer of Property Act, 1944, which had come into force before this Kabuliat was executed, no lease of immovable property for any term exceeding one year could be made otherwise than by a registered instrument and where such a lease is made, such instrument should be executed by both the lessor and the lessee.
It was conceded on behalf of the respondent that the Kabuliat did not operate as a valid lease in view of the provisions of Section 107 of the Jaipur Transfer of Property Act. But it was urged that the defendant was bound by the terms of the Kabuliat and he had, therefore, to vacate the premises after three years, and, in any case, he was bound to vacate them after one month's notice which was provided in the Kabuliat.
It was further urged that even if the term ofthree years could not be looked into in view ofthe Kabuliat not being a valid lease, the plaintiff had given one month's notice to the defendant, though it did not expire with the end of tenancy. That notice was sufficient as it was a contract to the contrary within the meaning of Section 106 of the Transfer of Properly Act, Further, an argument was raised before us in spite of the concession made earlier that this Kabuliat did not in fact create a tenancy for a fixed term of three years in view of the provision contained in it to the effect that the plaintiff could get the house vacated after one month's notice.
6. The first question, therefore, that arises is whether this Kabuliat is a lease for a fixed term of three years or not. So far as that is concerned, learned counsel for the plaintiff relied on Khuda Bakhsh v. Sheo Din, ILR 8 All 405, where it was held that if a Kabuliat provides for ejectment at any time on the giving of a notice, any term in it with respect to the period of the lease falls to the ground.
It may be accepted that if a Kabuliat of this kind fixes a fixed period for the tenancy for a!number of years and at the same time provides for ejectment of the lessee on notice at any time, the term of years fixed in the Kabuliat falls to the ground and the Kabuliat can only be treated as creating a month to month tenancy if it relates to a residential house or a shop. What we have to see, however, is whether in this Kabuliat, there is such a provision viz. that the tenant would have to vacate at any time on one month's notice given by the landlord. In this connection, 5th and 6th terms of the Kabuliat are important and are as follows (our translation) : --
(5) This lease will be effective for three years. The lessee will not vacate the shop for three years.
(6) If the owner wants the shop to be vacated, he will give one month's notice.
7. The question is whether the intention was that the owner could get the shop vacated at any time within this period of three years after one month's notice. The Kabuliat seems to have been drafted by a lay man. There is nothing in Clause (6) to the effect that the landlord was entitled to get the shop vacated at any time on one month's notice even within the fixed term of three years. We should have expected that if the intention was that the owner could get the shop vacated even within these three years, something more definite would have been said in Clause (6) to suggest that.
On the wholee, therefore, we are not prepared to hold on Clause (6) as it is drafted that the intention was that the tenant could be asked to vacate the shop even within this period of three years by one month's notice. It seems to us that the sixth clause relating to one month's notice was put in in case the tenant held over after the fixed period of three years, and thereafter the landlord required him to vacate the shop.
We, therefore, hold that the term relating to the period of tenancy being three years does not fall to the ground in this case because of the notice to vacate provided in the Kabuliat.
7a. This leads us to the question of the validity and the admissibility of this Kabuliat. Once it is held that this Kabuliat was for a fixed period of three years, it is apparent that such a Kabuliat would not create a valid lease in view of the provisions of Section 107 of the Jaipur Transfer of Property Act which corresponds word for word with Section 107 of the Transfer of Property Act.
There is a definite prohibition in Section 107 against the creation of tenancy for more than one year by an instrument other than a registered instrument. It is also provided that in such a case, an instrument has to be registered and has to be signed by both the lessor and the lessee. In view of these provisions, this Kabuliat is, in our opinion, invalid as a lease and cannot have any effect as a lease.
8. At the same time, there can be no doubt that a tenancy was certainly created and the nature of such tenancy, after the Kabuliat has fallen on account of its being invalid as a lease, must be a monthly tenancy. The question then arises whether Section 106 of the Transfer of Property Act would apply. It provides that a lease of immovable property for any other purpose (i.e. other than agricultural or manufacturing purpose) shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee by fifteen days' notice expiring with the end of the month of the tenancy, unless there is a contract to the contrary.
9. This brings us to the main argument on behalf of the respondent, namely that there was a contract to the contrary inasmuch as clause (6) of the Kabuliat provided for one month's notice for purposes of vacation and this one month's notice was not required to expire with the end of a month of the tenancy. The argument on behalf of the appellant, on the other hand, is that we cannot look at this clause at all, once it is held that the Kabuliat was invalid as a lease. Reliance in this connection is placed on Ram Kumar Das v. Jagdish-chandra Deo Dhabal Deb, AIR 1952 SC 23.
That was a case where a tenancy had been created by a registered patta, but the Putta was not signed by the lessee. The question that arose for determination in that case, after the Patta had fallen to the ground, was whether the tenancy was an yearly tenancy or a monthly tenancy. In that connection the following observations were made by the Supreme Court :
'But one serious objection to this view (viz. that the tenancy was for one year only) seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all, it is quite another tiling to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case.'
10. The argument of learned counsel for the appellant is that in that case also the instrument! was admissible in evidence because it was registered and section 49 of the Registration Act did not stand in the way of its admissibility. Even so, the Supreme Court held that only a monthly tenancy was created on the facts of that case and as the agreement was not valid, it would amount to there being no agreement at all.
It is, therefore, urged that in this case also, as the agreement is not valid we must hold that there was no agreement at all and we cannot look into any of the term;; of that agreement. It may be pointed out that the Registration Act in force in Jaipur at the time when this Kabuliat was executed did not require leases to be compulsorily regis-trable and therefore an unregistered lease would be admissible in evidence.
Further, when the Jaipur Registration Act came into force in October, 1945, Section 49 of the Act provided that no document executed after the passing of that Act and required by Section 17 or by any provi-sion of the Jaipur Transfer of Property Act to be registered shall be received in evidence of any transaction affecting such property or conferring such power, unless it had been registered. In view of this provision of the Jaipur Registration Act, it was urged for the respondent that the document was not inadmissible in evidence even though it was unregistered.
The suit was filed in March 1949 when the Jaipur Registration Act was in force and, therefore, the Kabuliat was not inadmissible in evidence, though in view of Section 107 of the Jaipur Transfer of Property Act, it was not valid as a lease. Learned counsel for the respondent, however, distinguishes the case of Ram Kumar Das, AIR 1952 SC 23, in this way. He says that the term which the court had to look into in that case was about the period of the tenancy, namely whether it was a tenancy for one year or a month to month tenancy.
Now the definition of a lease as given in Section 105 of the Jaipur Transfer of Property Act, which again is in exactly the same terms as Section 105 of the Transfer of Property Act, is as follows : --
'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.'
11. It is submitted that in view of this definition, two things are essential in a lease, namely
(1) the time for which it is executed, and
(2) what may be called the rent to be paid for it.
The provision as to a month's notice or any other notice is not part of the definition of a lease. In Ram Kumar Das's case, AIR 1952 SC 23, the question was about the period of lease which is part of the definition of a lease. Therefore, the Supreme Court, once it held that the patta was invalid as a lease could not look into the period mentioned in the patta but where a kabuliat patta contains a provision as to notice also, that provision is not a necessary ingredient of a lease and the term relating to that can be separated and looked into, if the document is admissible, as a separate agreement between the parties.
It is, therefore, urged that the sixth clause which provides for one month's notice for ejectment should be severed from the Kabuliat and should be read as a separate contract to the contrary.
12. We have given the matter our earnest consideration. The point is not free from difficulty. No exact case on all fours with the facts of this case has been cited on either side. We feel, however, that a distinction should be made between a case where the instrument is admissible though invalid and where the instrument is both inadmissible and invalid. Where the instrument is both inadmissible and invalid, no part of it can, in our opinion, be looked into or severed from it and the whole of the instrument must fail.
But where the instrument is admissible in evidence, though it fails as a valid lease, we feel that there should be no difficulty in separating thoseparts of the instrument which are not of the essence of the lease as defined in Section 105 of the Transfer of Property Act and to treat them as a separate contract altogether from the contract of lease which is invalid. Thus a term as to notice is not of the essence of the definition of a lease as given in Section 105.
This can, in our opinion, be separated provided the instrument in which it appears is admissible in evidence though invalid as a lease; if on separation it amounts to a contract to the contrary with respect to the provisions of Section 106, it should be given effect to. In this connection, it was urged on behalf of the appellant that there was no contract at all in this case. We are of opinion that that argument cannot be accepted.
It is true that the Kabuliat was not signed by the lessor. It was however signed by the lessee and there is no doubt on the facts of this case that it was accepted by the lessor. In these circumstances, the Kabuliat did amount to a contract between the parties though it did not create a valid lease. The term in it relating to notice being not of the essence of a lease can, in our opinion, be separated and as the Kabuliat is admissible in evidence, it can be looked into and enforced.
On this view, the sixth clause in the kabuliat can be senarated and treated as a separate contract. This contract is contrary to the provisions of Section 106 of the Transfer of Property Act. Notice has been given in accordance with this contrary contract. It was not necessary, in view of this contract, that the notice should expire with the end of the month of the tenancy. In these circumstances we are of opinion that the notice given in this case was valid. The result is that this appeal fails and is hereby dismissed with costs.