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Sivasubramania thevar Vs. Dewan Bahadur T.N.S. theerthapathi, Zamindar of Singampatti - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1933Mad451; (1933)64MLJ676
AppellantSivasubramania thevar
RespondentDewan Bahadur T.N.S. theerthapathi, Zamindar of Singampatti
Cases ReferredNarain Coomary v. Ramkrishna Dass I.L.R.
Excerpt:
- - 6. the requirements of an oral lease being thus satisfied, we have then to see whether what would otherwise stand as such a lease has been replaced by some document which may be construed, so far as its terms are concerned, as a lease in writing, and which would therefore render oral proof of the terms of the lease inadmissible under section 91 of the evidence act, and would in its turn, being unregistered, fail to effect the contract or to be admissible in evidence of it, under section 49 of the registration act. it may well be that, if these documents were examined, we should be led to the conclusion that the completion of the auction, and not they or one of them, marked the completion of the contract......its terms are concerned, as a lease in writing, and which would therefore render oral proof of the terms of the lease inadmissible under section 91 of the evidence act, and would in its turn, being unregistered, fail to effect the contract or to be admissible in evidence of it, under section 49 of the registration act. the learned advocate, general offers three such documents, either alternatively or in combination, as fulfilling this requirement. they are (a) the auction list, (b) a muchilika which the defendant is said to have signed on the day after the auction, and (c) an agreement, dated the 15th june, 1921,. but not signed by the dewan until the 29th july. only the last of these documents has been produced by the defendant (exhibit xxi). there is even some doubt whether document.....
Judgment:

Curgenven, J.

1. The suit out of which these appeals arise was brought by the Zamindar of Singampatti and three other plaintiffs in the following circumstances. With the object of leasing certain home-farm lands within the Zamindari for a term of seven years (faslis 1331 to 1337) an auction was held in March, 1921, the lease to go to the competitor who bid the highest lease amount. The 1st defendant (hereafter to be called the defendant) secured it for a sum of Rs. 9,000. Towards this amount he deposited Rs. 500 on 14th March, and the balance was to be paid in five yearly instalments of Rs. 1,500 and a final instalment of Rs. 1,000. By March, 1924, he had paid Rs. 6,500. The defendant was let into possession of the lands as from the 1st July, 1921, i.e., the commencement of fasli 1331, and continued in uninterrupted possession until, as a result of proceedings taken by him in 1924, under Section 145 of the Criminal Procedure Code, a receiver was appointed to harvest the crops and realise the sale proceeds. What had happened Was that the Zamindar, alleging a voluntary surrender by the defendant in May, 1924, had leased the lands afresh to the 2nd to 4th plaintiffs. In view of the situation thus created, the Zamindar and his new tenants filed the present suit praying for either a permanent injunction restraining the defendants from interfering with the plaintiffs' possession or, if it 'should be found that the defendants were in possession, for delivery; and further for a declaration that the plaintiffs were entitled to the sum of Rs. 5,600 deposited in Court by the receiver appointed in the possession proceedings. It was alleged in the plaint that the defendant's lease was only for one year. There were further allegations that the defendant, while in occupation of the land, had caused damage amounting to Rs. 4,000 to trees and to a tank, and that, to compound for his liability he had, as already stated, voluntarily surrendered the lease in May, 1924. It was added that he was understood to be setting up a seven years' lease, and that even if true the lease was invalid, the document which purported to create it being unregistered. The defendant, in his written statement, traversed the allegations of, fact in the plaint and maintained that the lease was for seven years, and was valid.

2. The findings at the trial were in the first place that so far from the plaintiff succeeding in establishing a lease for one year there was overwhelming evidence that it was false, and that, subject to the question of its validity, the lease was for a term of seven years. The allegations of damage and of consequent surrender were also discredited. On the question of the Validity of the lease, however, and the further question of the effect of part performance, the learned Additional Subordinate Judge found for the plaintiff, and accordingly decreed possession. This decision is attacked by the defendant in A.S. No. 59 of 1927. In A.S. No. 157 of 1927 the plaintiff claims the sum realised by the receiver, a question which will only arise if the decision of the trial Court upon the main point is confirmed.

3. Dealing then with A.S. No. 59, we may note, to begin with, that the whole story of a year's lease, of the defendant's acts of waste and damage, and of a voluntary surrender, has been here abandoned. We are now concerned only with the question whether the steps taken by auction and otherwise to let the property for seven years resulted in a valid lease. The law applicable to the case is clear. If the lease had fallen within the Transfer of Property Act it could only have been made, as Section 107 provides, by a registered instrument. But it was an agricultural lease, and such leases are excluded by, Section 117. It could therefore have been made either orally or in Writing, though if in writing Section 17 of the Registration Act requires that it should have been registered. Admittedly there is no registered lease or agreement to lease. For the lease to be valid, then, it must be found that it originated in an oral contract.

4. The case for the appellant is that such an oral contract is to be found in the auction proceedings, terminating with the acceptance by the Dewan, on behalf of the Zamindar, of his bid of Rs. 9,000. If any written documents came into existence subsequently, he contends, they did not embody the contract, which was already completed. Per contra, the learned Advocate-General for the respondent has endeavoured to show that there was an intention common to the parties that a lease deed should be executed, and that this intention was fulfilled.

5. No attempt has been made to dispute the position that, if no proof is forthcoming that the parties committed the lease to writing, a completed oral contract of lease resulted from the acceptance by the selling officer of the defendant's bid. If authority be needed for this proposition it is to be found in the Privy Council case Sheo Lall Bohra v. Sheik Mahomed (1869) 13 W.R. 4 where some lands were sold by Government, and their Lordships held that 'in the sale the Government was exactly in the situation of an individual selling his property by auction; and when the property was knocked down, the relation of vendor and vendee existed between the Government and the highest bidder'. So far as the sale of goods is concerned, this principle has been embodied in Section 64 of Act III of 1930. A case bearing some resemblance to the present one is Chitibobu Adenna v. Garimalla Jaggarayadiu (1913) 28 M.L.J. 617. The Vizianagaram Samasthanam sold the occupancy rights in a jeroyiti land by auction to the defendants, and subsequently granted a cowle to the plaintiff, who sued in ejectment. It was held that the defendants' title was complete as soon as the land was knocked down, and the contention that it could only be completed by an exchange of patta and muchilika was repelled.

6. The requirements of an oral lease being thus satisfied, we have then to see whether what would otherwise stand as such a lease has been replaced by some document which may be construed, so far as its terms are concerned, as a lease in writing, and which would therefore render oral proof of the terms of the lease inadmissible under Section 91 of the Evidence Act, and would in its turn, being unregistered, fail to effect the contract or to be admissible in evidence of it, under Section 49 of the Registration Act. The learned Advocate, General offers three such documents, either alternatively or in combination, as fulfilling this requirement. They are (a) the auction list, (b) a muchilika which the defendant is said to have signed on the day after the auction, and (c) an agreement, dated the 15th June, 1921,. but not signed by the Dewan until the 29th July. Only the last of these documents has been produced by the defendant (Exhibit XXI). There is even some doubt whether document (b) came into existence at all; but assuming that it did, both it and the auction list have been withheld by the plaintiff and since no explanation has been offered in justification of this conduct we can only conclude that they have been suppressed because they would have fatally exposed the falsity of the case originally set up. In their absence the plaintiff has sought to establish their contents by secondary evidence, largely in the shape of admissions extracted from the defendant. It seems to us in the highest degree improper that such a method of proof should be allowed. The point has not been fully argued, but we can find no justification for such a course in Section 65 of the Evidence Act, and upon general principles a party ought not to be allowed to defeat his opponent by force of a document which he has in his possession and will not produce. The learned Advocate-General has sought to draw a distinction between the secondary evidence of the contents of a document and oral evidence to the effect that the bargain between the parties was committed to writing, and contends that he is entitled to use the latter kind of evidence and that it is enough for his purpose. Whatever may be the merits of this distinction, we are clear that that evidence is not enough for his purpose, and that unless we can ascertain with some close approach to accuracy and completeness what the two missing documents contain we cannot safely conclude that either, or both together, amounts to a lease deed. To take first the auction list, the defendant admits that he signed it. In one place he says that if contained all the terms to be found in Exhibit XXI and that he signed no other document. Later on he speaks of signing a muchilika on the day after the auction, and that, he says, was the document in which all the terms of the lease were embodied. 'I thought that that muchilika was to be the sole record of the lease.' From two of his witnesses, D. Ws. 3 and 4, was extracted the statement that the defendant signed a muchilika containing the terms of the lease.- We are not prepared to act upon these statements, couched as they are in the most general terms, in the circumstances of the case. It is unnecessary to cite examples from the case-law upon the subject in illustration of the difficulty which Courts have sometimes felt in deciding, often after finding it necessary to make a close scrutiny of its terms, whether a given document, in the language of the Privy Council in Subramonian v. Lutchman (1922) L.R. 50 IndAp 77 : I.L.R. 50 Cal. 338 : 44 M.L.J. 602 , constitutes the bargain between the parties, or is merely the record of an already completed transaction. It is not even necessarily enough that the document should contain a complete recital of the terms, which is the most that can be derived from the statements of the witnesses. It may well be that, if these documents were examined, we should be led to the conclusion that the completion of the auction, and not they or one of them, marked the completion of the contract. See, for example, Narain Coomary v. Ramkrishna Dass I.L.R. (1880) Cal. 864 for an instance of this kind. The defendant is entitled to ask us to make every presumption in his favour, both because the objection taken is a technical one, not affecting the substantial justice of the case, and in view of the plaintiffs' conduct in suppressing these documents.' We attach no importance to the argument that it is improbable that the parties should not have had a written instrument in contemplation, in face of the defendant's assertion that the Dewan assured him that registration was unnecessary since he held the Zamindar's power of attorney. We are accordingly unable to find that the oral lease which was constituted by the acceptance of the defendant's bid was embodied either in the auction list or in the muchilika.

7. There remains the document, Exhibit XXI, signed by the Dewan. This is styled an agreement, and opens with the recital 'You have settled the fixed lease (or rent) .... at Rs. 9,000.;'' It goes on to define some of the terms upon which the defendant is to hold the land. It may be that, if internal evidence alone were in question, it could be read as a lease-deed. But it was not signed by the Dewan until some four and a half months had elapsed since the auction, and by then the defendant had not only been for nearly a month in possession of the land but had also made a number of payments (see Exhibits IX to XII) as lessee. Further, the argument dealt with above that the lease had already been constituted by the earlier documents leaves little or no room for the contention that this is the instrument which created it.

8. We are accordingly unable to agree with the Lower Court that the lease is invalid under Section 49 of the Registration Act because it was a lease in writing. This finding is sufficient to dispose of the case, and the defendant has no need to resort to the doctrine of part performance, upon which some argument was addressed to us. We allow Appeal No. 59 and dismiss the plaintiffs' suit, with costs throughout. Appeal No. 157 by the plaintiffs is dismissed with costs of the 1st respondent.


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