(1) The defendants are appellants in the second appeal. The plaintiff is Sri Arunajadeswaraswami temple at Tirupanandal. The temple filed the suit to recover possession of the land of an extent of 120 kulis belonging to it. The facts which are not in controversy are that on 24-1-1893 the temple granted a lease of the property to one Doraisami Kothan, the father of the first defendant, subject to the condition that this Doraisami Kothan, shall take possession of the property, construct a brick building for Drowpadiamman temple, start and develop a nandavanam all round the temple and plant and rear coconut trees in the Nandavanams, and pay a rent 12 annas per fasli to the devastanam on or before 31st January of each fasli. He should also maintain worship in the Ammal temple, In default of compliance with the conditions, if the temple wants be should surrender possession of the property with the trees, temple, building, nandavanam etc. It is the plaintiff's case that Doraiswami Kothan got into possession of the property and complied with the conditions as per the lease deed Ex A. 4. Doraiswami Kothan died on 6-12-1940. Thereafter the first defendant got into possession of the property. He has created certain leases in favour of defendants except defendant 8. The temple through its advocate issued notice Ex A. 6 dated 17-6-1959 calling upon the aforesaid defendants to hand over possession of the property along with the temple building, nandavanam, standing trees etc, alleging that there has been default on the part of the first defendant to perform the conditions under Ex A. 4. The compliant of the temple was that the first defendant was guilty of gross negligence and dereliction of duties, and that he did not attend to the temple etc. The first defendant's advocate sent a reply Ex A. 7 dated 14-7-1959 in which the first defendant set up title to the property and did not recognise or accept the title of the temple. This repudiation and attitude of the defendants led to the present suit O. S. 14 of 1960 on the file of the District Munsif Court, Kumbakonam.
(2) The trial court found that the property belonged to the temple and there is no substance in the defendant's contention that the property was the private property of Doraswami Kothan or, the first defendant. It also held that as the lease deed in question was not registered as required by Section 107 of the Transfer of Property Act, it was terminable on the part of either lessor or lessee by 15 days notice, and would be deemed to be a lease from month to month as specified in Section 106 of the Transfer of Property Act. In this view the contentions of the defendant were negative and a decree for possession was passed in favour of the plaintiff. On appeal, the appellate court while confirming the judgment of the trial court on the merits with regard to the plaintiff's claim for possession held that the first defendant would be entitled to compensation with regard to the coconut trees which he claimed to have planted on the land in question. It had directed the question of compensation to be determined by a Commissioner. The first defendant has preferred the second appeal. The plaintiff has filed a memorandum of cross objections with regard to the claim of compensation which was upheld in favour of the first defendant.
(3) Mr. Venkataraman, learned counsel for the appellants contended that the lease in question terminated with the death of Doraisami Kothan in 1940, that thereafter it would not ensure in favour of the first defendant with the result that his possession thereafter should be presumed to be adverse as that of trespasser, and that as the first defendant had been in such possession without titles as trespasser for over 12 years from 1940 he has perfected his title by adverse possession and the plaintiff's suit is liable to be dismissed on that ground. In support of his contention, learned counsel relied on the decision in Saldanha v. R.C. Church Mermajal : AIR1930Mad434 and Jumma v. Madhusoodan Dayal : AIR1941All306 . Learned counsel also relied upon the decision in Muralidhar v. Mt. Tara Dye : AIR1953Cal349 and Ramachandra Agarwala v. Syameswari Dasya : AIR1925Cal1171 in support of his further contention that as the lease deed was unregistered, the possession of Dorasami Kothan was only that of a tenant--will and therefore on his death there was nothing which the first defendant would inherit, and that after 1940 the possession of the first defendant would be without any right and only that of a trespasser. In this view, too, he contended that the plaintiff's suit would be barred by limitation as the first defendant should be held to have acquired title to the property by adverse possession. I see no substance in these contentions.
Mr. M.S. Venkatarama Aiyer, Learned counsel for the respondent, urged that Ex A. 4 was undoubtedly a lease which required registration under Section 107 of the Transfer of Property Act, as it is a lease for more than one year. From this he contended that if for want of registration Ex A. 4 becomes inadmissible and unless, Section 106 of the Transfer of Property Act would be attracted and the position would be that there is no contract with regard to the terms of the lease, and that as the lease was not for agricultural purpose, statutory, the lease would be deemed to be a lease from month to month terminable on the part of either the lessor or lessee by issue of 15 days notice. According to learned counsel the fact that Ex. A. 4 provides that rent is payable at indefinite interval extending years or that the terms of the lease are such that it is impossible to regard it as monthly lease, is wholly irrelevant. According to learned counsel, Section 106 would apply only to such cases and the section statutory regards the lease from month to month. In support of his contention learned counsel referred me to the statements of law in Mullah's Transfer of Property Act 6th, Edn, at page 106, and also drew my attention to the decision of the Calcutta High Court in Akloo v. Emaman ILR 44 Cal 403 AIR 1916 Cal 358 in which the facts were similar to those in the present case. In that case also the terms of the lease which was unregistered showed that it was annual tenancy and the rent was payable every year and the identical pint was dealt with by the learned Chief Justice in these terms:
'Then arises the next question whether from that fact, it can be presumed that the tenancy was an annual tenancy. I should be prepared to follow what was said by my learned brother Mr. Justice Mookerjee in the case Durgi Nikarini v. Goberdhan Bose. : AIR1915Cal64 namely, 'it may possibly be accepted as a proposition generally true, that, as indicated in Wilkinson v. Hall, (1837) 3 BN. C. 508, the mode in which rent is expressed to be reserved affords a presumption that the tenancy is of a character corresponding thereto. The rule, however, is not of universal application, and it was pointed out by Mr. Justice Maule in Atherstone v. Bostock, (1841) 10 L.J. C. P. 113 that the presumption of yearly taking from the rent being paid yearly does not apply to the case of lodgings, and the same view is supported by the case in Wilson v. Abbott. (1824) 3 B &C; 88.'
Now in this case there is nothing to rebut the presumption which I think ought to be drawn from the fact that the rent was to be an annual rent. Therefore, the presumption ought to be drawn that the tenancy was to be an annual tenancy; and so far that conclusion at which I have arrived, is in favour of the appellant. Therefore, within the words of Section 106 of the Transfer of Property Act, there would be a contract, namely, such as I have described, a contract of tenancy between the plaintiff on the one hand and the defendant on the other, and an annual tenancy for which an annual rent of Rs. 15 was to be paid, and, therefore, Section 106, if it store by itself, would not apply because there would be a contract to the contrary. But unfortunately for the appellant there is Section 107, which says that such a contract as that, a contract such as I have described, which reserves a yearly rent, can be made only by a registered instrument and, inasmuch as there is no registered instrument in this case, that contract must be treated as invalid contract and as not existing. Therefore, I am forced to the conclusion that this case does come within Section 106, because there is no absence of a contract to the contrary, inasmuch as the contract which was in fact made and was in fact held to exist by the court of this instance was not put into writing and was not registered.
Reference has also been made to an earlier decision of the Calcutta High Court in Debendranath Bowmik v. Syamaprosanna Bowmik 1801 CWN 1124 in which the same aspect is stressed having regard to the express language in Section 106. There also the document of lease was unregistered and it was an yearly tenancy, the rent sitpulated being annual rent. It was held that as the lease deed was inadmissible under Section 107, it was regarded as one terminable either by lessor or lessee by 15 days notice under Section 106. It is unnecessary to multiply authorities in view of the clear language of Section 106. Therefore, the lease in the instant case was terminable by 15 days notice and was current when Dorasami Kothan died. During the currency of the lease the first defendant undoubtedly became entitled to and obtained possession of the property as the lessee, because it is a lease from month to month. It is not in controversy that such a lease has been validly determined as a result of the notice Ex. A. 6. The result therefore is that the first defendant is bound to surrender possession to the plaintiff. The second appeal is dismissed with costs. No leave.
(4) With reward to the memorandum of cross objections it is clear the lower appellate court has committed a mistake in relying upon the decision in Alagarswami Kone v. T. J. Andoni : AIR1961Mad293 . Having regard to the terms of the lease deed in that case that decision has no application the instant case. In that case, the lease deed contained a provision that on the termination of the lease when the lessor terminated his possession the lessee would be entitled to the cost of the construction of improvement which was effected on the property with the result that it could be said that when the lessee effected improvements, he did them in good faith and on the presumption that the would be entitled to the value thereof. That principle will have no application to a case in which the lease deed contains a contrary provision, Ex A. 4 contains a clear covenant that on the termination of the lease the lessee should hand over possession of the property along with the building, trees etc, without any claim for compensation. The first defendant cannot blow hot and cold. If he relies upon the lease deed, Ex A. 4, he is not entitled to get compensation. If the lease deed becomes inadmissible for want of registration, under Section 51, it is clear that a lessee would not be entitled to compensation in respect of any improvements effected on the property demised, Mr. Venkatarama Aiyer drew my attention to the decision of the Privy Council in G. H. C. Ariff v. Jadunath Majumdar and the observations therein at page 546 of if a lessee erects any building not in a mistaken belief of his right in regard to the land, but in assertion of rights which he her correctly believes to be his but which ultimately turn to be unfounded in law, he cannot claim compensation. From this it will be clear that the first defendant is not entitled to any claim for compensation. The result is the Memorandum of Cross Objections is allowed, No costs in Memorandum of cross objections, No leave.
(5) Appeal dismissed and Memorandum of cross objections allowed.