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Thayingoly Valiya Kalyani Vs. Vayardathil Parakum Thayingoli Krishnan Nambiar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in101Ind.Cas.836
AppellantThayingoly Valiya Kalyani
RespondentVayardathil Parakum Thayingoli Krishnan Nambiar and ors.
Cases ReferredPuthenpurayil v. Kandiyal
Excerpt:
registration act (xvi of 1908), sections 17 and 50 - agreement to renew lease on specified contingency, whether operates as present demise--registration--transfer of property act (iv of 1882), section 40--specific relief act (i of 1877), section 27--malabar law--kanom--agreement to renew--subsequent execution of melcharth--equities of person in possession--constructive notice--priority. - .....to lease; and as the definition of lease under the registration act includes also an agreement to lease, the document requires registration according to the full bench decision in narayana chetty v. muthiah servai 8 ind. cas. 520: 35 m. 63 : 9 m.l.t. 142 : 21 m l.j. 44: (1910) m.w.n. 743 mr. o.t. govinda nambiar who appears for the respondent points out that the scope of that full bench decision has been limited by the decision in hemanta kumari debi v. midnapur zemindari co. : (1920)22bomlr488 the appellant's counsel does not deny this but he contends that ex. iii amounts to a document operating as present demise within the meaning of the privy council decision above quoted and argues that ex. iii is inadmissible in evidence. it seems to me that the agreement to lease was really.....
Judgment:

Ramesam, J.

1. The facts out of which this second appeal arises may be shortly stated as follows: The 2nd defendant is the jenmi of the suit land. The Ist defendant has been holding it under a Kanom dated 28th January, 1909, Ex. I for 12 years. On the 5th January, 1919, the 2nd defendant executed a melcharth in favour of the plaintiff. Exhibit A and the present suit is filed on its basis for the redemption of the kanom. The 1st defendant pleaded that there is an agreement between him and the jenmi for a renewal of the kanom, dated the lath December, 1918, (Ex. III); and the kanom was actually renewed by a registered document Ex. II dated the 19th December, 1920. It is pleaded that the plaintiffs melcharth was obtained with notice of the defendant's agreement for renewal.

2. The District Munsif found that Ex. III was not a genuine document and decreed the plaintiff's suit What he meant was that Ex. III was not executed on the date it bears; nor that it was not executed by the jenmi.

3. On appeal the District Judge found that Ex. 111 was a genuine document and that it was executed on the date it bears and there is no reason to suspect that it was a collusive document. He then observed 'The whole thing depends upon the question whether there was any agreement to renew on 4th Dhanu as pleaded by defendants Nos. 1 and 2. If there has been such an agreement the law fixes the plaintiff with notice of it and the melcharth obtained by the plaintiff with notice of that agreement cannot prevail. This portion or rather this view of the case is accepted as correct before me by the Vakils on both sides.' On this view he allowed the appeal and dismissed the plaintiff's suit. The plaintiff files the second appeal.

4. [A] In second appeal Mr. Krishna Variar who appears for the appellant raises two points. First, that Ex. III is inadmissible in evidence. His contention is that though Ex. III purports to be a receipt, it is really an agreement to lease; and as the definition of lease under the Registration Act includes also an agreement to lease, the document requires registration according to the Full Bench decision in Narayana Chetty v. Muthiah Servai 8 Ind. Cas. 520: 35 M. 63 : 9 M.L.T. 142 : 21 M L.J. 44: (1910) M.W.N. 743 Mr. O.T. Govinda Nambiar who appears for the respondent points out that the scope of that Full Bench decision has been limited by the decision in Hemanta Kumari Debi v. Midnapur Zemindari Co. : (1920)22BOMLR488 The appellant's Counsel does not deny this but he contends that Ex. III amounts to a document operating as present demise within the meaning of the Privy Council decision above quoted and argues that Ex. III is inadmissible in evidence. It seems to me that the agreement to lease was really contemporaneous with Ex. III, that there is really no oral agreement to lease made at a time far apart and distinct from the time of Ex. III. At the same time it seems to me that Ex. 111 was not intended to reduce to writing the terms of the agreement though it refers to them fully. It shows that the lease is to be renewed on the receipt of a further manusham of Rs. 36 and Rs. 30 14-9 have been received as part payment towards this manusham of Rs. 36. It also shows that the balance of the manusham Rs. 5-1-3 was to be paid on the date of the demise and it was not paid on that date. It is unnecessary for me to pursue this question whether Ex. III is to be regarded as an agreement to lease. Assuming it is an agreement to lease, I am clear that it cannot amount to a document operating as a 'present' demise, because the parties did not intend a demise until the payment of Rs. 5-1-3 and so long as that amount remained unpaid no operative demise could be intended. It is true, as Mr. Krishna Variar contends as it has been held in Ramjoo Mahomed v. Haridas Mullick : AIR1925Cal1087 that the mere fact that another document of lease was afterwards executed has no bearing on the construction of the agreement. It is not because there is another document later on that I hold that Ex. HE is not operative as a demise but it is because that only on the happening of some contingent event the demise was intended to come into existence. In this respect it resembles the decision in Hemanta Kumari Debi v. Midnapur Zemindari Co. : (1920)22BOMLR488 I, therefore, hold that Ex. III is not in-admissible for want of registration., [A]

5. [B] The 2nd point raised by Mr. Krishna Variar is that as between Ex. III and Ex. A obtained by his client, Ex. A ought to prevail under Section 50 of the Registration Act. He relies on Fuzludeen Khan v. Fakir Mahomed Khan 5 C. 336 : 5 Ind. Jur. 137 : 4 C.L.R. 257 : 2 Ind. Dec. 825. I do not think there is any scope for the application of Section 50 of the Registration Act. This is not a case whether there is a conflict between two documents of the same kind one being registered and the other being unregistered. The decision in Fuzludeen Khan v. Fakir Mahomed Khan 5 C. 336 : 5 Ind. Jur. 137 : 4 C.L.R. 257 : 2 Ind. Dec. 825 and Section 50 of the Registration Act apply where we have got two sale-deeds, one being registered and the other being un-registered or such other similar facts. Here what we have got is plaintiff's valid melcharth and the defendant's mere agreement for renewal of a Kanom. If it is a question of merely deciding the case on the conflict between the two documents there is no doubt that Ex. A ought to prevail as between A, the melcharth and Ex. III. The ground on which the defendant resists the suit and on which the District Judge decided is that the agreement may be enforced not only against the parties to the document but against the transferee with notice of such agreement. In deciding such point we have nothing to do with Section 50 of the Registration Act. We have to apply Section 40 of the Transfer of Property Act and Section 27 of the Specific Relief Act [B] Under Section 40 of the Transfer of Property Act there is no doubt as to the sense in which the word 'notice' is used. 'Notice' for the purpose of the Transfer of Property Act is defined under Section 3 of that Act and includes also constructive notice. [C] On the question of constructive notice there is the leading decision of Daniels v. Davison (1809) 16 Ves. Jun. 249 : 33 E.R. 978 : 10 R.R. 171 according to which a purchaser is presumed to have constructive notice of not only the tenant's interest but also of other equities which the tenant in possession had. It is true that in several cases in England Judges have refused to extend the principle of Daniels v. Davison (1809) 16 Ves. Jun. 249 : 33 E.R. 978 : 10 R.R. 171. But it has been repeatedly applied in India and I do not see any trace of any Court in India, showing its unwillingness to apply that decision with reference to the doctrine of notice under the Transfer of Property Act. The Privy Council case of Barnhart v. Greenshields 9 Moo. P.C. 18: 105 R.R. 1 : 14 E.R. 204 has laid down a similar rule, though on the facts there is no scope of its application. In Faki Ibrahim v. Faki Gulam Mohi-i-din 60 Ind Cas. 986 : 45 B 910 : 23 Bom. L.R. 335 Macleod, C. J., and Fawcett, J., both refer to Daniels v. Davison (1809) 16 Ves. Jun. 249 : 33 E.R. 978 : 10 R.R. 171. C]

6. Mr. Krishna Variar refers to an unreported decision of Phillips, J., in S.A. No. 1688 of 1922, the only case cited in that judgment is the last mentioned case Puthenpurayil v. Kandiyal 31 Ind. Cas. 906 : (1916) 2 M.W.N. 31 : 20 M.L.T. 127. But the facts of this case are distinguishable from the case cited. In the case before Phillips, J., the interval between the melcharth and the agreement for the renewal by the plaintiff was two days. Whether this circumstance is really a sufficient ground of distinction and whether Phillips, J., has correctly decided the case it is not for me to say. If the matter arises before me I may probably be inclined to dissent from him. In the present case the interval between this agreement for renewal and the plaintiff's melcharth was 17 days, and there was nothing to prevent the plaintiff from enquiring of the defendant before he finally made up his mind to obtain a melcharth. The appellant's Counsel points out that the stamp for the melcharth was obtained on the 31st December and the transaction must have been settled by that time. There was an interval of 12 days. Assuming that the plaintiff's negotiations for melcharth were completed by the 30th or 31st December or if it was before, there was nothing to prevent him from going and enquiring the kanomdar. [D] It seems to me that in such a case it is the duty of the melcharthdar when his negotiations with the jenmi are completed to make enquiries of the kanomdar in possession and if he does not do so he will find himself liable to be defeated by an agreement for renewal of the kind in this case. [D] I, therefore, think that the decision of the District Judge is right, and the second appeal is dismissed with costs.


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