S.K. Sen, J.
1. This second appeal by the plaintiff arises from a suit of declaration of the plaintiff's title to the suit land and for recovery of khas possession therein and also for recovery of mesne pro-fits for three years.
2. The case of the plaintiff Chandra Nath Mukherjee was briefly as follows. On 10-4-1937, defendant No. 2, Ram Dhani Barui took settlement of the plot described in item No. 1 of schedule Ka, measuring .03 acre, for erecting a dwelling hut thereon, no period being mentioned in the Kabuliat which was duly registered. The rent reserved was Rs. 6/- per year. On 30-10-1939, defendant No. 3, Rani Bala Dasi, executed a registered Kabuliat in respect of the plot of land described in item No. 2 of the schedule Ka, measuring also .03 acre, purporting to take lease of the land for an indefinite period at the yearly rental of Rs, 7-8 annas. This was also for the purpose of erecting a dwelling house. Rani Bala, defendant No. 3, was the wife of Ram Dhani, defendant No. 2, and though the settlement was taken by two different kabutiyats on two different dates, ultimately the two plots were regarded as comprising one holding and the defendants Nos. 2 and 3 erected a dwelling house thereon and lived there for sometime and paid rent to the plaintiff. But after 7 or 8 years Ram Dhani and Rani Bala left the place and defendant No. 1, Chulai Pashi, began to possess both the plots of land described in schedule Ka. The plaintiff never received any rent from defendant No. 1, Chulai Pashi and treated him as a trespasser. When the plaintiff went to take khas possession of the land from Chulai Pashi, after defendants Nos. 2 and 3 had left the place, defendant No. 1 gave out that he had purchased the land from Ram Dhani and Rani Bala by two sale deeds. But according to the terms of the lease which were granted to Ram Dhani and Rani Bala, they had no right to transfer their right as lessee in the land and there was a condition in the kabuliyats that if they transferred their lease-hold right the lease would be considered determined and the landlord would be entitled to take khas possession. The plaintiff, therefore, claimed that he was enlitled to get khas possession of the suit land, and the plaintiff also claimed mesne profits at the rate of Rs. 36/- per year for the period of 3 years. The suit was instituted on 2-4-1947, that is, within 10 years from the date of the first kabuliyat executed by Ram Dhani.
3. Defendant No. 1 filed a written statement and contested the suit. Defendants Nos. 2 and 3 who were added as parties subsequently on the ob-jection of defendant No. 1 also filed a written statement. The defence was that Ram Dhani and Rani Bala obtained lease verbally from the plaintiff about 2 years before the execution of the first kabuliyat by Ram Dhani, and that the execution of the kabuliyats by defendants Nos. 2 and 3 was obtained by fraud and undue influence and the defendants were not bound by the terms contained therein; further, that the kabuliyats though registered, did not take effect as instruments of lease because they were not executed both by the lessor and the lessee though they reserved an yearly rent. At the same time, the defence was taken that the defendants Nos. 2 and 3 had not sold their leasehold right to defendant No, 1 but had only mortgaged the same with defendant No. 1 and put him in possession, and there being no outright transfer, the plaintiff was not entitled to re-enter. It was alleged that in respect of the transaction effected between defendants Nos. 2 and 3 on one side and defendant No. 1 on the other side, there was intention to execute mortgage bonds, but sale deeds were actually executed through fraud on the part of an Ammuktear of the plaintiff who had actually got the documents written out.
4. The learned Munsif held that defendants-Nos. 2 and 3 obtained possession of the suit land on the basis of the registered kabuliats dated 10-4-1937, and 30-10-1939 which were marked Exts. 1 and 1(a) respectively and not about 2 years before the execution of the first kabuliyat as alleged by the defendants. The learned Munsif also held that the execution of the kabuliyats was not obtained by fraud or undue influence and that the defendants knew the terms of the kabuliyats. The learned Munsif also-held that defendants Nos. 2 and 3 had sold their leasehold interest to defendant No. 1 by two kabulas executed on 24-8-1946, and that they intended to sell their leasehold rights and it was not true that they really intended to execute mortgage bonds, but that sale deeds were written out fraudulently at the instance of an officer of the plaintiff. But the learned Munsif also found that the kabuliyats Ext. 1 and'; l(a), though registered were not valid instruments of lease because they were not executed by both the-lessor and lessee as required by paragraph 3 of Section 107 of the Transfer of Property Act. Accordingly, the learned Munsif hold that the plaintiff could not get advantage of any covenant restricting alienation and providing for re-entry of the plaintiff on such alienation. It was held that defendants Nos. 2 and 3 had obtained right as lessee by occupation of the land and payment of rent for the same to the plaintiff which rent was accepted by the plaintiff, and that they had the right to sell their leasehold right to defendant No. 1, and defendant No. 1 was also protected because the plaintiff could not on account of the invalidity of the lease deeds get the benefit of the covenant for re-entry on alienation by the original lessees. In the circumstances, the learned Munsif held that the plaintiff should only get a declaration of his title to the suit land but could not get khas. possession or mesne profits. The suit was disposed of accordingly.
5. There was an appeal by the plaintiff but the learned Subordinate Judge, Burdwan, who heard the appeal agreed with the findings of the learned Munsif, and he held that even if the kabuliyats Exts. 1 and 1(a) were taken as valid deeds of lease, the plaintiff could not take advantage of the covenants for re-entry on alienation without serving a notice on the original lessees in accordance with the provisions, of Section 111(g) of the Transfer of Property Act, and since such notice had not been served, the plaintiff could not get khas possession. The learned Subordinate Judge also pointed out that apart from these defects in the plaintiff's case, the West Bengal Non-Agricultural Tenancy Act, 1949, had come into force before the disposal of the suit, and therefore the defendants had become entitled to the protection afforded by that Act to all non-agricultural tenants; and as there had been no notice determining the tenancy in accordance with the provisions of Section 9 of that Act, the plaintiff could not get relief in any case. Accordingly, the appeal was dismissed and the decree of the learned Munsif was affirmed.
6. Against that decision, the plaintiff has preferred this second appeal contending that he ought to have been granted a decree for khas possession and for mesne profits.
7. The facts found in this case are that the kabuliyats Exts. 1 and l(a) were executed respectively by Ram Dhani and Rani Bala Dasi on 10-4-1937, and 30-11-1939, that they were executed by defendants Nos. 2 and 3 with full knowledge of the contents and there was no fraud and undue influence and defendants Nos. 2 and 3 obtained possession on the basis of these kabuliyats and the kabuli-vats were duly registered but they were not executed; by the plaintiff lessor but only by the respective lessees Ram Dhani and Rani Bala. It has also been found that Ram Dhani and Rani Bala sold their leasehold interest by the kabalas Exts. 2 and 2(a) to defendant No. 1, Chulai Pashi and that they intended to execute these deeds of sale; and that it is not true that they wanted to execute mortgage deeds but through fraud on the part of an officer of the plaintiff, the deeds of sale were executed.
8. Mr. N. G. Chakravartty appearing for the appellant has urged that if the registered Kabuliats, because of the non-compliance with the provisions in the 3rd paragraph of Section 107 of the Transfer of Property Act, be regarded as not creating a valid lease, this finding should be carried to its original (sic) conclusion; if the registered kabuliats did not create a valid lease, the defendants did not obtain any legal right and could be regarded as in possession only as trespassers; and as they had not completed 12 years' adverse possession before the institution of the suit they could be ejected without service of notice being effected on them, on the footing that they were trespassers, and that therefore the plaintiff appellant was entitled to have his decree for khas possession. In support of this contention Mr. Chakravartty has relied on certain observations in Hari Prasad Agarwalla v. Abdul Haq, : AIR1951Pat160 which is as follows:
'That a person in possession under an invalid lease is in possession as a trespasser, is established now beyond doubt. In the case of President and Governors of Magdalen Hospital v. Alfred Knotts (1879) 4 A C 324 it has been held that a lease which was against the provision of law was an absolutely void lease from iis very inception and that if the lessee was put in possession under the invalid lease, the right of the lessor to re-enter on the land existed from the moment of execution of that lease.....'
9. In the English case the right to recover possession was not sought within the period of limitation and therefore it was held that the right to recover possession was barred by limitation.
10. Mr. Chakravartty has urged that in the present case the right to recover possession has been sought within the period of 12 years from the date of execution of the first kabuliat and therefore the claim cannot in any case be defeated.
11. Mr. Chakravartty has also urged that possibly the defendants in possession might seek the protection of the doctrine of part performance as contained in Section 53A of the Transfer of Property Act, as the terms of the lease were reduced into writing but the lease deed was not completed in thg manner prescribed by the law; but if they seek the protection of Section 53A, they must be subject to the liabilities under Section 53A, for under Section 53A the transferor can enforce against the transferee and the persons claiming under him any right expressly provided by the terms of the contract. In this case in both the kabuliats the right to re-enter in the event of an alienation by the lessee was provided; so Mr. Chakravarty urges that the plaintiff appellant is entitled to enforce his right to re-enter, that is, to obtain khas possession without serving notice.
12. Undoubtedly, the contention of Mr. Chak-ravartty deserves serious consideration. The second branch of his argument is however based on the assumption that the provisions of Section 53A of the Transfer of Property Act are attracted to the facts of this case. But it must be held that Section 53A applies to a case where there is some writing signed by the transferor or lessor in executing the terms of the lease or transfer and not to a case where the terms are contained in some document signed by the transferee or lessee; for the section begins, 'Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty...' It is clear therefore that the provisions of Section 53A of the Transfer of Property Act come into operation when there is some writing signed by the transferor and not when there is some writing signed by the transferee. In this connection reference may be made to a decision of Lahiri and Mitter JJ. in Ram Abatar Mahato v. Sm. Shanta Bala Dasi, : AIR1954Cal207 , where following an earlier unreported decision of Chunder J. it was held as follows:
'Sec. 53 A has no application to a case where the document upon which a party relies is not a contract of transfer by the lessor but is a kabuliat executed by the lessee'.
13. Next we turn to the main contention of Mr. Chakravartty. The Patna case cited by him undoubtedly supports his contention. It was held in that case that a lease of immovable property purported to be made by a registered instrument for a term exceeding one year but not executed in the manner specified in paragraph 3 of Section 107 is invalid, and the invalidity cannot be cured by construing it as a lease for a term of one year by oral agreement accompanied by delivery of possession and thereafter assuming it to be a case of holding Over under Section 116 of the Transfer of Property Act. It was held that the person in possession under such invalid lease can only be regarded as in possession as a trespasser. But the Patna case can be distinguished by observing that it was a suit by the lessee for recovery of possession as against a person who was holding under a subsequent but valid lease executed between the proprietor and himself, and the proprietor had repudiated this lease of the plaintiff. An invalid lease would not entitle the plaintiff claiming as lessee to a declaration of his title as lessee to recovery of possession. The position is different when the defendant is the lessee in possession and is sought to be evicted by the owner of the land. The question is whether in such a case too the lessee is to be deemed to have no legal right or status as a lessee merely because the lease deed was not executed by both the parties.
14. Mr. J. M. De for the respondent has urged that where the defendant has been let into possession of the land and rent has been received from him, he has the status and all the legal rights as a lessee even though the lease was not created in accordance with the terms of Section 107 of the Transfer of Property Act. He has referred in this connection to a decision of Nasim Ali and Blank JJ. namely, Adinath Bhattaeharjee v. Krishna Chandra Bhattacharjee : AIR1943Cal474 . That was a case of oral lease for an undefined term reserving a yearly rent. There should have been a registered lease deed for creating such a lease. It was however held that this lease, though made without a registered instrument, was valid for the first year, and as the lessee continued to be in possession thereafter and the lessor accepted rent from him, a tenancy by holding over, from month to month or from year to year as the case might be, was created u/s 116 of the Transfer of Property Act. In the Patna case, this case was noticed but distinguished on the ground that it dealt with a case of oral lease accompanied by delivery of possession and receipt of rent, and not a written instrument purporting to create a lease but invalid under the law. But in two Single Bench decisions of this Court the view has been taken that though the instrument by which the lease purported to be Created being an unilateral kabuliat was invalid under the terms of Section 107 of the Transfer of Property Act, still where there is admitted payment of rent for the land and the land is in the possession of the defendant claiming to be a lessee, a tenancy is proved. I refer to the cases of Mahadeyi Telini v. Dasarathi Banerjee, AIR 1955 N.U.C. (Cal) 2889 and Indramoni Dassi v. Snehalata Dutt AIR 1955 NUC (CalJ 5584, both decisions of P. N. Mookerjee J. In the first of these cases it was held that the contents of the kabuliat could be used as admissions by the defendant. In the second case, the bar of Section 91 of the Evidence Act was considered, but it was held that the terms of the tenancy could be found out from the admissions, if any, by the parties. The Supreme Court in the case cf Ram Kumar Das v. Jagdish Chandra Deo, : 1SCR269 dealt with a case in which there was a registered kabuliat executed by the defendant alone, purporting to create a lease for 10 years. It was conceded by the parties before the Court that a registered instrument created by both the lessor and the lessee was necessary to create a valid lease for ten years. Their Lordships therefore retrained from expressing any opinion on the point. On the assumption that no operative lease had come into existence on the admitted facts that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff's estate and paid rent to the latter, it was held that a tenancy could be fairly presumed and such tenancy created by implicalion of law should be held from month to month under Section 106 of the Transfer of Property Act. In the case before the Supreme Court, a suit for ejectment had been filed more than 12 years after the defendant had been let into possession of the land but their Lordships of the Supreme Court did not base their decision on the ground that a tenancy had been created by adverse possession over 12 years, but from the defendant's possession with the Receiver's consent and from payment of rent.
15. In the present case, defendants 2 and 3 were Jet into possession by the plaintiff and paid rent. The plaintiff did not treat defendants 2 and 3 as trespassers but received rent from them. So even if it is assumed that the registered kabuliats were ineffective in law in creating a valid tenancy, a tenancy in favour of defendants 2 and 3 may still be presumed by implication of law from the admitted facts. As regards defendant No. 1, a transferee from defendant nos. 2 and 3, the plaintiff had no! received any rent from him but sought to treat him as a trespasser. But the legal position of defendant No. 1 will depend on that of defendants nos. 2 and 3 at the date of the transfer to defendant No. 1. The question therefore arises whether the defendant nos. 2 and 3 were bound by the covenant against the transfer of their interest and of re-entry by the landlord contained in the respective kabuliats, Exts. 1 and 1(a), and if so, whether the plaintiff could re-enter without serving any notice.
16. The Supreme Court reserved its opinion on the queslion whether a registered instrument can be held to create a valid lease if it is not executed by both the lessor and the lessee. So the law on the point is not yet finally decided. Perhaps in a case where there is a registered patta or kabuliat, accepted by the other party and acted upon, it would be for the interest of justice to treat this non-compliance with the provisions of paragraph 3 of Section 107 of the Transfer of Property Act as a mere irregularity and hold that nevertheless a valid lease has been created by the registered patta or kabuliat. Under the Registration Act, Section 2(7) a patta or a kabuliat is also a lease. However, in view of the existing decisions discussed above I must hold that the kabuliats Exts. 1 and 1(a), though registered, did not create a valid lease; but since defendants 2 and 3 were let into possession and rents were received from them by the plaintiff they obtained a lease of the demised land by operation of law, and since the lease was not for an agricultural or manufacturing purpose it must be deemed under Section 106 of the Transfer of Property Act to be a lease from month to month. As regards the other terms of the lease, the question is whether the terms contained in the registered kabuliat can be looked into. In the case of : AIR1954Cal207 , it was held that an agreement to vacate without notice contained in the kabuliat could not be availed of by the plaintiff. But in that case the kabuliat was unregistered, and there is an express bar in Section 49 of the Indian Registration Act precluding an unregistered instrument from being received in evidence of any transaction affecting property, except only in a suit for specific performance of contract or in support of a defence Under Section 53A of the Transfer of Property Act or for collateral purposes; and it was held in : AIR1954Cal207 cited above that a term as to re-entry without notice was part of the contract of lease and the proving of that term could not be deemed to be using an unregistered document for a collateral purpose only. But Section 49 of the Indian Registration Act does not apply to the present case, where we are concerned not with an unregistered document but a registered document which is invalid only because of its non-execution by both the lessor and the lessee. Section 49 of the Indian Registration Act does not therefore bar the admission of the kabuliats. Section 91 of the Indian Evidence Act relates to exclusion of oral evidence by documentary evidence in respect of the terms of contract or of any grant or of any other disposition of property; the document in which the terms are embodied, even if there is a legal defect in the document, cannot be excluded by Section 91 of the Indian Evidence Act on account of such defect; but the document being proved, the validity of the document can be challenged because of such legal defect, for instance, a mortgage deed not properly attested cannot be excluded from evidence because of such legal defect, but because of such legal defect it cannot take effect as a mortgage deed, though it can in certain cases be used as a simple bond. The covenant that the lessee would not be able to transfer and that if he did so the landlord might re-enter without serving notice, might have been entered into independently of the creation of the lease. So it is an admission of a limitation on the lessee's right and can be taken into account as such.
17. I would therefore hold that even though the registered kabuliats Exts. 1 & 1(1) did not validly create any lease, a lease was created in favour of the defendants 2 and 3 by their being let into possession of the property and by payment and receipt of rent in respect of the demised land; and that there was a covenant attached to the lease that the lessee would not be able to transfer the leasehold right and if he did so the landlord would be entitled to re-enter without serving notice.
18. So far the finding is in favour of the plain- tiff; but there is a provision of Section 111(g) of the Transfer of Property Act that when there is a forfeiture, i.e. when the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, the lessor must give a notice in writing of his intention to determine the lease. In the absence of such notice the landlord cannot re-enter. Mr. Chakravartty has urged that the requirement of the service of such notice can be waived by contract and that in this case the lessees waived such notice by agreeing that the landlord might re-enter in case of alienation by them without service of notice. Mr. Chakravartty has referred to certain rulings in support of his contention, but none of these rulings relates to waiver of notice Under Section 111(g) of the Transfer of Property Act, and I am satisfied that these rulings have no application by analogy to the present case. Since there is a statutory requirement of service ,of notice and Section 111(g) does not contain any clause like 'in the absence of a contract to the contrary', I must agree with the view taken by the lower appellate court that the statutory requirement of notice specified in Section 111 of the Transfer of Property Act cannot be waived by contract and must prevail; and since there was no such notice served by the plaintiff appellant, the latter is not entitled to treat the lease as determined and to obtain khas possession. I must also agree with the learned Subordinate Judge that the notice mentioned in Section 114A of the Transfer of Property Act is an altogether different notice which has to be given in order to give an opportunity to the lessee to avoid forfeiture in cases where a breach of condition is capable of remedy and such a notice is not required in a case of alienation; but the notice Under Section 111(g) of the Transfer of Property Act is a different notice and it cannot be said that that notice is also not required in case of alienation.
19. It may appear to be anomalous that even in a case of complete alienation by the lessee such notice under Section 111(g) of the Transfer of Property Act should be required and the landlord should not be able to obtain possession as against the alienee (defendant no. 1) whom he has never recognised as a lessee, but has all along treated him as a trespasser; but such appears to be the law and the law has to be applied strictly.
20. Accordingly, I find that the plaintiff appellant, not having served the required notice, cannot obtain a decree for khas possession. Further, since the suit was not disposed of before the West Bengal Non-Agricultural Tenancy Act came into force, and the defendants are non-agricultural tenants within the meaning of that Act and Section 88 of that Act provides that the provisions of that Act shall be applicable to all pending suits, the plaintiff appellant could not have obtained a decree even if he had served a notice Under Section 111(g) unless he had complied with the provisions of the West Bengal Non-Agricultural Tenancy Act 1949. Section 9 of the Non-Agricultural Tenancy Act appears to be applicable in the present case and six months' notice appears to be necessary to determine the tenancy and without such notice no decree for ejectment can be passed. In the circumstances. I must hold that the plaintiff appellant is not entitled to any relief.
21. This appeal therefore fails and is dismissed. In view of the circumstances it is ordered that the parties will bear their own costs throughout, the decrees of the lower courts relating to costs being modified to that extent.
22. Leave to appeal under Clause 15 of the LettersPatent is asked for and is granted.