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Birendra Nath Roy Vs. Sm. Sukumari Bakshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Case NumberCivil Rule No. 1136 of 1948
Judge
Reported inAIR1952Cal352
ActsTransfer of Property Act, 1882 - Section 107
AppellantBirendra Nath Roy
RespondentSm. Sukumari Bakshi
Appellant AdvocateHememdra Chandra Sen and ; Sachindra Chandra Das Gupta, Advs.
Respondent AdvocateManindra Nath Ghosh and ; Anil Kumar Sen, Advs.
Cases ReferredGanga Sahai v. Badrul Islam
Excerpt:
- ordersen, j.1. this rule has been obtained by the deft, in a suit for rent. the plff. sued the deft. for rent at the rate of rs. 9-4-0 per month for the period kartick 1350 b. s. to sravan 1352 b.s. she has given the deft, credit for the sum of rs. 4-14-9 being the amount paid by him.2. the plff's. case is that the deft, is her tenant at the rate of rent stated above & that he has fallen into arrears which she claimed.3. the defence in the written statement was a very elaborate one & i must confess far from convincing. the deft, stated that he borrowed one thousand rupees from the plff's. husband. in order to avoid the provisions of the bengal money lenders act the wife of the deft., surabala, & one nani-bala, the widow of the deft's. brother, executed a fictitious kabala on 17-6-1942 in.....
Judgment:
ORDER

Sen, J.

1. This Rule has been obtained by the deft, in a suit for rent. The plff. sued the deft. for rent at the rate of Rs. 9-4-0 per month for the period Kartick 1350 B. S. to Sravan 1352 B.S. She has given the deft, credit for the sum of Rs. 4-14-9 being the amount paid by him.

2. The plff's. case is that the deft, is her tenant at the rate of rent stated above & that he has fallen into arrears which she claimed.

3. The defence in the written statement was a very elaborate one & I must confess far from convincing. The deft, stated that he borrowed one thousand rupees from the plff's. husband. In order to avoid the provisions of the Bengal Money Lenders Act the wife of the deft., Surabala, & one Nani-bala, the widow of the deft's. brother, executed a fictitious kabala on 17-6-1942 in favour of the plff. for the sum of Rs. 1,000/- transferring the property in respect of which rent is claimed to the plff. One month thereafter the deft. Birendra Nath Roy executed another fictitious document called a Bharapatra stating that he was a tenant under the plff. at a monthly rental of Rs. 9-4-0 for a period of three years. The intention of the parties was that this sum would be paid to the plff. as interest for the loan which would be returned after 3 years. The deft's contention is that there was no relationship of landlord & tenant between him & the plff. & that this suit is not maintainable. I may mention here that the suit was tried by a Munsif at Bongaon exercising powers of a Court of small causes. At the time of trial, the defence taken in the written statement was abandoned & only one point was argued. It was contended that the Bharapatra was not admissible in evidence as it was not executed by the plff. & the deft, but executed by the deft, alone. It was further contended that no oral evidence of the contents of the document could be given & that consequently the tenancy & rate of rent could not be proved. Section 107, T. P. Act & Section 91, Evidence Act were relied upon for these propositions. No evidence was adduced & no other argument was urged before the learned Judge of the Court of Small Causes.

4. This contention of the deft. was negatived & the suit was decreed. Against this decree the present Rule has been obtained.

5. Learned Advocate for the petitioner raises the same argument in this Court. He refers me to the provisions of Section 107, Para. 3, T. P. Act. The first para, of Section 107 states that a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. Paragraph 3 relied upon by learned Advocate for the petitioner is in the following terms:

'Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each, such instrument shall be executed by both the lessor & the lessee.'

He points out that the Bharapatra which purported to be a lease for 3 years has not been executed by both the lessor & the lessee but by only the lessee & argues that as the provisions of para. 3 of Section 107 have not been complied with it cannot be given in evidence. Next he argues that Section 91, Evidence Act, excludes oral evidence in proof of its terms.

6. In my opinion this argument cannot be supported. Section 107 T. P. Act, has no application. Section 107 relates to leases & it states that leases of a certain description shall be registered & that where such leases are made by a registered instrument, they shall be executed by both the lessor & the lessee. Section 107, T. P. Act, does not apply to any document which is not a lease. Now, a lease has been defined in Section 105 of the aforesaid Act. In a lease there must be a transferor & a transferee. The transferor is called the lessor, the transferee is called the lessee. Further, there must be a transfer of the right to enjoy the property made by the transferor in favour of the transferee. Now, this document cannot be held to be a lease because there is no transferor & there is no transfer. It is merely a statement made by the deft, that he is holding the land under the plff. at a rental of Rs. 9-4-0 per month. Such a document not being a lease it does not come within the purview of Section 107, T. P. Act. It amounts merely to a written admission by the deft, that he is liable to pay a certain sum as rent to the plff. for the land held by him under the plff. There is, as far as I can see, nothing in the law of evidence which prevents this document from being put in evidence as an admission. The object of Section 107, para. 3, of the T. P. Act is quite clear. It was enacted to prevent fraud. If this paragraph were not there, a person 'A', could execute a document unilaterally stating that 'B' is his tenant of certain property at a certain rent & seek to bind 'B' by this document or 'A' may execute a document unilaterally stating that he is the tenant of 'B' at a certain rental & seek to bind 'B' by this unilateral statement. To avoid this, para. 3 was inserted in Section 107, T. P. Act & it was provided therein that to operate as a lease the document must be executed by both the lessor & the lessee. The intention of Section 107, para. 3 was not to enable a person to avoid the effect of an admission made by him. If that were the effect of Section 107, then the section would afford a means of perpetrating the worst kind of fraud. Obviously the section cannot be given this meaning. Further Section 107 nowhere says that a 'unilateral' document like the Bharapatra cannot be given in evidence. All it says is that such a document will not constitute a lease. The plff. is not relying on the document as a lease but as an admission. In my opinion, the Bharapatra is admissible in evidence as an admission & it is binding on the deft, unless he can show good reason for avoiding the effect of his admission. No evidence has been given by the deft. & nothing has been shown as to why this admission should not be binding on the deft. I must hold therefore that he is pound by his admission in the Bharapatra. In this connection I would refer to the following cases 'Pyarelal v. Ram Sarup' : AIR1944All221 & 'Ganga Sahai v. Badrul Islam' A.I. R. (29) 1942 All. 330.

7. The result is that this Rule must be discharged with costs.


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