N.R. Chatterjea, J.
1. This appeal arises out of a suit for recovery of ijara rent, based upon an ijara kabuliyat executed by the defendant in favour of the predecessor in intei'est of the plaintiffs, whereby the defendant undertook to collect rent of 48 and odd has of lands for three years and agreed to pay to the lessor Rs. 400 a year.
2. The defence was that the contract was not completed, as no pottah was granted by the lessor, that the lessor never allowed the defendant to take possession of the lands, that one hal of land (nine plots) which really belonged to the defendant had been fraudulently included in the kabuliyat which was executed with out full knowledge of its contents, and that as the kabuliyat was not corrected the defendant surrendered; the lease, that the kdbuliyat was never acted upon and that the defendant was not, therefore, liable to pay anything.
3. The Court of first instance, finding all the above pleas in favour of the defendant, dismissed the suit. On appeal, the lower Appellate Court held, that the registration of the kabuliyat was a sufficient compliance with the provisions of Section 107 of the Transfer of Property Act, that the absence of a pottah does not invalidate the contract, that the kabuliyat was duly executed and there was no fraud or misrepresentation practised on the defendant to secure its execution.
4. As regards the nine plots of land, the lower Appellate Court held that there was some difficulty in ascertaining the actual facts, as there had been no local investigation, but that he agreed with the Subordinate Judge, who had gone into the question incidentally, in holding that the nine plots were in possession of the defendant and his co-sharers from long before the date of the kibuliyat as maliks. The lower Appellate Court, however, held, that an agreement to pay rent for land already in the lessee's possession as owner is void, and that the mistake in including the nine plots of land was regarding a matter of fact essential to the agreement, and, therefore, the agreement was altogether void and plaintiff Was not entitled to recover rent.
5. The plaintiffs have appealed to this Court, and it has been contended on their behalf that the lower Appellate Court having held that the kabuliyat constituted the contract of lease and was duly executed, and the case of fraudulent misrepresentation having been found against the defendant, the lower Appellate Court ought to have decided the question whether as a matter of fact the nine plots really belonged to the defendant, and even if they belonged to the defendant, the plaintiffs ought to have been given a decree for proportionate rent for the remaining lands.
6. On behalf of the defendant respondent it has been contended that in the absence of a pottah, the kabuliyat could not constitute a lease within the meaning of Section 107 of the Transfer of Property Act. It has been further contended that even if the kabuliyat operated as a lease and if the case should be remanded at all, there was a number of questions raised in the case which were decided by the Court of first instance but were not decided by the lower Appellate Court, and that the latter should be directed to decide the said questions.
7. So the first question for consideration is, whether a registered kabuliyat executed by the lessee and accepted by the lessor operates as a lease within the meaning of Section 107 of the Transfer of Property Act.
8. There can be no question in this case that the kabuliyat was accepted by the lessor, as the suit has been based upon it.
9. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions, to the transferor by the transferee who accepts the transfer on such terms. The section does not prescribe how the transfer is to be effected. Section 107 prescribes the mode in which it lease is to be effected, and provides 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. Section 4 of the Transfer of Property Act provides that Section 107 and certain other sections shall be read as supplemental to the Indian Registration Act, 1877, which means that it is to be read as supplemental to all the provisions of the Registration Act. Under Section 3 of the Registration Act of 1877 a lease includes a kabuliyat. Reading Sections 4 and 107 of the Transfer of Property Act together with Section 3 of the Registration Act of 1877, it would appear that a lease in Section 107 includes a kabuliyat. Section 107 of the Transfer of Property Act does not-require that the instrument shall be signed by the lessor. The only thing required by it is that the lease (i.e., the transfer of a right to enjoy property) should be effected by a registered instrument. Now if the parties to a lease, viz., the lessor and the lessee, agree that the lessee is to have a right to enjoy a property on certain terms and that the fact of the transfer of such right is to be embodied in an instrument, to be executed by the lessee only and accepted by the lessor, there is no reason why a lease cannot be effected by such an instrument, provided it is registered, which is the only condition required by Section 107 of the Transfer of Property Act. The argument that in order to constitute a lease there must be a pottah, i.e., a writing signed by the lessor, proceeds upon the assumption that the kabuliyat is only an unilateral expression of intention on the part of the lessee only, but it is, as I have said above, the embodiment of the whole contract between the lessor and the lessee, viz., the transfer by the lessor of the right to enjoy the property on certain terms, and the acceptance by the lessee of the right on those terms.
10. The case of a sale does not stand on the same footing, as there is no provision in the Registration Act relating to sales such as is contained in Section 3 relating to a lease, viz., that it includes a kabuliyat.
11. It is a common practice in this country where no pottah is executed to treat a kabuliyat, accepted by the lessor, as the instrument creating a tenancy, and there can be no question that before the passing of the Transfer, of Property Act a lease could be effected by an instrument signed by the lessee only and registered in cases where registration was compulsory. Under Section 3 of the Registration Act, 1877, a lease includes a kabuliyat. So that before the passing of the Transfer of Property Act in cases where a registered instrument was necessary under the Registration Act, a kabuliyat executed by the lessee if registered was legally sufficient to constitute a lease. It was not necessary for the creation of a lease that the landlord should grant a pottah. It was sufficient if the tenant executed a kabuliyat which was accepted by the landlord: see Akram Ali v. Durga Prasanna Roy Chowdhuri (1910) 14 C.L.J. 614. Section 105 of the Transfer of Property Act does not introduce any change in the legal conception of a lease, which, before the passing of that Act, could be effected by a registered instrument signed by the lessee only. The provisions in Section 4 of the Transfer of Property Act that Section 107 and certain other sections of that Act shall be read as supplemental to the Indian Registration Act, 1877, was introduced into that Act by the Amending Act of 1885 (Act III of 1885). So far, therefore, from laying down that an instrument of lease does not include a kabuliyat, and therefore must be an instrument signed by the lessor, it makes Section 107 supplemental to all the provisions of the Registration Act including Section 3, and the provision in Section 3 of the Registration Act III of 1877, that a lease includes a kabuliyat, has been re-enacted without any modification in Section 2(7) of the Registration Act of 1908.
12. The Legislature has prescribed no form for a lease, and in the absence of any provision in the Transfer of Property Act that a lease in order to be valid must be signed by the lessor, I am unable to hold that a registered kabuliyat which is accepted by the, lessor is not a lease within the meaning of Section 107 of the Transfer of Property Act.
13. As to the authorities on the point, the earlier cases in the Allahabad High Court were in favour of the view, that a kabuliyat cannot be considered as a lease within the meaning of Section 107, Transfer of Property Act. In Nand Lal v. Hanuman Das (1904) I.L.R. 26 All. 368 Blair J. followed an earlier decision of Edge C.J., and Burkitt J., in which the learned Judges held, that kabuliyat is merely an agreement executed by a tenant (to take the tenancy, and that in itself it contains no agreement of the landlord on his part to lease the land. It does not appear whether in that case there was acceptance of the kabuliyat by the landlord. Blair J. was of opinion that the word 'instrument' in Section 107 shows, that the document must be one which must have certain executive force, and that upon its execution the lease is completed. Banerji J., did not desire to express any opinion on the question, having regard to the fact that it is a common practice in these provinces to treat a kabuliyat as the instrument creating a tenancy, and that a ruling upholding the contrary view may unsettle titles. The case of Kashi Gir v. Jogendro Nath Ghose (1904) I.L.R. 27 All. was heard by Blair J., sitting singly, and he followed his judgment in Nand Lal v. Hanuman Dass (1904) I.L.R. 26 All. 368.
14. The question was raised before a Full Bench of the Allahabad High Court in the case of Sheo Karan Singh v. Maharaja Parbhu Narain Singh (1909) I.L.R. 31 All. 276 but the Full Bench expressed no opinion on the point inasmuch as they found that under the circumstances of the case the plaintiff was clearly entitled to recover compensation for use and occupation. The Full Bench seem to have been in doubt as to the correctness of the earlier decisions, as they declined to express any opinion as to their correctness.
15. In the Madras High Court, Benson and Wallis JJ., held in Turof Sahib v. Esuf Sahib (1907) I.L.R. 30 Mad. 322 that a lease must be an instrument bearing the signature of the lessor, and that case was followed by Benson and Miller JJ. in Kaki Subbanadri v. Muthu Rangayya (1909) I.L.R. 32 Mad. 532. In none of the cases cited above, except in the last case, was any reference made to Section 4 of the Transfer of Property Act. It is not necessary to consider, however, the cases in the Madras High Court in detail, because in the recent case of Syed Ajam Sahib v. Madura Sree Meenatchi Sundareswarar Devastanam (1910) 21 Mad. L.J. 202 a Full Bench of that Court held, after an exhaustive discussion of the matter, that the registered instrument referred to in Section 107 of the Transfer of Property Act, in order to be valid, need not be signed by the lessor.
16. In our court in the case of Nilmamud Sarkar v. Boul Das (1909) 14 C.W.N. 73 the learned Judges (Chitty and Carnduff JJ.), agreeing with the cases of Nand Lal v. Hanuman Das (1904) I.L.R. 26 All. 368 Kashi Gir v. Jogendro Nath Ghose (1904) I.L.R. 27 All. 136 and Turof Sahib v. Esuf Sahib (1907) I.L.R. 30 Mad. 322 held, that a kabuliyat, which is only an undertaking by the prospective tenant to take the tenancy, is not a lease. Of course a kabuliyat executed by a lessee in itself does not create a lease, unless it is accepted by the landlord; and that case is distinguishable, as in that case one of the landlords at any rate did not accept the lease.
17. In a later case, Akram Ali v. Durga Prasanna Roy Chowdhury (1910) 14 C.L.J. 614 Mookerjee and Coxe JJ., held, that it was impossible to maintain the view that, for the creation of a permanent lease before the Transfer of Property Act, it was necessary that the landlords should grant a pottah. The kabuliyat in that case was executed before the Transfer of Property Act, but the learned Judges with reference to the case of Nilmamud v. Boul Das (1909) 14 C.W.N. 73 observed: 'We need not, therefore, decide whether under the Transfer of Property Act the law is different, but. we observe that a Full Bench of the Madras High Court in Ajam v. Madura (1910) 21 Mad. L.J. 202 has assigned weighty reasons in support of the view contrary to that maintained in Nilmamud Sarkar v. Boul Das (1909) 14 C.W.N. 73.'
18. The result of the authorities, therefore, is this: In the Madras High Court the earlier cases, which held the contrary view, must now be taken to have been overruled by the recent Full Bench, which supports our view. In the Allahabad High Court, although the earlier cases took a contrary view, a Full Bench of that Court declined to express any opinion as to the correctness of the earlier rulings, and in our own Court, though in one case the learned Judges agreed with the earlier Allahabad cases and one of the Madras capes, the case is distinguishable on the ground that one of the landlords did not accept the kabuliyat, and in the latest case Akram Ali v. Durya Prasanna Roy Chowdhuri (1910) 14 C.L.J. 614 the learned Judges observed, that the reasons given by the Full Bench of the Madras High Court were weighty, though the observation was by way of obiter dictum.
19. The weight of authority, therefore, appears to be rather in favour of the view I take than against it and I am of opinion that a registered kabuliyat signed by the lessee and accepted by the lessor is sufficient to constitute a lease within the meaning of Section 107 of the Transfer of Property Act.
20. The first contention raised on behalf of the respondent, therefore, must be overruled.
21. The next question is whether the inclusion of the nine plots of land in the possession of the defendant in the kabuliyat renders it void. The lower Appellate Court has found that there was no fraud or misrepresentation in the matter, and that there was only a mistake, but held that the mistake was regarding? a matter of fact essential to the agreement, and, therefore, the agreement was void.
22. I cannot agree to this view. In the present case the lands in the possession of the defendant which are included in the kabuliyat are small in comparison with the total lands demised, and I am unable to hold that, in the absence of any fraud or misrepresentation, the mere inclusion by mistake of some lands in the possession of the defendant or belonging to him in the kabuliyat renders it altogether void. In such a case, I think, there should be air apportionment of the rent for the remaining lands.
23. I am of opinion that the lower Appellate Court should come to proper findings upon the following questions:
First, whether the plaintiffs had a title to the nine plots (one hal) of land, of which the defendant was already in possession, How long was defendant in possession, and whether he had acquired any title by such possession of the remaining 47 hals of land, and failed to supply the defendant with the tauzi and collection papers in order to enable the defendant to collect rent.
Third, whether the kabuliyat was acted upon.
Fourth, whether the defendant surrendered the ijara and was there a valid surrender.
24. If the last three questions are found in favour of the plaintiffs and the first dqutestion against them, the lower Appellate Court will apportion the rent with respect to the remaining lands. If the last three questions are found against the plaintiffs, the first questions need not be gone into. The decree of the lower Appellate Court is accordingly set aside, and the case sent back to that Court for a decision of the case in accordance with the observation made above.
25. I agree.