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Mohendra Narayan Roy Chowdhury and ors. Vs. Profulla Kumar Guha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal795
AppellantMohendra Narayan Roy Chowdhury and ors.
RespondentProfulla Kumar Guha and ors.
Cases ReferredMahomed Musa v. Aghore Kumar Ganguli
Excerpt:
- .....that an unregistered document, affecting an immovable property and required by this act or the transfer of property act to be registered, may be received as evidence of part performance of a contract for the purposes of section 53- a, t.p. act. the appellant claims that as the rent was paid at the rate agreed upon in this document for nine years, there was part performance of the contract and the compromise is admissible as evidence of part performance. it can only be admitted as evidence of part performance, if section 53-a, t.p. act, is applicable.4. the compromise was in 1920. section 53-a was inserted in the transfer of property act by section 16, transfer of property amendment act (20 of 1929). therefore, section 53-a cannot be applied unless it is retrospective. there are.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for arrears of rent for the holding described in the plaint from the year 1337 to 1340 B. S. at the rate of Rs. 117 per year plus cess at Rs. 16.15-9 per year with damages at 25 per cent. The defendant claims that the rent payable is Rs. 94 only per year. The suit was decreed in full in both the Courts below. The rent is claimed on the basis of a registered kabuliat, Ex. 1, by which the rent is fixed at Rs. 117. The defendant relies upon certain statements made in a lease and also upon an alleged compromise of a suit by which the landlords agreed to reduce the rent to Rs. 94 on the ground that certain lands included in the lease were not really under the putni but were held by the plaintiff in khas. The terms of the lease relied upon are as follows:

That the putni lease was executed relying solely on the words of the lessors as to the title, share, and condition and sthith of the property without making any independent queries on these points, that in case if anything be disclosed afterwards which affects the interest of the lessors as also of the lessees in the property so demised, the lessors are to make good the loss that may be suffered by the lessees owing to such changed circumstances and that if on making necessary verifications the amount of sthith in the putni mehal be found to be less than the amount stated in para. 1 of the putni lease the lessee is to get a refund of the proportionate amount of the selami (consideration for the lease) from the lessors.

2. A certified copy of a petition filed in the Second Court of the Munsif at Bhanga, Faridpur, on 15th March 1920, has been filed in which it is stated that the parties, namely the predecessors of the present plaintiffs and the defendant compromised a suit for arrears of rent of the present holding. In this petition of compromise it is stated that Rs. 23 of the rent being unrealizable out of the jama of Rs. 117, by compromise, the parties fixed Rs. 94 as the rent of the putni mehal after deducting this Rs. 23 from the Rs. 117 and the plaintiffs accordingly prayed for a decree at the rate of Rs. 94 annually. The Courts below have failed to give effect to this compromise, which appears to have been acted upon for nine years thereafter in as much as the rent receipts show that rent was paid at Rs. 94 per year from 1920 to 1929, on the ground that being unregistered, it is inadmissible in evidence. In this appeal, it is contended that this com-promise is admissible in evidence. Under Section 107, T.P. Act,

a lease of immovable 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.

3. Clearly in so far as this compromise purports to reduce the rent from Rs. 117 to Rs. 94, it is, in fact, a lease at an altered rate and it requires registration. But it is claimed on behalf of the appellant that it is admissible under Section 49, Registration Act, which lays down that an unregistered document, affecting an immovable property and required by this Act or the Transfer of Property Act to be registered, may be received as evidence of part performance of a contract for the purposes of Section 53- A, T.P. Act. The appellant claims that as the rent was paid at the rate agreed upon in this document for nine years, there was part performance of the contract and the compromise is admissible as evidence of part performance. It can only be admitted as evidence of part performance, if Section 53-A, T.P. Act, is applicable.

4. The compromise was in 1920. Section 53-A was inserted in the Transfer of Property Act by Section 16, Transfer of Property Amendment Act (20 of 1929). Therefore, Section 53-A cannot be applied unless it is retrospective. There are conflicting decisions on this point, but the trend of the decisions appears to be that it is not retrospective and the wording of the Section also would appear to show that it does not apply to contracts previous to the insertion of Section 53-A in the Act. The Section states:

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, and the transferee has, in part performance of the contract taken possession of the property or any part there-of, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

5. Following the general trend of the decisions and also the wording of the Section itself, I am inclined to the view that this Section is not retrospective. Therefore this compromise, Ex. A, is not admissible under Section 53-A, T.P. Act, nor is it admissible under Section 49, Registration Act which only makes such documents admissible for the purposes of Section 53-A, T.P. Act.

6. The question then is, is it admissible under the previous law? With regard to the previous law it has been laid down by their Lordships of the Judicial Committee in G.H.C. Ariff v. Jadunath Majumdar that a permanent lease-can only be made by a registered instrument as required by Section 107, T.P. Act, and that the doctrine of part performance cannot be applied so as to override the express-provisions of a Statute. The appellant relies upon the case in Mahomed Musa v. Aghore Kumar Ganguli (1914) 1 AIR PC 27 in which it was held that the parties having acted upon a compromise for 30 or 40 years-after the compromise, although the razinama and the decree thereon taken together were considered to be defective or inchoate-as elements making up a final and validly concluded agreement for the extinction of the equity of redemption, the acts of the parties had been such as to supply all defects. On the basis of this ruling the> appellant contends that the compromise having been acted upon for a number of years the defect of non-registration is nullified. But in the subsequent case in G.H.C. Ariff v. Jadunath Majumdar , it was held by Lord Russel of Killowen that the observations of Lord Shaw in the case in Mahomed Musa v. Aghore Kumar Ganguli (1914) 1 AIR PC 27 were merely obiter dicta and Sir Dinshaw Mulla in his note at the foot of p. 260 of the Transfer of Property Acts says:

This decision makes it clear that the equity of part performance, which in England is only avail-able to overcome a statutory objection to the proof of a contract, cannot in India have the effect of superseding the provisions of the Registration and Transfer of Property Acts, and of creating an interest which under those Acts can only be created by a registered instrument.

7. It seems therefore clear that this com-promise, Ex. A, cannot be admitted under the law previous to the introduction of Section 53-A, T.P. Act, nor can it be admitted under Section 53-A in proof of part performance.

8. There is another difficulty in the way of the appellant, because there is a finding of the trial Court which has not been reversed in appeal, that the rents were not settled at Rs. 94 and realized at that rate by virtue of the solenama decree but that rents were paid at this rate previously. On this finding Section 53.A, T.P. Act, would not be applicable as under that Section the contract must be a written one. No doubt the Appellate Court finds on the evidence of certain receipts filed by the defendants that the reduced rate was due to some arrangement, but it does not find that it was clearly due to the written contract in Ex. A which has been filed. Finally, it is contended for the appellant that in any case, the subsequent alteration as to the rent being stated in the original compromise, the rent receipts marked Ex. A (5), in which the amount of the original rent is stated, in themselves, are sufficient to show that the rent was so reduced. But if the compromise petition itself is not admissible, this evidence also would not be admissible to show reduction of the rent and even if there was some arrangement under Section 107, T.P. Act, the rental could not be reduced either by an unregistered instrument or an oral agreement. It appears to me, in the circumstances, that the only relief which the defendants can obtain in this case is to enforce the term of the original lease by which .they are entitled to the refund of a portion of the selami paid and the learned Judge has found:

There is no clear specification that in case the sthith be found to be less than that stated in the deed, the patnidar is to get a reduction of rent for all time to come.

9. The fact of the existence of this condition in the original lease makes it probable that there was such a compromise as alleged, but unfortunately for them in the circumstances of the case, the rent cannot be reduced owing to the fact that there was no registered deed effecting reduction. The mere payment of rent for a number of years at a reduced rate is not sufficient in law to entitle the defendants to a permanent reduction of the rent. This appeal must accordingly be dismissed with costs. Leave to appeal under Section 15 of the Letters Patent is asked for and is refused.


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