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Sarat Chundra Dutta Vs. Jadab Chundra Goswami - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.956
AppellantSarat Chundra Dutta
RespondentJadab Chundra Goswami
Cases Referred and Venkatagiri Zamindar v. Raghava
Excerpt:
transfer of property act (iv of 1882), section 107, scope of - tenancy-at-will--'writing and registration, whether necessary--agreement to pay specified annual rent, whether tenancy from year to year. - .....mentioned, namely, a tenancy from year to year, pc for any term exceeding one year or reserving a yearly rent, and which can be made only by a registered instrument, it has not been shown in this case that the tenancy in question which must now admittedly be taken to exist was one of those mentioned in the section. on the other hand, the facts are as set out by the learned munsif in his judgment. he said: the defendant entered into the land as a tenant of the plaintiff, paid rent for it for a number of years, allowed a decree to be passed against him without any contest and admitted the tenancy in the defence he raised in mahananda's suit. the parties have so long conducted themselves as landlord and tenant, i think, that the defendant is estopped from questioning the validity of the.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case I think this appeal should be dismissed. It is clear that on the merits the defendant has no case whatever. The learned Munsif in the Court below found that the story which the defendant set up was a shamelessly false one. Now the defendant tries to defend this action on a technicality based upon Section 107 of the Transfer of Property Act. In my judgment his defence is without foundation. That Section deals with certain classes of tenancy which are therein mentioned, namely, a tenancy from year to year, pc for any term exceeding one year or reserving a yearly rent, and which can be made only by a registered instrument, It has not been shown in this case that the tenancy in question which must now admittedly be taken to exist was one of those mentioned in the Section. On the other hand, the facts are as set out by the learned Munsif in his judgment. He said: The defendant entered into the land as a tenant of the plaintiff, paid rent for it for a number of years, allowed a decree to be passed against him without any contest and admitted the tenancy in the defence he raised in Mahananda's suit. The parties have so long conducted themselves as landlord and tenant, I think, that the defendant is estopped from questioning the validity of the settlement which has been acquiesced in and acted upon.' These being the facts of the case, I think the judgment of Mr. Justice Mullick was right, and there is no reason for disturbing the judgment and this appeal should be dismissed with costs.

Asutosh Mookerjee, J.

2. I agree that the judgment of Mr. Justice Mullick must be affirmed.

3. The contention of the appellant is based upon a misapprehension of the provisions of Section 107 of the Transfer of Property Act. That Section does not lay down that a lease of immoveable property can be made only by a registered instrument, but the Legislature has provided that a lease of immoveable property in three specified cases can be made only by a registered instrument. These cases are, first, a lease from year to year, secondly, a lease for any term exceeding one year, and thirdly, a lease reserving a yearly rent. In the case before us, the plaintiff alleged that the defendant was a tenant-at-will, that his holding was of a temporary character, was non-transfer-able and was liable to be terminated by notice to quit. The plaintiff also stated that the defendant had entered upon the land on these conditions and had agreed to pay rent at the rate of Rs. 6 a year.

4. It is now contended that because there was an agreement to pay rent at the rate of Rs. 6 a year the tenancy must be regarded as a tenancy from year to year. In my opinion, there is no foundation for this contention. As explained in Durgi Nikarini v., Goberdhan Bose 24 Ind. Cas. 183 : 20 C. L.J. 448 : 19 C.W.N. 525. and Gobinda Chandra Saha v. Dwarka Nath Patita 26 Ind. Cas. 962 : 20 C. L.J. 455 : 19 C.W.N. 489. the fact that the rent is reserved at so much a year does not conclusively show that the tenancy is from year to year. It is not the case of the plaintiff that the defendant holds under a tenancy from year to year-his case is that the defendant is a tenant-at-will, and a tenancy-at-will undoubtedly can be created verbally, notwithstanding the provisions of Section 107 of the Transfer of Property Act.

5. It was finally suggested that even if the defendant be a tenant-at-will, the terms of the tenancy can be established only by means of a written lease and the amount of rent payable in respect of it cannot be proved by oral evidence. There is no foundation for this argument. Numerous casts may be found in the books, where it has been held that the terms of a tenancy which does not come within Section 107 of the Transfer of Property Act can be proved by oral evidence: Surabh Narain Lal v. Catherine Sophia 1 C.W.N. 248.; Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916.; Sita Nath Pal v. Kartick Gharmi 8 C.W.N. 434. and Venkatagiri Zamindar v. Raghava 9 M. 142 : 3 Ind. Dec. (N.S.) 496.


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