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Chandi Charan Nath Vs. Srimati Somla Bibi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.254
AppellantChandi Charan Nath
RespondentSrimati Somla Bibi
Cases ReferredAbdul Karim v. Abdul Rahman
Excerpt:
bengal tenancy act (viii b.c. of 1885), sections 49, 85 - lease from year to year--ejectment--notice--lease in contravention of section 85--grantor, whether can question case--estoppel by representation, plea of. - asutosh mookerjee, j.1. this is an appeal under clause 15 of the letters patent from the judgment of mr. justice newbould in a suit for ejectment. on the 20th february 1891 the plaintiff granted an under raiyati lease to the defendant. the lease was not for any specified term, but was described as a barsana patta (yearly lease). the grantor stated that she had a raigati interest in the land under a grant from her superior landlord, dated the 26th november 1838; and the grantee was enjoined to have an entry made in the survey and settlement record that the grantor possessed a raiyati right and the grantee himself a harsana right. on the 12th april 1911 the plaintiff served a notice upon the defendant calling upon him to quit the land at the end of six months. on the 14th august 1911, she.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for ejectment. On the 20th February 1891 the plaintiff granted an under raiyati lease to the defendant. The lease was not for any specified term, but was described as a barsana patta (yearly lease). The grantor stated that she had a raigati interest in the land under a grant from her superior landlord, dated the 26th November 1838; and the grantee was enjoined to have an entry made in the Survey and Settlement Record that the grantor possessed a raiyati right and the grantee himself a harsana right. On the 12th April 1911 the plaintiff served a notice upon the defendant calling upon him to quit the land at the end of six months. On the 14th August 1911, she instituted the present suit to eject the defendant who had not left the land in spite of the notice to quit. The Court of first instance dismissed the suit on the ground that the tenancy was permanent and was valid and operative as between grantor and grantee. Upon appeal, the Subordinate Judge held that a permanent lease registered in contravention of Section 85(2) of the Bengal Tenancy Act was of no effect, and that the defendant was consequently liable to be ejected on service of notice to quit. The suit was accordingly decreed and that decree has been affirmed by Mr. Justice Newbould.

2. On a perusal of the lease, it is obvious to me that it was not intended to be and is in no sense a permanent lease. It is throughout described as a lease from year to year. The case appears to have been argued in the Courts below on the erroneous assumption that it was a permanent lease, because the interest was treated as heritable. No question, consequently, arises whether a permanent lease registered in contravention of Section 85(2) of the Bengal Tenancy Act is ineffectual for all purposes between grantor and grantee, a question which has led to some divergence of judicial opinion in this Court, nor is it necessary to consider the question of the applicability of the doctrine of estoppel to this case, for here both the parties knew and stated explicitly that the grantor was a raiyat Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 20 C.W.N. 1340 : 24 C.L.J. 541 : 44 C. 771. If, then, we assume that the lease was operative between lessor and lessee, obviously this furnishes no answer to the claim for ejectment, for it is of the very essence of an annual tenancy that it is terminable by the landlord on notice to quit. Ordinarily, the landlord has to give a six months' notice ending with a year of the tenancy, but in the case of agricultural tenancies of the description now before me, the provision for notice is to be found in Section 49 of the Bengal Tenancy Act. That section contemplates two classes of oases, namely, first, where an under-raiyat holds under a written lease for a specified term, and, secondly, where an under raiyat holds either without a written lease or under a written lease which is not for a specified term Raj Kumari Debi v. Barkatulta Mandal 12 Ind. Cas. 161 : 39 C. 278 at p. 283 : 14 C.L.J. 407 : 16 C.W.N. 6. The defendant is an under-raiyat of the second description Mohendra Nath Sepai v. Parbutty Charan Dass 8 C.W.N. 136; Komaruddi v. Sreenath Chowdhury 8 C.W.N. 136 and Indugazi Doctor v. Chandra Kali Sundrani 8 C.W.N. 139. The landlord has complied with the requirements of Section 49(b). The notice was served just before the expiry of 1272 M.S., the tenant was bound to quit by the end of 1273, that is, on the 13th April 1912, and the suit was instituted some months later. The only possible objection which can be taken to the notice is that it called upon the tenant to quit at the end of six months from the date of its service, but as pointed out by Jenkins, C.J., in Harifulla Gain v. Benode Behary Mondol 19 Ind. Cas. 557 : 17 C.W.N. 932 Section 49 prescribes no form of notice nor has it given any indication as to the length of notice, and the Chief Justice added that it would be deplorable to introduce into matters of this kind the intricacies of English Law as prevailing in the Presidency Towns. The under- raiyat is protected from ejectment until the end of the agricultural year in which a notice to quit is served upon him by his landlord, and this indicates the time when it becomes obligatory upon him to leave. I am of opinion that the tenancy in this case was terminable, was, in fact and in law, validly terminated by a notice under Section 49 (6), and the plaintiff was, at the date of, the institution of the suit, entitled to recover possession of the land from the defendant.

3. The appeal must accordingly be dismissed with costs.

Beachcroft, J.

4. The plaintiff in this suit sued to eject the defendant from certain land. She alleged that her status was that of a raiyat, that she gave the defendant a lease of the land in suit, that the lease could not confer a permanent right on defendant or in fact any right for a period exceeding 9 year?, and that on the expiry of the 9 years she served defendant with a notice to quit. The defence was that the lease was a permanent one, that the Bengal Tenancy Act did not apply and that no notice was served.

5. The Munsif held that the Bengal Tenancy Act applied and that notice was served. But as the lease contained provisions for devolution by inheritance, he considered it would be inequitable to allow the plaintiff to recede from the terms of the contract made by her and dismissed the suit.

6. On appeal the findings of the Munsif as to service of notice and as to the applicability of the Bengal Tenancy Act were not disputed. The Subordinate Judge also upheld the view that the patta in terms created a permanent tenancy. But he considered himself bound by certain decisions of this Court to hold that the patta could not be given in evidence and that the lease could not be proved by oral evidence. He, therefore, decreed the suit. It may here be noted that even if there had been a finding as to a tenancy created otherwise than by the patta, it would have been of no avail to the defendant in view of the finding as to the service of notice.

7. On appeal to this Court the decree of the Subordinate Judge was upheld by Newbould, J., and the present appeal is against that learned Judge's decision,

8. Before Newbould, J., the appeal appears to have been argued on the footing that the sublease granted by the plaintiff was a. permanent one and before us also it was argued by both sides on that supposition. That being so, I propose to deal with the matter as if the sub lease in terms purported to create a permanent tenancy.

9. The position then is that the plaintiff, who is a raiyat, having given the defendant a sub-lease for a period exceeding 9 years, has succeeded meeting him on the plea that the lease cannot be valid for a period exceeding 9 years.

10. The main argument that has been addressed to us is that the plaintiff was estopped from denying that her status was such as to make her competent to grant the lease. A second point taken is that Section 85(2) for the benefit of the landlord, and, therefore no one else hut the landlord of the raiyat could question the validity of the sub-lease.

11. It will, therefore, be necessary to deal with the two questions of estoppel and of the scope of Section 85(2).

12. In regard to Section 85 (2) two views have been taken, one, that it was enacted for the benefit of the superior landlord and, there-fore, no one else can question the validity of a lease for a period exceeding 9 years, and certainly not the raiyat who has granted the lease, who will be estopped from doing so; the other, that whether the intention of the Legislature was to protect only the landlord or not, and the view has been expressed that it was intended also to protect the raiyat, the section is framed in such wide terms as to make a lease for a period exceeding 9 years absolutely invalid.

13. That the raiyat is not estopped from denying the validity of such a lease has been held in more than one case in this Court. In the case of Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916 the question was directly raised and answered in the negative. That was a case between the purchaser in execution of a money decree of the right, title and interest of the raiyat and the sub-lessee. The purchaser would be bound by the same estoppel as the original raiyat. It was held that no question of estoppel arose, because the plaintiff (the purchaser) was not bound by a sub-lease void in law and which his predecessor-in-interest was not empowered to grant. The report does not set out the nature' of the arguments advanced on the question of estoppel, but the decision would appear to rest on the principle that there can be no estoppel against a Statute, which was the ground on which the argument of estoppel was again rejected in the case of Telam Paramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468. This was a case between two persons both of whom had permanent sub-leases from the same raiyat, the defendants being later in point of time. The defendant was in possession and pleaded the invalidity of plaintiff's title under the permanent lease. If the doctrine of estoppel would have prevented this plea from the raiyat who granted the sub lease to defendant, it would also have prevented the defendant from raising the plea, and it was accordingly argued that the raiyat could not have raised the plea. This argument was rejected. In the case of Manik Borai v. Bani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649 it was hinted, though it was not necessary to decide the point, that the principle that there could be no estoppel against a Statute might defeat a plea of estoppel as between the grantor and grantee.

14. In the case of Telam Paramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468 the question of estoppel was certainly not argued in the form in which it is now put forward, and possibly in the earlier case cited it may have been based on the principle that a grantor may not derogate from his own grant.

15. The argument in the present case is based on the doctrine of estoppel by representation. It is that the plaintiff having represented herself to hold a status which would enable her to grant a permanent lease, she cannot be allowed to turn round and say that her status was other than that represented. In support of the argument reliance was placed on the case of Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 20 C.W.N. 1340 : 24 C.L.J. 541 : 44 C. 771. In that case the lessee endeavoured to establish the position that his lessor was not a tenure-holder as the lease indicated, but an occupancy raiyat and, therefore, that the lease was void under Section 85 of the Bengal Tenancy Act. That is the converse case to the present It was held that the lessee having got possession from his lessor was estopped from denying the validity of his lessor's title. That decision cannot help the appellant in the present case. Landlord's estoppel and tenant's estoppel are based on entirely different considerations. It is also open to question whether the rest of the judgment can be regarded as an authority in favour of the appellant. For having decided the question of estoppel, which was enough to dispose of the appeal, except as regarded the question of damage, the learned Judges proceeded to support their conclusion by an argument based on the converse case, in which they assumed the very point which is now under discussion. They then referred to a number of cases dealing with the construction of Section 85 of the Bengal Tenancy Act and remarked that as between the grantor and grantee the rule of estoppel applies when the elements essential to attract its operation are proved to exist. At the proposition expressed in those terms it is impossible to cavil, no authority is required to support it. The question is what are the elements essential to attract its operation.

16. It was not, however, necessary in my opinion for the appellant to invoke the support of this case to establish a well-settled proposition. If he required an authority it would have been sufficient to quote the words of Lord Selborne, L. C., in Citizens' Bank of Louisiana v. First National Bank of New Orleans (1873) 6 H.L. 352 : 48 L.J. Ch. 269 : 22 W.R. 194 as to representations being treated as true if another person relying on them has altered his situation. And subject to any question as to admissibility in evidence by reason of the registration law, I have no doubt that if it Be found as a fact that a raiyat giving a permanent sublease in contravention of the provisions of Section 85 (a) has induced his lessee to accept it on the faith of a representation that his own status was such as to validate such a sub-lease, he will not afterwards be allowed to prove in a suit against his lessee that his statin was other than it was in the, first instance represented to be. As to the doctrine I have no doubt, as to its application to the present case there is considerable difficulty.

17. In the first place, the estoppel was not pleaded in the written statement. One reason possibly is that the defence taken to the plaintiff's claim that the lease was not valid for more than nine years was that the Bengal Tenancy Act did not apply. It is absolutely necessary to plead estoppel if it is intended to rely on it. This is not a technical rule of pleading, bat a matter of substance. For if estoppel is pleaded it may be possible for the other side to show that there could be no estoppel, the real facts being known. It was particularly necessary that the plea should be taken in this case, for the document itself raises a doubt as to the grantor's competency to grant a permanent lease.

18. As a necessary consequence of the absence of the plea, there is no finding and presumably no evidence that such a representation as indicated above was made and relied on. Nor are we told even now what is the representation which was made as to the plaintiff's status. It is said the representation is made in the document itself. It does not necessarily follow that it. was on the faith of that statement that the sub lessee accepted the lease. In fact the representation must have been made before the document was drafted, but if any was made which considering the general knowledge that villagers have of each other's affairs cannot be predicated as a matter of certainty, it is a reasonable assumption in favour of the appellant that the statement in the document is identical with the representation made and accepted. Now what is the representation contained in the document? The whole document has not been translated for us, but a portion has, and that portion contains a passage Which indicates the representations. It runs: 'In the Survey Record you should record my right as raiyati and yours as harsana' i. e., the plaintiff was making it clear that her status was that of a raiyat. Now ordinarily a raiyat cannot give a sub-lease for more than nine years but there is one class of raiyats, which is not subject to the bar, viz., raiyats holding at fixed rates. It has been held that such raiyats coming under Section 18 of the Bengal Tenancy Act are not subject to the provisions of Section 85. In fact that decision was given long after the sublease in question, at the date of which the question was an open one. Raiyats holding at fixed rates are a small and exceptional class. What we have then at most is that the status of the plaintiff was said in the document to be that of a class the members of which could only in exceptional cases grant permanent sub-leases, while the large majority of the class were subject to the provisions of Section 85.

19. Estoppel by representation only arises when the representation is as to a matter of fact. It can, therefore, only be effectively pleaded in this case, if we can say that the plaintiff represented herself to be a raiyat at fixed rates and the defendant believing that representation was thereby induced to take the permanent lease. On the facts before us it is impossible to assume that she made any such representation. That being so, the appellant's argument based on estoppel, in my opinion, fails.

20. There remains the other question whether the raiyat, the grantor of the lease, can avail himself of the bar. created by Section 85 (2), In the case of Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 20 C.W.N. 1340 : 24 C.L.J. 541 : 44 C. 771 a number of cases bearing on Section 85 were quoted as affirming the view that a lease granted in contravention of Section 85 was operative as between grantor and grantee. The list given is not exhaustive, as will appear from a reference to the reports of some of the cases cited, and with all respect to the learned Judges I venture to question the accuracy of the conclusion which 'they drew from the cases cited. There are following cases in connection with Section 85 in chronological order: Srikant Mondul v. Saroda Kant Mondul 26 C. 46 : 13 Ind. Dec. (N.S.) 633; Gopal Mondal v. Eshan Chunder Banerjee 29 C. 148; Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377; Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916; Ramgati Mandul v. Shyama Charan Dutt 6 C.W.N. 919 and Ali Mohammad v. Nayan Rajah Bhuiya 13 Ind. Cas. 912 : 15 C.L.J. 122 : 16 C.W.N. 620 note, this case though decided in 1903 was not reported till 1912; Basaratulla Mundle v. Kasirunnessa Bibi 11 C.W.N. 190; Bipin Behari Hati v. Amirta Lal Bhattacharji 3 Ind. Cas. 685 : 9 C.L.J. 76; Tamijuadi v. Asgar Howladar 1 Ind Cas. 942 : 36 C. 256 : 13 C.W.N. 183; Manik Borai v. Rani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649; Arab All v. Rachimaddi 10 Ind. Cas. 562 : 13 C.L.J. 656; Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 16 C.W.N. 618 : 15 C.L.J. 672; Jarip Khan v. Durfa Bewa 15 Ind. Cas 476 : 17 C.W.N. 59 : 16 C.L.J. 144; Telam Pramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468; Mohim Chandra Dey v. Baidya Nath 29 Ind. Cas. 879 : 21 C.L.J. 478; Gonesh Mondol v. Thanda Namasundrani 38 Ind. Cas 489 : 24 C.L.J. 539; Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 19 C.W.N. 1077 : 22 C.L.J. 99 : 43 C. 178 and Lani Mia v. Muhammad Easin Mia 33 Ind. Cas. 448 : 20 C.W.N. 948.

21. Some of these oases were referred to by Carnduff, J., in the case of Telam Pramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468 and the learned Judge pointed out that those cases were not authorities for the construction of Sub-section (2) of Section 85. And it is obvious that cases in which the question before the Judges was the effect to be placed on other subsections of Section 85 can be no authorities on the question before us, and if the learned Judges in those oases were led into making remarks referring to Section 85 (2), such remarks can at most be obiter dicta.

22. Four of the cases in the above list, viz., Nos. 2, 3, 8 and 11 Gopal Mandal v. Eshan Chunder Banerjee 29 C. 148; Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377; Bipin Behari Hati v. Amirta Lal Bhattacharji 3 Ind. Cas. 685 : 9 C.L.J. 76; Arab Ali v. Rachimaddi 10 Ind. Cas. 562 : 13 C.L.J. 656 which dealt with Section 85(3), may, therefore, at once be eliminated from our consideration.

23. Then there is a class of oases in which the lease was for 9 years only but there was a covenant for renewal. In the 6th of the above cases Ali Mohammad v. Nayan Rajah Bhuiya 13 Ind. Cas. 912 : 15 C.L.J. 122 : 16 C.W.N. 620 note it was held that Section 85 was not a bar as the lease was not for more than nine years. That was followed in case No. 18 Lani Mia v. Muhammad Basin Mia 33 Ind. Cas. 448 : 20 C.W.N. 948. In Tamijuddi v. Asgar Howladar 1 Ind Cas. 942 : 36 C. 256 : 13 C.W.N. 183. also the lease was not one for more than 9 years and the contest was between the superior landlord and the sub lessee.

24. In that case, therefore, the Judges did not have to consider the present question, viz., the validity of a lease for more than 9 years, when raised as between the grantor and grantee. These three cases may, therefore, be eliminated. In the first case on the list Srikant Mondul v. Saroda Kant Mondul 26 C. 46 : 13 Ind. Dec. (N.S.) 633. the Court decided that a sub-lease for more than 9 years was altogether void. The case was, however, between the superior landlord and the sub lessee and the Court had not to consider whether the grantor could question the validity of the lease.

25. Nor is the 17th case, that of Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 19 C.W.N. 1077 : 22 C.L.J. 99 : 43 C. 178 an authority on the question before us. There the. question arose between the purchaser of a holding in execution of a rent decree who is not a representative of the original raiyat, and the sub lessee. It was pointed out that no considerations such as might apply between grantor and grantee, applied to the case.

26. This reduces the list of cases to which reference need be made to nine. In Fazel-Sheikh v. Keramuddi Sheikh 6 C.W.N. 916 the contest was between the sub-lessee and the successor-in interest of the raiyat. It was held that the permanent lease was altogether void in view of the express provisions of Section 85 (2) and that the successor-in-interest of the grantor could question its validity.

27. In Ramgati Mandul v. Shyama Charan Dutt 6 C.W.N. 919 the contest was between the superior landlord and the sub-lessee. In this case the superior landlord was a raiyat; he gave a sub-lease, and his lessee again gave a sub lease. As between the two lowest lessees Section 85 could not apply, as it applies only to sub-leases by a raiyat. But in order to ascertain the title of the lowest lessee the Court had to consider the validity of the permanent sub-lease granted by the raiyat and the learned Judges held, again at the instance of the grantor, that it was invalid.

28. In Basaratulla Mundle v. Kasirunnessa Bibi 11 C.W.N. 190 the lease was for a period of 9 years with a covenant for renewal. On a suit to eject the sub-lessee after the expiry of the term of 9 years, it was argued that the sub lessee was protected by the covenant for renewal and that Section 85 (2) could be enforced only on behalf of the superior landlord. This argument was negatived by Geidt, J.

29. In Manik Borai v. Bani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649 the sub-lessee of the raiyat had been dispossessed by some persons other than the grantor of the sub-lease. It is not stated under what title these persons claimed, but in one passage in the judgment it is stated that the contest was between the under-raiyat (i.e., the sub-lessee) and a trespasser who had no title, and it was, therefore, 'unnecessary to consider whether the validity of a sub-lease granted by a raiyat in contravention of Section 85 could be questioned by the grantor.' That being so, the case is not an authority for the question now before us, for though in another part of the judgment there is an expression of opinion that the question could only be raised by the superior landlord, the case was disposed of on the ground that 'the plaintiff had a subsisting interest when the action was commenced.'

30. In Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 16 C.W.N. 618 : 15 C.L.J. 672 the contest was between the raiyat and his lessee. It was held that the lease was a permanent one and that the contract was valid in law, so far as the contracting parties were concerned, Carnduff, J., was a party to this decision and he subsequently in Telam Paramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468 expressed the opinion that the case had been wrongly decided and that the authorities quoted in support of the proposition stated therein were in fact not authorities for the proposition.

31. In Jarip Khan v. Durfa Bewa 15 Ind. Cas 476 : 17 C.W.N. 59 : 16 C.L.J. 144 it was held that a sub-lease for more than 9 years, which had been registered in contravention of Section 85 (2), must be treated as not registered and that there was, therefore, no proof of the title of the person who claimed under the sub-lease. The effect of this decision was the same as the effect of Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916 and other oases on the same lines viz., that a sub lease for more than 9 years is absolutely void. To the same effect was the case of Telam Paramanik v. Adu Sheikh 18 Ind. Cas. 791 : 17 C.W.N. 468 where the question was raised between the grantee and a transferee of the grantor.

32. In Mohim Chandra Dey v. Baidya Nath 29 Ind. Cas. 879 : 21 C.L.J. 478 a case between the raiyat and his lessee, it was held following Jarip Khan v. Durfa Bewa 15 Ind. Cas 476 : 17 C.W.N. 59 : 16 C.L.J. 144 and Telam Paramanik v. Adu Sheikh 18 Ind. Cas. 791 : 17 C.W.N. 468 that the lease was a nullity, and that acceptance of rent could not ratify a lease which was initially void. The learned Judges did not state whether they approved or not of the view taken in the two cases cited; this case, therefore, does not add to the authority of those cases. The only point worthy of note is that one of the Judges viz., Coxe, J., was a party to the decision in Manik Borai v. Bani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649 and if he intended to hold in the last mentioned case that the question of validity of the lease could not be raised as between grantor and grantee, he had apparently modified his view in 1914.

33. Gonesh Mondal v. Thanda Bamasundrani 38 Ind. Cas 489 : 24 C.L.J. 539 also does not lend authority either way. Fletcher, J., pointed out that there were two classes of case, one in which the sub lessee was precluded from proving his lease, as exemplified by Jarip Khan v. Durfa Bewa 15 Ind. Cas 476 : 17 C.W.N. 59 : 16 C.L.J. 144 and one in which he was able to rely on possession to prove his tenancy independently of his lease, as exemplified by Manik Borai v. Bani Charan Mondal 10 Ind. Cas. 469 : 13 C.L.J. 649. He had to see whether the facts of the case before him brought it within the first or the second class, and finding it to be within the latter, he considered the decision referred to had to be followed. This case is not an authority for the proposition that the raiyat cannot question the validity of the sub-lease.

34. The result of the cases appears to be this. The document creating the lease cannot be given in evidence if the lease is for more than 9 years, whether the document has been registered or not, and the lease is void. This is undisputed, with this exception that the lease may perhaps be operative as against the grantor or a person claiming title from him. As to this point four different Judges in four cases Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916; Ramgati Mandul v. Shyama Charan Dutt 6 C.W.N. 919; Basaratulla Mundle v. Kasirunnessa Bibi 11 C.W.N. 190 and Telam Paramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468 have held that the grantor Or a person claiming from him can question the validity of the lease and that it is not operative against him. In only one case Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 16 C.W.N. 618 : 15 C.L.J. 672 in which it has been necessary to decide the point has the contrary been held and one of the Judges who took part in that decision subsequently took precisely the opposite view.

35. The authorities, therefore, paint to this that the validity of the lease can be questioned by the grantor, and that this view should have been taken is not surprising when, to use the words of Jenkins, C.J., 'the Legislature saw fit to carry out the particular purposes indicated in Sub-section (2) by a provision which must of necessity have been of universal application. In forbidding registration it forbade for all purposes the production of the document as evidence and withheld from it any ability to affect immoveable property.' And though the Act has been extensively amended since three out of the four cases, to which I have just referred, were decided, Section 85 has remained untouched.

36. I regret that I am compelled to take a view, which allows a man to profit by violating his own contract. The view may be taken that a person deserves no sympathy, who taking a lease for more than 9 years with his eyes open deliberately attempts to evade the law. The knowledge that he may be penalised by his grantor is perhaps the best deterrent, though it is not conducive to honesty to permit advantage to be taken of an evasion of the law by one who has himself been a party to it. However, the Statute is so worded that, in my opinion, the conclusion to which I have come cannot be avoided. I, therefore, agree that the appeal should be dismissed with costs.


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