9911796707
TMI Blog1960 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... holding by purchase by means of two registered instruments, one executed by the maternal grand sons of Bulaki, on 6-12-1941, and the other by his sons on 12-7-1943. The plaintiff, who is the sixteen annas landlord, recognised this transfer and mutated the name of the purchaser Harinarain in his sherista in place of the recorded owners. Similarly, in the municipal records also his name was mutated. Thereafter, he demolished the old structures and constructed in their place a double-storeyed pucca house. On his death, he was succeeded by his widow Srimati Am-bika Devi, the defendant, who is the appellant before this Court. On 7-7-1952, the plaintiff served on the defendant a notice to quit the house by 30th day of Shawan 1359 fasli (corresponding to 5-8-1952) and remove the Amlas (structures and materials) from the disputed land. This not being done, the plaintiff commenced the present action to eject her and recover arrears of rent at ₹ 3/8/- per month from 1st day of Jeth to 30th day of Shawan 1359 fasli, on the allegations that Bulaki. or his legal representatives and successors had no permanent interest in the land, but that they were mere tenants-at-wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by registered instrument. All other leases of immovable property may be made either by an instrument or by oral agreement . This amounts to a statutory prohibition of the creation of such a right as is claimed here by the appellant, otherwise than by a registered instrument. No registered instrument was created in favour of Bulaki or his successors-in-interest. It was a case of verbal lease: The aforesaid considerations urged by learned counsel would not, therefore create a permanent tenancy, because that would virtually amount to overriding the specific provisions of the statute. However long the possession may be and! however costly and substantial the building may be, these acts of possession by themselves cannot, if the lease was created after the passing of the Transfer of Property Act, and if the Parties were aware of the nature of their respective interest in the land, confer a right of permanent tenancy, which, in the case of a lost grant would have done, because this will amount to conferring upon a person a right which the statute enacts shall be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He next contended that, at any rate the defendant was entitled either to have from the plaintiff a transfer of the disputed holding or the cost of the building, as the defendant's husband made the construction bona fide in the belief that the land belonged to him. In support of his contention, he relied upon the provisions of Section 51 of the Transfer of Property Act, which is in the following terms: When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that a person is entitled to compensation on the ground that he believes that he is absolutely entitled to the property when in fact he knows that he is only a lessee, comes very near to holding that the section means something otherwise than what he states. It seems to me that the decision in the rase of Subba Rao, referred to above, has no binding force. There appears to be a consensus of judicial opinion for the contrary view, namely, that the provisions of Section 51 are not available to a lessee or a tenant. In Nannu Mal v. Ram Chander AIR 1931 All 277 (FB) it has been laid down that the expression believing in good faith that he is absolutely entitled thereto means that he is what is usually termed in India 'a full proprietor' with a heritable and absolutely transferable estate as opposed to a person holding a life estate or a rent-free grantee whose grant is liable to resumption. Similarly, a Bench of the Bombay High Court in Vithoba Babaji v. Sholapur Municipality, AIR 1947 Bom 241 refused to extend the benefit of Section 51 to a lessee. A Bench of the Calcutta High Court in Subodh Chand v. Bhagwandas has laid down that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band. This statement, however, cannot be accepted as correct in face of the recitals in the sale deeds. It follows, therefore, that Harinarain purchased tenure rights and the plaintiff with full knowledge of what Harinarain had purported to purchase recognised him as a tenant, and, on his death, recognised his widow as such. Thereafter, the defendant built a double-storeyed pucca house on the suit land. This was constructed, as deposed to by the plaintiff, in 1947 or 1948. The disputed holding abuts on the main road, known as Ashok Raj-path, and is only fifteen minutes' walk from the plaintiffs house. The Courts below have further found that the plaintiff was aware of the construction of the house by the defendant's husband, and having full knowledge of the construction, he did not object to the construction, nor did he interfere with the possession of the defendant. On these facts, learned counsel urged that the plaintiff was estopped from denying the title of the defendant. His contention is that the defendant's husband purchased tenure rights and not merely a precarious tenancy, and the plaintiff recognised him as a tenant with full knowledge of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs correctly as raiyats, the defendant could not have set up a plea that the plaintiffs were precluded from denying their title to confer a permanent right upon the defendant. This would have been a genuine case of an application of the principle that there cannot be an estoppel against a statute. In this case, however, the defendant denies that the plaintiffs are raiyats and alleges that they are as represented by them, tenure-holders. This raises an issue of fact and it is not until that issue of fact is concluded in favour of the plaintiffs that any question of the operation of the statute can arise. It is true that the record-of-rights describes the plaintiffs as raiyats but this is a piece of evidence only to which is attached the statutory presumption of correctness which is subject to rebuttal. The first issue, therefore, is as to whether the plaintiffs are or are not tenure-holders and it is at this stage that the doctrine of estoppel operates, The plaintiffs having represented themselves as tenure-holders cannot be permitted to enter into a discussion of this question of fact but must be held bound by their own representation. No question, therefore, of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -will. The statute comes into operation only when the defendant is proved to be a tenant-at-will. Before that stage arrives, the estoppel operates. Apart from this, even in Ariffs case, their Lordships of the Privy Council were careful to point out that in appropriate circumstances estoppel may operate, notwithstanding the provisions of Section 107 of the T. P. Act. They observed as fallows: This is no case of money being expended by the respondent in any mistaken belief as to his legal rights, or of the appellant knowing of the existence of any such mistaken belief, or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent. Observe the true facts. In 1913 the respondent obtained a verbal agreement for the grant of a perpetual lease, under which agreement he could have sued for and obtained and registered an instrument creating his title to enjoy the property in perpetuity. That agreement continued to be enforceable against the appellant until the month of December, 1921, The structures were erected on the land many years before that date, and they were erected not in any mistaken belief by the respondent of his right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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