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TMI Blog1954 (7) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... since he needed that property for his own personal use, he gave a notice to the appellant on 28-5-1951 that he should give vacant possession of the property on 1st Asadh Vadi 1, Smt. 2008, that on his failure to vacate the property the respondent would take legal action against him and he will have to pay an enhanced rate of ₹ 10 p.m. till the date of his eviction. It was stated that the appellant gave no reply to that notice. It was therefore prayed that a decree for ₹ 102-8-0 for the arrears of rent (₹ 60 being for the first year and ₹ 42-8-0 for the remaining period up to the date of the suit) and the ejectment be given against the appellant. 3. In his written statement it was admitted by the appellant that he had executed the rent-note referred to by the plaintiff-respondent but it was pleaded that it was inadmissible in evidence for want of registration. It was further averred that the nohra belonged to Sukhawate, that Rambilas Ram Narayan had a decree against Sukhawate and in execution thereof they got that property that the appellant was already in possession of the nohra and therefore he obtained constructive possession and executed a lease deed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease of immovable property from year to year. This contention was repelled by the trial Court. According to the trial Court's interpretation the document purported to lease out the nohra only for one year and there was a clear stipulation between the parties that after the termination of the first year's period, continuation of the lease or the restoration of vacant possession of the nohra to the plaintiff would depend upon further agreement between the parties. The appellant's learned advocate at first tried to question the correctness of the trial Court's interpretation but later on conceded that such interpretation could be borne out. The actual words occurring in the said document are as follows: I keep this nohra on rent for one year. After that, I will continue to keep it if both of us agree amicably. If you will ask me to vacate it, I will vacate it. To my mind, the said language is crystal clear and it clearly shows that the nohra was rented only for one year. It is urged by the appellant's learned advocate that although Ex. P-1 may not be compulsorily registrable under S. 17(1)(d), Registration Act, an instrument creating a lease of immovable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable property may be made in two ways: that is either by a registered instrument, or by an oral agreement accompanied by delivery of possession. The appellant's learned advocate's argument is that the plaintiff-respondent in the present suit did not base his suit on an oral agreement accompanied by delivery of possession but on the basis of a lease which he thought was made out by Ex. P-1 and since this document was not registered, it was inadmissible in evidence. 10. It may be clarified here that the provisions of S. 107, T.P. Act, are quite plain and there can be no two opinions on the point that those leases of immovable property which are not covered by the first paragraph thereof can be made only in two ways, i.e., either by a registered instrument or by an oral agreement accompanied by delivery of possession. It is further evident from the third paragraph of the section that where the lease of immovable property is made by a registered instrument, such instrument must be executed both by the lessor and the lessee and if there are more than one such instrument, then each of such instruments should also be similarly executed by both the lessor and the lessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on rent-notes which were not registered and the plaintiff had not sued on the basis of his title for recovery of compensation for use and occupation. The defendants were already in possession of the property before the execution of the leases. Under those circumstances it was held by Bhide J. that the plaintiff could only succeed if she had sued for rent on the basis of registered leases executed by the lessor and the lessee in view of the provisions of Ss. 105 and 107, T.P. Act. 14. It may be pointed out that in another case of-'Taj Din v. Abdul Rahim', AIR 1939 Lah 423 (E) a Division Bench of the same High Court including Bhide J. himself held an unregistered rent-deed, for less than a year admissible in evidence. In that case it was held following the case of - 'Ramkrishna Jha v. Jainaudan Jha', AIR 1935 Pat 291 (FB) (F) that S. 107, T.P. Act, was not governed by the definition of the term lease in the Registration Act but by the definition in S. 105, T.P. Act. It was therefore observed as follows: It seems to my mind thus clear that the rent deed in question in the present case cannot be considered to be a lease within the meaning of S. 107, T.P. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an oral agreement accompanied by delivery of possession, then I see no reason why such a document should not be admitted in evidence to corroborate the fact of such agreement and the terms thereof. 20. The appellant's learned advocate has next contended that in the present case the respondent did not base his suit on an oral agreement and that the appellant being already in possession of the property on 1-6-1950 no fresh delivery of possession was given to him and as such the present suit could not be maintained. It may be remarked in this connection that undue stress should not be laid on the structure of the pleadings in a suit like the present one when the defendant has fair notice of the case which has been put up by the plaintiff. It cannot be denied that in cases where there is no registered lease-deed it should be mentioned in the plaint that there was an oral agreement about the lease between the landlord and the tenant followed with the delivery of possession of the property. The suit should not simply be based on an unregistered rent-note because it can be used only in corroboration of the said oral agreement but the necessity of such a formality should not be ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus there being no valid transfer in the respondent's favour, the suit filed by him was not maintainable. 23. The question for determination therefore is whether partition is included within the term transfer of property and the provisions of S. 109, T.P. Act, can be applied to a person who receives the property leased in his share by partition. Section 5, T.P. Act, which defines the term transfer of property runs as follows: In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one on more other living persons; and 'to transfer property' is to perform such act. In this section 'living person' includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. The word conveys which appears in this section has led to a difference of opinion on the question whether partition would be covered by the term '' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the view of the learned Commentator Sir D.F. Mulla on this subject in his Commentary on the Transfer of Property Act (Edn. 3) at p. 270. He has expressed his view in the following words: The correct view, it is submitted, is that the partition is not a transfer and therefore not strictly within this section, but the principle of the section applies to a fraudulent partition. To my mind, the view expressed by the learned commentator is itself debatable and it is doubtful if it can be said with certainty that in partition there is no transfer of property in the wide sense of that term in any case. This view may be correct on a very rigid interpretation of S. 5, T.P. Act, but this Act itself is not exhaustive and it does not cover all sorts of transfer of property. The preponderance of opinion now is in favour of the view that 'partition' is also included with the term 'transfer of property.' It is true as the appellant's learned advocate has contended that the cases referred above are in connection with the interpretation of this term as it appears in S. 53, T.P. Act, but I do not see any reason why the same interpretation should not be extended to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d contention raised by the appellant's learned advocate is that the notice Ex. P-2 given by the plaintiff was not valid because the appellant was required to vacate the premises on Asadh Vadi 1, Smt. 2008 which was not the day expiring with the end of the month of the tenancy. It has been pointed out that the tenancy in the present case commenced on the 1-8-1950 according to Ex. P-l and therefore the notice should also have been given according to Gregorian calendar. The respondent's learned advocate has urged in reply that Ex. P. 1 shows that the monthly tenancy between the parties was according to the months of Vikram Samwat and therefore the notice was also given according to the same calendar. 30. Learned advocate for the appellant has referred in support of his view to the case of 'Calcutta Landing and Shipping Co. v. Victor Oil Co. Ltd.', AIR 1944 Cal 84 (S) in which it was observed that monthly tenancy under S. 106, T.P. Act, should be according to the English Calendar in view of the provisions of S. 33, General Clauses Act. This view was, however, not adopted in the later case of the same High Court - Ahmad Ali v. Jyotsna Kumar, AIR 1952 Cal 19 (T) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. The last contention raised by the appellant's learned advocate is that according to Ex. D-1, partition between the plaintiff and his father was effected on 2nd Asadh Vadi 8, Smt. 2007 while the tenancy had commenced on 1st Asadh Vadi 1, Smt. 2007 and therefore the plaintiff could not demand rent for one month and seven days. It is pointed out that according to S. 109, T.P. Act, the transferee is not entitled to arrears of rent due before the transfer. It is true that according to S. 109, T.P. Act, the transferee is not entitled to arrears of rent due before the transfer but in the present case the arrears of rent could be due only at end of the year because the tenancy was for a fixed term of one year. The plaintiff's father Ram Narayan had given to the appellant a clear notice that the plaintiff alone was entitled to rent from the beginning of the tenancy. The appellant has not taken the plea that he had paid the rent for the said period of one month and seven days to the plaintiff's father. Under the circumstances, the plaintiff could claim rent even for that period from the defendant and the Courts below have not committed any mistake in passing the decree for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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