Jangal Singh and Others vs Mukund Kumar and Others

Meredith, J.—This is a defendants'' appeal under the Letters Patent from a decision of Rowland J., setting aside the decision of the Subordinate Judge in first appeal and restoring that of the Munsif decreeing the suit.

The suit was for declaration of title and-recovery of possession by ejecting defendants 1 to 3 (first party) the plaintiffs'' case being that on 29-6-1937, they had taken a settlement of the land under a registered lease (patta) from the landlord, the pro forma defendant 4, upon a rental of Rs. 3 and a salami of Rs. 300. They obtained possession under this lease. The landlord, however, on 912.1937, executed three deeds of lease in favour of defendants 1 to 8. After this the latter forcibly ejected the plaintiffs, and a subsequent criminal case ended in the defendants'' favour.

Only the principal defendants 1 to 3 contested the suit, and the defence was that the plaintiffs had never paid the salami, and for that reason the lease was cancelled. The document had never been made over to the plaintiffs, and the latter had never got possession.

The learned Munsif held that the plaintiffs had failed to prove payment of the salami, but their interest in the land accrued upon registration of the patta, and accordingly they were entitled to succeed. The argument addressed to him by the defendants that title was to pass only upon receipt of the premium carried no weight with him, because-such an intention of the parties had been neither pleaded nor proved. He believed the plaintiffs'' story of possession, and dispossession and he decreed the suit against the principal defendants with costs.

Only these principal defendants appealed. The learned Subordinate Judge said that the finding that the salami had not been paid had become final because the plaintiffs had not filed any cross-objection. Here he was wrong, as Rowland J, has pointed out, and he ought to have come to an independent finding. He proceeded also to reject the plaintiffs'' story of possession and dispossession, but mainly because of the non payment of the premium. He said:

When they did not pay the consideration or take the patta it cannot be reasonably believed that they (the plaintiffs) were allowed to take possession by. defendant 4.

He further held that the patta showed that passing of title and receipt of consideration were intended to be simultaneous, and that as consideration had not been received title had not passed. In this view he dismissed the suit.

Rowland J., observed that the view of the learned Subordinate Judge was based upon certain rulings with regard to sale deeds and the same considerations did not necessarily apply to leases. Though the lease gas an agricultural one, and, consequently, chap. V, T.P. Act, was not directly applicable, yet the provisions of that chapter could be referred to in so far as the law merely codified principles of general application to leases, and there was the authority of Mohammad Hanif and Another Vs. Khairat Ali and Others, , for the proposition that certain provisions in Section 107, T.P. Act, 1882, represented the prevailing law with regard to agricultural lease also (though not, be it noted, the provision in that section that a lease of immovable property made by a registered instrument must be executed by both the lessor and the lessee otherwise the lease would have been invalid as it was not executed by the lessee and there was no kabuliat). He pointed out that u/s 110, T.P. Act, where no date of commencement is named in the lease, time begins to run from the making of the lease, and he thought that was applicable to leases generally. His opinion was that in construing a lease it must be held that it comes into force on the date when it is made unless there is some express provision to the contrary in the lease itself. Here there was none. The'' lease merely recited that having taken Ks. 300 the lessor settled the land with the lessee in permanent raiyati right. He said, had his view of the law been otherwise a remand would have been necessary for findings with regard to the payment of the premium and the question of possession and dispossession.

In appeal a preliminary point was taken that defendant 4, Govind Singh, died on 13-2-1943, before Rowland J.''s order of 18-3-1943, allowing the appeal. No steps had been taken for substitution, and the decree was, therefore, a nullity being against a dead person.

There is nothing in this point. The suit was never decreed against defendant 4 even by the Munsif, and there was never any appeal by defendant 4. He was not a necessary party, and there is no defect in the decree.

Next we were pressed with the contention that Rowland J.''s views with regard to the law applicable to leases were wrong, and the same principle should be applied as in the case of sales. I am of opinion, however, that Rowland J. was right. I have read the patta, and it is unquestionably a present demise, and will operate as such from the date of registration. There is nothing in the document whatever to suggest that the commencement of the lease was to be postponed. jL think in the case of a lease some much clearer and more definite indication of intention to postpone commencement would be necessary than a mere incorrect recital of receipt of salami when in fact salami might not have been received.

It has further been argued that this was a mere agreement 10 lease, and that it could only become a completed lease by delivery of posses, sion. Reliance for this is placed on the case already referred to, Mohammad Hanif and Another Vs. Khairat Ali and Others, but that decision deals only with oral Iease3. There is no authority whatever for the proposition that a valid lease of agricultural land cannot be made by a registered instrument in the absence of delivery of possession. On the contrary, the provision in; Section 107, T. P. Act, relied upon in that case by Fazl Ali J. itself says

all other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.

If this represents the law in relation to leases generally, as Fazl Ali J. suggested, it follows that no delivery of possession is necessary in the case of a lease by a registered instrument. The argument that the document represents not a lease but an agreement to lease appears to me quite without substance. In terms it is a present demise, not an agreement subsequently to execute one.

My view of the law is the same as that of Rowland J. See Dinanath Kundu and Others Vs. Janaki Nath Roy and Others, and Kailash Chandra Bhomik v. Bijoy Kanta AIR 1919 Cal. 837. Had it been otherwise, I agree with his view that a remand would have been necessary, not only because the Subordinate Judge has not come to an independent finding that the premium was not paid, but because even the Munsif''s finding on that point was based upon a misplacement of the onus. The finding was merely that the plaintiffs had failed to prove payment" of consideration. It was not for them to do so, but for the defendants deriving title from defendant 4 to prove the incorrectness of the recital in the document that consideration had been received. It was a very heavy onus in view of the fact that the lessor himself did not come forward to say that he had not received consideration. I think it was most certainly for the contesting defendants, if they wished to contradict a statement in the lease that the money had been received, to examine the lessor defendant 4 to deny it and,, not having done so, their statement of non-payment was not worthy of serious consideration.

I would dismiss this appeal with costs.

Manohar Lall, J.

I agree. The case in Mohammad Hanif and Another Vs. Khairat Ali and Others, is an authority for the proposition that the provisions of chap. 5, T.P. Act, although not directly applicable to agricultural leafses, can be utilised to find out the general principle which govern the rights of the lessor and the lessee, unless there is a specific law or usage to the contrary regarding agricultural leases. For instance, an agricultural lease can be made orally accompanied by delivery of possession or by registered instrument which need not be executed both by the lessor and the lessee.

The question in the present case is whether the lease in dispute was effective although the salami had not been paid. By Section 105, T.P. Act, a lease confers a right on the lessee to enjoy the property when he accepts the transfer on the particular terms of that lease. Section HO provides that the day of commencement of the lease unless otherwise named in the document is the day of the making of the lease. Section 108, Sub-clause (b) provides that, if the lessee requests the lessor the lessor is bound to put him in possession of the property, and Sub-clause (c) provides that the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. It will be noticed that it does not state '' that if the latter pays the premium where the consideration for the lease is both the premium and the rent reserved, then only he can hold the. property.

On a consideration of these general principles, I am of the opinion that the lease in the present case became operative on the date it was made and when the lessee accepted the terms of the lease. The mere fact that the salami had not been paid cannot lead to the legal inference that the lease was not made on that date. I agree with my learned brother that ordinarily the terms of the contract must indicate clearly whether the making of the lease was postponed till after the payment of the premium. The false recital in the document about the receipt of the premium has no bearing whatsoever upon the question which we have to decide.

I am not considering the case law which bears upon the question of passing of title from the vendor to the vendee on the mere registration of the document, because the relationship between the vendor and the vendee ceases after the title has passed, but in the case of a lease the relationship starts from the making of the lease and continues till the end of the term of the lease. It is, therefore, not quite correct or safe to apply the principle of cases dealing with the passing of the title in the case of a sale to the case of a lease. It was open to the parties to contract that unless the premium is paid the lease will not become effective; in that case, the lease would have begun from the future date, namely, the date of the payment of the premium.

For these additional reasons, I agree that the appeal should be dismissed with costs.