Ouseph vs Kunjathu

The deft is the applt. in this second appeal. The pltf''s suit was for eviction with past & futura rent. The suit was based on Ex. A executed by the deft in favour of the pltf. In that ho had undertaken to cultivate the vacant space in the proporties scheduled in Ex. A & to pay the pltf. a rent of Rs. 60. Out of this he was to appropriate Rs. 10 towards fencing & other miscellaneous expenses. The deft, was allowed to cultivate the vacant space only for one year. The pltf. stated that the deft, had no right of posses sion over the trees & the house in the compound, that he was only to raise vegetable crops & that he was to surrender whatever possession he had after the expiry of one year. The deft, had not surrendered possession after one year & so the prayer was for recovery of possession of whatever right the pltf had over Ex. A property & to order payment of past rent & settlement of accounts & future rent at the rate of Rs. 85 a year.

The deft. contested the suit. He objected to the enhanced rent claimed & contended that he had discharged the whole dues to the pltf. He had also a Contention that he was not liable to be evicted as he was to be deemed to be a Verum pattomdar mentioned in Act VIII [8] of 1118. The O. S. below had concurrently found that he would not come under the category of Verumpattomdar as understood in Act, VIII [8] of 1118, that he was liable to surrender the property, that the discharge pleaded was not true, that the pltf. was not entitled to enhance the rent & that tbe property could be delivered over to the pltf. only with past & future rent at the rate provided for in Ex A.

The question for consideration i3 as to whether Ex. A. would come under the category of a lease as defined in the T. P. Act XVII [173] of 1111. The lease is not defined in the Cochin Ver-umpattomdars Act v. III [8] of 1118 & so the Pattom or lease contemplated therein would be governed by the definition of the term in the Cochin T. P. Act. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer or by the transferee, who accepts the transfer on such terms. The word "enjoy" used in this definition has been the subject of comment in several cases & the result of a comparative study of the same is thus mentioned at p. 1609, vol. III of the Commentaries of the T. P. Act by Chitaley & Rao, 1950 Edn.

The word "enjoy" is, however, not used as the equivalent of "possess." The connotation of the word "possession" as used in the Act is distinct from "enjoyment" & does not necessarily include enjoyment. This is clear from Sections 58 & 76 of the Act. Those sections show that though a usufructuary mtgee. is entitled to the possession of the mortgaged property, he is not entitled to the enjoyment of the property. Because, the usufruct of the property is treated as belonging not to the mtgee. but to ,the mtgor. The mtgee. has only the right to receive such usufruct & reimburse himself for his debt from it. Under a lease, however, the usufruct of the property belongs to the lessee. The transfer of a bare right of possession without the right to the usufruct is not a lease. Thus, the word "enjoy" seems to be used in the sense of the beneficial occupation of property. Such a meaning is not inconsistent with the literal sense of the word. Because one of the meaning of this word is to ocoupy as a good or profitable thing.

There must be a transfer of the exolusive right of possession of the leased property in order to constitute a lease. The oontinuace in the transferor, after the transfer, of any share in the right of possession is detrimental to its charaoter as a lease. This does not mean that there cannot be a lease of an undivided share in joint property. What is meant is that the transferor cannot reserve to himself any share in the right of possession.

In Ex. A, the extent of the property which comes to 6 acres & 82 7/8 cents is mentioned. It was stated there that there were trees & houses in the property. The same were excluded & permission was grunted to cultivate the vacant space. The exact extent of the property or the location of the same where the deft, could raise the crops were not mentioned in the document. It was also not mentioned that the deft was to have exclusive possession of the vacant site. The evidence in the case showed that even over this vacant space the pltf. was exercising the right of possession by planting trees. The deft, as D. W. 1 had admitted tbat he had planted about 200 Anjili plants in the properly; but it is significant that he has not claimed any compensation for value of improve, ments on account of any plantation made by him. The pltf. as p. W. 1 had sworn that he had planted the vacant space with several trees & his version appeared to be a correct one for the deft, himself had not claimed any compensation for planting t rees after Ex. A was executed. This was a clear indication that the deft, was not given the exclusive pcssession of the property. Ex. A will not therefore come under the category of a lease & the F. B. ruling in Secretary, Board of Revenuev v. S.I.R.R Ely. Co. AIR 1925 Mad. 434 : 48 Mad. 868 P. B. is in support of this position. The test whether a document was a lease or not was held to be whether it vested any exclusive interest in immovable property in the transferee or whether it gave him merely a right to enter on the property & to do something thereon. The ruling in Venugopala v. Thirunavukkarasu AIR 1949 Mad. 148 : 1848 2 M. L. J. 155 relied on by the applt. is in no way against the decision mentioned above. In this case the deft, was given the right to enjoy toddy yield & right to enter upon the land for the purpose. It was held that the right to tap coconut trees & to obtain toddy was the benefit arising out of land & so that right will come u/s 8 (25), General, Clauses Act (India) & was immovable property. Since an exclusive possession over the Immovable property had been created so far as the right of enjoyment of the trees was concerned it was held to constitute a lease. There is no such exclusive possession as contemplated there in the present case & so we have to hold that Ex. A though it is styled a Pattomcheetu & the rent to be paid is called Pattom, it could not be a lease as contemplated in the T. P. Act. An agreement for the cultivation of land under which a person is to cultivate another''s land & the two are to share the produce in certain proportions may be a lease if there is an intention to transfer an interest in the property. But if there M no such intention such agreement cannot create a lease & the matter is as held in Brahmamoyee v. Munsur AIR 1920 Cal. 548 : 58 I. C. 859 one purely of construction in each case. If there was no intention to transfer an interest in the property, the right would be a licence, not a lease. The use of the words Pattom & Pattacheetu is not of much consequence. It had been laid down in Glenwood Lumber Co. Ltd. v. Phillips (1904) A. C. 405 : 73 L. J. P. C. 62 and King v. Devid Allen & Sons (1916) 2 A .C. 54, that in construing such grants the substance of the transaction must be considered & not merely the nomen. clature used by the parties. The rulings in In Re: Burmah Shell Oil Storage and Distributing Co. Ltd. of India AIR 1983 ALL. 735 : 55 ALL. 874 F. B, Sherif Dadumiyaji v. Emperor AIR 1930 Bom. 165 : 31 Cr. L. J. 1100 , Sabdi Bepari and Others Vs. Sheikh Budhai, and Rajkishore Prasad Vs. Smt. Raj Kumari Devi and Others, are also in support of this position. Sinca the deft, had not been given exclusive possession of the vacant site the extent of which was not possible to be determined it had to be held that he had been given only a use of the property for a definite purpose & that the transaction Ex. A would not amount to a lease. Thus in confirmation of the decrees passed by the Cts. below, the appeal is dismissed with costs.