Sajid Mia Majumdar and Others vs Abdul Sattar Gani

Ram Labhaya, J.—This appeal arises out of an ejectment suit. The claim was decreed in the trial Court. On appeal the order of the Sadar Munsiff of Silchar was reversed and the suit dismissed Plaintiffs have appealed.

Plaintiffs� case was that the land in suit belonged to them. Defendant was a tenant of the entire dag under their father but after his death he gave up the eastern half of the dag and took settlement of the western half on terms embodied in a Kabuliyat executed by him on 15th Baisakh 1351 B.S. He was not paying the rent regularly. It had also become necessary for the Plaintiffs to bring lands under their Khas possession. They therefore served a ''notice on the Defendant by registered post asking him to deliver possession of the land by the end of Baisakh, 1355 B.S. corresponding to 14th May, 1948. It was a 15 days'' notice.

Defendant resisted the suit. He denied execution of the Kabuliyat and also the receipt of notice. Other pleas were also raised. The Munsiff found that the Defendant had executed the Kabuliyat (Ext. 2) and Plaintiffs were entitled to sue for ejectment ''on its basis. He also found that the notice was offered by the postman to the Defendant and that it was valid and sufficient. The learned Additional Sub-Judge, U.A.D., on appeal held that the Kabuliyat had been signed by the Defendant alone. It was also unregistered though its registration was compulsory. Finding that it was inadmissible in evidence he held that the claim for ejectment could not be based on it. He agreed with the learned Munsiff that the service of notice on the Defendant had been proved, but as according to Plaintiffs the land had been leased to Defendant for agricultural purposes, he held that a six months'' notice was necessary for ejectment.

The appeal in this Court came up for hearing before the learned Chief Justice on 14th August. At the hearing the learned Counsel for Defendant Respondent did not try to support the judgment of the lower Appellate Court on the ground that the suit was liable to dismissal as the Kabuliyat was unregistered It was conceded that the failure to get the document registered by itself could not be fatal to the suit for ejectment, though the ''decree of the Appellate Court was sought to be supported on the ground that the tenancy being for agricultural purposes, a fifteen days'' notice to quit could not be regarded as sufficient either under the Transfer of Property Act or under the general principles of law. Mr. Dam relied on the terms of the Kabuliyat which provided that the tenancy would terminate at the end of Chaitra 1351 B. Section when the tenant would vacate the land without any notice. He urged that the Kabuliyat was admissible in evidence as the Transfer of Property Act did not apply to it and therefore according to the agreement between the parties no notice of ejectment was necessary.

Mr. Ghose''s answer to this argument was that the Kabuliyat did require registration u/s 17 of the Registration Act as it created a lease by which annual rent was reserved. Its non-registration may not be fatal to the suit but its terms could not be relied on for showing that according to the agreement between the parties no notice was necessary, the document being inadmissible in evidence u/s 49 of the Registration Act. When the case was being argued Mr. Dam did not point out that the Kabuliyat was for a period of one year only and as such it did not require registration even under the Registration Act. He brought this fact to the notice of the Court when the judgment was about to be delivered on the 17th August, 1953. The learned C.J. allowed this contention to be raised and has referred the case for disposal to a Division Bench.

The Kabuliyat was executed by the Defendant. There is no dispute about its execution. By this document the Defendant agreed to take settlement of the land for agricultural and residential purposes for a term of one year from 1st Baisakh 1351 B.S. to Chaitra 1351 B.S. as a non-occupancy tenant on Rs. 10/- as its annual ''paikast'' rent which was payable on the first Pous of the said year against a receipt. He further agreed in express terms that he shall vacate the land without any notice on the expiry of the term of settlement and would be liable to punishment as a trespasser if he failed to comply.

There was a great deal of argument about the liability of this document to registration, when the appeal came up for hearing first.

I have no doubt that the document does not require registration. The learned Counsel for Plaintiff-Appellants adheres to the contention that the lease was for agricultural purposes. Mr Ghose does not dispute this fact. It is thus common ground at least at this stage that the lease was for agricultural purposes. Chapter V of the Transfer of Property Act which deals with leases of Immovable property does not apply to leases for agricultural purposes, though the Provincial Government may by notification published in the official Gazette declare all or any of such provisions to be applicable in the case of certain leases by virtue of the provisions contained in Section 117 of the Transfer of Property Act.

Mr. Ghose has not been able to refer us to any notification issued u/s 117. If his case is that the Chapter on leases or any provisions contained in it have been applied to agricultural leases in this province, it would be for him to show this. In the absence of any such notification it is clear that the provisions contained in Chapter V will not apply to the lease before us the requirements of Section 107 about execution and registration thus were not necessary to be fulfilled. It would not therefore be correct to say that the Kabuliyat is inadmissible in evidence or of no effect by reason of the non-compliance with the requirements of Section 107, Transfer of Property Act.

The document also is not compulsorily registrable u/s 17 of the Registration Act. It is not a lease which is covered by Clause (d) of Section 17(1). It is not a lease from year to year, nor is it for a term exceeding one year. It is nobody''s case that the lease falls under any of these two descriptions. The learned counsel for the Defendant-Respondent at no stage of the case tried to place the lease under any of these two categories of Clause (1)(d) of Section 17. His contention before the learned C. J. was that the lease-deed reserved yearly rent and therefore was compulsorily registrable u/s 17(1)(d).

It must be said in fairness to him that he has not pressed even this contention before us and for obvious reasons. The Kabuliyat cannot be said to be reserving yearly rent. It is patently a lease for one year. The duration of the lease was specified. It was further expressly provided that the lessee would vacate without notice on the expiry of the term. There could in these circumstances be no question of reserving an yearly rent. Yearly rent is reserved within the contemplation of Section 17(1)(d) if the lease on a proper construction creates a tenancy from year to year. The reservation of annual rent is necessary in a lease from year to year or for an indefinite term. Where such is not the case, even though the rent for the year or even a yearly rent is mentioned, the lease cannot be said to be reserving a yearly rent.

A tenant from year to year is one who holds lands under a lease for a term which may be determined at the end of the first or any subsequent year of the tenancy either ''by the landlord or by the tenant by a regular notice to quit''. If no such notice is given the tenancy may continue from year to year for any number of years. This is the distinguishing feature of a tenancy from year to year. It can be terminated only by a notice. Where the period of the tenancy is specified and under the agreement between the parties, the tenant has to vacate without notice after the expiry of a specified period, it cannot by any stretch of imagination be regarded as a lease from year to year. If it is not a lease from year to year, reservation of yearly rent is unnecessary and meaningless. If a lease describes the rent for the year as yearly rent it cannot convert the lease to a lease reserving yearly rent; for with the reservation of yearly rent a tenancy has to be from year to year which can be terminated only by a notice in accordance with the requirements of law. It is not necessary to discuss the matter any further since as stated above the contention that the document requires compulsory registration under the Registration Act, is not pressed. The kabuliyat therefore is admissible in evidence.

It is common ground that after the expiry of the first year the tenant did not vacate. He continued to occupy the land as a tenant. There was no fresh agreement, modifying the terms of the original agreement. No such plea is raised, though there was holding over by the tenant with the consent of the landlord. The lease stood renewed by the conduct of the parties. At the expiry of the second year of the lease and within the first month of the third year Plaintiff-Appellants sent a notice to the Defendant asking him to vacate the land within fifteen days of the receipt of the notice. There obviously was no-renewal for the 3rd year. The landlord lost no-time in conveying to the Defendant that his term had expired and that he should vacate. He did not accept any rent and thus deliberately and by an overt act prevented the renewal of the lease for a 3rd term.

It is not even the Defendant�s case that he could hold the land for the third year. His case-only is that a valid notice of ejectment has not been served on him. The question in these circumstances is what was the effect of the renewal of the lease for the second year. Mr. Dam con-tends that the renewed lease included all the terms of the original lease. It was a lease for one year and the lessee was under an obligation to vacate without notice at the expiry of the second year. Mr. Ghose''s contention is that u/s 116 of the Transfer of Property Act the lease stood renewed from year to year and as the lease was for agricultural purposes a six months'' notice or at least a reasonable notice of ejectment was necessary before the tenant could be evicted.

To answer the question to'' which the dis-pute has been narrowed down we have to ascertain the terms of the renewed lease or in other words the effect of the renewal of the lease after the expiry of the first year. There has been no-second renewal of the lease at all. The first renewal of the lease came by conduct of the parties. The landlord allowed the tenant to continue on and accepted the stipulated rent. The tenant continued in possession. There is no suggestion or evidence that the parties modified the terms of the original agreement when the lease was renewed, the renewal being by conduct and not by a fresh oral or written agreement between the parties. The renewal certainly was for a year. It could not be for a longer duration unless the original agreement was modified at the time of renewal. No such modification is pleaded.

The term of the original lease that the tenant shall vacate at the expiry of the year would also be part of the renewed lease. It was open to the parties to drop this condition of the lease. But there is not even an allegation that by agreement between the parties this particular term was dropped or that there was any modification of the terms of the original lease. The renewal of the lease by conduct therefore would include the Clause that the tenant shall vacate without notice with the result that on the failure of the Defendant to vacate the land at the end of the second year Plaintiff could sue for ejectment without sending any notice.

Mr. Ghose contends relying on the provisions contained in Section 116 that the renewal was from year to year and therefore that it was not limited to one year and, therefore a six months'' notice or at least a reasonable notice would be necessary. Section 116 of the Transfer of Property Act provides that:

if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, ''in the absence of an agreement to the contrary'', renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

Assuming for a moment that Section 116 does govern the relationship of the parties, it would be seen that according to the provisions contained in it the lease ''in the absence of an agreement to the contrary'' would stand renewed from year to year, the purpose of the lease being agricultural. The question then arises whether there was an agreement to the contrary. For determining this we have to look to the terms of the renewed lease. As stated above the renewal was by conduct of the parties and therefore there is absolutely no basis for the contention that the condition requiring the tenant to vacate without notice was no part of the renewed lease. If this condition was a part of the lease, and I have no doubt that it was, there would be an agreement to the contrary within the meaning of Section 116 and the lease cannot be taken to have been renewed from year to year. It was renewed for a year and subject to the condition that at the expiry of the year the tenant would vacate. On a right construction of Section 116, therefore it is of no avail to the Defendant in the circumstances of this case.

A decision of the Court of the Oudh Judicial Commissioner reported in-- AIR 1925 173 (Oudh) is on all fours. It was held in this case that:

where a new tenancy is created by reason of the landlord allowing the tenants to hold over after the original lease terminates, then in the absence of any terms in respect of the new tenancy the terms governing the original lease will be deemed to have been accepted by the parties and if there was a provision in the original tenancy dispensing with a notice to quit the same applies with regard to the new tenancy.

The learned Judge in this case followed an earlier decision of his Court reported in ''Khuda Bakhsh v. Abid Hussain'' 3 Ind Cas 873 (Oudh) (B). Relying on-- AIR 1925 173 (Oudh) Misra J. held in- Badal and Others Vs. Ram Bharosa and Others, that:

when the lessee holds over after the expiry of the term fixed by the lease, the relations between the parties are governed by the same terms as are embodied in the original lease.

The learned Judge regarded this as settled law. I am in full agreement with the view expressed in, these cases. It is plainly a common sense view of the matter. The leases in these cases were of one year''s duration as in this case. They could not be converted into leases from year to year when the parties intended and agreed to the renewal of the original leases as they stood. There can therefore be no manner of doubt that in this case the renewal of the lease for the second year was also in conformity with the; terms of the original lease and not a renewal from year to year. There was, in other words, an agreement to the contrary which would prevent the lease from operating as a lease from year to year.

The cases referred to above did not relate to agricultural land. The Transfer of Property-Act applied to those leases. Notwithstanding this in both the cases it was held that the relations between the parties would be governed by the same terms as were embodied in the original leases. We are dealing with an agricultural lease to which Chapter V of the Transfer of Property Act has no application. Section 116 therefore does not apply to it. Even if the principle behind the Section is allowed to operate, a rigid" adherence to its requirements would not be necessary. Where therefore the contract is renewed by conduct of the parties without any kind of qualification, as in this case, there is no justification) for importing into it the principle or the theory of renewal from year to year. This would be opposed to the agreement to which the parties were adhering by their conduct during the second year.

For reasons given above I am convinced that the lease for the second year was in terms of the original lease and the condition that the tenant shall vacate at the expiry of the second; year was part of it. Notice of ejectment to the Defendant was not therefore necessary.

Mr. Ghose has also argued that the question that no notice was necessary in this case ought to be deemed to have been waived and should not have been permitted to be raised for the first time in this Court. The Plaintiff did send a notice to the Defendant requiring him to vacate by the end of Baisakh. It was a fifteen days'' notice. In the written statement the Defendant doubted whether the notice had been signed by all the Plaintiffs. He also denied having received it. The validity of the notice was not questioned on the ground that fifteen days'' notice-was not sufficient in law. The issue in the case was whether the Defendant Was served with ejectment notice and if so whether it was valid and sufficient. The trial Judge found that the notice had been offered to the Defendant and it was valid and sufficient. It is clear that the validity of notice was not challenged on the ground that it was for fifteen days only. The reason probably is that Defendant�s case at that, stage was that he was using the land for residential purposes.

On appeal the learned Judge found that the notice had been served and was valid in law though he observed that on Plaintiffs own showing the lease was for agricultural purposes and on this basis it'' would require six months'' notice for its termination. The learned Counsel for the Appellants assailed the correctness of the decision of the learned Additional Sub-Judge on the ground amongst others that no notice of eviction was necessary under the terms of the lease vide ground 4 of the memo of appeal. The; learned C.J. permitted it to be raised. The need for raising the contention arose from observations of the lower Appellate Court that a fifteen days'' notice may not be sufficient even though the contention of the insufficiency of notice because of its short duration had not been raised by the Defendant in the trial Court and was inconsistent with the case set up by him, The Plaintiffs in these circumstances could show that they were under no obligation in law to terminate the lease by a notice as the tenancy being for a limited duration terminated by afflux of time. The change of front on the part of the Defendant necessitated the contention that under the law no notice was necessary.

The question is in substance one of law, and the answer to the question raised depends on facts admitted or proved. No further enquiry into facts is necessary. Therefore even if the Plaintiffs did not raise it at the earlier stages of the case, they would not be precluded from raising it now, particularly in view of the fact that it is the Defendant who for the first time in appeal raised a contention inconsistent with his own case. On behalf of Defendant Respondent it is argued that since the lease is for agricultural purposes a fifteen days'' notice was not sufficient. Plantiffs cannot be prevented from pointing out that the original lease between the parties which was renewed for the second year provided that the lease should terminate at the expiry of the period without notice. Both the Courts below were agreed that a fifteen days notice was sufficient on Defendant�s showing. It is, thus he who is raising a new point at a later stage of the litigation. Omission to raise a question of law does not normally prevent its being raised in second appeal, where it arises on facts found or on facts admitted or proved. It is almost settled law that a question which is purely one of law and involves no further enquiry into facts, may be taken in second appeal even though it may not have been raised in the Courts below. Mr. Ghose''s contention receives no support from authority and cannot be allowed to prevail.

There is no element of waiver or estoppel in the conduct of the Plaintiffs. They by their conduct did not induce or pursuade the Defendant to do or omit to do anything which he would not have done or omitted to do otherwise. The Defendant was under an obligation to vacate at the expiry of the second year. He did not do so Plaintiff�s notice was no more than a demand. If he had come to Court without any notice of demand he may have had difficulty in recovering the costs of the suit. A demand that the Defendant should vacate was a prudent act. This could not preclude the Plaintiff from pleading at any stage of the case if it became necessary for him to do so, to urge that in law no notice for ejectment was necessary. It may be that the notice was sent under a misapprehension as to the legal position; but even then it would not be a bar to the raising of the plea.

Waiver is in its nature contractual. It is of the nature of an agreement to release or not to assert a right. The implication of the word itself is to relinquish something which one may claim. It does not connote or imply the creation of a fresh obligation. The Plaintiff could not by merely sending fifteen days'' notice undertake a fresh obligation of sending a six months'' notice. If he waived his right to obtain possession of the property without notice, the waiver was limited to the extent of the notice sent. He may be said to have conceded to the Defendant fifteen days'' time to vacate it, when he was not entitled to any time The Defendant also thought that the time given was enough at least in point of fact if not in law, for, he did not urge that the notice was bad as its duration was limited to fifteen days. The plea of waiver therefore has got no substance and is not at all entertainable. For reasons given above this appeal must succeed. It is allowed. The decree of the Appellate court is reversed and that of the trial court restored. The Plaintiffs shall recover costs of the entire litigation from the Defendant.

Deka, J.

I agree.