Thambi alias Chinnasawmi Padayachi vs Avayambal

Benson, J.—The plaintiff sued for possession of a house alleging that the house was sold to him by one Meenakshi under Exh. C dated the

8th September 1897; that he leased it back to Meenakshi under Exh. A dated the 29th January 1903, that after Meenakshi''s death, her daughter

(the 1st defendant) executed a "" rent deed "" Exh. B dated the 6th September 1905, agreeing to rent the house for six months at a monthly rental of

half a rupee and paid one month''s rent, but subsequently failed to pay the rent and refused to give up possession.

The lower appellate Court has found that Meenakshi had no title to sell the house, that it belonged to her husband who is still alive though

leading a wandering life, that the alleged sale (Exhibit C) was not for any purpose binding on the inheritance, but was intended as a shield against a

creditor; that Exhibit A was executed in order to give an appearance of reality to Exh. C and that the 1st defendant is not in possession under the

alleged letting, Exh. B, but as daughter of the absent owner of the house.

In the second appeal it is contended for the plaintiff that the 1st defendant having executed Exhibit B and paid one month''s rent cannot now

resist the plaintiff''s suit for possession, even though it has been found that the plaintiff had no title.

Exhibit B, not being signed by the lessor is not a valid lease, Turof v. Esuf Sahib ILR (1907) M. 322 but as the letting is only for six months it

does not require registration u/s 17 of the Registration Act, and it can be used in proof of the oral letting accompanied with delivery of possession

alleged in the plaint.

It can be used also to prove the covenant in it to surrender the property to the plaintiff at the end of the letting. The plaintiff is entitled to recover

possession in accordance with this covenant.

We must therefore set aside the decree of the Subordinate Judge and restore that of the District Munsif with costs in this and in the lower

appellate Court.

Krishnaswami Aiyar, J.

The suit is for the recovery of a house. The plaintiff alleged that he purchased it from the 1st defendant''s mother and leased it back to her. He

also stated in the plaint that after the mother''s death, the 1st defendant obtained the house from him on rent for a period of six months agreeing to

give up possession after its expiry. The District Munsif decreed the claim. On appeal the Subordinate Judge held that the sale of the 1st

defendant''s mother was invalid and that the lease back to her was colorable. As regards the lease to the 1st defendant subsequent to the mother''s

death, the Subordinate Judge was of opinion that Exhibit B could not create a valid tenancy: That document is called a rent deed and purports to

have been executed by the 1st defendant. It sets out the sale by the mother and proceeds as follows: ""I have taken on lease agreeing to pay a rent

of half a rupee per mensem. As I have taken on lease at the rate of half a rupee per mensem for a period of six months, I shall pay the rent on the

6th of each month, On the expiry of the period, I shall surrender to you your tiled house.

It has been held by this Court in Turof Sahib v. Esuf Sahib ILR (1907) M. 322 following the decision of the Allahabad High Court in Nand Lal

v. Hanuman Das ILR (1904) A. 368 that after the Transfer of Property Act a lease in writing could be operative only if it was signed by the

transferor. This decision has been followed in Kaki Sublanadri v. Muthu Rangayya ILR (1909) M. 532. In Nand Lal v. Hanuman Das ILR (1904)

A. 368 Mr. Justice Banerjea appeares to have doubted the correctness of this view. In Shed Karan Singh v. Maha Narain Singh ILR (1909) A.

276 the Full Bench of the Allahabad High Court deliberately refrained from expressing an opinion on the question. Section 107 of the Transfer of

Property Act is by Section 4 of that Act to be read as supplemental to the Indian Registration Act. By Section 3 of the Registration Act "" lease "" is

defined so as to include a Kabuliyat and an undertaking to cultivate or to occupy. The instrument in question in this case would fall within the

definition of ""lease'''' under the Registration Act. The effect of reading Section 107 as supplemental to the Indian Registration Act cannot, it is true,

affect the meaning of the term ""lease "" in Section 107 which follows Section 105. The latter section defines it as a transfer and the transferor is

called the lessor and the transferee the lessee. The problem is whether there cannot be a transfer within the meaning of Section 105 without the

signature of the transferor when only the transferee signs the instrument and the transferor accepts it. It is somewhat significant that while the

signature by the mortgagor and the donor is specified in Sections 59 and 123 as the pre-requisite of a valid mortgage and gift, no mention is made

of it in Section 107 relating to leases. It has been pointed out by Mr. Justice Banetjea that it is the common practice in the United Provinces to treat

a Kabuliyat as an instrument creating a tenancy. That the same practice prevails in this Presidency is beyond question. And the practice has been

largely encouraged by the definition of lease in the Registration Act. The question is one of great importance having regard to the large number of

titles created under instruments settling the terms of a tenancy but signed only by the tenant. Assuming that there must be the language of transfer to

create a tenancy does it necessarily follow that there should be any signature of the transferor appended to the instrument of transfer ? In the case

of instruments requiring registration the Registration Act pre-supposes executions for the appearance of the executants or of his representative,

assign or agent before the Registering Officer is made a condition of registration. See Section 34. Where a tenancy is attempted to be created by

an unregistered instrument, can it be said that the lease is invalid if the instrument of transfer is signed only by the transferee and accepted by the

transferor ? Is there any thing to prevent the lease running as follows : ""A B transfers certain property at a certain rent for a certain term to CD

followed by the signature of C D only ? Having regard to the importance of the question and the doubts that I entertain with refererence to the

correctness of the decision in Turof Sahib v. Esuf Sahib (1907) L.I.R. 30. M. 322 I should have felt inclined to ask my learned brother to agree to

refer to the Full Bench the question as to whether an instrument purporting to create a tenancy and signed only by the transferee constitutes a lease

under the Transfer of Property Act. But I think it unnecessary to do so in this case. As the instrument Exhibit B is not registered, it cannot under the

2nd clause of Section 107 amount to a lease. The writing does not require to be registered u/s 17 of the Registration Act. It can, therefore, be used

in evidence of an oral letting by the plaintiff accompanied with the delivery of possession. Such a letting is alleged in paragraph 4 of the plaint. It is

found that rent was paid. And Exhibit B says:"" I have taken on lease.'''' But even apart from the oral letting the plaintiff is entitled to recover on the

covenant in Exhibit B to surrender possession. In this view the decree of the Subordinate Judge is erroneous.

We must, therefore, set aside the decree of the Subordinate Judge and restore that of the District Munsif with costs in this and in the lower

appellate Court.