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1931 Supreme(SC) 9
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD RUSSELL OF KILLOWEN, AND SIR JOHN WALLIS.
ARIFF - Appellant
Versus
JADUNATH MAJUMDAR - Respondents
On Appeal from the High Court at Calcutta.
Decided On : Jan. 23, 1931.
Solicitors for appellant:Watkins & Hunter. Solicitor for respondent: H. S. L. Polak.
Equitable doctrines of part performance and estoppel cannot override statutory requirements for a registered instrument to create a permanent lease of land, particularly when the right to sue for specific performance is barred by limitation.
Headnote:(A) Transfer of Property Act, 1882 - Section 107 - Indian Registration Act, 1916 - Sections 17 and 49 - Indian Limitation Act, 1908 - Schedule I, Article 113 - Indian Evidence Act, 1872 - Section 115 - Creation of permanent lease - Requirement of registered instrument - Doctrine of part performance - Equitable estoppel - Whether equitable doctrines can override statutory requirements for registration of interests in land - If the right to sue for specific performance is barred by limitation, the doctrine of part performance cannot be used to create a title that the statute requires to be registered - Equity cannot nullify express legislative provisions regarding the creation of interests in land. (Paras 15, 22, 25, 31)
(B) Equitable Estoppel - To operate, there must be a statement of fact grounding the estoppel - Acts performed under a verbal contract, where the right to enforce said contract is barred, do not constitute estoppel to create a title in violation of statutory law. (Paras 28, 29)
Facts of the case:
A verbal agreement was made for the grant of a permanent lease of land. The tenant took possession and constructed buildings with the landlord's knowledge and approval. No registered instrument was ever executed. The landlord subsequently served a notice to quit, asserting that the tenant was a monthly tenant. It was found that the tenant's right to sue for specific performance of the verbal agreement had become barred by the statute of limitations before the suit for possession was instituted.
Findings of Court:
The court found that the verbal agreement alone could not confer a permanent lease right due to the statutory requirement for registration. The doctrine of part performance, as applied in English law to the Statute of Frauds, relates to the right to sue on a contract and does not apply to override a statute requiring registration for the creation of interests in land. Since the right to specific performance was barred, the tenant could not obtain the necessary registered instrument to establish title.
Issues: Whether the equitable doctrine of part performance or equitable estoppel could be invoked to grant the rights of a permanent tenant in the absence of a registered instrument, specifically when the right to sue for specific performance was barred by limitation.
Ratio Decidendi: A lease exceeding one year can only be created by a registered instrument under the law. English equitable doctrines regarding part performance dispense with the necessity of a signed memorandum to prove a contract but do not create a legal title in defiance of a statute. Equity cannot be used to confer a right that the legislature has expressly mandated must be created only through a registered document.
Result: Appeal allowed. Decrees of the lower courts set aside and order made for possession of the land.
Legal Category Hierarchy
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property law
-
leases
- registration
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leases
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equity
- part performance
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evidence
- estoppel
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limitation law
- specific performance
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practice and procedure
- recovery of possession
Judgement
Appeal (No. 116 of 1929) by special leave from a decree of the High Court (January 18, 1928) affirming a decree of the District Judge of 24-Parganas which affirmed a decree of the Munsif of Sealdah.
The appellant instituted a suit on April 12, 1923, against the respondent for recovery of khas possession of a plot of land, alleging that the respondent was a tenant at will or a monthly tenant, whose tenancy had been duly determined by notice. The respondent by his written statement pleaded " The defendant is a permanent tenant having permanent rights in the land in suit, and is not liable to be ejected."
The facts were not in dispute in the appeal; they are shortly stated in the headnote and fully appear from the judgment of the Board.
The High Court (Mukerji and Graham JJ.) affirmed decrees of the lower Courts dismissing the suit, holding that upon equitable principles Laid down in England, and having regard to two judgments of the Board delivered in 1914 and 1916, the defendant had the rights of a permanent tenant. The reasons upon which the learned judges based their decision are stated and discussed in the present judgment.
1930. Nov. 21, 24. Dunne K.C. and Dube for the appellant. The Transfer of Property Act provides by
s. 107 that a lease from year to year, or for a longer period, can be made only by a registered instrument. If there is an instrument, but it is unregistered, the Indian Registration Act, 1916, ss. 17, 49, declares that it does not affect the property leased. As, in this case, there was no written document, and any claim by the defendant for specific performance was barred by the Indian Limitation Act, 1908, Sch. I., art. 113, before the present suit, the facts found afford no answer to the plaintiffs claim to possession. The equitable doctrine of part performance applied in England in relation to s. 4 of the Statute of Frauds, a provision purely probative in character, cannot be applied so as to nullify express provisions of the Indian Legislature as to the creation of interests in land. Further, the principle stated in Ramsden v. Dyson (( 1866) L. R. 1 H. L. 129.) has no application here, because there was no express or implied representation of fact, by the defendant such as would create an estoppel under s. 115 of the Indian Evidence Act, 1872. Forbes v. Ralli (( 1925) L. R. 52 I. A. 178.) was decided under that section, the representation there made as to the effect of the lease being held to be a statement of fact, and the principle in Ramsden v. Dyson (1) being referred to only as being embodied in that section. The High Court relied on observations in the judgments of the Board in Mahomed Musa v. Aghore Kumar Ganguli (( 1914) L. R. 421. A. 1.) and Lakshmi Venkayamma v. Venkata Narasimha Appa Rao . (( 1916) L. R. 43. I. A. 138.) But the first of those cases related to a transaction before the Transfer of Property Act operated, and in the second the contract was still enforceable. The observations were obiter, and are not authority that equitable considerations can be invoked to dispense with express provisions of the Legislature as to the creation of interests in land. In Maung Shwe Goh v. Maung Inn (( 1916) L. R. 441. A. 15,19.) the Board was of opinion that the English rule of equity as between vendor and purchaser was excluded by the express provision in s. 54 of the Transfer of Property Act. There is no decision of the Board directly applicable to this appeal. Decisions in India have been conflicting. It is submitted that Kurri Veerareddi v. Kurri Bapireddi (( 1906) I. L. R. 29 M. 336 (F. B.).) and Ramanathan v. Ranganathan (( 1917) I. L. R. 40 M. 1134.) were rightly decided, and that Vizagapatam Sugar Co. v. Muthuramareddi (( 1923) I. L. R. 46 M. 919.) reversing them was wrongly decided. In Bapu Apaji v. Kashinath Sadoba (( 1916) I. L. R. 41 B. 438.) the contract was still subsisting. In Kalipada Basu v. Fort Gloster Jute Manufacturing Co. (( 1926) 31 C. W. N. 348.) the Calcutta decis
