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 decision