A lease of immovable property is a transfer of immovable property within the meaning of Section 53-A, T. P. Act, as it is a transfer of a benefit arising out of land, which is an interest in land and therefore immovable property.

Headnote:
LANDLORD AND TENANT - LEASE - PART PERFORMANCE - TRANSFER OF IMMOVABLE PROPERTY - LEASE OF IMMOVABLE PROPERTY - WHETHER A TRANSFER OF IMMOVABLE PROPERTY WITHIN THE MEANING OF SECTION 53-A, T. P. ACT - HELD, YES.
Fact of the Case:

The plaintiff claimed that the defendant was his chalgeni tenant, that he had served upon the defendant a notice terminating the tenancy, and that he was entitled to possession of the suit property from the defendant. The defendant claimed that there was an oral agreement between his deceased brother and the plaintiff to lease the suit properties as well as other properties at mulgeni, that in pursuance of the said agreement his brother had migrated with his family to cultivate the suit properties, and that he was a mulgeni tenant in respect of the suit lands.
Finding of the Court:

The court found that there was no oral agreement between the deceased brother of the defendant and the plaintiff to lease the properties at mulgeni or that the defendant's brother had migrated with his family to cultivate the suit properties in pursuance of the said agreement. However, the court found that the document, Ex. 18, which was executed on 22-2-1915, was in respect of both the bagayat and the paddy lands and constituted a mulgeni lease of both these lands, and that the defendant was entitled to the benefit of the doctrine of part-performance as laid down in Section 53-A, T. P. Act.
Issues: 1. Whether there was an oral agreement between the deceased brother of the defendant and the plaintiff to lease the properties at mulgeni? 2. Whether the document, Ex. 18, which was executed on 22-2-1915, was in respect of both the bagayat and the paddy lands and constituted a mulgeni lease of both these lands? 3. Whether the defendant was entitled to the benefit of the doctrine of part-performance as laid down in Section 53-A, T. P. Act?
Ratio Decidendi: 1. The court held that a lease of immovable property is a transfer of immovable property within the meaning of Section 53-A, T. P. Act, as it is a transfer of a benefit arising out of land, which is an interest in land and therefore immovable property. 2. The court also held that the document, Ex. 18, which was executed on 22-2-1915, was in respect of both the bagayat and the paddy lands and constituted a mulgeni lease of both these lands, as there was no evidence to suggest that the arrangement which had been arrived at between the parties on 22-2-1915, was set at naught.
Final Decision: The court dismissed the plaintiff's suit, holding that the defendant was entitled to the benefit of the doctrine of part-performance as laid down in Section 53-A, T. P. Act.

JudgmentBhagwati, J.

1. This is a Letters Patent appeal from the decision of Bavdekar J. who dismissed the second appeal against the decision of the learned Dist. J., Kanara, who in his turn diamissed the appeal from the judgment of the learned Subordinate Judge at Sirsi dismiaaing the pltf.s suit.

2. The pltf. claimed that deft. 1 was the chalgeni tenant of his, that he had served upon deft. 1 a notice terminating the tenancy on 20-12-1942, that he was entitled to possession of the suit property from deft. 1. The pltf. also claimed arrears of the rent costs.

3. The defences taken up by deft. 1 were that there was an oral agreement between his deceased brother the pltf. to lease the suit properties as well as other properties at mulgeni, that in pursuance of the said agreement his brother had migrated with his family to cultivate the suit properties that the mulgeni agreement was written on 22 2-1915, in respect of both the bagayat the paddy lands but that subsequently Narasinha had changed his mind insisted on two separate documents of lease pertaining to the bagayat the paddy lands respectively, that he was a mulgeni tenant in respect of the suit lands, in the alternative held the suit lands as a mulgeni tenant by virtue of the doctrine of part-performance as laid down in Section 63-A, T. P. Act.

4. The Ct. of first instance found against deft. 1 on the question of fact this finding of fact was confirmed by the appellate Ct. it is not open to the applt. to question that finding, viz. that there was no oral agreement between the deceased brother of deft. 1 Narasinha to lease the properties at mulgeni or that deft. 1s brother had migrated with his family to cultivate the suit properties in pursuance of the said agreement. In regard to the applicability of Section 53-A, however, the Ct. of first instance held that the document, Ex. 18, which was executed on 22-2-1915, was in respect of both the bagayat the paddy lands constituted a mulgeni lease of both these lands, that deft. 1 held the said lands as mulgeni tenant under the terms of this document that deft. 1 was entitled to the benefit of the doctrine of part- performance as laid down in Section 53-A, T. P. Act. The learned trial Judge, therefore, dismissed the pltfs suit. This decision of the learned Judge was confirmed by the learned Dist. J. as also by the H. Ct. in second appeal, Bavdekar J., however, appears to have granted leave to file the appeal under the Letters Patent because a point was raised before him that the lease being merely a transfer of a partial right in property, viz. a right to enjoy the property (vide Section 105, T. P. Act), it could not be said to be a transfer of property within the meaning of the expression as used in Section 53-A, T. P, Act.

5. Mr. Hattyangadi for the applt. urged before us that the document Ex. 18 executed on 22-2-1915, was superaeded by the document Ex. 19, executed on 23-2-1915, that the arrangement which had been arrived at between the parties the previous day was thus superseded there was no binding agreement between the parties in regard to the paddy lands. He, therefore, urged that the document, Ex. 18, was not operative any further the possession taken by deft. 1 could not be applied as by way of part performance of the agreement contained in that document. Deft, 1 had stated that subsequently Narasinha changed his mind insisted on two separate leases as regards bagayat lands the paddy lands respectively. That does not, however mean, without anything more, that the arrangement which had been arrived at between, the parties on 22-2-1915, was set at naught. We do not find in the pleadings or in the evidence anything to suggest that after the execution of the document, Ex. 18, on 22-2-1915, any arrangement was arrived at between the parties varying the terms of that document. There is no evidence also of any novalio or a new agreement arrived at between the parties under which the whole effec

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