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1963 Supreme(Bom) 63
IN THE HIGH COURT OF BOMBAY
(S.A. Pande, Member)
SHALIGRAM (Lessee) - Applicant
Versus
KASBIRAM (Landlord) - Non-applicant
Advocates appeared
For applicant- S.N. Khedekar
For non-applicant - P.S. Badiye.
A surrender deed executed by a tenant before the commencement of a lease is valid and not merely nominal if it is executed with the intention of the parties to act upon it and to prevent the tenant from claiming any right as a protected lessee.
Headnote:
BERAR REGULATION OF AGRICULTURAL LEASES ACT, 1951 - SECTION 6 - Surrender deed executed by tenant before commencement of lease - Validity - Surrender deed not invalid merely because executed before lease commenced - Intention of parties to have surrender deed - Surrender deed not fraudulent or void merely if executed to safeguard right of person in whose favour it is executed.
Fact of the Case:
Tenant Shaligram executed a registered surrender deed in favor of landlord Kashiram on 24-3-1956, before the commencement of the agricultural year 1956-57, surrendering his lease rights over certain fields. Kashiram filed a civil suit for possession and mesne profits, relying on the surrender deed. The civil court referred the issues to the Tahsildar for decision, who found in favor of Shaligram. On appeal, the Sub-Divisional Officer found in favor of Kashiram. Shaligram filed a revision application challenging the findings of the Sub-Divisional Officer.
Finding of the Court:
The court held that the surrender deed was valid and not merely nominal, as it was executed with the intention of the parties to act upon it and to prevent Shaligram from claiming any right as a protected lessee over the fields in the year 1957-58. The court also held that the surrender deed was not fraudulent or void merely because it was designed to defeat Shaligram's right as a protected lessee under section 3 of the Berar Leases Act, as Kashiram had the right to safeguard his own interests.
Issues: 1. Whether the surrender deed executed by Shaligram was valid and nominal. 2. Whether Shaligram was a protected lessee of the fields in the year 1957-58.
Ratio Decidendi: 1. Section 6 of the Berar Regulation of Agricultural Leases Act, 1951, as it stood before its amendment in 1957, required a valid surrender to be a written document executed by the tenant, duly registered and delivered to the landlord not less than 30 days before the commencement of the agricultural year. 2. A surrender deed does not become invalid merely because it is executed before the lease commences, as long as it is executed with the intention of the parties to act upon it. 3. A surrender deed is not fraudulent or void merely because it is designed to defeat the tenant's right as a protected lessee under section 3 of the Act, as the landlord has the right to safeguard his own interests.
Final Decision: The court dismissed Shaligram's revision application and confirmed the findings of the Sub-Divisional Officer.
2. On 24-3-1956 when the surrender deed was executed it was governed by section 6 of the Berar Regulation of Agricultural Leases Act (hereinafter referred to as the Berar Leases Act) as it stood before its amendment by Ordinance No. IV of 1957 on 21-9-1957. By virtue of section 6 all that a valid surrender required was a. written document executed by the tenant duly registered and delivered to the landlord not less than 30 days before the commencement of the agricultural year. The applicant had contended that he got the lease of the fields on the very day on which he had executed the surrender deed. The non-applicant, on the other hand, contended that the applicant had executed a kabuliyat in respect of these fields on 16-3-1956. Whichever version is accepted, the fact remains that Shaligram was to be a lelJS66 of these fields for the year 1956-57 by virtue of a contract which the parties had made either on 24-3-1956 or on 16-3-1956. The intention of the parties in having this surrender deed appears to have been that Shaligram should not set the rights of a protected lessee by virtue of section 3 of the Act. To ensure this Kashiram appears to have obtained the surrender deed from Shaligram before letting him into the possession of the fields with effect from 1-4-1956. The surrender deed does not become invalid merely because it was executed before the lease commenced. It came to be executed prior to the commencement of the lease merely because the agreement of lease had taken place before the commencement of the Agricultural year 1956-57.
3. In the circumstances it does not appear that the surrender deed was merely nominal. The parties appear to have intended to act upon it, and by obtaining it Kashiram clearly intended that Shaligram should not claim any right as a protected lessee over the fields in the year 1957-58 In the circumstances, 1do not find any reason to hold that the surrender deed is in any way invalid. There is nothing in section 6 to require that a surrender deed must be executed during the currency of a lease.
4. Shri Kherdekars next contention was that the surrender deed was designed to defeat Shaligrams right as a protected lessee under section 3 of the Berar Leases Act. The document does not become fraudulent or void or voidable merely if the person in whose favour it is executed obtains it to safeguard his right Kashiram wanted to give the field for one year to Shal
