( 1 ) THIS is a reference under Clause 36 of the Letters Patent, arising on a difference of opinion between my learned brothers. Banerjee and D Basu JJ.

( 2 ) THE point of difference has not been stated by their Lordships but it is clear that, for their ultimate difference on the question whether the present Rule should or should not succeed, the material of immediate conflict between them was whether, to the instant case, the West Bengal Premises Tenancy Act, 1956, would apply, or, more precisely, whether the opposite party No. 1 was a tenant under the petitioner so as to be entitled to apply for fixation of fair rent under the above Act and, in that connection, their Lordships primarily differed on the question whether the document Ext. A was a lease, as understood under the general law.

( 3 ) THE material facts have been sufficiently stated by their Lordships and it is unnecessary to repeat or reiterate the same. Suffice it to say that Banerjee, J. was of the view that the above document was not a valid lease in law and was ineffective to pass any interest in the disputed premises and, upon it, the opposite party No. 1 could not claim to be a tenant and could not apply for any relief under the West Bengal Premises Tenancy Act, 1956. Basu J. differed and he was of the view that the disputed document, Ext. A. was a valid lease in law and, although it was for a term of five years in the first instance, with an option of renewal in favour of opposite party No. 1 for another five years, and so required registration as a lease, the mere fact that it was not registered as such or registered according to law, would not make it irrelevant and it would be admissible under Section 49 of the Indian Registration Act.

( 4 ) ON this part of the case, the relevant observations of His Lordship Basu, J. are as follows:"the primary question i whether there has been any transfer of interest in the property or a mere right to occupy, it for doing certain acts (Cf. Secretary of State v. Karuna, (1907) 11 Cal WN 1053 (1069) ), while the possession and control remains with the owner Emperor v. Sheriff, 1930-32 Bom LR 332= (AIR 1930 Bom 165 ). It was urged on behalf of the petitioner that since the agreement in question was not registered, there was no transfer of interest in the property and the agreement could not operate as a lease. This plea is of little substance. Assuming that the agreement required registration, non-registration under Section 49 of the Registration Act has only this effect that the opposite party cannot have any relief to assert his interest in the disputed property on the basis of the agreement as his deed of title. In the present case, he does not claim any relief regarding his title to the property, but simply wants to have the rent payable under the agreement to be replaced by a standard rent under the West Bengal Premises Tenancy Act. Even though the agreement is unregistered, it is permissible to look into its recital to determine whether the relationship between the parties was one of landlord and tenant, or, in other words whether the nature of possession of the opposite party No. 1 was that of a tenant. (Vide Varadha Pillai v. Jeevarathammal, 46 Ind App 285 (292) = (AIR 1919 PC 44 at p. 47) ) so as to attract the provisions of the Act. "his Lordship was further of the opinion that the West Bengal Premises Tenancy Act, 1956, intends to bring within its scope even relationship between parties, which may not be strictly coming within the definition of a lease under Section 105 of the Transfer of Property Act. He, however, was careful enough to add as follows:"i do not, however, want to rest my judgment on the sole ground that the contract before us stipulates payment of rent by opposite party No. 1 to the petitioner from whom the opposite party No. 1 acquired a right to use the disputed property inasmuch as in my opinion the relationship created by the Agreement in question is that of a tenant under a lease if Secti

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