A lease deed that contravenes section 5 of the Transfer of Property Act is void only for the period prior to the date of execution. The valid part of the lease can be upheld if all statutory formalities are complied with.

Bhaskar Bhattacharya, J.

These two second appeals are at the instance of two sets of sub-tenants in a suit for eviction on the ground of efflux of lease of 21 years and are directed against the judgment and decree dated March 30, 1995 passed by the learned Additional District Judge, 11th Court, Alipore in Title Appeal Nos. 566 of 1986 and 500 of 1986 thereby affirming those dated June 18, 1986 passed by the learned Assistant District Judge, 2nd Court, Alipore in Title Suit No. 129 of 1979.

2. The respondent No.1 herein filed the aforesaid suit impleading the original lessee as well as the sub-lessees on the ground of expiry of the period mentioned in the deed of lease.

3. There is no dispute that the deed of lease was executed and registered on July 12, 1958 and the same was for a period of 21 years with effect from February 1,1958. Thus, the period of lease came to an end on January 31,1979. It is also undisputed that on August 12. 1962 a registered deed of rectification was executed by the original lessors and the lessee by virtue of which the rate of rent was reduced from Rs. 950/- a month to Rs. 900/- a month as a portion of the leasehold property was surrendered by the lessee in favour of the lessors. All other terms and conditions indicated in the original deed of lease were however maintained.

4. Although the lessee, i.e. the defendant No.1 did not contest the suit, the same was contested by the defendant Nos. 2, 3 and 5 by filing separate written statements claiming sub-tenancy from the defendant No.1 and contending that the tenancy of the defendant No.1 being governed by the provisions contained in West Bengal Premises Tenancy Act ("Act"), the suit, in the absence of a notice under section 13(6) of the Act and due to non-existence of any of the grounds mentioned in section 13(1) of the Act, was liable to be dismissed. The absolute ownership of the plaintiff in the suit premises was also disputed.

5. The learned trial Judge on consideration of the materials on record turned down all the contentions raised by the contending defendants and decreed the suit in full.

6. Being dissatisfied, two different appeals being Title Appeal No. 500 of 1986 and Title Appeal No. 565 of 1986 were preferred, the former by the defendant Nos. 2 and 5 and the latter by the heir of the deceased defendant No.3. Both the aforesaid appeals were heard analogously and by a common judgment dated March 30, 1995 the learned first appellate court below dismissed both the appeals thereby affirming those passed by the learned trial Judge.

7. Being dissatisfied, the heir of the defendant No.3 has preferred SA No. 144 of 1996 while the defendant Nos. 5 and 2 have preferred the SA No.627 of 1995.

8. It appears from the record that a Division Bench of this court admitted these two appeals only on the added ground taken in S.A. No. 627 of 1995. However, at the time of hearing of these appeals neither Mr. Roychowdhury appearing for the appellants in S.A. No. 627 of 1995 nor Mr. Banerjee appearing on behalf of the appellant in S. A. No. 144 of 1996 pressed the ground on which these appeals were admitted. They however prayed for leave to take an additional ground each.

9. After hearing the learned counsel for the parities, this court in exercise of its power conferred under section 100 (5) of the Code of Civil Procedure granted such leave and formulated the following two additional questions:-

a) In view of the admitted fact that the lease was given effect to from a date anterior to the date of execution of the said deed whether the same should be held to be void for contravention of section 5 of the Transfer of Property Act?

b) Whether the deed of rectification of the original lease can be construed as a new lease deed effective from the date of execution of such deed of rectification?

10. Mr. Roychowdhury, the learned counsel appearing on behalf of the appellants in S. A. No. 627 of 1995 has by relying upon the following decisions contended before this court th