1984 Supreme(Cal) 190

IN THE HIGH COURT AT CALCUTTA
Chittatosh Mookerjee & Asha Mukul Pal, JJ.
Braithwaite & Co. Ltd. – Petitioner
Versus
R.P. Agarwalla & Brothers Pvt. Ltd. & another – Respondents
Appeal from Original Decree No. 298 of 1983
Decided On: May 18, 1984

Headnote:

LANDLORD-TENANT - EVICTION - LEASE - UNREGISTERED LEASE - VALIDITY - POSSESSION - TENANCY RIGHT - SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1881 - WEST BENGAL PREMISES TENANCY ACT, 1956 - APPLICABILITY - INTERPRETATION.

Fact of the Case:

A registered Deed of Sale dated 19.9.1972 executed by M/s. Property Development Trust Private Limited, the plaintiff/respondent as the Trustee to the Estate of Miss Madavi Agarwalla (Minor), had become the sole and absolute owner of the Flat No. 12A with fitting and fixtures, a servant's quarter and garage No. 26 with fittings and fixtures on the ground floor of the said building, Lansdowne Court. The said M/s. Property Development Trust Private Limited had prepared a scheme to build and construct the said multistoried building consisting of 28 residential flats with furniture, fittings and fixtures, servants quarters garage upon the Municipal Premises No. 5B, Sarat Bose Road. The plaintiff's further case was that said M/s. Property Development Trust Pvt. Ltd. by a unregistered lease dated 1.2.1955 executed between the said company and the defendant No.1 had purported to demise to the defendant for a term of 25 years the suit property subject to the terms and conditions set out in the said lease deed. The plaintiff claimed that, due to its non-registration the said lease was inoperative in law and the term of the said purported lease had also expired on 31.1.1980. On the expiry of the said term the defendant was not entitled in law and equity to any right to occupy the suit property and was in wrongful occupation of the same. The plaintiff had called upon the defendant to vacate the suit property but the defendant had failed to comply with the same. The plaintiff also had claimed recovery of mesne profits from the defendant at the rate of Rs. 300/- per diem from 1.2.1980.

Finding of the Court:

The Court held that the unregistered lease (Ext. 5) was not valid but it was admissible in evidence for collateral purposes and also as an evidence of Part Performance by the defendant. The Court found that the tenancy of the defendant was covered under the said unregistered lease dated 1.2.1955 and all payments and acceptance of rents were made in terms of or pursuant to the said unregistered lease (Ext. 5). The Court held that no relationship of landlord and tenant was thereby created between the plaintiff and the defendant No.1 and the said defendant was only entitled to the benefit of protection of section 53A of the Transfer of Property Act. Therefore, after the expiry of the period of 25 years as stipulated in the said unregistered lease (Ext. 5) the defendants had become trespassers and the plaintiff was entitled to recover possession and to claim mesne profits.

Issues: 1. Whether the plaintiff/respondent was entitled to recover possession of the suit premises treating the defendant No.2 as a trespasser. 2. Whether the defendant No.1 whose interest has now vested in the defendant No.2 had become a tenant of the suit premises or the only right available to it was to protect its possession in terms of section 53A of the Transfer of Property Act, 1881.

Ratio Decidendi: 1. A lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument (Vide Section 107 of the Transfer of Property Act, 1882). 2. Section 53A of the Transfer of Property Act, inter alia, speaks of not only of a contract which is required to be registered but has not been registered but also of an instrument of transfer which had not been completed in the manner prescribed therefor by the law for the time being in force. 3. The defendant No.2 did not bring any suit to enforce its purported option to obtain renewal of the lease. Therefore, the possession of the defendant No.2 was no longer protected under section 53A of the Transfer of Property Act. 4. The payments of rent by the defendant No.1 were made in terms of the lease-deed (Ext. 5). Therefore, there was no scope for creating a monthly tenancy in favour of the defendant No.1.

Final Decision: The appeal was dismissed and the trial court's judgment and decree for recovery of possession passed in favour of the plaintiff/respondent was affirmed. The trial court's decree for mesne profits was set aside and the case was remanded for passing a fresh decree for mesne profits in accordance with law and in the light of the observations made in the judgment. The prayer for granting the appellant certificate for preferring appeal to the Supreme Court was rejected.