A deed of surrender extinguishing an interest created by a lease governed by section 26C of the Bengal Tenancy Act was not required under the law to be registered.

The judgment of the Court was as follows :––

This is the plaintiff's appeal against the concurrent judgment and decree of affirmance dismissing the plaintiff's suit for declaration of title and joint possession.

2. The suit property is a tank originally belonging to Kalimuddin in 8 annas share and the remaining 8 annas share belonging to Ayezuddin and Reazuddin. The plaintiff's case is that they purchased Kalimuddin's interest by a registered conveyance dated May 1, 1954 for a total consideration of Rs. 999/- following a Bainanama of June, 1953 when a consideration of Rs. 400/- was paid. Since the purchase the plaintiffs came to possess the suit property in 8 annas share. The defendant No. 1, the contesting defendant, started criminal proceeding under sections 107 and 144 of the Code of Criminal Procedure alleging that he took settlement of the suit tank on December 6, 1953 corresponding to Agrahayan 22, 1360 B. S. after the surrender by the said previous owners of their interest in the tank to the landlord. The plaintiffs averred that there was no such surrender of the tank by Kalimuddin and a surrender was manufactured on papers. The plaintiffs accordingly, filed this suit on September 22, 1954 for declaration of their 8 annas title and joint possession with the contesting defendant.

3. The defendant No. 1 filed a written statement denying the material allegations made in the plaint. It was his specific case that Kalimuddin and his co-sharers surrendered their right, title and interest in the suit tank to the landlord, who, thereupon, possessed the same for some time and on December 6, 1953 settled the suit tank to the said defendant at an annual rent. On the basis of such settlement the defendant had been in lawful possession thereof, and in any event, the suit was barred by limitation.

4. The suit was tried on evidence before the learned Munsif who by his judgment dated August 18, 1955 dismissed the suit holding that the suit was barred under Article 142 of the Limitation Act. It was also held that the deed of surrender executed by Kalimuddin (Exs. E1) did not require registration though he impounded it for deficit of stamp. It was further found that Kalimuddin after the said surrender did not pay any rent to the landlord and the alleged rent receipts, Exts. 4(a) and 5 were not proved and further the plaintiffs did not succeed in disapproving the deed of surrender which was executed by Kalimuddin.

5. An appeal was preferred against the said decision and the Appellate Court was of the opinion that the learned Munsif's finding of limitation was a natural corollary to his finding on surrender. It was held that the execution of surrender by Kalimuddin was not established and as the finding of surrender in such circumstances could not stand, the finding of limitation which rested on the finding of surrender also had no basis. Accordingly, it was necessary to decide afresh the question of limitation as also the alleged execution of the surrender deed by Kalimuddin. The Court was of the opinion that the deed of surrender by the other co-sharers had no legal force, and further it was not executed for minors by their guardian and could not, thus, be utilized to prove Kalimuddin's signature. The judgment and decree of the learned Munsif was accordingly, set aside and the case was remanded to that Court for its decision in accordance with law after affording an opportunity to the defendant to have the signature of Kalimuddin examined by a handwriting expert.

6. After remand, the learned Munsif came to the conclusion Exts. 4(a) and 5 did not show payment of rent nor did they appear to be genuine documents. It was further held that Kalimuddin had no possession after his surrender and there was no evidence to show that the plaintiffs ever came in possession. Accepting the opinion of the handwriting expert it was also held that Kalimuddin and his co-sharers executed the deeds of surrender and, accordingly, they ceased to have any inter