1998 Supreme(Del) 317

High Court Of Delhi
SHUKLA MALHOTRA - Appellant
Versus
VYASA BANK LIMITED - Respondent
Interim Application 4649 of 1997
Decided On : 04/22/1998

Headnote:Civil Procedure Code, 1908 - Order 12 Rule 6 — Decree on admission — Termination of lease — Admission of receipt of notice of termination — Plaintiff is entitled to Judgment on the basis of admission.

       Transfer of Property Act, 1882 - Section 53-A — Application of — The provision has no application in respect of lease of property which is distinct from transfer of property — Reliance on the provision for protection from ejectment in terms of lease not permissible. Held:

       "Lease" is defined in Section 105 of the Act as "transfer of a right to enjoy the property", which in common parlance is distinguished from the transfer of interest in the property to the transferee, like in sale, mortgage, exchange or gift, dealt with in chapters III, IV, VI and VII of the Act respectively. The transfer of property envisages transfer of corpus or its part conveying proprietary status to a transferee. Looked at from that angle, it appears that, lease of an immovable property, strictly speaking, may not fall within the ambit of the term transfer of property, envisaged in Section 53A of the Act, making the said section inapplicable to a lease. But the matter is not free from doubt.

       Assuming Section 53A of the Act were applicable, the defendant herein cannot have the invalid instrument enforced under umbrella of Section 53A of the Act because Section 53A, if applicable, would be available only as a defense to it as a lessee, merely to protect his possession. At best, it can be used to show the nature and character of its possession. It does not create a title in the lessee, nor confers any right on the basis of which the lessee could claim any rights against the lessor. The unregistered lease cannot be used to prove the terms of the lease. The section only provides a shield for protection and not a sword to attack.

       Further, in order to be entitled to the protection of Section 53A of the Act, the lessee must perform or must be willing to perform his part of the contract. In the present case, clause 25 of the lease agreement specifically enjoined the defendant to have a regular lease deed executed by the plaintiffs and have the same registered. This was stipulated to comply with the mandatory requirements of Section 107 of the Act. There is no allegation much less a plea or proof that the defendant did call upon the plaintiffs to do so, nor that, despite it, the plaintiffs did not respond in which case also the defendant could seek legal remedy, if any, to have obligations under Clause 25 of the lease agreement enforced. It cannot, thereforee, be said that the defendant was ready and willing to perform its part of the obligation under the lease agreement thus negating compliance with the third limb of Section 53 A of the Act. The defendant, as such, cannot claim protection under the said section.

       Now reverting back to the main question, viz, assuming Section 53 A of the Act were applicable to a case where a person entered into possession of the property pursuant to a lease agreement which was not registered, whether the presumption under section 106 of the Act would be attracted? I have no hesitation in holding it so. Though possession or the occupation of the property by that person may be lawful and permissive, but as regards duration of the tenancy, it will be governed by the provisions of section 106 of the Act, and, as in the present case, the tenancy would be deemed to be from month to month, terminable by a notice of 15 days by either side.

       Section 107 & 106 — Unregistered lease — Duration of lease — In the absence of registered lease and continuation of lessees possession for over one year, the lease shall be presumed to be month to month basis.

       The agreement postulated property being let out initially for a period of five years w.e.f. 1 February 1980, renewable at the option of the defendant bank for a further period of five years on enhanced rent, and the execution of the regular lease deed at the request of defendant bank. It appears that no such request for execution and registration of regular lease deed was made by the defendant and none was accordingly executed. Section 107 of the Act describes the mode of making leases. It lays down that a lease of immovable property for a fixed term or for a period exceeding one year can be made "only" by a registered instrument. The use of the expression "only" in the section indicates that the specific mode prescribed therein has to be adhered to strictly, failing which any instrument purporting to lease out the premises for a period exceeding one year or extend it likewise orally or in writing would be void and presumption about duration of lease under section 106 of the Act will apply. As per Section 106 a lease from month to month or a lease other than a lease from year to year is terminable by fifteen days notice. Thus, in the present case, continuance of defendants possession of the property for a period exceeding one year shall be deemed to be under a tenancy from month to month.