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1954 Supreme(Raj) 22
Rajasthan High Court, Jaipur Bench
Bapna, J.
Rameshwar - Appellant
Versus
Rameshwar - Respondents
S.B. Civil Second appeal No. 340 of 1952
Decided On : January 28, 1954
C.L. Agrawal, for Appellants; R.K. Rastogi, for Respondents
Headnote:(a)—Transfer of Property Act, sec. 106- Oral lease for three years invalid.(b)—Transfer of Property Act, sec. 106—Tenancy at will—Oral lease for three years invalid—Tenancy cannot be deemed as Tenancy at will—Notice under sec. 196 necessary.(c) Transfer of Property Act, sec. 106—Notice—Burden of proof—Burden is on landlord though tenant admits legality. (para 10)
The respondents sued the appellants, an the allegations that the premises in dispute, were given on lease under an oral agreement to the defendants on Chait Sudi 7, Svt. 2005, (16/04/1948), for a period of three years in consideration of Rs.800/-by way of rent. It was stated that a document of lease was also executed two days later, but as it was neither stamped our registered it was not admissible in evidence. It was alleged that the defendants had paid Rs. 534/- on account of rent for two years, but did not pay any rent for the subsequent period. Plaintiffs, claimed Rs. 266/-as arrears of rent for one year, and thereafter damages for 4-1/2 months of occupation of the shops at Rs. 800/- per year, and prayed for ejectment. An allegation was made that a notice of ejectment had been duly served on the defendants. The defendants denied their liability for arrears of rent and ejectment. It was stated that the two shops had been taken on lease from the plaintiffs without any period fixed for the duration of the lease but at a rent of Rs. 267/- per year. They denied execution of any document of lease, and pleaded that the notices served by the plaintiffs for ejectment were not valid according to law, and did not entitle the plaintiffs to sue for ejectment. The trial court held that the alleged document of lease being unregistered was inadmissible in evidence, and could not be referred to for deciding the terms on which the lease was granted, but as the defendants admitted the tenancy, they would be considered to be tenants-at-will, and no formal notice beyond a simple demand was necessary to terminate such tenancy. It was observed that it was not necessary to decide whether the notice was or was not (in accordance with the provision of sec. 106 of the Transfer of Property Act. Hence this second appeal.
Held that a court cannot make out a new contract for the parties when the terms of the original contract cannot be proved owing to the absence of a property registered document. According to sec. 106 T. P. Act (corresponding sec. 107 of the Jaipur Transfer of Property Act) a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, could be make only by a registered instrument. The actual contract between the parties, whether oral or reduced into writing, was one which the law did not allow to be proved and given effect to in the absence of registration, and, therefore, it must be held that there was no valid contract between the parties. The case for either party being that the plaintiffs were landlord and the defendants were tenants, the tenancy can only be deemed to be one from month to month terminable on the part of either the lessor or the lessee by fifteen dayss notice, expiring with the end of a month of the tenancy, under sec. 106 of the Transfer of Property Act.
Held further that the view taken by the two lower courts that the defendants were tenants at-will is entirely incorrect. A tenancy-at-will can only be created by express agreement terminable at the will of either party or by implication where no rent is reserved, and it is taken for granted that the occupation is terminable at the request of either party at any time. Where, in a case like the present, the tenancy is Created by express contract between the parties, there is no scope for characterising the tenancy as one at will. Where there is no provision as to the duration of a tenancy, sec. 106 of the Transfer of Property Act comes into play, and it will be presumed to be one from year to year or month to month according to the purpose of the tenancy, and not a tenancy-at-will. (Paras 1 to 8)
2. The respondents, Rameshwar and his brother Boda Lal, sued the appellants, Rameshwar and his son Madan Lal in the Court of Munsif, Nim-ka-Thana, on the 4th September, 1951, on the allegations that the premises in dispute, namely, the two shops described in the plaint, were given on lease under an oral agreement to the defendants on Chait Sud 7, Svt. 2005, (16th April, 1948), for a period of three years in consideration of Rs. 800/- by way of rent. It was stated that a document of lease was also executed two days later. But as it was neither stamped nor registered, it was not admissible in evidence. It was alleged that the defendant had paid Rs. 534/- on account of rent for two years, but did not pay any rent for the subsequent period. The plaintiffs claimed Rs. 266/- as arrears of rent for one year, and thereafter damage for 4-1/2 months of occupation of the shops at Rs. 800/- per year, and prayed for ejectment. An allegation was made that a notice of ejectment had been duly served on the defendants.
3. The defendants denied their liability for arrear of rent and ejectment. It was stated that the two shops had been taken on lease from the plaintiffs on Chait Sudi 9, Svt. 2005, (not on Chait Sudi 7) without any period fixed for the duration of the lease but at a rent of Rs. 267/- per year. They denied execution of any document of lease, and pleaded that the notices served by the plaintiffs for ejectment were not valid according to law, and did not entitle the plaintiffs to sue for ejectment. Certain other pleas were taken which were abandoned, and are not now in dispute.
4. The trial court held that the alleged document of lease being unregistered was inadmissible in evidence, and could not be referred to for deciding the terms on which the lease was granted, but as the defendants admitted the tenancy, they would be considered to be tenants-at-will, and no formal notice beyond a simple demand was necessary to terminate such tenancy. It was observed that it was not necessary to decide whether the notice was or was not in accordance with the provisions of sec. 106 of the Transfer of Property Act. The suit for ejectment was accordingly decreed, and the plaintiffs were held entitled to recover 282/8- on account of arrears of rent and Rs. 139/8/- as damages at the rate of Rs. 534 - a year for the remaining period of occupation. The same judgment was upheld on appeal. Hence this second appeal.
5. It was argued by learned counsel for the appellants that the two courts had committed an error in holding the defendants to be tenants-at-will, and it was urged that a notice in conformity with the provisions of sec. 106 of the Transfer of Property Act was necessary for the termination of the tenancy, and in the absence of such a valid notice, the suit should have been dismissed. In this connection a two-fold argument was addressed at the bar. It was argued that an oral lease for more than a year was valid, at any rate, for one year, and thereafter the tenancy became one from month to month by holding over. Reliance was placed on the leading case Aziz Ahmad vs. Alaudin Ahmad (1), which was upheld on appeal in Alaudin Ahmad vs. Aziz Ahmad (2). The other argument was that the tenancy having originated by an unregistered lease for more than one year, though invalid for the term prescribed in the document, may be deemed to be good as a lease for one year and thereafter the tenancy became from month to month as the lessors accepted rent and assented to the tenants continuing in possession, on the principle of holding over under sec. 116 of the Transfer of Property Act, the leading case being Adinath Bhattacharjee vs. Krishna Chandra Bhattacharjee (3).
6. On behalf of the respondent it was urged that the Allahabad High Court had dissented from the view taken in above cases and it was held in Sahu Anand Sarup
