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Rajasthan High Court
Wanchoo, C.J. & Ranawat, J.
Seth Lalchand - Appellant
Versus
Seth Radha Ballabh - Respondents
Civil Second Appeal No. 13 of 1953
Decided On : January 06, 1959
If a Kabuliat fixes a fixed period for the tenancy for a number of years and at the same time provides for ejectment of the lessee on notice at any time, the term of years fixed in the Kabuliat falls to the ground and the Kabuliat can only be treated as creating a month to month tenancy if it relates to a residential house or a shop 5th and 6th terms of the Kabuliat are as follows—
(5) This lease will be effective for three years. The leesee will not vacate the shop for three years.
(6) If the owner wants the shop to be vacated, he will give one months notice. (Para 6)
Held that the sixth clause relating to one months notice was put in in case the tenant held over after the fixed period of three years, and thereafter the landlord required him to vacate the shop. The term relating to the period of tenancy being three years does not fall to the ground in this case because of the notice to vacate provided in the Kabuliat. (Para 7)
Once it is held that this Kabuliat was for a fixed period of three years, it is apparent that such a Kabuliat being unregistered would not create a valid lease in view of the provisions of sec. 107 of the Jaipur Transfer of Property Act which corresponds word for word with sec. 107 of the Transfer of Property Act. (Para 8)
At the same time, there can be no doubt that a tenancy was certainly created and the nature of such tenancy, after the Kabuliat has fallen on account of its being invalid as a lease must be a monthly tenancy. (Para 9)
The Registration Act in force in Jaipur at the time when this Kabuliat was executed did not require leases to be compulsory registrable and, therefore, unregistered lease would be admissible in evidence. A distinction should be made between a case where the instrument is admissible though invalid and where the instrument is both inadmissible and invalid. Where the instrument is both inadmissible and invalid, no part of it can be looked into or severed from it and the whole of the instrument must fail. But where the instrument is admissible in evidence, though it fails as a valid lease, there should be no difficulty in separating those parts of the instrument which are not of the essence of the lease as defined in sec. 105 of the Transfer of Property Act and to treat them as a separate contract altogether from the contract of lease which is invalid. Thus a term as to notice is not of the essence of the definition of a lease as given in sec. 105. This can, be separated provided the instrument in which it appears is admissible in evidence though invalid as a lease; if on separation it amounts to a contract to the contrary with respect to the provisions of sec. 106, it should be given effect to. The term in it relating to notice being not of the essence of a lease can be separated and as the Kabuliat is admissible in evidence, it can be looked into and enforced. This contract is contrary to the provisions of sec. 106 of the Transfer of Property Act. Notice has been given in accordance with this contrary contract. It was not necessary, in view of this contract, that the notice should expire with the end of the month of the tenancy. In these circumstance the notice given in this case was valid. (Paras 11 & 13)
2. The suit was brought by Seth Radhaballabh respondent. The case of the plaintiff briefly was that the shop in dispute originally belonged to Bakshi Bhagchand and was purchased by the plaintiff in April, 1917. The shop had been rented out by the previous owner to the defendant appellant at Rs. 21/- per month for a fixed term of three years which expired on the 2nd of March, 1948. The plaintiff requited the shop for his personal use; but as the defendant did not vacate the shop after the period of tenancy was over, the plaintiff served one months notice on him in January, 1949. The defendant did not vacate the shop even then. Thereupon the plaintiff filed this suit with the permission of the Rent Controller who had granted a certificate to the plaintiff to sue for ejectment. The suit was resisted by the defendant on various grounds, most of which are however not material now.
3. Only two points were urged in second appeal when the matter first came before a learned Single Judge of this Court in 1955. These points were:—
(1) That the notice given by the plaintiff was not in accordance with sec. 106 of the Transfer of Property Act and,therefore,the suit for ejectment was not maintainable, and
(2) that the plaintiff had failed to prove that he required the property in dispute for his own bonafide use.
4. The first question as to notice was considered by the learned Single Judge to be of sufficient importance and he, therefore, referred the appeal to a Division Bench. The appeal then came before a Division Bench in Nov., 1956. The Division Bench was of the view that it was necessary to frame an issue as to whether the plaintiff required the shop for his own bonafide use. Consequently, an issue on this point was remitted to the court below for evidence and finding. That finding has been received and the court below has held that the plaintiff did require the shop far his bonafide use. The appeal has come up now for final decision. We shall take the second point first. So far as that is concerned, we are of opinion that the view taken by the lower court as to the plaintiffs need of the shop for his bonafide use is correct. Learned counsel for the appellant, though he formally objected to the finding of the lower court on the new issee, was unable to point out any good reason which could induce us to differ from the finding of the lower court. It is enough to say that the plaintiff is a businessman and, in order to carry on his business, has a number of shops, in his possession on rent. In the circumstances, if he wants this shop, which he has purchased for his personal use, and probably intends to give up one of the rented shops, he requires the shop, in our opinion, for bonafide use of himself and members of his family. The fact that his son has purchased another shop makes on difference, because his son is major and separate from his him. We therefore, decide this point against the appellant.
5. We now come to the first point which is really the bone of contention in this case. The trouble has arisen in this way. A Kabuliat was executed by the defendant on the 2nd of March, 1945. That Kabuliat stipulated that the rent would be Rs. 21/-per month, that the term, of the lease would be three years and the defendant would not vacate the shop for three years. The Kabuliat also provided that the plaintiff would be entitled to get the property vacated on one months notice. This Kabuliat was neither registered nor signed by the plaintiff. The contention of the appellant is that in view of sec. 107 of the Jaipur Transfer of Property Act, 1944, which had come into force before this Kabuliat was executed, no lease of immovable property for any term exceeding one year could be made otherwise than by a registered instrument and where such a lease is made, such instrument should be executed by both the lessor and the l
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