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Ganpat Turi v. Mohammad Asraf Ali
Factual and Procedural Background
The plaintiff sought arrears of house rent at Rs. 20 per month from the defendant for the period December 1952 to March 1955. On 30 July 1952 the defendant gave the house to the plaintiff in a usufructuary mortgage by a registered document. On the same date the plaintiff purportedly let the house to the defendant by a kirayanama (monthly lease) at Rs. 20 per month. The two lower courts concluded that the usufructuary mortgage (sudbhama/sudbharna bond) and the kirayanama were two distinct transactions and awarded the plaintiff a decree for house rent to the extent of Rs. 500 from December 1952 up to the filing of the suit at Rs. 20 per month. The defendant appealed to the court that issued this opinion.
Legal Issues Presented
- Whether the usufructuary mortgage (sudbhama/sudbharna bond) and the kirayanama are parts of one and the same transaction such that the plaintiff cannot sue separately to recover house rent under the kirayanama.
- Whether the kirayanama, being unregistered and not signed as required by Section 107 of the Transfer of Property Act, prevents the plaintiff from recovering house rent; and if not, whether acceptance of rent invokes the presumption under Section 106 of the Transfer of Property Act.
Arguments of the Parties
Appellant's Arguments (Defendant)
- The usufructuary mortgage and the kirayanama were components of a single transaction; consequently, the plaintiff cannot realise the house rent by a separate suit based on the kirayanama.
- The kirayanama was not registered and was not signed by the lessor and lessee as required by Section 107 of the Transfer of Property Act; relying on Rama Sahu v. Gowro Ratho (ILR 44 Mad 55 : AIR 1921 Mad 337), learned counsel contended that on that ground the plaintiff could not recover rent.
Respondent's Arguments (Plaintiff)
- Even if the kirayanama were unregistered, the plaintiff relied on the principle that acceptance of rent by a landlord from a tenant in possession under an unregistered lease brings into operation the presumption under Section 106 of the Transfer of Property Act.
- The plaintiff tendered evidence that rent was paid under the unregistered kirayanama for four months (August to November 1952), produced a receipt (Exhibit 5) and proved the defendant's signature on that receipt (Exhibit 6), to invoke the Section 106 presumption and support recovery for other periods.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Umeshwar Prasad Singha v. Dwarika Prasad, ILR 22 Pat 320 (AIR 1944 Pat 5) | Test whether documents constitute one transaction: specifically, whether properties given in security cover both principal and the interest accruing thereon (to determine if two instruments are part of the same transaction). | The court applied this test and concluded that, because the sudbharna bond prescribed no rate of interest and the Rs. 20/month under the kirayanama could not be treated as interest on Rs. 500, the two instruments were separate transactions; thus the precedent's test supported affirming the lower courts. |
| Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 (AIR 1921 Mad 337) | Authority relied upon for the proposition that an unregistered kirayanama/lease might be ineffective (registration requirement under Section 107). | The decision was cited by the appellant's counsel in support of the registration objection; the court noted the citation but held that even if the kirayanama should have been registered, acceptance of rent would invoke Section 106 presumption and affect rights. |
| Darbari Lal Mudi v. Raneeganj Coal Association, Ltd., AIR 1944 Pat 30 | Support for the principle that payment/acceptance of rent under an unregistered lease can invoke the presumption under Section 106 of the Transfer of Property Act. | The respondent relied on this decision; the court accepted the relevance of this principle and, given the evidence of rent payment and the trial court's finding of genuineness of the receipt, treated the defendant as a monthly tenant for the relevant period under Section 106. |
Court's Reasoning and Analysis
The court proceeded in two analytical steps corresponding to the appellant's contentions.
- On whether the usufructuary mortgage and the kirayanama formed a single transaction, the court adopted the test from Umeshwar Prasad Singha v. Dwarika Prasad: examine whether, on a reasonable construction, the security given (the property) covered both the principal and interest. The court inspected the sudbharna bond and observed that no rate of interest was prescribed. It concluded that the Rs. 20 per month payable under the kirayanama could not be treated as interest on the Rs. 500 advanced under the usufructuary mortgage. Therefore the kirayanama and the usufructuary mortgage were different transactions. The court overruled the appellant's first contention and affirmed the view of the lower courts.
- On the objection that the kirayanama was unregistered and unsigned as required by Section 107 of the Transfer of Property Act, the court noted that this point was not raised below but considered the issue hypothetically. It explained that even if the kirayanama should have been registered, longstanding authorities establish that where a tenant is in possession under an unregistered lease and the landlord recognises the tenant's right by acceptance of rent, the presumption under Section 106 of the Transfer of Property Act operates. The respondent produced evidence (a rent receipt, Exhibit 5, and the defendant's signature, Exhibit 6) that rent was paid for four months from August to November 1952. The trial court found the receipt genuine. Given these findings, the court held that the payment and acceptance of rent for that period created the relationship of monthly landlord and tenant under Section 106 and therefore barred the appellant's contention that no landlord-tenant relationship existed for that period.
On the basis of these two lines of reasoning—(1) the documents were separate transactions, and (2) acceptance of rent invoked the Section 106 presumption—the court found no merit in the second appeal.
Holding and Implications
HOLDING: The Second Appeal is DISMISSED and dismissed with costs. The court affirmed the lower courts' view that the usufructuary mortgage and the kirayanama are separate transactions.
Implications:
- The plaintiff's right to realise house rent separately under the kirayanama was upheld; the lower courts' decree entitling the plaintiff to recover house rent to the extent of Rs. 500 from December 1952 until the filing of the suit at Rs. 20 per month is sustained by the dismissal of the appeal.
- With respect to the period August to November 1952, the trial court's finding that the rent receipt was genuine led the appellate court to hold that the defendant, by paying and the plaintiff by accepting rent, became a monthly tenant under the presumption in Section 106; accordingly the plaintiff could not recover rent for that specific period in the present suit (consistent with the trial court's finding).
- No broader or new precedent is announced by this opinion; the court applied existing tests and authorities (as cited) to resolve the appeal and affirmed the lower courts' conclusions.
1. In the suit out of which this appeal arises the plaintiff claimed arrears of house rent from the defendant at the rate of Rs. 20 per month from December, 1952 to March, 1955. The house was given by the defendant in usufructuary mortgage to the plaintiff by a registered document dated the 30th July, 1952. On the same date the plaintiff let out the house on lease to the defendant on a monthly rent of Rs. 20 and a Kirayanama was executed to this effect by the defendant on this date. Both the lower Courts have held that the usufructuary mortgage and the Kirayanama are not parts of one and the same transaction, but they are two different transactions and the plaintiff was entitled to get a decree for house rent, to the extent of Rs. 500 from December, 1952, till the filing of the present suit at the rate of Rs. 20 per month.
2. On behalf of the defendant who has preferred this appeal it was contended, in the first place, that the usufructuary mortgage and the Kirayanama are parts of one and the same transaction and so the plaintiff cannot realise the amount of house rent due from the defendant by a separate suit based upon the Kirayanama.
3. The principle to be applied in a case of this description has been elaborately considered by a Division Bench of this High Court in Umeshwar Prasad Singha v. Dwarika Prasad*, ILR 22 Pat 320 : (AIR 1944 Pat 5). One of the tests laid down in that case is whether it appears on a reasonable construction of the two documents that the properties given in security are not only for the principal amount secured under the sudbhama boned but also for the interest accruing thereupon.
4. Applying this test to the present case, we hold that the kirayanama and sudbhama bond were two different transactions. On a perusal of the sudbharna bond it is clear that no rate of interest is prescribed, and that the amount to be paid under the Kirayanama, namely, Rs. 20 per month, cannot be treated as interest due on the principal amount of Rs. 500 advanced upon the usufructuary mortgage bond. In view of the circumstances appearing in the present case, we are of opinion that the kirayanama and the usufructuary mortgage bond are not parts of one and the same transaction, and the view taken by the lower Courts is correct. We overrule the contention of learned counsel for the appellant on this part of the case.
5. The second argument advanced on behalf of the appellant is that, even if the two transactions are different, the plaintiff cannot succeed in getting a decree for house rent because the kirayanama is not a registered instrument and is not signed by the lessor and the lessee as required by Section 107 of the Transfer of Property Act. In support of this argument learned counsel referred to the decision in Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 : (AIR 1921 Mad 337), which is a decision of the Full Rench of the Madras High Court.
6. This point does not appear to have been raised in the lower Courts. But even assuming that the contention of learned counsel for the appellant is correct and the kirayanama between the parties should have been registered, it does not necessarily follow that the plaintiff cannot realise the amount of house rent for the period in question; for it is well established by numerous authorities that if a tenant is in possession under an unregistered lease and the landlord recognised his right by acceptance of rent, then the presumption of Section 106 of the Transfer of Property Act comes into operation.
7. In support of this contention learned counsel for the respondent has relied upon a decision of this High Court in Darbari Lal Mudi v. Raneeganj Coal Association, Ltd.*, AIR 1944 Pat 30. In the present case it was alleged in the plaint that rent was paid under the unregistered kirayanama by the defendant to the plaintiff for a period of four months from August, 1952, to November, 1952. The receipt for rent (Exhibit 5) was exhibited on behalf of the plaintiff in the trial Court, and signature of the defendant has also been proved on this receipt as Exhibit 6.
8. The finding of the trial Court is that the receipt is genuine, and, in view of the payment of rent for four months from August, 1952, to November, 1952, the plaintiff was not entitled to realise rent for this period in the present suit. In view of this finding, therefore, it is clear that by payment for the period in question, the defendant has become a monthly tenant of the plaintiff because of the provisions of Section 106 of the Transfer of Property Act. We, therefore, overrule the contention of learned counsel for the appellant that there is no relationship of landlord and tenant between the parties.
9. In our opinion, there no merit in this Second Appeal. It is accordingly dismissed with costs.
LD/K.S.B
10. Appeal dismissed.
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