S. Safdar Ali v. Ambika Prasad Dube

Niamatullah, J.:— These two appeals arise out of two suits brought by Pandit Ambika Prasad Dubey for ejectment of one Safdar Ali, who has since died and is now represented by one of his sons, the appellant in Appeal No. 1263 of 1927. The respondents in Appeal No. 6 of 1929 are all of his heirs, including the appellant in Appeal No. 1263 of 1927. The land in dispute we occupied by Safdar Ali, who had a stock of wood and some residential quarters on it. Originally it belonged to two brothers, Dwarka Prasad and Jwala Prasad. By a certain partition in the family the land in its entirety has fallen to the share of the plaintiff, who is the son of Dwarka Prasad. As the names of certain persons occur in the documents, which we shall have occasion to refer to, it is necessary to state at the outset what position they occupy in relation to this matter. The following pedigree will elucidate the facts:

2. It will be seen that Jwala Prasad had a son Ram Prasad. The latter's widow was Mt. Bishen Kuer, who was minor at the time certain documents were executed on her behalf by her mother, Mt. Ketki Kuer acting as her guardian. Dwarka Prasad and Jwala Prasad became the owners of this land, while still minors some time before 1890. Their affairs were managed on their behalf by Mt. Lalmati, their father's maternal grandmother. It was Mt. Lalmati, acting as guardian of Dwarka Prasad and Jwala Prasad, who allowed Safdar Ali to occupy the land in suit under some arrangement in 1890. It is said to have been a lease, but no lease has been produoed and there is no evidence in proof of one. The first document to which the defendant's possession can be traced is a raivat name, dated 12th November 1894, executed by Safdar Ali in favour of Mt. Lalmati as guardian of Dwarka Prasad and Jwala Prasad. It recites the fact that Safdar Ali had been occupying certain premises as a raiyat of the aforesaid two minors, that be had his stock of wood and bamboos thereon for a certain length of time, that a sum of Rs. 136-2-8 was paid by the executant as rent (kiraya) in advance for four years, viz. 12th November 1894 be 12th November 1898, that the executant would be entitled to retain possession during the period for which rent had been paid and that on vacating the land he would remove the materials of the constructions already made by him and of those he might make thereafter. No corresponding document executed on behalf of Dwarka Prasad and Jwala Prasad came into existence, and the raiyatnama executed by Safdar Ali, which it should be mentioned was nob registered, was the only evidence of relationship as existed between the grantors and the grantee.

3. On 21st February 1900, Dwarka Prasad issued a notice to Safdar Ali warning him that he would not be entitled to costs of construction which he was then making and that he would have be remove materials on ejectment. The notice concluded with a demand for a sarkhot to be executed by Safdar Ali within a week. It appears that the two brothers Dwarka Prasad and Jwala Prasad had arrived at some understanding between themselves by which each was enabled to realize his half share of rent from Safdar Ali. Accordingly we have a receipt dated 6th August 1901 for a sum of Ra. 229 executed by Dwarka Prasad in favour of Safdar Ali. There is another receipt dated 26th July 1902 executed by Jwala Prasad in favour of Safdar Ali for Rs. 220. Both the receipts cover a period of about 8 years for which rent was realized by the two brothers in advance.

4. On 1st September 1910 Dwarka Prasad again executed a receipt for Rs. 302-8-0 received by him as rent in advance for 11 years, namely, 1st September 1910, to 1st September 1921. On 18th October 1916, Safdar Ali executed a duly registered kabuliyat in favour of Dwarka Prasad for 11 years. Two days laber, i.e, on 20th October 1916, Dwarka Prasad acknowledged receipt of rent in advance for 11 years. As regards the other half of the land we have a receipt dated 5th September 1918 executed by Mt. Ketki Kuer acting as guardian of Mt. Bishen Kuer for a sum of Rs. 137-8-0, which represented a rent for five years in advance from 2nd March 1919 to 2nd March 1924. After the expiry of this period an unregistered lease, date 8th August 1925, was executed by Mb. Ketki Kuer as guardian of Mt. Bishen Kuer, the representive-in-interest of Jwala Prasad, in favour of Safdar Ali for 11 years, from August 1925 be August 1936, with an endorsement on the back acknowledging receipt of Rs. 198 as rent for the 11 years reserved by that lease.

5. These are the documents which were executed by one or the other of the parties to the transactions evidenced thereby. The half share of Dwarka Prasad devolved on his son Ambika Prasad, plaintiff. Subsequently the other half originally belonging to Jwala Prasad was assigned to the plaintiff Ambika Prasad in course of a partition in the family. It is nob now in dispute between the parties that, so far as the ownership of the land in dispute is concerned, it is with the plaintiff.

6. It will appear from the documents already referred to that if the arrangement embodied therein and arrived ab between Dwarka Prasad and Jwala Prasad or his representative on the one side and Safdar Ali on the other be legally enforcible, the plaintiff's suit is, to say the least of it, premature. The plaintiff disregards all the, agreements, evidenced by or implied in these documents, in so far as they entitle Safdar to retain possession for the full term reserved thereby, on the ground that the stipulation barring ejectment during certain periods, not being embodied in a duly registered lease, as distinct from kabuliyat, is inadmissible in evidence. On that allegation the plaintiff claims to be entitled to treat Safdar Ali as a tenant-at-will from month to month liable to be ejected on 15 days notice. Accordingly he served a notice, dated 12th May 1926, on the defendant calling upon him to vacate the premises by the 1st of the month following.

7. On the defendant failing to vacate the land in dispute the plaintiff instituted suit No. 311 of 1926 for ejectment of Safdar Ali, treating the latter as tenant-at-will. The defendant resisted the suit, claiming protection from ejectment and basing his right on the document already referred to by us. The Court of first instance dismissed the suit holding that the notice, dated 12th May 1926, was invalid and that the plaintiff was therefore not entitled to eject the defendant. On appeal by the plaintiff the learned District Judge decreed the suit so far as Dwarka Prasad's share of the land was concerned, and dismissed it as regards Jwala Prasad's half share. The distinction made by the learned District Judge between the two halves of the land in dispute rests on the ground that it is held under two engagements: (1) from Jwala Prasad under receipt dated 1st September 1910, and (2) from Mt. Ketki under the lease dated 8th August 1925, and that the notice dated 12th May 1926, expiring at the end of the month and requiring the defendant to vacate, is a good notice as regards the first but not as regards the second as the 15 days within which the defendant was called upon to vacate did not expire with the end of the tenancy in the latter case. Second Appeal No. 1263 of 1927 is the defendant's appeal from the decree of the learned District Judge. The plaintiff acquiesced in the decree and issued a fresh notice on 23rd May 1927 requiring the defendant to vacate on 7th June 1927, which is the end of the month of the tenancy, assuming a monthly tenancy was created by the lease dated 8th August 1925. This suit was dismissed by both the lower Courts. The learned Subordinate Judge who heard the appeal from the decree of the trial Court held that the plaintiff was precluded from disregarding the term of 11 years by the rule of equitable estoppel, that the defendant's possession was that of a licensee who was entitled to retain possession for the full term of 11 years for which he paid rent and that, assuming that he is a lessee, he could not be considered to be a monthly tenant liable to ejectment by 15 days' notice but that he should be considered to be a year to year tenant and six months' notice, as required by Section 106 of the Transfer of Property Act was necessary. The plaintiff has preferred Second Appeal No. 6 of 1929 from the decree of the learned Subordinate Judge. It has been argued by the learned advocate for the plaintiff that a year to year tenancy or that for a term exceeding one year or reserving a yearly rent can be created only by a registered lease and that a “kabuliyat” executed by the tenant alone cannot be regarded as equivalent to such a lease. Reference is made to Section 107 of the Transfer of Property Act. Whatever differences of opinion might have existed before as regards the second proposition, the question is now concluded, so far, at any rate, as this Bench is concerned by Kedar Nath v. Shankar Lal (1), in which it was held by a Division Bench of this Court that:

“a registered “kabuliyat” executed by the person occupying the premises and accepted by the person owning the premises is not sufficient to bestow a title upon the person occupying the premises and can in no way be considered a lease, as defined in S. 105, Act 4 of 1882.”

8. We must, therefore, accept the position insisted on by the plaintiff, viz., that the defendant cannot rely on any document which can amount to a lease and which may be admissible in evidence to establish his claim to retain possession of the land for a period exceeding one year from the date of the “kabuliyat” dated 18th October 1916 as regards one-half and the lease dated 8th August 1925 as regards the other half.

9. If the case had to be decided solely on the question of the existence of a tenancy for a term which did not expire before the institution of the suit, the plaintiff's claim to eject could not be resisted by the defendant relying on the transaction ending in the execution of the documents to which we have referred. There is, however, an important agreement by the plaintiff's predecessor-in-interest implied in their acceptance of rent advanced for 11 years which did not expire before the institution of the suit. Such an agreement amounts to a personal obligation to refrain from ejecting the defendant during the term for which rent was accepted. Such implied agreement cannot be considered to be part of any transaction of lease. It should be borne in mind that the possession of the defendant dates back to a time before the execution of the “raiyatnama” dated 12th November 1894, executed by Safdar Ali in favour of Dwarka Prasad and Jwala Prasad, then represented by their guardian, Mt. Lalmati. The unregistered lease, dated 8th August 1925, and the “kabuliyat,” dated 18th October 1916, being wholly inadmissible in evidence the position of the parties is not referable to any document creating a relationship of lessor and lessee.

10. The “raiyatnama” above referred to does not, in our opinion, create any tenancy. It amounts to no more than a permission to Safdar Ali to continue to occupy the premises. We do not know the terms on which Safdar Ali had been first let into possession. The implied agreement which must be inferred from the receipt of payment in consideration of which the plaintiff's predecessor-in-interest agreed not to eject the person making such payments for a certain length of time is of a personal character binding on the conscience of the recipient and his representatives other than bona fide transferees for consideration. Such a covenant is not part and parcel of any lease and is not affected by the law of registration or Sections 105 to 107 of the Transfer of Property Act. The principle underlying the decision of the Judicial Committee in Subramanian Chettiar v. Arunachalam Chettiar (2), appears to us to be quite applicable to the present case. It was held by their Lordships of the Privy Council that:

“an agreement to pay Rs. 500 a month to a lessee in consideration of receiving from him a permanent lease of portion of his zamindari, which agreement was come to before but reduced to writing after, the execution of the lease was not affected by Section 92 of the Evidence Act, nor required registration either under Section 17 the Registration Act or Section 107 of the Transfer of Property Act. It was not inconsistent with the lease, its provisions formed no part of the holding under the lease, the payment bargained for was no charge on the property and it was not rent or recoverable as rent but a mere personal obligation collateral to the lease.”

11. There can be no question of any inconsistency between the implied covenant to which we are disposed to give effect as we have found the “kabuliyat” and the lease executed by the plaintiff's predecessor to be inadmissible in evidence. The “raiyatnama” of 1894, as already mentioned, is not a lease or an instrument creating a tenancy. The covenant is not a charge on the land in dispute. Whether the covenant relates to a periodical payment to be made by a lessee to the lessor in addition to the rent or it relates to the time during which the lessor is to refrain from ejecting the lessee, as in the case before us, the principle underlying it is the same. In either case it is a collateral obligation and not a stipulation forming an integral part of a lease which is sought to be enforced. We see no moral or legal objection to a promise of this kind being enforced against the maker thereof or against those claiming under him, not being persons against whom the personal obligation of the promiser cannot be enforced. In the view of the case that we have taken, we allow Second Appeal No. 1263 of 1927, and dismiss Second Appeal No. 6 of 1929, dismissing the plaintiff's suits which gave rise to these two appeals, with costs throughout, including counsel's fees in this Court on the higher scale.

S.N/R.K

12. Order accordingly.