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Parbati Charan Mukhopadhya v. Bandeali Akon
Factual and Procedural Background
This appeal concerns the rate of rent payable by tenants under a permanent tenancy: whether the plaintiff (landlord) is entitled to a decree for rent at Rs. 76-12-7 per year or at Rs. 58-13-10 per year. It is admitted that the tenancy is permanent, that Rs. 58-13-10 had been realized by the landlord up to the year 1316, and that the origin of the tenancy is obscure with no registered document evidencing its creation. The landlord's case is that during a Settlement Operation under Chapter 10 of the Ben. Ten. Act excess lands were found in the tenants' possession, and that in 1317 the tenants orally agreed to pay additional rent so that the total rent became Rs. 76-12-7 from 1317, a rate which the tenants in fact paid thereafter.
The defendants (tenants) maintain that the rent remained Rs. 58-13-10 and that the landlord never realized rent at the higher rate; they further contend that any agreement altering the rent cannot be proved except by a registered document. In support of his claim, the landlord produced numerous counterfoils of rent receipts from 1317 onwards showing realization at Rs. 76-12-7. Both lower Courts accepted these counterfoils as genuine and found realization at that rate. The Court of first instance decreed the plaintiff's claim at Rs. 76-12-7. The lower appellate Court, however, awarded the plaintiff a decree only at the rate of Rs. 58-13-10, holding the alleged oral variation ineffective for want of registration. The present appeal challenges that conclusion.
Legal Issues Presented
- Whether the plaintiff (landlord) is entitled to a decree for rent at Rs. 76-12-7 per year or only at Rs. 58-13-10 per year.
- Whether the rent of a permanent tenancy may be varied after the coming into force of the Transfer of Property Act by an oral agreement (i.e., without a registered document).
- Whether, in view of Section 107 of the Transfer of Property Act and subsequent case law (including a Full Bench decision), an oral agreement varying the amount of rent for a permanent tenancy is ineffective without registration.
Arguments of the Parties
Appellant's (Plaintiff / Landlord) Arguments
- Mr. Sen, for the appellant, argued that the lower appellate Court's view was incorrect and relied on a passage from the case reported at 11 CLJ 221 (passage at p.25) to support the proposition that a document evidencing variation of rent (a "dowl" in that passage) need not be registered unless it embodies a special agreement creating an interest in immoveable property.
- The appellant pointed to authority (as cited in the quoted passage) that a document by which parties agree to vary the mode or quantum of payment of rent (for example, converting payment partly in kind and partly in cash into a single cash rent) does not create an interest in immoveable property and therefore does not require registration.
Respondents' (Defendants / Tenants) Arguments
- The defendants maintained that the rent remained Rs. 58-13-10 and that the landlord never realized rent at the higher rate.
- They asserted that, in any event, an agreement purportedly varying the rent for a permanent tenancy cannot be proved or given effect to except by a registered document, invoking the requirements of the Transfer of Property Act (specifically Section 107).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 11 CLJ 221 (passage at p.25) | The passage suggests that a "dowl" which does not embody a special agreement creating an interest in immovable property does not require registration; a document evidencing commutation of rent (e.g., converting part-in-kind rent to cash) was held not to be a lease requiring registration. | The court considered this passage as relied upon by the appellant but examined whether the principle reflected there remained good law in the light of a later Full Bench decision. The court concluded that the portion of 11 CLJ 221 relied upon had been affected by the Full Bench decision. |
| 24 Cal 202 | Cited in 11 CLJ 221 as authority for the principle that certain documents varying rent do not create an interest in immovable property requiring registration. | Referenced by the court as part of the earlier line of authority relied upon in 11 CLJ 221; ultimately the court held that later Full Bench reasoning affected the weight of this principle for the facts before it. |
| 22 Mad 2173 | Cited in 11 CLJ 221 as supporting the principle that documents varying the term of tenancy with reference to rent are not interests in immoveable property and do not require registration. | Noted by the court as part of the older authorities relied upon in the passage from 11 CLJ 221; the court treated the Full Bench decision as superseding that portion of the earlier reasoning for present purposes. |
| Chai Goundan (supra) | Referred to in the passage cited from 11 CLJ 221 as an example supporting the non-registration principle for certain variations of rent. | Mentioned by the court as one of the authorities relied upon in the earlier line of cases; the court observed that the Full Bench later addressed the issue and its reasoning affected the earlier view. |
| 39 Cal 284 (Full Bench) | The Full Bench considered variation of rent/royalty in a lease originating with a registered document executed after the Transfer of Property Act and, after referring to Section 107, held that essentials of a lease (including the amount of rent) must be embodied in duly registered documents. | The court treated the Full Bench's reasons as decisive. It held that the Full Bench's interpretation of Section 107—that the amount of rent is an essential element of a lease and must be in a registered document—answers the present case and affected the earlier portion of law cited by the appellant. The court applied this to conclude the oral variation was ineffective without registration. |
Court's Reasoning and Analysis
The court proceeded by identifying the central factual findings: the tenancy is permanent, its origin is obscure, no registered document evidences creation, and the landlord produced counterfoils showing realization of rent at Rs. 76-12-7 from 1317 onward. The courts below had accepted the receipts as genuine and found realization at the higher rate.
The legal question was whether an oral agreement could vary the rent of a permanent tenancy after the Transfer of Property Act without a registered document. The appellant relied on a passage from 11 CLJ 221 (p.25) which, as summarized by the appellant, supported the proposition that documents merely evidencing a commutation or variation of rent need not be registered because they do not create an interest in immovable property.
The court examined whether that passage remained authoritative in the light of the Full Bench decision in 39 Cal 284. It noted that while the facts of 11 CLJ 221 (which concerned commutation from payment partly in kind to payment wholly in cash) were not directly affected by the Full Bench, the Full Bench had considered more directly the variation of rent in leases that originated with registered documents after the Transfer of Property Act. The Full Bench, after referring to Section 107 of the Transfer of Property Act, concluded that the plain intent of that section requires that all essentials of a lease (including the amount of rent) must be embodied in one or more duly registered documents.
On this basis the court held that the Full Bench's reasoning furnished an answer to the present dispute and had substantially affected the law as stated in the underlined portion of 11 CLJ 221. Applying the Full Bench's interpretation of Section 107, the court concluded that without a registered document the plaintiff could not claim rent in excess of Rs. 58-13-10.
Holding and Implications
HOLDING: The appeal is DISMISSED. The court held that, in the absence of a registered document, the plaintiff is not entitled to claim rent at the higher rate of Rs. 76-12-7 and is limited to Rs. 58-13-10 per year.
Implications: The direct consequence for the parties is that the landlord's claim for rent at Rs. 76-12-7 is rejected for want of a registered document evidencing an agreement altering the rent of a permanent tenancy. The opinion relies upon the Full Bench decision in 39 Cal 284 and Section 107 of the Transfer of Property Act to treat the amount of rent as an essential element of such leases that must be embodied in a registered document. The opinion does not purport to lay down a novel precedent beyond applying existing Full Bench authority to the facts; it dismisses the appeal with costs and leaves the decree at the lower rate in place.
B.D/R.K
Final disposition recorded in the text: "Appeal dismissed."
1. The question involved in this appeal is whether the plaintiff is entitled to get a decree for rent against the defendants as tenants at the rate of Rs. 76-12-7 a year or at the rate of Rs. 58-13-10 a year. It is admitted that the tenancy is a permanent tenancy. It is also admitted that Rs. 58-13-10 have been realized by the landlord from the tenants up to the year 1316. It is a finding of the Court that the origin of the tenancy is lost in obscurity, at least it was not created after the Transfer of Property Act came into force: and there is no registered document or any document showing the creation of the tenancy. The landlord's case is that at the time of the Settlement Operation under Ch. 10, Ben. Ten. Act, excess lands were found in possession of the tenants, that is to say, more land than what was stated in the collection paper of the landlord; and that in the year 1317, the tenants verbally agreed to pay additional rent for excess area, and the total rent was settled at Rs. 76-12-7 which the tenants undertook to pay from 1317, and the tenants had in fact paid at that rate since 1317. The defendants state that the rent was Rs. 58-13-10 and that is still the rent and the landlord never realized rent at the higher rate at any time, and that in any event the said contract cannot be proved except by a registered document.
2. In support of the landlord's claim he produced a large number of counterfoils of rent receipts from the year 1317 up to a few years of the suit. These counterfoil rent receipts show that rent has been realized at the rate of Rupees 76-12-7. Both the Courts below have believed these counterfoils to be genuine and they have found that the landlord realized from the tenants from 1317 rent at Rs. 76-12-7. The Court of first instance decreed the plaintiff's claim at the aforesaid rate. But the lower appellate Court has dismissed the plaintiff's claim. From the evidence of realization of rent at the rate of Rs. 76-12-7 from 1317, the necessary inference is that figure was arrived at by agreement between the landlord and the tenants, that is to say the tenants agreed orally to pay from 1317 at the rate of Rupees 76-12-7 instead of the low rate of Rs. 58-13-10.
3. The lower appellate Court in granting the plaintiff a decree at the rate of Rs. 58-13-10, has held that such oral contract was ineffective in law, for such a contract must be by a registered document. If a permanent tenancy is created after the Transfer of Property Act it is clear that a registered document is necessary under Section 107 of the Transfer of Property Act. The question, therefore, is whether the rent of a permanent tenancy can be varied after the passing of the Transfer of Property Act by an oral agreement, that is to say without a registered document. As I have said, the lower appellate Court has taken the view that it cannot be done without a registered document.
4. Mr. Sen on behalf of the appellant contends that the view taken by the lower appellate Court is wrong, and for that purpose he cites before me a passage from the case of 11 CLJ 221. The passage is to be found at p. 25 of the report, and it runs as follows:
The question to be decided in the case of every dowl therefore is as to whether it embodies a special agreement between the parties;, if it does, it requires registration; if it does not the registration is not needed. Now in the-case before us it cannot be said that the dowl upon which reliance was placed is a lease; There was a pre-existing tenancy; that is the-common case of both the parties. The only effect of the dowl was to evidence that there had been a commutation of rent and that the-rent which was previously payable, partly in kind and partly in cash, was henceforth to be-paid in cash. To a document of this description the principle laid down by this Court in 24 Cal 202, and by the learned Judges of the Madras High Court in 22 Mad 2173 applies. That principle is that a document given by the owner of land to his tenant or by the tenant to his landlord, varying the term of the tenancy, with reference to the amount of rent to be paid is not an interest in immoveable property and does not require registration.
5. The question is whether the passage which I have italicized above, is still good law in view of the decision of the Full Bench in 39 Cal 2844. So far as the facts of the case of 11 CLJ 22 are concerned there cannot be any doubt that the actual decision therein has not been affected by the Full Bench, for in that case there was no question of variation of rent of a tenancy. The rent was originally fixed partly in cash and partly in kind, and all that the landlord and tenant agreed upon was to put a value upon the rent payable in kind and agreed to pay thereafter the rent in cash only. In the referring order to the Full Bench Woodroffe, J. and Caspersz, J., relying upon 24 Cal 20, and the case of Chai Goundan (supra) noticed in the-aforesaid passage in 11 CLJ 22, expressed the view that a document which varied an existing rent in a registered lease did not require registration. The Full Bench, however, had to consider the case of variation of rent or royalty, or reduction of rent or royalty in a lease originating with a registered document executed after the Transfer of Property Act, by reason of certain letters written by the landlord and the tenant by which an agreement for reduction of royalty had been arrived at. But in dealing with this question the Full Bench went into the matter fully and after referring to Section 107 of the Transfer of Property Act, said that the plain intent of that section was that all essentials of a lease of this description, that is to say a lease of immoveable property from year to year or any term exceeding one year, or reserving an annual rent, must be embodied in one or more documents duly registered, and then it pointed out that the provision about the amount of rent was an essential element of a lease. In my judgment, therefore, the reasons so given by the Full Bench in the case of 39 Cal 284, furnish an answer to the case which I have before me, and the said Full Bench case affected very much the law as laid down in the portion of the judgment in the case of 11 CLJ 22, which I have underlined. It might be mere incidentally noticed that Mookerjee, J., who delivered the judgment in 11 CLJ 22 was himself a party to the Full Bench judgment.
6. Having regard to these facts, I do hold that the learned Subordinate Judge is right in holding that without a registered document, the plaintiff is not entitled to claim rent at more than the rate of Rs. 58-13-10 a year. The result is that this appeal is dismissed with costs.
B.D/R.K
7. Appeal dismissed.
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