1. The learned District Judge decided the contentions which we are now considering upon one point. He wrote in his judgment:
The main point for decision is one of law and may be stated in this form--"Is a registered kabuliat executed by the tenant and accepted by the landlord sufficient to create a tenancy?
2. He decided that point only.
3. The facts were as follows:--The plaintiff, who is here the appellant, is the owner of a shop with a shed attached which he leased to a certain Kundan Lal. Kundan Lal executed a kabuliat in plaintiff appellant's favour, dated the 19th of March, 1913, agreeing to occupy these premises on a monthly rental until 1918. It is not clear whether the plaintiff had executed a lease for this period of five years in favour of Kundan Lal. It is of no consequence whether he did or did not execute a lease, for it is admitted that he took no exception to Kundan Lal as a tenant during those five years. His relations with Kundan Lal appear to have been amicable during that period. When that lease came to an end, it is an admitted fact that Kundan Lal executed a registered kabuliat, dated the 10th of April, 1918, by which he agreed to occupy the same premises as tenant for a further period of eleven years on an annual rental of Rs. 200. Kundan Lal continued to occupy the premises and the plaintiff made no objection, as far as we can gather, to his occupation. Kunda'n Lal died in 1918. After his death, the plaintiff instituted the suit out of which the present appeal arises against the sons of the deceased Kundan Lal, who had continued to occupy the premises, for possession of the premises, for an amount for use and occupation for the period between their father's death and the date of the suit calculated at the rate at which their father had been paying rent, and for damages at the same rate up to the period that the plaintiff might obtain possession. The learned District Judge did not go into the other points raised between the parties. He did not even decide upon the evidence whether the plaintiff had or had not accepted the kabuliat. He took the view that without considering other evidence, the plaintiff must be considered to have accepted the kabuliat on the wording of the plaint and on the wording of a notice issued by the plaintiff's pleader to Kundan Lal's sons dated the 14th of April, 1919. We do not consider that on the wording of the plaint and the wording of the notice a conclusion can be drawn that the plaintiff accepted the kabuliat of the 10th of April, 1918. The plaint affords no authority for a finding other than that the plaintiff had permitted Kundan Lal to hold over as a tenant from year to year after the first period of five years had come to an end. It does not follow from this that he would extend the same towards Kundan Lal's sons after the death of Kundan Lal. The wording of the notice, in no way, supports the suggestion that the plaintiff accepted or admitted the kabuliat, and so far there has been no finding on the evidence as to whether, and, if so, how far the plaintiff misled the defendants by his action in permitting Kundan Lal to hold on after the period of five years had come to an end, or, in other words, as to the validity of the plea of estoppel which has been raised by the defendants. The point as to what the plaintiff actually did do or omitted to do and the effect of his acts and omissions upon the merits of the case has not been decided by a finding of fact and, as will be seen from the subsequent portion of this decision, we propose to leave this question, in addition to the other questions which so far have not been decided, to the decision of the learned District Judge's successor.
4. But it is unnecessary for us to remand the case for further findings and await their decision before we decide the only question now before us because we answer in the negative the question which the learned Judge answered in the affirmative. We do not find that the plaintiff accepted the kabuliat and we express no opinion as to whether he did or did not, but assuming that he accepted the kabuliat, we cannot accept the learned Judge's view as to the law.
5. The question which we have to decide is one which has been before this and other High Courts on previous occasions and, in so far as this High Court is concerned, it has not so far been decided in explicit terms by a Bench. The first occasion when it arose in a reported decision was when it came before a Bench of this Court in Nand Lal v. Hanuman Das (1904) I.L.R. 26 All. 368. There the defendants,' who were the occupiers of a house, alleged that they could not be ejected therefrom because they held under a lease. What they alleged to be a lease was a registered kabuliat. It was found in that case that the plaintiffs, the owners of the house, had been fully aware of the execution of the kabuliat and had given consent to its execution. BLAIR, J., referred to a decision in a Letters Patent Appeal (this is quoted as a note to the report) in which the view which he had previously taken that a registered kabuliat, even when accepted by the landholder, does not constitute a lease was approved by Edge, C.J., and BURKITT, J. He maintained his previous opinion and found that the kabuliat before him in the, appeal which he was then deciding could not operate as a lease. He found for the ejectment of the defendants. Banerji, J., also found in favour of the ejectment but he did not express an opinion upon the point now before us. He is entered in the head-note as having questioned the validity of the opinion of BLAIR, J., but the head-note is not accurate on that point, as will be seen from the words of Banerji, J. All that he said was this:
Having regard to the fact that it is a common practice in these provinces to treat a kabuliat as the instrument creating a. tenancy, and that a ruling such as that contended for by the appellants may unsettle titles, I do not desire to express any opinion upon the first question raised in this appeal.
6. I fail to understand how by using these words the learned Judge could be held to have expressed a doubt as to the correctness of the view of BLAIR, J. This decision was passed in 1904. A few months later, the same point arose before BLAIR, J. sitting singly in Kashi Gir v. Jogendro Nath Ghose (1904) I.L.R. 27 All. 136. In that case he repeated the view that a lease could not be created by a kabuliat, and that until a lease or a patta was duly executed and registered, in cases in which the law required a registered instrument, no lease was created or could be proved. In 1905 the point again came before a Bench of this Court when BLAIR J., and BANERJI, J., refused, in a case where certain persons claimed to collect market dues under an unregistered lease and a registered kabuliat, to recognize that claim. The decision clearly was that the lease, being unregistered, was ineffective and that the kabuliat, although registered, did not create a lease. But the point was not decided explicitly. This decision is reported in Sikandar v. Bahadur (1905) I.L.R. 27 All. 462. The point was raised again in 1909 before a Full Bench consisting of STANLEY, C.J., and BANERJI, and AIKMAN, JJ. Their decision is reported in Sheo Karon Singh v. Maharaja Parbhu Narain Singh (1909) I.L.R. 31 All. 276. The point was not decided. The question was not raised in the form before us. The appeal related to a suit for arrears of rent on the basis of a registered kabuliat. The defendants, who were tenants of the Maharaja of Benares, were let in to occupation of a tenancy on a registered kabuliat. The Maharaja sued them for arrears of rent and they set up that they could not be made to pay rent because, as the Maharaja had not executed a lease, they were not liable to pay anything. This plea did not find favour with the Assistant Collector who heard the suit. He decreed the claim. The plea which was advanced before the High Court was that a kabuliat was equivalent to a counterpart and that there could not be a counterpart without a lease. Thus there being no lease, the kabuliat was waste paper and the defendants were not liable to pay rent at all. The defendants appellants endeavoured to press into their favour the decisions which I have already quoted and asked the Court to take the view that as a lease could not be created by a kabuliat, a tenant who had agreed to pay rent by a registered instrument was under no liability to pay rent at all. The Full Bench decided this plea in the following words:
The only ground of appeal which has been pressed in argument before ns is the first, namely, that a kabuliat without a patta does not create a valid lease of immovable property. As to this we express no opinion inasmuch as we find that, under the circumstances, the plaintiff is clearly entitled to recover compensation for use and occupation.
7. They added that they expressed no opinion as to the correctness of the rulings which had already been cited. I fail to understand from the wording of this decision that the learned Judges who composed the Bench dissented from the view taken by BLAIR, J. The matter was raised again before me as a single Judge in 1916. My decision is reported in Bijai Narain Singh v. Sri Maharaja Parbhu Narain Singh (1916) 15 A.L.J. 317. The point taken in the present appeal was not material to my decision in that appeal and I expressed no view upon the point which is now before us. The learned Counsel for the respondents in this appeal has been unable to show us any decision of our own Court in which a view has been taken differing from or questioning the law as laid down by BLAIR, J., and by the Bench which decided Sikandar v. Bahadur (1905) I.L.R. 27 All. 462, and it would appear to me that upon the principle of "stare decisis," this Bench would not be competent to accept the view taken by the learned District Judge of Saharanpur, and if they differed from the view taken in the past, should refer the point for the decision of a Full Bench. It has been urged upon us by the learned Counsel lor the respondents that in view of certain decisions in the High Courts of Madras and Calcutta, we should refuse to follow the view taken by our own Court. He relies in particular upon a decision of the Full Bench of the High Court at Madras, passed in 1910, Syed Ajam, Sahib v. Ananthanarayana Aiyar (1910) I.L.R. 35 Mad. 95, and a decision of a Bench of the Calcutta High Court, Raimoni Dassi v. Mathura Mohan Dey (1912) I.L.R. 39 Calc. 1016. In deference to the views of the learned Judges who decided those appeals, I propose to say something more. I refer to the provisions of Act IV of 1882 to show what a lease is in India and how a valid lease can be created by the Indian law. section 105 of that act states:
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium and the money, share, service or other thing to be sO rendered is called the rent.
8. Section 107 commences:
A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
9. Thus, in order to create a valid title to occupation of premises, the property of another person, for a term exceeding one year, by lease, a registered instrument is necessary. A lease is a. transfer. A transfer must obviously be made by the transferor. It cannot be made by the transferee. So the owner of the premises must make the transfer. The transfer can be only made by his volition, but that transfer does not become effective in case of a lease for a term exceeding one year until a registered instrument comes into being. The argument on the other side is apparently that the owner must make the transfer but the registered instrument creating the transfer, which is essential to the validity of a title in such cases, can be made by the transferee. How is this possible? Surely, if such is the case, the transfer itself is made by the transferee and is accepted by the transferor. I observe that both in Calcutta and Madras, stress has been laid upon the terms of Section 2, Clause 7 of the Registration Act, old Act III of 1877. Clause 7 of Section 2 states that a lease includes a counterpart, kabuliat, an undertaking to cultivate or occupy, and an agreement to lease. From this it is argued that the word " lease" includes kabuliat and that a kabuliat is a lease. I understand the meaning of the words, however, to be that for purposes of registration a counterpart, kabuliat, an undertaking to cultivate or occupy, and an agreement to lease are put in the same category as a lease; in other words, that an undertaking to cultivate or occupy from year to year ordinarily requires registration under the provisions of Section 17. I do not understand these words to suggest that what is known as a lease under the law is the same thing as an undertaking to cultivate, and that the substantive law relating to leases can be applied to undertakings to cultivate by substituting the words "undertaking to cultivate" for "lease" wherever the word "lease" occurs in legislative enactments other than the Registration Act. It is true that Section 4, Act IV of 1882, lays down that section 107 of that act is to be read as supplemental to the Indian Registration Act. I understand those words to mean that the provisions in section 107 relating to registration were intended to supersede and to absorb the provisions relating to registration of leases which were contained in the Registration Act that had been passed five years earlier. For these reasons, taking the view of the law which I consider to be the view taking the view of the law which I consider to be the view that has always been accepted in this Court, and finding no reason to refer the point to a Full Bench, I should answer the District Judge's question in the negative and decide that a registered kabuliat executed by the person occupying the premises and accepted by the person owning the premises is not sufficient to bestow title upon the person occupying the premises and can in no way be considered a lease as defined in Section. 105 of Act IV of 1882. The result of this decision would be that this appeal would succeed, and the District Judge's decision upon a preliminary point of law having been reversed, the case would be sent back to his successor for restoration to its original number and decision on the merits upon the other points.
Mukerji, J.
10. I entirely agree with what has fallen from my learned brother. I wish to add just a few words. In arriving at the conclusion at which I have arrived, namely, the same conclusion at which my learned brother has arrived, I have not overlooked the fact that in this country the custom largely prevails of creating leases, rather attempting to create them, by means of a mere kabuliat or a document executed by the intending lessee alone. What we have to do, however, is merely to interpret the law as it stands. In interpreting the law as we have done, it is satisfactory to note that we are not interfering with a large number of kabuliats and leases which relate to agricultural holdings. By the express provisions of Section 117 of the Transfer of Property Act the provisions in chapter V of that Act do not apply to agricultural leases.
11. Lastly, I would observe that we have decided merely a point of law. If, apart from the kabuliat, the defendants can show any good reasons for being allowed to continue to occupy the premises in suit, they would still be entitled to show those reasons before the lower appellate court. I, therefore, concur in the order proposed.
12. The appeal is allowed. As the court from whose decree the appeal has been preferred has disposed of the suit on a preliminary point and its decree has been reversed on appeal, a copy of these judgments shall be sent to the court with directions to re-admit the appeal under its original number and determine it on the merits. Costs here and hitherto will abide the result.