Ramkrishna Jha v. Jainandan Jha

Wort, J.:— The question in this appeal in substance is, whether a kabuliyat executed by the tenant only satisfies section 107 of the Transfer of Property Act?

This appeal, which is by the plaintiff, arises out of an action to set aside an order of, the 20th of February, 1926, made in an application under Order XXI, rule 58, of the Code of Civil Procedure by the defendant. The plaintiff also in his action claimed possession of the property. The facts shortly are these. The plaintiff in execution of a money decree purchased an eight-annas interest in tauzi no. 1037 village Basudeopur Koelakh and the same interest in tauzi no. 1044 village Nirbhapur. The shares were the property of the judgment-debtor with whom we have no concern in this action. As I have indicated, under Order XXI, rule 58, the defendant claimed to be in possession under a lease from 1329 to 1353, that is to say, for twenty-five years. The kabuliyat which I have mentioned was executed by the defendant and registered. There was an amalnama executed by the amlas on behalf of the plaintiff which in substance leased the property to the defendant for the period stated above. The defendant, it would appear, had been in possession of the property under a ‘lease’ (which expression 1 use not in the technical sense of the term because that is the question to be decided), first, for the period from 1305 to 1311, then from 1312 to 1318 and again from 1318 to 1328. Three mauzas were included in this demise and in the kabuliyat 2 bighas of kind situate in Purnea were also included. I mention the 2 bighas particularly to deal with the point which has been argued on behalf of the appellant that the registration in Purnea was a fraud on the Registry and therefore invalid, the point being that the other mauzas were outside the Registry jurisdiction of Purnea and that the, two bighas were included only for the purpose of registration in the Purnea Registry.

The appellant relied upon the decision of the Privy Council in Collector of Gorakhpur v. Ram Sundar Mal. In an earlier case in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi their Lordships of the Judicial Committee had used the expression ‘fictitious’ and had said in substance that the inclusion of a ‘fictitous property’ in a deed for the purpose merely of registration was a fraud upon the Registry, and in the Collector of Gorakhpur's case the Courts in India having found that the property was not fictitious in the sense that it was in existence, the Privy Council held that it did not come within the case of Harendra Lal Roy Chowdhuri's case and therefore not a fraud on the Registry. But their Lordships of the Privy Council, when the case came before them, pointed out that the word ‘fictitious’ used in the earlier case was not confined to non-existing properties but also applied to those cases where the inclusion in the deed was not for the purpose of any effective enjoyment or use. The fact there was that a portion of a house had been included in the document in suit for the purpose of registration and as it was impossible for the grantee to enjoy the property or take possession of it, it was in fact a fraud on the Registry, although the property was in existence. It is impossible to accept the contention of the appellant. The findings here quite clearly are against him they are in substance that the property was in existence and transferred by the lease, and therefore could not be fictitious in the sense in which their Lordships used the expression. I mention the point at this stage of my judgment in order to dispose of the matter and clear the, way for the decision of the main point in the case.

One other point has been argued in which I also hold there is no substance, that point being that the action was not competent under Order XXI, rule 63. In my judgment quite clearly the action is competent. The action claims the setting aside of the order and also possession, and under any view of the matter if a plaintiff in this position claims to ‘establish his right which he claims to the property in dispute’, he is entitled, if necessary, to claim possession. But in my opinion the application under Order XXI, rule 58, by the defendant should have been dismissed. He claimed as a tenant and I know of no provision in the Code of Civil Procedure entitling the Court to release a property from attachment merely because a claimant comes forward and says that he is in possession under a lease. The rules, particularly Order XXI, rules 58, 60 and 62, preclude any such suggestion as they state in express terms that if the property is in possession of a person paying rent to the judgment-debtor the claim is to be rejected. If he claims as a mortgagee, which from one point of view he may have been, having regard to the fact, which I have not mentioned so far, that the rent in advance amounting to Rs. 10,998 was paid, the rent reserved in the demise being Rs. 1,401, the proper course for the Court to have taken was under Order XXI, rule 62, to continue the attachment, if the Court thought it necessary, subject to the mortgage or charge. As however, the claimant's claim was that of a lessee, there was no jurisdiction in the Court to release the attachment or to decide the question of the validity of the lease.

A further argument, that in some way the plaintiff was estopped by reason of the fact that he recognized the defendant's possession, is quite untenable. The purchaser recognized the fact, in the execution proceedings, of the claim by the defendant, but it is stated in the petition of the decree-holder that he did not admit the claim. The order of the Court was that the fact of the defendant's claim was to be noted in the sale proclamation. The short answer to the question seems to me to be that there can be no estoppel as the plaintiff did not let the defendant into possession. If the decree-holder is allowed to purchase the property in execution of his decree, the tenants must remain there if they are in possession under valid leases; if not, the plaintiff is entitled to eject them. The principle of estoppel can have no application in this case.

I now come to the main question in the appeal. To reiterate the facts, there was an amalnama not registered, but from its perusal it is quite clear (and it will be necessary to decide the question) that it will have to be construed as a patta irrespective of its name. Most of the terms, if not all, are mentioned in the patta. The worst that can be said against the document being construed as a patta, is that reference is made to the kabuliyat, and in one sense therefore to ascertain all the terms of the lease both the documents will have to be referred to. Then there is the kabuliyat which, I have said, was executed by the defendant and was registered. It is contended that this satisfied the provisions of section 107 of the Transfer of Property Act. Section 107 provides:

“A lease of immoveable 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”.

There are then provisions for other leases, and it is provided that they might be ‘either by registered instruments or by oral agreement accompanied by delivery of possession’. We are not concerned with that. Section 105 of the Act gives the definition of ‘lease’ thus:

“A lease of immoveable 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 to the transferor by the transferee, who accepts the transfer on such terms”.

Section 5 defines transfer of property as being an act of a living person conveying property in present or in future to one or more other living persons, etc. It is not denied that the amalnama not being registered cannot be received in evidence by reason of section 49 of the Registration Act although there is a contention that it might be used for collateral purposes.

In those circumstances the questions that arise are, first, does the kabuliyat satisfy sections 5, 105 and 107 of the Transfer of Property Act; second, if the first question is answered in the negative, can we look to the amalnama to prove that the transfer is by the transferor or lessor, alternatively, can it be used for collateral purposes; third, if the amalnama cannot be looked to as being inadmissible, can the lessee prove the transfer by the lessor aliunde; and, fourth, does section 53A of the Transfer of Property Act, which was added to the main Act by the amending Act XX of 1929, apply?

As to the first question, there seems to me to be no possible doubt. It is obvious, when reference is made to the Transfer of Property Act, that the word ‘lease’ is used not in the sense of description of a document but of the act of transfer of land or immoveable property which ‘can be made’ only by a registered instrument, and then there is the definition clause which, as I have said, is contained in section 105—

“A lease of immoveable property is a transfer of a right to enjoy such property, etc.”

In this section a transferor, that is to say, the person who transfers, is called the lessor, and the transferee is called the lessee. It is quite obvious that the lessee who executes a kabuliyat does not transfer an interest; he is the transferee as the Act states. Whatever the recitals may be in the kabuliyat, it cannot, without stretching the language of the Act, be said to be the act of the lessor. There are a number of authorities on this matter which have given various reasons for the two different views contended for, and one only I need mention at this stage. It is said that the Transfer of Property Act demands no particular form of a lease and does not mention signature of any party, but what it does mention is a registered instrument. We have a registered instrument here. Therefore, it is said that the Act has been complied with. The argument is rhetorical and in any event entirely ignores the definition of lease given in section 105 of the Transfer of Property Act. It is idle to speculate what the reason was for this piece of legislation. It is possible that the reason was that some evidence in writing of the transaction was deemed necessary; it may have been for some other reason; but whatever may have been the reason, it is quite obvious from the plain reading of the two sections (105 and 107) that an instrument by the lessor was contemplated. One other contention by the respondent in this case (who expresses the contention in another form) is that no signature is necessary if it is clear that the landlord has accepted the lessee as, a tenant; and, if there is a registered instrument indicating that, it is sufficient. It is not seriously disputed that if the kabuliyat, the registered instrument, had been executed by the lessor, that would comply with the Act. The reason for that admission is this. Whether the offer in the first instance comes from the tenant or from the landlord is immaterial: that is to say, if in the negotiation the tenant says ‘I desire to take your land on such and such terms’ and the lessor agrees, apart from the statutory provisions as regards written documents and registration, by the law of contract it would be sufficient to constitute an oral lease of the property. When the legislature demands an instrument registered and that instrument is a transfer by the transferor, as I have already stated, no stretch of the language of the Act Will allow it to be contended that a registered instrument by the transferee complies with the provisions of the Act whatever may be the recitals in the kabuliyat and however clearly it may be established that the lessor has accepted the lessee as his tenant. The kabuliyat may recite that the landlord agreed to let the property. Can that statement be said to be a transfer by the transferor? There is only one answer to that question which might he put in this form: ‘How do we, merely from the recital in the kabuliyat, know that he has so agreed?’ It seems to me that nothing can be added to the discussion on this point, because the Act plainly states that a lease of this kind to be a valid lease of property for more than one year must be by a registered instrument by the lessor. I will refer to the authorities on the question in a moment.

Before leaving this matter, however, it is necessary to consider an argument upon which great stress is laid by the respondent and by some of the learned Judges who have dealt with this question. section 2 of the Registration Act of 1908 provides:

“In this Act, unless there is anything repugnant in the subject or context”

then comes the sub-sections and sub-section (7) lays down:

“Lease includes a counterpart, kabuliyat, an undertaking to cultivate or occupy and an agreement to lease”.

Section 4 of the Transfer of Property Act provides, inter alia, that section 107 of the Transfer of Property Act

“shall be read as supplemental to the Indian Registration Act”.

It is, therefore, said that when you read the word “lease” in section 107 it means a kabuliyat; in other words, a kabuliyat is also a lease. That argument in my judgment is entirely fallacious. The Registration Act deals with registration, and the Transfer of Property Act deals with transfer of property in various forms; but the Transfer of Property Act also provides from time to time for the necessity of registration in certain circumstances. It is unnecessary in my judgment to go into matters relating to registration dealt with by both the Acts because in my opinion they are irrelevant; but as an argument has been raised with regard to the matter, it is perhaps expedient to mention one point. A great deal has been said about the expression “supplemental” in section 4 of the Transfer of Property Act. Now the reason for that expression is perfectly clear. Were it not for that there might be said to be some conflict existing between the two Acts: see also the judgment of Sir Richard Garth in this connection in Narain Chundar Chackerbutty v. Dataram Roy. Section 17 of the Registration Act provides that leases from year to year or for any term exceeding one year, or reserving a yearly rent must be by registered documents but the second paragraph of section 107 of the Transfer of Property Act speaks of leases for less than one year to be either by a registered instrument or orally accompanied by delivery of possession. In one sense, therefore, the Transfer of Property Act demands something more than the Registration Act. Now the Transfer of Property Act does not say that the Registration Act is to be read as “supplemental to the Transfer of Property Act”. This argument it must be admitted cannot be maintained. Not only the Registration Act is not supplemental to the Transfer of Property Act, but the legislature has been careful to state that only certain sections of the Transfer of Property Act are to be read as supplemental to the Registration Act, and it is to be noted in this connection that everyone of those sections deals with matters to some extent already dealt with by the Registration Act. The short answer to the whole point is this that section 2 of the Registration Act says that a lease includes a kabuliyat: in other words, this Act demands that a lease is to be, registered; it also demands that a kabuliyat is to be registered. Had the definition clause (section 105 of the Transfer of Property Act) been included in section 4 as to be read supplemental to the Registration Act, an argument could certainly have been advanced that the definition clause of the Transfer of Property Act would have to be, read with the definition clause of the Registration Act; but that is not so. To hold otherwise, in my judgment, would be clearly to ignore the express provisions of the statute. There is, in my judgment, no substance in this argument.

Now can the parties look to the amalnama to prove the transfer by the transferor? It is not seriously contended that they can. It was contended at one stage of the argument that the amalnama was not a patta. It is true that it is not described as such, but that makes no difference. In my judgment, if we have to decide the question, I would hold that it was a patta. But the most that could be said is that the two documents have to be read together, that is to say, the amalnama and the kabuliyat in order to spell out the transfer. It is therefore contended that you may look to the amalnama to complete the transaction. There is no foundation for that argument. If the two documents must be read together then the answer is that one document is not registered and you cannot look to it and therefore the transaction of transfer is incomplete. On the other view that it is a patta, it is not denied that it cannot be looked to at all. There is no foundation whatever for the suggestion that it could be looked to for collateral purposes. There are decisions including decisions of this Court to the effect that a document, although required to be registered and therefore not admissible in evidence for the main purpose, may be looked to for collateral purposes. It seems to me that the so called collateral purpose for the use of the amalnama in this case is to prove the title. That could not be described collateral purpose. The cases, each of which depended upon its own circumstances, in no way assist the respondent. To test the matter in this way, supposing neither the kabuliyat nor the amalnama had been registered, could this document have been taken in evidence to prove the lease? The answer is obviously in the negative. At this stage the argument is advanced that the Court may take oral evidence of the acceptance of the contents of this document. Acceptance by reason of the lessors allowing the defendant to go into or remain in possession would be the application; of the doctrine of part performance, and apart from the provisions of section 53A of the Act it is not contended that this could be allowed. But what of express oral evidence of the fact? The complete answer seems to be the case of the defendant which was that the acceptance of him as lessee was made by the amalnama. Apart from that, in my judgment, the answer can only be that no such evidence is admissible. It is of no avail to the defendant to say that he is not attempting to prove the terms of the amalnama against the provisions of section 91 of the Evidence Act. Can it be said that the express acceptance by the lessor, or the express agreement to let the defendant into possession for a term of years, is not one of the terms of the document; if it is not one of the terms of the amalnama, then what is it? Section 91 prohibits evidence in proof of the terms of a contract in writing and that means any or all terms. In Subramonian v. Luchman there was an equitable mortgage by deposit of title deeds but accompanied by a memorandum unregistered. It was held that without the production of the memorandum which was in the form of a letter, which was inadmissible, the mortgage could not be proved. Their Lordships of the Judicial Committee repeated the words of Lord Cairns in Shaw and Foster to the effect that “although it is a well-established rule of equity that a deposit of a document of title without writing or without word of mouth will create in equity a charge upon the property referred to, I apprehend that the general rule will not apply when you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document”. Lord Carson in quoting these words added ‘their Lordships have no doubt therefore that the memorandum in question was the bargain between the parties and that without its production in evidence the plaintiff could establish no claim and as it was unregistered it ought to have been rejected’. An argument has been addressed to us to the effect that the amalnama was not the bargain but merely a record of an already completed transaction. Section 91 does not recognise any such distinction, nor can the respondent get round the express, provisions of the Transfer of Property Act by such a contention.

There has been no serious dispute in this case that the doctrine of part performance cannot be relied upon after the decision of their Lordships of the Privy Council in Ariff's case.

There is another branch of this argument, however, which it would have been better to deal with on the first point, and that is based on the contention that no particular form of lease is required by the Transfer of Property Act. One of the judgments to which I shall refer has proceeded on the grounds that no signature is required of the lessor and that his mere acceptance of the tenants by allowing him to remain in possession is sufficient. It is true that the Transfer of Property Act in some instances, such as in the case of mortgages, refers to signatures of mortgagors but no mention of signature is made in section 107. The reason for reference to signature in section 59 of the Transfer of Property Act is that provision is made of attestation by at least two witnesses. In substance this point in its earlier form comes to this: need an instrument by a party be executed? For the purpose of this point I am assuming that an instrument by the lessor is required. The question therefore is, can a kabuliyat be said not to be an instrument by the lessor merely because he has not executed it? An argument advanced in this form is hardly plausible. At all times and under all systems of law an instrument could be said to be an instrument by a particular party only when he has signified, in some way that it is such; and it is much too late in the day now to suggest that execution of a document is unnecessary. Execution may be by a seal as was certainly the case in England (and in India as far as I understand in earlier times), but at the present moment execution is effected either by seal, signature, thumb impression or mark, and they are the necessary conditions of any and all instruments. It is not surprising that the legislature omitted a provision as to signature. The question is, why should there be such provision?

The last question relates to section 53A of the Transfer of Property Act. Their Lordships of the Judicial Committee have referred to this provision as a ‘partial importation into India of the equitable doctrine of part, performance’. Under this section a defendant in an action in ejectment may, to use the words of their Lordships of the Privy Council, in certain circumstances, effectively take a plea of an unregistered sale. This was in the case of Pir Bakhsh v. Mahomed Tahar. The appellant contends that their Lordships in that case have decided that the section is not retrospective. The respondent on the other hand contends that they have not so decided and the point which I am now dealing with is the respondent's contention that it must be applied to this case. Section 53A was introduced by the amending Act XX of 1929. The section of the Act introducing this new section was section 16. The expression ‘retrospective’ or ‘retroactive’ is hardly exact as in one sense it is clear that the expression would mean that the provisions of the new section would apply to transactions before the amending Act XX of 1929. But the argument in this particular case is somewhat more limited in that it is contended on the one hand that it does affect the rights in this action, which was commenced before the amending Act and on the other hand that it does not. There may be the further question, which it is perhaps unnecessary to decide, that the provisions of the amending Act may not be retrospective or retroactive in the strict sense of the term in not affecting vested rights; that is to say, a vested right apart from actions. Although the narrower point may be decisive of the question in this case, it is quite clear that the more general point, if decided against the respondent, would dispose of the matter. That is to say, if it were decided that the Act cannot be construed as retrospective as affecting vested rights in general, then whether the action be brought before or after the passing of the amending Act, if the plaintiff had a vested right before the passing of the Act of 1929, the Act would not affect that, right. However, dealing with the more limited point we have to construe the Transfer of Property Act (XX of 1929). Section 63 provides that nothing in any of the following provisions of this Act (namely, sections 3, 4, etc.) shall be deemed in any way to affect………, and then certain matters are mentioned under clauses (a), (b), (c) and (d). We are not concerned with clauses (a), (b) and (c). Clause (d) provides:

“Any remedy or proceeding in respect of such right, title, obligations or liability and nothing in any other provision of this Act shall render invalid or in any way affect anything already done before 1st of April, 1930, in any proceeding pending in a Court on that date; and any such remedy and any such proceeding herein referred may be enforced, instituted or continued as the case may be as if this Act had not been passed.”

It is to be noted that no mention is made of section 53A amongst the sections mentioned in the section. It is therefore said that section 53A was intended to be retrospective. The appellant, however, contends that the second and the third clauses of sub-section (d) deal with this matter. What is provided is that ‘nothing in any other provisions of the Act shall render invalid or in any way affect any proceeding pending in any Court on the 1st of April, 1930’.

It is said, on that clause that as the Courts below dismissed the plaintiff's claim, we should not he ‘affecting anything’ by applying section 53A and dismissing the appeal. That in my judgment is taking an extremely narrow view of the section. Although we should not be setting aside the judgments, in my opinion, we should be ‘affecting’ something done, assuming that we decided against the respondent on the main points but decided the judgment could be upheld by applying section 53A. However obscure the wording of that part of the sub-section is, what is clearly intended is that the section should not be applied and, if we do, it would be applying it in disobedience to the provisions of the Act. The sub-section, however, goes on to provide

‘any such remedy and any such proceeding as is herein referred to (the proceeding referred to in the earlier part of the sub-section) may be enforced, instituted or continued as if this Act had not been passed.’

In my judgment, this clearly show's that nothing in any provision of the Act should in any way affect any proceeding commenced before the Act.

I now deal with the case of Pir Bakhsh v. Mahomed Tahar which, as I have said, has been relied upon by the plaintiff-appellant in support of his contention. It is necessary to state certain facts in order to appreciate the point. The plaintiff brought an action for possession of a certain piece of land. By reason of certain negotiations of the Collector the plaintiff agreed to execute an agreement with the defendant to sell the piece of land in question. An agreement was entered into to sell. Ultimately he was called upon by the Collector, under circumstances which it is unnecessary to go into for the purposes of the point, to execute a conveyance in favour of the defendant. An objection was made by him; the Collector made a grant of the land in dispute; and the defendant entered into possession. In the case in India when the defendant tried to resist the claim of the plaintiff, the question was raised as to whether the possession of the defendant was attributable to the order of the Collector or attributable to the agreement for sale. The Judicial Commissioner of Sind, whose Court was the last Court in India, decided that the defendant could not plead part performance in defence of his action as the conclusion was that the defendant's possession was not referable to the agreement to sell but to the order of the Collector. This decision was come to before the decision of their Lordships of the Privy Council in Ariff's case where it was held that the doctrine of part performance did not apply in India. But at the time the Judicial Commissioner pronounced his judgment, Ariff's case in the Calcutta High. Court decided that the doctrine of part performance did apply it was therefore in that state of the law that the Judicial Commissioner came to his decision. When the judgment of the Judicial Commissioner came before their Lordships of the Judicial Committee, they did not decide the question of whether the possession of the defendant was attributable to the contract or to the order of the Collector but assumed for the purpose of the case that it was attributable to the agreement. Even so they allowed the plaintiff's claim applying the decision in Ariff's case; that is to say, they held that the doctrine of part performance did not apply. They then proceeded to state:—

“It remains to take note of the fact that since the present suit was brought the law in India has been altered by the Transfer of Property (Amendment) Act XX of 1929, which has inserted a new section, 53A in the principal Act, whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Their Lordships' views, as expressed in the present case, must therefore be understood to be referable to the state of the law before this partial importation into India of the English equitable doctrine of part performance.”

In my judgment the appellant's contention is well-founded. We cannot assume, when we know that the Act was referred to, that their Lordships did not know the provisions of the amending Act. If their view had been that it was retroactive or retrospective, they would have been bound to apply the law as it was at the time of the decision and dismissed the plaintiff's claim and, as they did not apply section 53A, we can only assume that they did not apply it to the particular action as it was commenced before the coming into force of the Transfer of Property (Amendment) Act of 1929. On a plain construction of the section, by reason of the decisions, I am quite clear in my mind that the Act is not retrospective.

But there is a wider question which also in my judgment disposes of the matter, and the wider point can be stated in the form of general principle which may be enunciated thus, that an Act cannot be construed as retrospective unless it is expressly stated to be such in the clearest possible terms. I want to guard myself at the moment and limit the application of this principle to the question of whether section 53A affects an action commenced before the Transfer of Property (Amendment) Act of 1929, because it is obvious that the proposition can be understood as meaning that unless an Act expressly provides otherwise, vested rights are protected; and vested rights, it is equally clear, may mean rights of action as well as actions. To repeat, I limit this point in its application to an action commenced before the amending Act of 1929 came into force. The principle can be best stated by the words of Lord O'Hagan in Gardner v. Lucas in these terms:

“Unless there is some declared intention of the legislature—clear and unequivocal—or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and not retrospective. In Reid v. Reid Bowel, L.J said—‘Except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights’”.

There are exceptions to the principle and they relate to the matters of procedure and this is not one of them. In the case of The Ydun, In re A.L Smith, L.J said referring to the decision in Wright v. Hale:

“When a new enactment deals with rights of action, unless it is so expressed in the Act an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act.”

There are numerous other decisions particularly in the English Courts dealing with the same principle of construction of statutes which is equally applicable in India as it is in England. Now in this case although it is true that section 53A is not mentioned in section 63 of the Transfer of Property Act of 1929, it could be said only by implication that the legislature intended that the rights of action which accrued were to be affected by the new legislation. To hold in those circumstances that section 53A affected this particular right of action would, in my opinion, be in opposition to the well-established principle of construction. I have no hesitation, therefore, in coming to the conclusion, both on the construction of the Transfer of Property (Amendment) Act and on the general principle, that this action, commenced as it did before April, 1930, was not affected by section 53A. The law was carefully analysed by the late Mr. Justice McCardie in Bowling v. Camp. In that case by reason of a certain interpretation of the Gaming Act of 1835 in England the House of Lords definitely decided the case of Sutter v. Breggs in favour of certain causes of action. An action, depending upon the decision of the House of Lords was commenced on the 10th of February, 1922. It was pending at the time of the passing of the Gaming Act of 1922 which repealed the second section of the Act passed in 1835 upon which the action depended. The learned Judge applied the principle to which I have made reference and held that the new legislation did not affect the action which although pending at the time had not been heard.

I have now to deal with the decisions on the question of section 107 of the Transfer of Property Act mainly for one purpose. There have been decisions both ways. Shortly stated, the Bombay and the Allahabad High Courts decided the point in favour of the plaintiff's contention. The view of the Calcutta High Court in the earlier cases appears to have been in favour of the appellant's contention but later it has come to an opposite conclusion. The same can be said of the Madras High Court. In the Rangoon High Court there is a decision in favour of the appellant. This matter having been referred to this Full Bench it is necessary, whatever we may think of the decisions arrived at by the other High Courts, that we should come to our own conclusions in the matter. But it is contended that on the principle of cursus curiae, having regard to the fact that titles have been rested on these decisions, we should not disturb them. I shall deal with this matter a little more definitely in a moment, but for the time being I shall content myself with the decision of the cases.

In the case of Ramsing Harising…Plaintiff v. Bai Dyanba…Defendant . the learned Judges of the Bombay High Court held that a rent-note is not a lease as it does not transfer an interest in property. Reference in this case was made to the Full Bench decision of the Madras High Court with which I shall deal later. In Kedar Nath v. Shankar Lal the main point for decision was in this form: Whether a registered kabuliyat executed by the tenant and accepted by the landlord was sufficient to create a tenancy? The answer was in the negative. The learned Judge referred to a previous case of the Allahabad High Court—the case of Nand Lal v. Hanuman Das. In that case a registered kabuliyat existed. Blair, J. decided, relying upon the decision of Edge, C.J and Burkitt, J., that the kabuliyat did not operate as a lease; but the other Judge found in favour of the ejectment on a different point but did not express a view as regards the validity of the kabuliyat. In Kedar Nath's case, therefore, the Allahabad High Court's view supported by its previous decision is in favour of the appellant's contention that a registered kabuliyat is not sufficient to satisfy the statute. But in the Full Bench decision in Syed Ajam Sahib v. Madura Sree Meenatchi Sundareswaral Devastanam the learned Judges came to a contrary conclusion and held that a registered instrument referred to in section 107 of the Transfer of Property Act need not be signed by the lessor. The basis of the decision appears to be that there is no mention of any such signature in section 107, whereas in other sections (to which I have already referred) reference is made to such signatures. Reliance was also placed on the definition in the Registration Act. Krishnaswami Ayyar, J. made an elaborate reference to English law and in the course of his judgment stated:

“If the signature of the lessor was not essential to constitute a valid lease in England, there is no reason to suppose that it was in this country before the Transfer of Property Act.”

With respect to the learned Judge that begs the question. What was necessary before the Transfer of Property Act is one thing, but what is obviously necessary after the Transfer of Property Act is a registered deed, and, unless that deed is executed in some manner, it is impossible to hold that it is the deed of the lessor or any other person. It will be seen as I have said that the substance of this decision of the Full Bench is that there is no provision requiring signature of the lessor; the signature of the lessee alone is sufficient.

It is with the Calcutta cases that we are most concerned. There are cases of the Patna High Court undoubtedly which might be said by inference to have decided that a, kabuliyat is a lease, but the point has never been either discussed or expressly decided. We therefore look to the Calcutta decisions for the purpose of the point under discussion. The first case upon which the appellant relies is Suraj Narain v. Hari Narain. This was in the year 1878 before the passing of the Transfer of Property Act. In that case there was a kabuliyat and there was a patta and the kabuliyat was held to be insufficient although it was produced from the custody of the landlord. This case may not be strictly in point or afford any considerable assistance to the appellant as it was decided before the Transfer of Property Act came into existence. It can be quoted for the purpose of one of the points which I have referred to in the earlier part, of my judgment, namely, that assuming that the kabuliyat and the amalnama must be read together the production of one is insufficient, and certainly it is decided that a kabuliyat is not a lease apart from the definition of lease in section 105 of the Transfer of Property Act. The next decision in point of time is Nilmamud Sarcar v. Baul Chandra Das where Chitty and Carnduff, JJ. held that, where the plaintiff had not accepted the defendant as tenant, a kabuliyat is not a lease and they agreed with, the decision of the Allahabad High Court in Kashi Gir v. Jogendro Nath Ghose and an earlier decision arrived at by the Madras High Court in 1907 in Turof Sahib v. Esuf Sahib in which Benson and Wallis, JJ. expressly decided that a registered instrument, by which a lease can be effected, must be an instrument bearing the signature of the lessor, although it must be noted in this connection that the learned Judges there referred to the section as if it had stated that the signature of the lessor was necessary which is not the fact. Three years earlier in the case of Naranarain Chowdhury v. Mrs. H.A Lucas a certain agreement not being registered was inadmissible and it was decided that a registered kabuliyat could give no title as the patta was not registered. The judgment is only briefly reported but gives an indication of the view held by the Calcutta High Court. Next in point of time was the case of Akram Ali v. Durga Prasanna Roy Chowdhuri which was decided in 1910. But this case does not help because it was pointed out in the course of the judgment that the kabuliyats were executed before the passing of the Transfer of Property Act and it is impossible to maintain that before the Transfer of Property Act it was necessary to create a permanent lease by the landlord's grant of a patta. In Raimoni Dassi v. Mathura Mohan Dey D. Chatterjee, J. and N.R Chatterjeea, J. came to an opposite conclusion, but attempted to distinguish Nilmamud Sarcar's case in which Chitty and Carnduff, JJ. expressed the opposite view, purporting to decide the matter very largely on the basis of the definition clause under section 2 of the Registration Act. Again also before the Transfer of Property Act a kabuliyat made under section 105 did not make any change. Thirdly, the legislature did not require signature by the lessor; and, fourthly, it was the practice to lease the property in this manner. As I understand the earlier decisions of the Calcutta High Court, they laid down that a kabuliyat was not a lease under sections 105 and 107 of the Transfer of Property Act. If, as the learned Judge in the later case said, a distinction has to be made on the ground that kabuliyat was never executed, it seems to me with respect that no such distinction is available unless you import the doctrine of part performance or allow oral evidence to be given of a written agreement. Indeed the question is, to what extent are we bound or entitled to follow the decisions on the ground that titles are based upon it? It is obvious that no question of practice can avail the defendant. It may have been and it probably was a fact that the practice for many years has been for lease of property to be effected by the execution of a kabuliyat by a tenant, but that cannot affect the plain construction of the statute. It is not seriously suggested that an argument can be based on practice. But there is another way in which it has been stated, and that is this that although the past decisions, on a strict view of the law, have been wrongly decided, and titles have been based upon them, we are not entitled, unless the conclusions are obviously erroneous, to depart from those decisions. I propose to refer to one or two cases for the purpose of ascertaining the principle which is to be applied in this matter. In Pate v. Pate their Lordships of the Judicial Committee said:

“It was urged upon their Lordships that, in accordance with a current of authority in Ceylon now of considerable standing, a different interpretation should be placed on the words of this section.”

Then their Lordships proceeded to analyse the decisions referred to, pointing out that the decisions were based on earlier decisions, and although many of the learned Judges followed the decisions they in some instances doubted the correctness of the earliest case. Their Lordships ultimately expressed themselves in this way:

“The present is not one of those cases in which inevitable error is left undisturbed because titles and transactions have been founded on it which it would be unjust to disturb. There can be few partnerships in Ceylon, still in operation or unliquidated, in which writing has been dispensed with on the faith of these decisions. If the parties choose to disregard so ordinary and so simple a formality as the Ordinance requires, there is no hardship in leaving them to take the consequences, nor is it in any case sound to misconstrue a statute for fear that in particular instances some hardship may result.”

In Magistrates of Dunbar v. Duches of Roxburgh Lord Brougham said:

“A statute speaking on some points is silent as to others, usage may well supply the defect; for where the statute uses the language of doubtful import, the acting under it for a long course of years may well give an interpretation to the obscure meaning and reduce that uncertainty to a fixed rule…………but it is quite plain that against a plain statutory law no usage is of any avail.”

In the Water ford Peerage Claim Lord Cottenham said:

“If there has been a course of decisions and the decision first made has been adhered to and confirmed by other decisions, that is what is called a current of authorities too strong to be resisted.”

In Morgan v. Crawshay Lord Westbury said:

“If we find a uniform interpretation of a statute upon a question materially affecting property, and perpetually recurring, and which has been adhered to without interruption, it would be impossible for us to introduce the precedent of disregarding that interpretation.”

But from Reid v. Reid it will be seen that this rule does, not apply when the earlier decisions have not been uniform. Nor can the rule be applied when the meaning of the statute is plain and free from ambiguity: see Rex v. Tipton.

I gather from these authorities that the principle of cursus curiae, or the rule of practice, in the sense of the practice of the Court to decide the construction in a certain way, can only be applied when, first, the statute is ambiguous; secondly, when the decisions are consistent throughout; thirdly, when titles are dependent upon those decisions. As regards the last it can well be argued that titles did depend upon this matter, although it is somewhat difficult to support this argument having regard to the lack of uniformity of the decisions in the Calcutta High Court. The question might well be asked which line of decisions is followed in practice? Again, as regards the first point there is certainly no ambiguity in the statute; on the second, it cannot be said, having regard to the history of the matter, that the decisions of the Calcutta High Court have been uniform and indeed from one point of view, unless the learned Judges who decided the case of Raimoni Dassi v. Mathura Mohan Dey can be held to have differentiated the earlier case correctly, they were engaged in over-ruling a decision which was binding upon them. I have already dealt with that point in the early part of my judgment. In my judgment the principle of cursus curiae does not apply. There is no ambiguity in the statute nor could there be said to be any uniformity of decision either in India whole or in Calcutta.

The appeal therefore, in my opinion, succeeds and must be allowed with costs throughout and the plaintiff's suit decreed.

Khan Bahadur Khwaja Mohammad Noor, J.:— The important question involved in this Second Appeal is whether a registered kabuliyat executed by a lessee and accepted by the lessor either orally or by an unregistered document constitutes a valid lease. The appeal was first heard by a Division Bench of this Court, but as the question involved was considered of some importance it has been placed before a Special Bench. The question, however, is not of much importance since the amendment of the Transfer of Property Act in the year 1929. Section 107 of the Act as it now stands, provides that where a lease of immoveable property is made by a registered instrument such instrument or where there are more instruments than one each such instrument shall be executed both by the lessor and the lessee. The point which has arisen in this case cannot arise in leases executed after the Act of 1929 came into force. Agricultural leases are also not affected by the point raised before us, inasmuch as, they are not governed by the Transfer of Property Act. Other leases in which the question similar to the one before us may arise will in some cases be governed by section 53A of the Transfer of Property Act which has been introduced in the Act.

Now the facts are these: The appellant in execution of a decree against Kumar Kalikanand Singh, Kumar Ganganand Singh and Kumar Achutanand Singh of Srinagar attached and put up to sale half shares of Basudeopur, tauzi no. 1037, and Nirbhapur, tauzi no. 1044, belonging to Kumar Ganganand Singh and Kumar Achutanand Singh. The defendant respondent put in a claim case alleging that these two villages, which are situated in the district of Darbhanga, along with a third village. Hariharpur situated in the district of Bhagalpur and two bighas odd land in the district of Purnea, were leased to him by the judgment-debtors on an annual rent of Rs. 1,400 for a period of 25 years from 1329 to 1353 and that the lessors had realised Rs. 10,998 an advance rent, which was to be set off in the yearly rent fixed. At first the decree-holder admitted the claim, and the learned Subordinate Judge of Darbhanga, before whom the execution was proceeding, ordered the fact of the defendant's lease to be notified in the sale proclamation. Later on, the decree-holder filed an application disputing the bona fides of the defendant's claim and denying his leasehold right. No order seems to have been passed on this application. Before the actual sale the decree-holder again asked the Court to enquire into the claim of the defendant, but the Court ordered the properties to be sold intimating that, if necessary, the decree-holder's petition would be considered then. The properties were sold on 7th April, 1926, and purchased by the plaintiff who was the decree-holder. The plaintiff once more pressed for an enquiry which was refused. Thereupon, the plaintiff instituted, the present suit for recovery of khas possession with mesne profits of the properties purchased by him and for setting aside the order of 20th February 1926, by which the claim of the defendant was “allowed”. His case is that the lease set up by the defendant was fraudulent and not valid. Both the Courts below have dismissed the plaintiff's suit, holding that the defendant is in possession of the village under a valid and bona fide lease. The plaintiff has preferred this second appeal.

The following questions of law were raised before us on behalf of the plaintiff-appellant:—

(1) Whether the defendants are holding the village under a valid lease. The lease as found by the Courts below was made by the defendant (the lessee) executing a registered kabuliyat in favour of the lessors and the lessors accepting it by means of an unregistered amalnama. The question, therefore, is whether a kabuliyat executed by a lessee in favour of the lessor, which the latter accepts either orally or by means of an unregistered document constitutes a valid lease under section 107 of the Transfer of Property Act as it stood before the amendment.

(2) If the lease was not validly made, can the defendant take advantage of section 53A of the Transfer of Property Act which introduced in part the equitable doctrine of part performance by the amending Act of 1929.

(3) Whether the registration of the kabuliyat is valid. The kabuliyat was registered in the district of Purnea, and it was contended on behalf of the appellant that two bighas odd land of that district which was included in the lease was a fraud upon registration.

A point of law has also been raised on behalf of the defendant-respondent bar to the maintain ability of the suit. It is urged that the claim of the defendant having been allowed the plaintiff decree-holder must be taken to have proceeded with the sale accepting the lease and to have purchased the property subject to it. He cannot now bring a suit to get rid of it.

I shall first take up the objection of the defendant-respondent. I find no force in it as has been shown by my Lord. The only right which the defendant claimed was the right of a lessee being admittedly bound by the lease to pay rent to the judgment-debtors. Such a claim has to be disallowed under Order XXI, rule 61. In fact, though the learned Subordinate Judge has used the expression “claim allowed”, the claim was in fact not allowed. Had the claim been allowed the property would have been released wholly or to some extent (rule 60). This was not done. It seems that the learned Subordinate Judge apparently acted under Order XXI, rule 66, and directed that the claim of lease put forward by the defendant be notified in the sale proclamation. There is nothing in law which prevents a purchaser of a property, who is obstructed in obtaining the direct possession of the property purchased on the ground that there is a lessee on the land, from suing for a declaration that the lease is void or not valid and from claiming possession of the property.

Then I take up the last point urged on behalf of the appellant. My Lord has shown that the Privy Council decision relied upon by the appellant has got no application. Both the Courts have held that the two odd bighas of land situated in Purnea was really leased out to the defendant. It was not fictitiously mentioned in the lease, but it was really given for the purpose of enjoyment. The dictum of the Privy Council in The Collector of Gorakhpur v. Ramsunder Mal has got no application:

Now I take up the first question of law which is the main question in this appeal, namely, whether a valid lease can be created by a kabuliyat executed by the tenant only. On a plain reading of section 107, as it stood before the amendment, it is perfectly clear that what the law requires is an instrument executed by the lessor. This is obvious if we refer to the definitions of “transfer” and “lease”. Section 5 of the Transfer of Property Act says that “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, etc., etc., and “to transfer property” means to perform such act. This shows that “transfer” is an act of the transferor in favour of the transferee. Section 105 of the Act, which defines a lease, says that

“A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, etc.”

and further on proceeds to say that the transferor is called the lessor and the transferee is called the lessee. Therefore, when section 107 provides that a lease of an immoveable property from year to year or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument, it means that the registered instrument must be executed by the lessor who is the transferor. A right in the property is vested in the lessor and in order to create a lease he is to transfer the right of enjoyment of it to the lessee. Therefore, the act of transfer is the act of the transferor and the instrument, therefore, has to be executed by him. I would have thought that the section is so very clear that no discussion is needed, but there are certain decisions of the Calcutta and Madras High Courts which have taken the view that a registered instrument by the lessee and accepted by the lessor is sufficient. They are Raimoni Dasi v. Mathoora Mohan Dey, Syed Ajam Saheb v. Anantha Narayana Aiyar and Dinanath Kundu v. Janaki Nath Roy. My Lord has dealt with those cases very elaborately, and I do not wish to examine them in detail. It is sufficient to say that the views taken by those decisions are based mainly on the definition of “lease” in the Indian Registration Act. The Indian Registration Act has nothing to do with the mode of creating a lease. It only provides for registration of certain documents. In other words, it provides that certain documents, if executed, must be registered. The necessity of a registered document has been introduced by the Transfer of Property Act. The Registration Act says that the lease includes a kabuliyat also, thereby indicating that if there is a kabuliyat it must be registered; but whether the kabuliyat itself will constitute a lease cannot be answered by reference to the Registration Act. For that purpose the provision of the Transfer of Property Act has to be looked into. No doubt, the provisions of section 107 and some other sections of the Transfer of Property Act have to be read as supplemental to the Registration Act. It only means that certain documents, the registration of which was optional under the Registration Act, have become compulsorily registrable by the Transfer of Property Act. The view taken in the above cases is opposed to the view taken even in Calcutta and Madras High Courts in earlier cases. There is no cursus curiae and in my opinion the meaning of section 107 is clear.

In view of my finding it was not necessary to examine the question whether the amalnama by which the lessors accepted the term of the kabuliyat executed by the defendant required registration, because if, as I have held, the law requires a registered instrument to be executed by the lessor and there being an absence of such a document in this case, no further question arises. But it was contended on behalf of the respondents that the amalnama can be taken in evidence to prove the acceptance, of the lessor. In my opinion, acceptance of the lessor cannot be proved either by an unregistered instrument or by oral evidence. When the law requires that a certain transaction must be by means of a registered instrument no evidence other than that of a registered instrument is admissible. First of all, the amalnama by which the term of the kabuliyat has been accepted is a lease and because it is this instrument which has transferred the right to enjoy the property from the lessor to the lessee and as such it is compulsorily registrable under the Registration Act, and as the document cannot be given in evidence, oral evidence of acceptance is inadmissible. It is contended that the document is admissible for collateral purposes. No doubt, it has been held in several cases that an unregistered document which is compulsorily registrable can be admitted in evidence for collateral purposes, but in this particular case the amalnama is not sought to be used for collateral purposes, but for the purposes of proving the lease itself, because it has been conceded before me, and it could not but have been conceded, that a kabuliyat executed by a lessee by itself does not constitute a lease. Some act by the lessor is necessary and that act in this case was performed by the grant of the amalnama. It is the amalnama which has transferred the right of the lessor to the lessee. The purpose for which the defendant wants to use this amalnama is not Collateral.

Next comes the question of application of the doctrine of part performance. It has again been conceded that apart from section 53A the doctrine of part performance is not applicable to India as has been held by the Judicial Committee of the Privy Council in the case of Ariff v. Jadunath Majumdar. Section 53A would have been certainly applicable had the section a retrospective effect; but in my opinion it has not, because this suit was instituted before the first day of April, 1930. Section 53A was added to the main Act by section 16 of Act XX of 1929. Section 63 of the amending Act says that certain sections of it will not affect certain things and they are specified in clauses (a), (b) and (c) of the sections. Then comes sub-section (d). This consists of three parts. The first part refers to the provisions contained in the main section. It does not include the section which introduced section 53A. The second part says

“and nothing in any other provisions of this Act (which includes section 16 introducing section 53A) shall render invalid or in any way affect anything already done before the first day of April, 1930, in any proceeding in a Court on that date”,

and then this clause proceeds to say that

“any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued, as the case may be, as if this Act had not been passed”,

which means this that nothing contained in section 16, which introduces section 53A, will affect any proceeding pending in a Court on the first day of April, 1930. This particular suit was pending on that day and, therefore, section 53A has got no application. This seems to have been the view of their Lordships of the Judicial Committee in Pir Bux v. Sardar Mahomed Tahar. The position would perhaps have been different if the lessor had sued for rent on the basis of the lease. Then the recognition would have been in a Court of Justice and perhaps the question of inadmissibility of the amalnama or of oral recognition would not have arisen.

I, therefore, agree with my Lord that the appeal must be allowed and the plaintiff's suit decreed with costs throughout.

James, J.:— I agree.

Appeal allowed.