ORDER OF REFERENCE TO A FULL BENCH
(9-5-1935)
(Made by Stone and Varadachariar, JJ.)
Stone, J:—This appeal raises a question of some considerable difficulty and general importance and a number of questions, largely of fact, which are only of importance to the present case. My learned brother and I are of the opinion that the first question should be referred to a Full Bench and we therefore formulate the question to be considered and state the facts and the points that appear to arise as leading up to it.
The policy underlying the Transfer of Property Act appears to be not to require a transfer of property to be in any particular form except in those cases in which the Act expressly requires the transfer to be in writing (See S. 9.)
One kind of transfer so required to be in writing is, subject to certain exceptions, a lease of immoveable properties.
The term “lease” is a term having a very definite meaning in English law and a meaning by no means the same as “lease” as used in the Transfer of Property Act. In considering whether a transaction requires, as being a “lease”, to be in a particular form, i.e, in writing, one has therefore not to have in mind whether it is a “lease” in the English law sense but whether it is a “lease” as defined by S. 105 of the Transfer of Property Act.
That Section is worded as follows:
“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.
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.”
I have italicised the words that raise some of the difficulties.
With the above may be contrasted the definition of a “sale” contained in S. 54.
“‘Sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.”
It will be noticed that elsewhere in the Transfer of Property Act when speaking of transfers by way of “sale” of “immoveable property” the terms “buyer” and “seller” are used. These terms in English jurisprudence are usually restricted to the transaction of sale of goods, the terms vendor and purchaser being applied to sales of land. In other particulars it may be that the terminology of the Transfer of Property Act is different from that adopted in English law.
In this present case one is concerned with the following facts:—
The property in question belonged at all material times to an impartible zamindari.
The Zamindar made an oral grant of a village, part of the said zamindari, to a junior member.
Under the Hindu Law relating to impartible estates, junior members of an impartible zamindari have very restricted rights. One such right is the right to maintenance. At one time (indeed at the time of the oral arrangement here in question) it was thought that the Zamindar's powers of alienation were restricted. Decisions have since considerably modified the law as it was thought to be in the eighties of last century. Those decisions were considered recently by Ramesam J. and one of us in Appeal No. 277 of 1931*.
The term of the above mentioned oral grant was unlimited. It was a grant made in lieu of maintenance present or future. It was a grant which imposed an obligation upon the grantee, viz., to pay annually a sum of Rs. 800.
It was a grant that conferred a benefit upon the grantee, viz., the right to enjoy a certain village, that is, the income thereof. That income, after the Rs. 800 had been paid, amounted in later years to Rs. 1,200 per annum.
The above are our conclusions of fact as to the terms of this oral arrangement. They are conclusions derived from inferences and such inferences are largely based upon the probabilities of the case rather than upon evidence that can be wholly accepted of the words used in any conversations which transmitted from mouth to ear the terms of this arrangement.
It is impossible to say whether this arrangement was come to at one time, or whether the Zamindar was first pressed for maintenance and then agreed in consideration of that claim being given up to make a grant, on favourable terms, of the village and whether thereafter and in performance of that contract the suggested transfer was put forward by the Zamindar and accepted by the junior member, or whether the whole thing was settled at one time, the Zamindar agreeing to grant and the junior member agreeing to receive the right to enjoy the income from the village, the junior member in consideration thereof, giving up his claim to maintenance, present or future and agreeing to pay Rs. 800 a year.
This uncertainty as to fact is mentioned because it may be thought to be material, in considering whether a transfer falls within the Transfer of Property Act, to consider the transfer itself, not, it may be, the wider arrangement of which the transfer is one part. On the other hand, it may be thought that in considering whether an arrangement falls within any of the defined terms, e.g, the term “lease”, one must look at the arrangement as a whole.
We therefore find that it is not proved that the grant was separately arranged, nor is it proved that the grant was not separately arranged. We infer that the grant was made following upon, or, alternatively, as an integral part of a family arrangement of the nature above indicated.
In Immudipattam Thirugnana Kondama Naik v. Periya Dorasami(1) the material facts, on the present point, were as follows:—
A Zamindar executed a usufructuary mortgage by way of lease for 19 years to one R.C The debt increased. R.C died leaving his heir one L.C who made a new arrangement with the Zamindar, the Zamindar's brother and brother's son (the heir), and another son. The Zamindar was to receive a sum down (borrowed from L.C and added to the debt), transfer the zamindari to the heir, and receive maintenance from him at Rs. 250 per annum. The mortgagee, in lieu of interest, took 18 villages on usufructuary mortgage, paying peishcush and road-cess to Government and maintenance at Rs. 270 per mensem to the Zamindar.
Thus the transaction appears to have been a family arrangement plus a settlement with a stranger mortgagee involving a usufructuary mortgage of part of the zamin to the mortgagee and the transfer of the whole of the zamin to an heir in return for maintenance to be paid partly by the mortgagee and partly by the heir.
It was assumed (page 384) that such a transfer must be by registered deed. The transfer in question (at page 384) would appear to be the transfer of the zamin to the heir.
In Varada Pillai v. Jeevarathnammal one question was whether A a woman had disposed of the suit properties during her lifetime. She and R, another woman, were registered owners of two moeities and they jointly presented a petition to the Collector in which they recited that they had given away two villages as Stridhanam to D and asking for the villages to be transferred in the name of D. The petition concluded:
“The said (D) shall hold and enjoy them with power to alienate etc.”
The Collector granted the petition and registered the transfer accordingly.
The Privy Council observed at page 249:
“It was not contended before the Board that the above transactions effected a valid gift of the property to D; for such a gift must, under S. 123 of the Transfer of Property Act, be made by registered deed.”
In Madam Pillai v. Badrakali Ammal(2) it was held by a Full Bench of this High Court that a transfer of property by a husband to his wife to be enjoyed by her during her lifetime in discharge of future maintenance is not a gift or sale and may be made without writing.
This decision appears largely to turn upon the meaning given to the word “price” (See per Schwabe. C.J at page 617). A reference to the Oxford Dictionary will show that price has as its primary meaning “money, or the like paid for something.” “Payment” can be made partly in goods. Saxty v. Wilkin(3). That decision seems to show that if the transfer, though part of a family arrangement, had been of the ownership of property in return for a money payment, instead of in return for the relinquishment of a maintenance claim, it would have been a sale requiring to be in writing. In the present case a further difficulty arises owing to the fact that in S. 105, “price” and “money” are both used.
Kumaraswami Sastri J., however, in that case raised the wider question, also now raised in this case viz., whether if the transaction is treated as a settlement of family affairs it need be in writing. He stresses the fact that partition under Hindu Law can be made without any document.
Coutts-Trotter J. observes that
‘“a trained English lawyer would never use the word “price”, unless it be to connote something other than the frequently familiar phrase, “valuable consideration”.’
The trouble we feel with this kind of reason is that the Transfer of Property Act is constantly using expressions that an English lawyer would not use in England, e.g, buyer and seller of land. The reason may be to prevent English decisions which turn upon the use of words of art being applied in India where similar words have different meanings. Clearly “lease” in the Transfer of Property Act means something different from “lease” as used in the English Law of Landlord and Tenant. In Zamindar of Polavaram v. Maharajah of Pittapuram the Chief Justice and Curgenven, J. at pages 170, 171, 179 and 180 followed the above decision and adopted the meaning given to the word “Price”, Beasley, C.J, also relying on this point upon Queen Empress v. Appavu and upon Somaratmal Uttamchand v. Govind. In Made Gouda v. Chenne Gouda(4), Odgers, J., cited with approval Napier J.'s decision in Second Appeal No. 225 of 1920 where he considers the decision in Girhi Rani Misrani v. Chandra Lal Kanth(5),
“I know of no authority for the proposition that the formal requirements of the Transfer of Property Act can be avoided by calling a transaction by a particular name under the Hindu Law.”
Odgers, J., had, however, there to consider a transfer quite different to anything here, the transfer being to a stranger, though part and parcel of a wider transaction involving partition between members of the family.
The other cases cited such as Abhiram Goswami v. Shyama Charan Nandi(6) and Venkatachariar v. Rangaswami Aiyar(7) which deal with the difference between a conveyance of ownership and the grant of the right to enjoy in perpetuity and the existence of the incidents of leasehold terms in the latter case including that of forfeiture in the case of a perpetual lease do not carry the matter further.
There thus appears to be an almost complete absence of authority on the question. We put on one side the fact that the plaint speaks of a perpetual lease. One has to use some expression when speaking of an arrangement and the question is not whether this transaction amounts to a lease in some sense but whether it amounts to a lease in the sense of the Transfer of Property Act.
We notice that in the case of the other grants by this Zamindar to junior members which are evidenced in writing the sum reserved is called poruppu and the terms of transfer suggest the grant of an absolute estate rather than the giving of a lease, i.e, confer the power of sale. These other grants only appear as leases in that an annual payment is reserved. We have no reason to doubt that the oral arrangement was similar in nature.
In these circumstances we refer for the opinion of the Full Bench the following question:
“Whether the transfer of the right to enjoy immoveable property in perpetuity made by the holder of an impartible zamindari to a junior member on terms, or in pursuance of an arrangement, that the junior member will give up all claims for present or future maintenance and will pay annually to the Zamindar a sum of money amounts to a lease within the meaning of the Transfer of Property Act, so as to be without effect unless in writing registered, or whether such a transaction should be regarded as a family arrangement and, if so, whether it is effective though oral.”
As to the remaining questions I have had the advantage of reading the judgment of my learned brother with which I agree and to which I have nothing to add.
Varadachariar J:—This is an appeal by the 1st defendant against a decree directing delivery of possession to the plaintiffs, of a village called Keeranur in the Sivaganga Zamindari and payment of mesne profits. The plaintiffs claimed title either as lessees or as purchasers from one Singa Dorai to whose father, it is alleged, this village was given by a former Zamindar absolutely, on a perpetual lease, by way of maintenance, as the result of a family arrangement shortly before the whole zamin was leased to certain European lessees in May 1887. The 1st defendant claimed to be in possession as a usufructuary mortgagee from the Zamindar's daughter Vengu Nachiar who, in turn, claimed to have acquired the rights of one Sivachidambara under a term lease granted by the European lessees, to enure up to the middle of 1918. By another transaction which, the plaintiffs allege, was entered into by the Zamindar on behalf of the said Vengu Nachiar, a leasehold interest created by the plaintiffs' predecessor-in-title and enuring only up to the middle of 1909 had been acquired by the Zamindar; and the present suit was instituted in December 1919 on the footing that the European lessees had no power to grant the lease relied on by the 1st defendant and that the 1st defendant by virtue of his claim under Vengu Nachiar was entitled to remain in possession only up to the middle of 1909, under the other lease. The 1st defendant contested the truth and validity of the permanent lease arrangement set up by the plaintiff, insisted on the validity of the lease granted by the European lessees and also raised pleas of adverse possession and jus tertii. The plaintiffs in turn contended that the 1st defendant was estopped from disputing the right set up by plaintiff in himself and his predecessors-in-title.
Of the issues framed in the lower Court, issue (4) raised the question of the truth and validity of the permanent lease, issue (3) related to the right in which Vengu Nachiar got into possession, issue (5) raised the plea of adverse possession, issue (6) covered the plea of jus tertii and issue (9) related to the estoppel pleaded by the plaintiffs. The learned Judge overruled the pleas of limitation and jus tertii and found in favour of the plaintiffs on the truth and validity of the permanent lease. As to estoppel, he was of opinion that in one view, the 1st defendant would be estopped, but as he had found in plaintiffs' favour on the question of title, he thought it unnecessary to pursue the question of estoppel further. In the arguments before us all the above pleas have been pressed by the one side or the other.
It will be convenient to state at the outset certain facts which are practically beyond dispute. Prior to 1877, the Sivaganga Zamindari was held by Rani Katama Nachiar and she had made numerous alienations by way of permanent leases and term leases. In a dispute as to whether her own children or her elder sister's son was to succeed to the Zamindari, the latter, named Dorasinga Tevar, was held entitled to succeed. As many of the zamin villages were in the possession of alienees, the new Zamindar had to take steps to recover possession thereof and he found it convenient to create new leases, presumably on favourable terms, and leave it to his lessees to institute suits against the Rani's alienees. One such lease by the new Zamindar was Ex. A relating to the suit village. It was for a period of fifteen faslis from the 1st July 1880 and provided for payment of Rs. 800 per annum to the Zamindar. This leasehold interest was assigned to the Zamindar's wife by Exs. A-1 and A-2 in 1882 and in 1883, it is said, the Zamindar's wife made a grant of this interest to one of her junior sons by name Vadugayya Tevar. By Ex. A-3, dated 13th February 1886, the remaining term of this lease was assigned by Vadugayya to one Krishnan Chetti of Sivaganga. It was for a cash consideration of Rs. 700 and the assignee was directed to pay to the Zamindar the rent of Rs. 800 per annum reserved under the original lease. It was also provided that on the expiry of the lease, i.e, at the commencement of fasli 1305, the assignee should give up possession of the village to the Zamindar. Krishnan Chetti accordingly continued in possession down to the 30th June, 1895; what happened between him and the Zamindar and the European lessees between the 1st of July 1895 and 29th March, 1896 will be discussed later on, as it is one of the matters in dispute between the parties.
The Zamindar who granted the lease under Ex. A had five sons, the eldest of whom would succeed to the zamindari in due course. Being anxious to make proper provision for the maintenance of the other sons, the Zamindar executed a will Ex. N on the 21st July 1882. Some question seems to have been raised in the lower Court against this will; but the finding in favour of the will has not been assailed before us. It would appear from Ex. N that at that time the sons were being given every month whatever was required for their maintenance and the will provided that this practice should continue unless any of the sons was unwilling so to receive. In that contingency, the will directed that a village called Tiruvalur should be given to Vadugayya Tevar for his maintenance and other villages were similarly indicated for the other sons. The Zamindar's idea was that each of the sons should be in a position to get about Rs. 100 a month from the villages to be granted to them, but as the villages might yield not exactly that amount but something more as net income, it was suggested that out of the net income, Rs. 1,200 per annum should be deducted as for maintenance and the balance settled as poruppu payable by the grantee to the Zamindar. This arrangement for payment of poruppu has an important bearing on the question of law raised in the case, namely, the necessity for a registered document to evidence the alleged family arrangement of 1887; its nature will be more fully discussed when dealing with that question.
The Zamindar's will (Ex. N) further shows that he thought Rs. 100 a month too low an allowance for his sons but as the zamindari was then heavily indebted, he could not provide a more liberal allowance at that time. Cl. (5) of the will accordingly directed that as soon as the loans were discharged and the zamindari came to a good condition, the eldest son should give for the maintenance of each of the other four sons, villages likely to yield an additional net income of Rs. 1200 per annum and the villages so granted should be enjoyed hereditarily. This clause has a material bearing on the probability or otherwise of the alleged family arrangement of May 1887, because, by the European lease then entered into, the Zamindar was making arrangement for the discharge of all his debts. In this clause also, the fixing of a poruppu after allowing for a net income of Rs. 1200 per annum is contemplated.
Though the will contemplated Tiruvalur being given to Vadugayya Tevar only after the testator's death, he seems to have preferred to make the grant in his own lifetime and accordingly executed Ex. XIX(b) on the 11th August, 1882. It is described as a perpetual lease at Rs. 900 per fasli. There is no word in the original corresponding to the word “rental” in the opening portion of this document in the printed record. The grantee is directed to recover possession at his own cost from Katama Nachiar's alienees and to hold the village from son to grandson and so on with powers of alienation by gift, sale etc. The amount of Rs. 900, it may be noticed, is made up of Rs. 693-2-6 for rent and of Rs. 206-13-6 for probable road-cess. The significance of these provisions will also be later on adverted to. In January 1883, the same Zamindar made further provision for Vadugayya Tevar by Ex. XIX(c) which is described as a permanent lease of Thavasikudi at a rental of Rs. 74 made up of Rs. 50 being Guthagai (or rent) and Rs. 24 road-cess. The other terms are similar to those in XIX(b) and it may be mentioned that both XIX(b) and XIX(c) purport to have been given on account of the grantor's affection for the grantee.
The Zamindar Dorasinga Tevan died in July 1883 and was succeeded by his eldest son Periaswami alias Udayana Tevar. The efforts which were made to raise a loan of a large sum of money on favourable terms so as to conveniently discharge the numerous debts owing from the estate resulted in the arrangement commonly spoken of as the European lease, whereby a European syndicate advanced a loan of about 17 lakhs to the Zamindar on condition that it should be liquidated by their enjoying the zamindari for a term of 22 years. This was subsequently extended by 10 years, in consideration of a further advance. As the law relating to the powers of the holder of an impartible estate was even then not considered free from doubt, the European lessees desired that the Zamindar's younger brothers should assure them that the lease arrangement would be accepted by the brothers as binding upon themselves. This circumstance is of some importance as it is relied on by the plaintiff to show the reason and the occasion for the grant of the suit village to Vadugayya Tevar at this time. As already stated, the previous Zamindar had expressed a desire that Vadugayya should be given Rs. 1,200 per annum in addition to Tiruvalur. Judging from the road-cess of Rs. 24 provided for in Ex. XIX(c) Thavasikudi would not at that time have sufficed to secure anything like Rs. 1,200 to Vadugayya Tevar. Now that the eldest brother had been giving away the whole zamindari to the European lessees for a long term, it was only natural that Vadugayya should have claimed a further provision for himself; and the requisition of the European lessees that all the brothers should join in assuring the validity and binding character of the lease would have given him a convenient opportunity for insisting upon his claim being satisfied.
A point was sought to be suggested before us, based apparently upon the print of Ex. B-2 in the records, that Vadugayya Tevar had not in fact joined in giving the assurance and hence there is no force in this last argument of probability. No such point seems to have been raised in the Court below and Ex. B-2 is somewhat misleading. The lease was drawn up both in English and in Tamil and both the copies seem to have been registered. The signature sheet in the English copy is not found in the copy now on record, but it is reasonably clear from the Registrar's endorsement on the English copy that Vadugayya must have joined in giving the assurance. The assurance is expressly povided for in Cl. 31 of the lease and it is hardly likely that the European lessees would not have insisted on Vadugayya signing the document in token of his being bound by that assurance.
The scheme of Ex. B-2, the European lease, was that the lessees should enjoy the whole zamindari, but by Cl. 25 it was provided that “the leases given to the uterine brothers, etc., of the Zamindar mentioned in Sch. C are not to be interfered with by the (European) lessees beyond collecting the prouppus or rent already fixed on their respective leases. Sch. C is headed “List of Pannai lands, etc., allotted villagewar and endalwar, for the maintenance of the relatives” of the Zamindar; and in that schedule we find that, against Vadugayya's name, the suit village Keeranur is mentioned in addition to Tiruvalur and Thavasikudi. This prima facie supports the plaintiffs' contention that about this time, there must have been an arrangement between the Zamindar and Vadugayya by which Keeranur was allotted for the latter's maintenance. On behalf of the appellant, the learned Advocate-General suggested that the reference may possibly be to the term lease Ex. A. It is not possible to accede to this suggestion. The term lease was not in favour of Vadugayya at all and much less was it an allotment for maintenance. It is true that Vadugayya's mother when she obtained an assignment under Ex. A-1 and A-2 of the remainder of that term gave it to Vadugayya but as Vadugayya had parted with it in 1886 under Ex. A-3 he had no interest in it on the date of Ex. B-2. The prima facie inference in plaintiffs' favour arising from Sch. C of Ex. B-2 cannot therefore be held to have been rebutted.
The subsequent conduct of Vadugayya's widow on the one hand and of the Zamindar on the other, is more consistent with the truth of the arrangement than otherwise. In Ex. D executed on 27th April 1889, Vadugayya's widow specifically refers to Keeranur having been granted permanently to her husband and having been on that account excluded from the European lease. It is scarcely likely that this lady living in Sivaganga itself would have so openly and formally made mention of such an arrangement and purported to grant a lease of her son's interest thereunder, if the arrangement was untrue. The Zamindar was all in all in Sivaganga and she could not have thought that such an assertion by her would not come to the Zamindar's notice. As will be shown later on, when the claim did come to the Zamindar's notice in 1895, he did not think fit openly to repudiate it but merely tried to circumvent it.
It has been urged on behalf of the appellants that if such an arrangement had been made, it would in all probability have been embodied in a formal document; and reference was made in this connection to documents having been executed in favour of other persons. One possible explanation is that Vadugayya died in September, 1887, and there was hardly time for him to insist upon a document. On the other hand, in view of the express reference in Sch. C to the European lease, it might not have occurred to him at all that the arrangement could be denied merely by reason of the absence of document to evidence it. As pointed out in paragraphs 59 and 60 of the lower Court's judgment, there are other instances among the villages specified in this schedule, where undoubted grants are not evidenced by any document. Exs. W and W-1 relied on in this connection do not throw much light on this question. It somehow happened that it is only under these documents executed so late as in 1889 that the villages required to be given to Delhi Batcha and Mathuraiswami by their father under his will Ex. N came to be given. They were not referred to in the first European lease and hence a formal document and an express reference to the matter in the supplemental European lease might have been deemed advisable. We concur in the learned Judge's conclusion that the grant of the suit village to Vadugayya Tevar, on the terms alleged in paragraph 6 of the plaint, is true in fact.
Proceeding now with the narration of events as they bear on the other questions raised in the case, Vadugayya's widow died somewhere about 1889, and the Zamindar applied to get himself appointed as guardian of the person and property of three minor sons of Vadugayya. For reasons which it is not possible to gather from the present record, this attempt was resisted by the maternal relations of the minors and a maternal uncle (P.W 10) and a stranger were ultimately appointed guardians. It is not unlikely, as surmised by the learned Subordinate Judge, that this caused some chagrin to the Zamindar; and that will, in some measure, explain his further moves in respect of the suit village. When the term under Ex. A came to an end in June 1895, the Zamindar tried to enter upon possession of this village. It is difficult to believe that he would have honestly thought that he had a right to do so, for even on the assumption that the story of the permanent grant of this village to Vadugayya is not true, it was the European lessees that would have been entitled to deal with it, because the exception in Sch. C to their lease, read with Cl. 25, limited their rights in the suit village only so long as the lease to Vadugayya's branch continued. It is therefore not unreasonable to assume that the Zamindar's interference must have been dictated by other reasons. On the other hand, he could scarcely have ventured openly to assert his rights in the face of any determined attitude that the European lessees might take in the matter. He accordingly began by persuading some of the ryots in the village to side with him and execute a muchilika (Ex. II), purporting to act on behalf of all the ryots. The correspondence that passed between him and the village officers at this time shows that he sought their aid in reducing the village into possession. Krishnan Chetti, who, for a small consideration, had obtained under Ex. D the right to continue in possession for 14 years from July 1895, was shrewd enough to know the weak point in the Zamindar's case, and he managed to get from the European lessees a lease, Ex. 1, in the name of his natural brother. The argument advanced on behalf of the appellant that this assertion of right by the European lessees negatives the truth of the alleged perpetual grant of 1887 has very little force; on the other hand the fact that the European lessees executed Ex. 1 for the same poruppu of Rs. 800 payable under the alleged perpetual grant and never attempted to claim anything like a full rent probabilises the story of the maintenance grant. We agree with the learned Subordinate Judge that this was only a move on the part of Krishnan Chetti to checkmate the Zamindar in his attempts to take possession of the village.
Once Krishnan Chetti had armed himself with Ex. 1, the Zamindar who dared not assert any claim as against the Europen lessees had to come to terms with Krishnan Chetti; hence we find four documents coming into existence in March 1896. It is sufficient to refer here to two of them Ex. 1(a) and Ex. D-3. The zamindari account Ex. L and Krishnan Chetti's account Ex. H, whose reliability there is no reason to doubt, establish that Krishnan Chetti on the one side and the Zamindar acting in the interests of his daughter Vengu Nachiar on the other side, were the real parties to these documents, though Ex. 1(a) purports to be between Vengu Nachiar and Sivachidambara, the natural brother of Krishnan Chetty, and D-3 purports to be between Krishnan Chetti and Krishna Raju, a servant of the Zamindar. It is clear that Krishnan Chetti received a consolidated sum of Rs. 7500 as consideration for all these four documents and left the field free for the Zamindar.
From Ex. 1(a) as well as from Ex. L, it would appear that these transactions of the 29th March 1896 must have been intended by the Zamindar almost from the beginning for the benefit of his daughter Vengu Nachiar. But it is not possible to say if ever she got directly into possession or management. The Zamindari accounts filed in the case suggest that the actual management of the village was looked after by the Zamindar's men. In a written statement filed by Vengu Nachiar in January 1913 (Ex. P) she stated that the Zamindar gave this village to her permanently in September 1896, but the acquisition under Ex. D-3 as well as under Ex. 1(a) was only of a short-term interest and this is all that she purported to mortgage under Ex. III to the 1st defendant and his elder brother. For reasons which will presently appear care was taken in Ex. III to refer only to the right obtained under Ex. 1(a) and not to the right under D-3. It is not disputed that the 1st defendant has been in possession since the date of Ex. III. After the institution of this suit he obtained from the Court of Wards, acting on behalf of the present Zamindar, a fresh lease of the suit village under Ex. IV for a term of 13 years; but it is unnecessary to make any further reference to this transaction as it cannot affect the determination of the suit.
On the facts above stated, it has been contended on behalf of the appellants that the title, if any, of the plaintiff and his assignor has been extinguished by adverse possession, as Vengu Nachiar and the first defendant have all along ignored the alleged right of Krishnan Chetti and the plaintiff's assignor. On the other hand it has been contended on behalf of the respondent that even if the alleged permanent grant for maintenance should be held to be untrue in fact or inoperative in law, the plaintiff's assignor must be held to have acquired a title by adverse possession and that the first defendant is, in any event, estopped from denying the title of the plaintiff's assignor without surrendering possession. We are unable to accede to any of these contentions.
Dealing first with the appellants' contention it must at the outset be observed that there is a considerable body of authority to the effect that possession by a stranger should not be held to be adverse to a lessor as long as there is a term outstanding, because the lessor would not prima facie be entitled to sue for possession before the expiry of the term. (See the discussion in pages 1633 to 1636 of Mitra's Limitation, 6th Edition). The observations in Ambalavana Chetti v. Singaravelu Udayar must be understood in the light of the fact that the lease in that case was one from year to year and not for a definite term (See page 681). Assuming however that a lessor could sue a stranger for possession and therefore the stranger's possession could become adverse to the lessor, in cases in which the tenant has been dispossessed by the stranger under a claim hostile both to the tenant and to the lessor, the facts of the present case will not suffice to attract the operation of that rule. Whatever the motives or intentions of the Zamindar might have been, he preferred to acquire the rights of Krishnan Chetti even under Ex. D and was in that sense in possession as an assignee of the term. The fact that Vengu Nachiar was a party only to Ex. 1(a) and not to D-3 and purported in Ex. III to claim only under 1(a) and made no reference to D-3 cannot in law affect the true position. As already stated, it is clear from the documentary evidence, and the probabilities of the case that the rights under Ex. D as well as the rights under Ex. 1 were acquired by the Zamindar for the benefit of Vengu Nachiar and if any suit for possession had been instituted by Krishnan Chetti or the plaintiff's assignor against Vengu Nachiar or her assignee, it could certainly have been met by setting up the rights under Ex. D-3. The observations in Periya Aiya Ambalam v. Shunmugasundaram and Yamunabai Narayan v. Lagmanna Basanna could be invoked only if there had been a trespass against or unlawful interference with the tenants' possession and not where the tenants' rights are acquired by a third person.
In support of the plea of estoppel the respondent contends that Krishnan Chetti, who had taken Ex. D, would be estopped from denying his lessor's title and that Vengu Nachiar being the real assignee under Ex. D-3 she and the first defendant claiming under her could be in no better position. In dealing with this question, it must be remembered that the plea of estoppel is material only in the view that the alleged maintenance grant is not true and operative, for otherwise the plaintiff can succeed on the title itself. If the grant is not true or operative in law, the title must in July 1895, be deemed to have vested either in the Zamindar or in the European lessees. If Krishnan Chetti obtained possession under Ex. D and let the Zamindar or Vengu Nachiar into possession under Ex. D-3, there will be considerable force in the plea of estoppel. The decisions of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh, Currimbhoy and Co. Ltd. v. Creet and Pandit Prasad Chandrika Prasad v. B.B and C.I Railway Co. deal with such a case. The respondent relies upon the decision of the majority in Venkata Chetti v. Aiyanna Goundan and contends that the rule of estoppel as between landlord and tenant is not limited to cases where the tenant is let into possession under a particular lease but may also apply to cases where a person executes a lease or otherwise attorns to a lessor. But the qualifications recognised by the learned Judges in that case clearly show that the rule cannot avail the respondent in the present case. Under Ex. A-3 Krishnan Chetti became the assignee of the rights under Ex. A and that was a lease by the Zamindar himself. Ex. A-3 therefore directed him to surrender possession to the Zamindar at the beginning of July 1895. The initial estoppel, if anything, was thus in favour of the Zamindar, and it might well be contended that Krishnan Chetti's duty was to surrender possession to the Zamindar or those validly claiming under him. Ex. D, though executed in 1889, was to come into effect only from the 1st July 1895, and if the permanent grant there asserted on behalf of Vadugayya's sons were true and valid, Krishnan Chetti could have continued in possession under it even after the expiry of the term under Ex. A. But on the assumption that the lessors under Ex. D had no title, the position would be that Krishnan Chetti had merely entered into a contract of lease under the mistaken impression that Vadugayya's sons had a title. When the time came for the lease to take effect he became aware that his lessors had no title and accordingly took Ex. 1 from the European lessees. There is one error in the judgment of the learned Subordinate Judge in this connection. He observes that Krishnan Chetti attorned to the sons of Vadugayya. As stated already, no rent was payable under Ex. D to the sons of Vadugayya and beyond the taking of Ex. D and its subsequent assignment by D-3, the record shows no other act which can be construed as amounting to an attornment by Krishnan Chetti to Vadugayya's sons. The lease which Krishnan Chetti took under Ex. 1 from the European lessees naturally provided that on the expiry of its term he must give up possession to the Zamindar. In these circumstances there seems to be no scope for the application of the rule of estoppel as between Krishnan Chetti and Vadugayya's sons. He may well plead that he took Ex. D under a mistake as to lessor's title; at the worst, he may plead a constructive eviction by title paramount and it is immaterial that he did not actually surrender the possession which he obtained under A-3 and not under D. [See Alaga Pillai v. Ramaswami Thevan].
But even assuming, for the sake of argument, that there may be estoppel as between Krishnan Chetti and Vadugayya's sons, it does not necessarily follow that the same estoppel will bind Vengu Nachiar and those claiming under her. As stated already, care had been taken to make Vengu Nachiar a party only to Ex. I-A under which the right obtained under the European lessees was assigned. The fact that as a possible weapon of defence the Zamindar, acting in the interests of Vengu Nachiar, took care to buy up any claim that Krishnan Chetti might have under Ex. D cannot be held to bring Vengu Nachiar into privity with Vadugayya's sons so as to create an estoppel between them. In D-3 the parties took care to say that Vadugayya was “said to be a lessee” of Kiranur. It may be that between July 1895 and March 1896, there was something like a scramble for possession between the Zamindar and Krishnan Chetty and the story now put forward on behalf of the defence that the Zamindar was in possession hostilely to Krishnan Chetti even before the date of D-3 and I-A may not be wholly true. The lands were in the occupation of tenants and each was trying to collect such rent as he could. In this sense it may even be held that possession passed only in March 1896 from Krishnan Chetti to the Zamindar or to Vengu Nachiar. But it is not correct to assume that Krishnan Chetti's possession between July 1895 and March 1896, was only in the character of lessee from Vadugayya's sons, because he had also obtained Ex. 1 from the European lessees though in his brother's name. There is even less justification for assuming that Vengu Nachiar obtained possession in March, 1896, in a right traceable to the title of Vadugayya's sons as lessors notwithstanding the fact that she took care to obtain an assignment only of the rights under Ex. 1 and never claimed to rely on any title acquired under D-3. Pressed to its logical result, the respondents' argument would bind Vengu Nachiar and the first defendant by a twofold estoppel, one in favour of the plaintiff's assignor and the other in favour of the Zamindar and the European lessees; the question of title will thus in effect be set at large.
The plea of title by adverse possession put forward on behalf of the respondent also rests on the assumption that Vengu Nachiar and the first defendant must be deemed to have held possession from 1896 on behalf of Vadugayya's sons. For the reasons given in dealing with the question of estoppel, we are unable to accept this assumption and this claim of title in the plaintiff by adverse possession is accordingly untenable.
The appellants' plea of jus tertii rests upon the execution of Ex. XIV in August 1900 by Pattanachami, one of the sons of Vadugayya, and of Ex. XV in March 1901 by the plaintiff's vendor Singa Dorai, conveying their shares in the suit village to their father-in-law and wife respectively. The alienees under these documents never came forward to assert any rights thereunder and the documents have remained paper transactions. The learned Subordinate Judge has also held that the alienations were invalid as the executants were minors at the time. For proof of their age, he has mainly relied upon the statement of their age, Ex. D. The learned Advocate-General has questioned the correctness of the statements in Ex. D on the strength of the evidence of P.W 10. It does not seem to us right to read that evidence as meaning that the age was given by clerk. The recitals said to have been given by a clerk must refer to the terms of the document. As to the calculation based upon the witnesses' statement that there was a difference of 2 or 2½ years between the first two sons, we do not think much importance ought to be attached to a vague statement of that kind when the witness's recollection is far from precise, as shown by the fact that he first stated the age of Singa Dorai to be 5 at the time of Ex. D and had later on to correct himself when he found that according to the horoscope Ex. J-2 the age of the last boy must have been about 6½ years at the time of Ex. D. The age of the last boy as given in Ex. D corresponds to his age as per the horoscope J-2; when this is so, we see no reason for thinking that the statement of the ages of the other two boys in Ex. D is not correct. The plea of jus tertii was therefore rightly overruled by the learned Subordinate Judge.
It remains to deal with one more question of law, raised on behalf of the appellants. It has been contended that even if the arrangement alleged in the plaint be true in fact, it is inoperative in law as it has not been embodied in a registered deed, as required by S. 105 of the Transfer of Property Act. The Court below has held, and it has been maintained before us on behalf of the respondent, that the arrangement, though subject to the payment of a “poruppu”, is not a lease within the meaning of S. 105, because the maintenance of Vadugayya was the consideration therefor and the transaction is in substance a grant subject to a burden. In addition to Madam Pillai v. Badrakali Ammal (relied on before the lower Court), respondents' learned counsel has drawn our attention to the decision in Zamindar of Polavaram v. Maharaja of Pittapuram by way of analogy. The learned Advocate-General replies that even taking these decisions to be correct, they do not really touch the present question because the definition of a “lease” is not restricted to cases where a “price” is paid; he argues that the idea of making a provision for maintenance can at best only constitute the ‘motive’ for the arrangement and if the parties chose to adopt a form of arrangement which falls within the definition of a ‘lease’ in the Transfer of Property Act, the forms prescribed by law must be followed. He relies on the fact that the plaint itself speaks of the interest in the nature of a perpetual lease; and the admitted reservation of “poruppu” is, according to him, indistinguishable from a reservation of “rent”, though it may be a favourable rent.
As we propose to refer this question to a Full Bench for an authoritative decision on the point which is bare of authority, it is not necessary to do more than to indicate some of the considerations that may bear on the decision of the question. It may not be correct to speak of “maintenance” only as a motive in this case. The grantor was the holder of an impartible estate and the grantee was his brother for whose maintenance the Zamindar was bound to make provision both as a matter of law and under the terms of his father's will. “Maintenance” would therefore be part of the “consideration” for the transfer and the question will therefore arise, on the analogy of the decisions in Madam Pillai v. Badrakali Ammal and Zamindar of Polavaram v. Maharaja of Pittapuram, whether, transaction for which the ‘consideration’ is something in addition to the categories specified in S. 105 a will fall under that section. Further, that section speaks of a transfer “in consideration of” money paid or promised, etc.; could it have been intended to apply to a transaction whose avowed purpose is the provision of “maintenance” and a “poruppu” is fixed apparently because the village set apart for the purpose yields more than the proposed maintenance amount? The provisions of Ex. N are significant in this connection, as showing that this is just the kind of arrangement that the father contemplated being made for the maintenance of the junior sons. Undue stress ought not to be laid on the description of the tenure in the plaint and in some of the documents as a perpetual lease; the suit transaction was admittedly oral and could at the inception have borne no particular description. The description “perpetual lease” might have been used for want of any other compendious expression by which a tenure of the kind intended could be referred to. On the other hand paragraph 6 of the plaint speaks of the village having been granted absolutely on perpetual lease; and when one turns to documents like Exs. XIX(b) and XIX(c), it will be noticed that the arrangement is stated to have been made on account of the great affection that the grantor bore to the grantee and the language of conveyance employed in these documents, viz., that the grantee, his heirs and assignees should enjoy the village from son to grandson and so on, with powers of gift, sale, exchange, etc., with Ashta Bhoga Dasa Swamya, etc. treasures, minerals and so on, is much more apposite to an absolute grant (except for the reservation of a poruppu) than to the creation of the lease in the ordinary sense. As between the Zamindar and his son or brothers, it is not ordinarily to be assumed that the relationship of landlord and tenant was intended to be constituted.
The reference to “poruppu” in these transactions remains to be dealt with. It may not always be accurate to translate it as “rent” in the sense in which that term is known to the Law of Landlord and Tenant. It is one of the anomalies of Indian law that in the attempt to translate vernacular terms into corresponding English equivalents, the connotations of the words in the English law are unconsciously imported. For instance, the inappropriateness of defining the relationship between a Zamindar and his ryot in terms of the law of landlord and tenant has often been pointed out and yet the payment made by the ryot to the Zamindar still continues to be spoken of as “rent”. In Maharajah of Vizianagaram v. The Collector of Vizagapatam Sir John Wallis, referring to inams held subject to the payment of jodi, kattubadi or poruppu, speaks of the payment as a ‘small rent’ and describes the tenures as being of the character of a permanent lease. It may be right enough to hold that such tenure holders are not owners or proprietors within the meaning of Madras Act. 1 of 1876; but with all respect, it will not be correct to assimilate the position of the grantor and the grantee in such cases to that of ‘landlord’ and ‘tenant’. In the Indian law, ‘under tenure’ is not the same as ‘tenancy’.
The learned Advocate-General relied on the decision of the Judicial Committee in Maharajah of Jeypore v. Rukmini Pattamahadevi Garu as an instance where their Lordships have applied the principle of law of ‘forfeiture’ to similar tenures thereby indicating that they regarded the relationship as one of landlord and tenant. It may be observed that in that case the rent reserved was in their Lordships' opinion the principal matter (see page 601) and after all they say (at page 600) that they went at length into this aspect of the law of forfeiture, though it had not been raised in India, only because it was argued with much insistence at the Bar. As they found against the alleged denial of title, it ought not to be assumed that they would have applied the Law of Landlord and Tenant to the case. The other portion of their Lordships' judgment, where reference is made to Forbes v. Meer Mahomed Tuquee, relates to what are known as grants burdened with a service. Even in such cases, the grantor is allowed a right of resumption in cases of contumacious refusal of service, but such ‘resumption’ is not identical with the ‘forfeiture’ known to the Law of Landlord and Tenant.
‘Poruppu’ is defined in Wilson's Glossary as a low or quit-rent levied from lands originally granted in inam or rent-free. Its connotation is thus not identical with that of ‘rent’ in the Law of Landlord and Tenant. (See also Nelson's Madura Manual, Part. IV, pages 39, 121, 139, 140 and 191). The cases in Vizianagaram Maharajah v. Suryanarayana and Vizianagaram Maharajah v. Sitaramaraju show that it was not uncommon for Zamindars in this Presidency to insist on a payment of Kattubadi by grantees of inams from a prior Zamindar. The tenure in such cases will be an inam and not a tenancy. Whether as a matter of sentiment or as a result of the supposed prohibition against alienation in the Permanent Settlement Regulation, grants whether by way of reward for past services or by way of maintenance were sometimes made in the southern zamindaris not by an absolute alienation but by the creation of an under-tenure. In such cases provision was sometimes made for the payment of a poruppu to cover the peishcush on the village granted. See Venkateswara Ettiappa Naicker v. Alagoo Mootoo Servagaran. See also Ex. W-1 in the present case where the poruppu was fixed at the Nijudhi or assessment for the alienated village; see also Fischer v. Secretary of State for India in Council where the terms of Ex. D in that case are set out and the way that document was construed by the Privy Council in Robert Fischer v. Secretary of State for India in Council. Relying on the statement in paragraph 6 under the title ‘Family arrangement’, in Halsbury's Law of England, Vol. 15, the learned Advocate-General contended that by calling a transaction a ‘family arrangement’ the requirements of the law as to necessary formalities cannot be dispensed with. But unlike the Statute of Frauds, the Transfer of Property Act adopts it as a general principle in S. 9 that a transfer may be made without writing in every case, in which a writing is not expressly required by law. Hence, the question in this country has always been whether the transaction under consideration falls with in one or other of the particular categories specified in the various chapters of that Act. I concur with my learned brother in referring this question of law, in the terms stated in his judgment, for the opinion of a Full Bench.
The Advocate-General (Sir A. Krishnaswami Ayyar) and Mr. V. Ramaswami Ayyar for the Appellants.
Messrs. T.M Krishnaswami Ayyar and V. Subramania Ayyar for the 2nd Respondent.
OPINION
Varadachariar, J.—My answer to the question referred is that the transaction does not constitute a lease within the meaning of S. 105 of the Transfer of Property Act and is therefore effective though oral. The reasons in support of this conclusion have been set forth in the concluding portion of the judgment delivered by me when referring the question to a Full Bench and I have very little to add. The learned Advocate-General laid some stress on the fact that the decision in Zamindar of Polavaram v. Maharajah of Pittapuram, referred to by me in that judgment has since been reversed by the Judicial Committee in Zamindar of Polavaram v. Maharajah of Pittapuram. This does not affect the basis of my judgment, because, as I understand their Lordships' decision, they do not express disapproval of the principle of law applied by the High Court in Zamindar of Polavaram v. Maharajah of Pittapuram as derivable from the judgment of the Full Bench in Madam Pillai v. Badrakali Ammal. The Judicial Committee hold that on the facts of the case before them it was not reasonable to hold that there was any other consideration in addition to the price fixed for the sale. The High Court held that the promise by the vendee not to question the validity of the execution sale under which the vendor had purchased other properties as well constituted an additional item of consideration. But the Judicial Committee pointed out that as the period of 30 days allowed by law for questioning the execution sale had already expired “this promise was valueless.” Their further observation that at best the promise only resembled other covenants which any sale may contain has no bearing upon the present case. It is sufficient to say that in winding up the discussion of this question, their Lordships emphasise the fact that both parties intended the transaction in question to be a sale and “in substance it was nothing but a sale.” Applying this test, I am unable to hold that the transaction now before us was intended by the parties to be a lease or was in substance a lease.
Pandrang Row, J.:—I agree.
Burn, J:—I find considerable difficulty in answering the question in the form in which it has been propounded. It does not seem to me to be possible to state the answer to the question in general terms. It seems to me quite conceivable that the transfer of the right to enjoy immoveable property in perpetuity made by the holder of an impartible zamindari to a junior member on terms, or in pursuance of an arrangement, that the junior member will give up all claims for present or future maintenance and will pay annually to the Zamindar a sum of money might amount to a lease within the meaning of the Transfer of Property Act, so as to be without effect unless in writing registered. I see much force in the contention of the learned Advocate-General that if a transaction is in fact a lease as defined in S. 105 of the Transfer of Property Act, the requirements of the law regarding registration cannot be evaded merely by calling it a family arrangement. I think the answer would have to vary in accordance with the circumstances of each case. It seems to me not impossible to imagine a case of a junior member of a family of the holder of an impartible zamindari who might be himself interested in agriculture. If the holder of the zamindari transferred to him a portion of the zamindari in consideration of a premium with or without an annual rent reserved, one condition being that the junior member should withdraw his claim for maintenance, such a transaction might very well be a lease. The question, however, was argued before us with reference to the facts of the particular case and considering it from that point of view, I have no difficulty in holding that the transaction in question was not a lease within the meaning of S. 105 of the Transfer of Property Act. I do not think the learned Advocate-General was right in contending that the provision of maintenance was merely the motive for the transaction. It appears to me that the transaction itself was in its essence a provision for maintenance for the junior member. It is found as a fact that the amount of the poruppu or quit rent was due to the mere accident that the annual value of the village granted happened to be Rs. 800 more than the amount thought suitable for the maintenance of the junior member. In other words the payment of the poruppu was not the consideration for the grant to the junior member of the right to enjoy the village. On the facts found it seems to me quite clear that the Zamindar was concerned solely with the provision of maintenance and was not making a lease. If the annual income from the village had been estimated at precisely Rs. 1,200 there would have been no question of poruppu and it would have been impossible to suggest that the transaction was a lease. The transaction appears to me to be in its essence of the nature of a grant of the inam land. The facts deducible from the documents which were executed in the case of the other members of the family indicate that the Zamindar considered himself to be making an out and out grant rather than a lease.
Reference answered.
N.R.R