ABDUL REHIMAN MOIDEEN ROWTHER Vs. KORAH KORAH

JUDGEMENT

(1.) THIS second appeal raises a question of the applicability of the Holdings (Stay of Execution Proceedings) Act VIII of 1950, whereby proceedings in execution of a decree in a suit for the recovery of possession of a 'holding' shall so far as they relate to the delivery of possession of the holding be stayed.

(2.) THE courts below have concurrently held that the defendants 1 to 3 are not entitled to the benefit of the Act and hence this second appeal by the 3rd defendant. "2 'holding' as defined by S. 2 of the Act "means any immovable property held under a single transaction by which a lease-hold right in the property is created and possession of the property is transferred by one person in favour of another. " THE Explanation to the section says: "holding shall also include Kanapattom but shall not include Varom or Pathivarom. " S. 105 of the Transfer of Property Act defines lease of immovable property as: "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. "

(3.) THE question whether a document is a lease or not has often come up for judicial consideration in this Court. Thus in Ouseph v. Kunjathu, 1951 KLT 44, it was held after review of various Indian and English authorities that there must be a transfer of the exclusive right of possession of the leased property in order to constitute a lease and the continuance in the transferor, after the transfer, of any share in the right of possession is detrimental to its character as a lease. In the transaction in that case the trees and houses in the property were excluded and permission was granted only to cultivate the vacant space. THE evidence showed further that even over this vacant space the landlord was exercising the right of possession by planting trees. It was held accordingly that the defendant in the case was given only a use of the property for a definite purpose and that the transaction would not amount to a lease for purpose of the Cochin Verumpattamdars Act VIII of 1118. THE learned judges observed in the course of their judgment: "an agreement for the cultivation of land under which a person is to cultivate another's land and the two are to share the produce in certain proportions may be a lease if there is an intention to transfer an interest in the property. But if there is no such intention such agreement cannot create a lease and the matter is, as held in Brahmamoyee baramani v. Munsur,1920 Cal. 548, one purely of construction in each case. " In Brahmamoyee Baramani v. Munsur 1920 Cal. 548, the fact that in the first place there was no covenant to pay rent and in the second place there was no clause which created in favour of the defendant an interest in the land but that there was only a profit sharing arrangement between the owner and the occupant, was held by Mukerjee, Ag. Chief justice, to be an indication that a lease was not created. Reference may also be made to Venkiteswara Pai v. Padmavathi Ammal, 1953 KLT 368, wherein it was held. "if the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purpose for which it may be used, it is a lease, if the contract is merely for the use of the property in a certain way and on certain terms while it remains in the possession and control of the owner, it is a licence. Each case must be decided on its own facts, and regard must be had to the substance of the agreement. " THEre is again the decision in 22 TLJ 22 which considered that the landlord's right to be present at the time of the harvest and to get a definite share of the crop under a Pathivarom arrangement was an indication at least of a joint possession with the lessee.