SYED AJAM SAHIB Vs. MADURA SREE MEENATCHI SUNDARESWARAR DEVASTANAM, THROUGH ITS MANAGER PSANANTHANARAYANA AIYAR

JUDGEMENT

(1.) The first question which has been referred to us is whether the registered instrument referred to in Section 107 of the Transfer of Property Act must be signed by the lessor. Section 9 of the Transfer of Property Act provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. Section 107 provides that a lease to which the section applies can be made only by a registered instrument. This, I take it, is an express provision that lease to which the section applies must be in writing. Section 105 defines a lease of immoveable property as a transfer of a right to enjoy such property. I do not think that Section 107 can be relied on as enacting, either expressly or by implication, that a lease must be executed by the lessor. Can Section 105 be relied on for this purpose? I think not. By Section 105 a lease is a transfer of a right to enjoy property. I do not think, for the purposes of the question before us, any distinction can be drawn between a transfer of a Tight to enjoy property ( Section 105) and a transfer of property ( Section 9). When writing is not necessary the law requires no specific formal act for the purposes of a transfer. When writing is necessary the only specific formal act required by Section 107 is registration. The Transfer of Property Act contains express provision that in the case of a mortgage ( Section 59) the registered instrument must be signed by the mortgagor, in the case of a gilt ( Section 123) by the donor and in the case of a transfer of an actionable claim by the transferor ( Section 130). Section 107 contains no such provision. As regards Secs.59 and 123 it may be that the provision for attestation required special mention of the signature of the mortgagor or donor (see the judgment in Turof Sahib V/s. Esuf Sahib (1907) I.L.R. 30 M. 322. In Section 130, however, where special provision is made for the signature of the transferor, there is no prevision for attestation.

(2.) Then is there anything in the Registration Act which expressly or by implication enacts that a lease which requires registration must be executed by the lessor?

(3.) I think the effect of Section 4 of the Transfer of Property Act is correctly stated in the judgment in Kaki Subbanadri V/s. Muthu Rangayya (1909) I.L.R. 32 M. 532. Under Section 17 (d) of the Registration Act a lease, to which the paragraph applies, and which for the purposes of the Registration Act includes a counterpart ( Section 3), must be registered. Under Section 107 of the Transfer of Property Act a lease, to which that section applies, must be registered. But although we cannot import into Section 107 the definition of lease contained in the Registration Act see by way of analogy Vairananda Nadar V/s. Miyakan Rowther (1897) I.L.R. 21 M. 109 it does not follow that an instrument signed by the lessee cannot be a lease for the purposes of Section 107.