ADINATH BHATTACHARJEE Vs. KRISHNA CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) The plaintiffs and defendants 1 to 10 are joint owners of a tank which is the subject- matter of dispute in this appeal. Plaintiffs case is that defendants 1 to 3, though they have got only a small share in the tank, are in exclusive possession of the whole tank and consequently they are entitled to joint possession. Defendants 4 to 9 support the plaintiffs case. Defendant 10 did not appear in the suit. The defence of defendants 1 to 3 is that defendant 1 is in possession of the 16 annas share of the disputed tank as a tenant under all the owners of the tank at an annual rent of Rs. 10 and consequently the plaintiffs are not entitled to joint possession. The trial Court as well as the first appellate Court dismissed the suit on the ground that defendant 1 is a tenant from month to month and his tenancy was not determined by a notice to quit under Section 106, T.P. Act. On a second appeal to this Court by the plaintiffs their suit has been decreed by Henderson J. The finding of the learned Judge is that the lease set up by defendant 1 is not valid in view of the provisions of Section 107, T.P. Act. This appeal under Clause 15, Letters Patent, is by defendant 1. Section 105, T.P. Act, defines a lease. The material portion of this section is: A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, expressed or implied...in consideration of...money...to be rendered periodically...to the transferor by the transferee who accepts the transfer on such terms.... The money...to be so rendered is called...rent.

(2.) "Certain time expressed or implied" may be (1) less than a year or (2) more than a year. Section 9, T.P. Act, lays down 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 of the said Act, provides that a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by registered, instrument. The reservation of yearly rent raises a presumption that the lease is from year to year, in the absence of anything to the contrary. The transfer of right to enjoy immovable property in consideration of rent for a year or less than a year can be, therefore, made without any writing. A valid lease for one year or less than a year can-therefore be created without any writing.

(3.) If the term of a lease exceeds one year and if it is not created by a registered instrument there is no valid transfer of right to enjoy the property for a period exceeding one year. But from this it does not follow that the transferee does not get the right to enjoy the property for the first year and that no valid transfer of the right to enjoy the property for the first year was made. The lessee would be entitled to possess the property on the basis of the transfer for the first year and not thereafter. If after the expiry of the first year the lessor accepts rent from the lessee and assents to his continuing in possession the lease by Section 116, T.P. Act, is renewed from year to year or month to month according to the purpose for which the property is leased as specified in Section 106 of the said Act. If the lease is neither for agricultural nor for manufacturing purposes it is renewed from month to month and it can be terminated by 15 days notice. This view finds support from a decision of a Division Bench of this Court in Mohammad Mossa V/s. Jaganund Singh ( 13) 20 I.C. 715 (Cal.) and also the decision of a Division Bench of the Patna High Court in Alauddin Ahmad V/s. Aziz Ahmad ( 34) 21 A.I.R. 1934 Pat. 369 affirming the decision of a single Judge of that Court in the said case, Aziz Ahmad v. Alauddin Ahmad ( 33) 20 A.I.R. 1933 Pat. 485.