SREEMAT TIRUMALA TIRUPATI SREEMAT PRATIVADI BHAYANKARAM VENKATACHARYULU AYYAVARLAM GARU Vs. NANDI VADA VENKATASUBBA RAO

JUDGEMENT

(1.) In this case the plaintiffs are the owners of an Agraharam village in the sense that they own both the melvaram and the kudivaram rights. In the year 1909 there was a grant of the kudivaram right to the 1 and 2nd defendants and in consideration for that they promised to pay a rent and they also promised to pay what is described as nazarana to the landlords and that may be roughly described as a premium for the granting of the kudivaram which no doubt was in perpetuity. They gave a promissory note for the amount and the question is whether the debt- -because it undoubtedly was a debt was a mere personal debt affecting the makers of the promissory note or whether it is a charge on the land. In the view that we take of this case the further question, which arose at the trial, viz., whether the 3 and 4 defendants were bona fide purchasers for value without notice, does not arise. It is no doubt true that there is a direct decision in England Shepheard V/s. Beetham (1877) 6 Ch D 597, a decision of Malins, V.C., which treats a premium as creating a lien upon the leasehold premises. Whether that decision is correct or not we are not concerned to enquire although it does seem certainly an astounding result. But, in our opinion, in India the matter is entirely regulated by statute. There is a fundamental distinction under the Transfer of Property Act between a transfer of immoveable property and a transfer of the right to the enjoyment of immoveable property ; and a lease is defined by Section 105 of the Transfer of Property Act as a transfer of a right to enjoy immoveable property made for a certain time, express or implied, or in perpetuity in consideration of the price paid or promised or of money, etc. It is perfectly clear, therefore, that the Transfer of Property Act regards a lease in perpetuity as merely a transfer of the right to enjoy property. Does it or does it not create a charge upon the land? The answer is that the only charge, valid in Indian Law, on landed property, is to be found in the section of the Act which creates such a charge and Section 55 is obviously confined to cases which deal not merely with the transfer of the mere right of enjoyment but with the transfer of the property itself, for, for any other lien or charge, the Act makes no provision at all. In our opinion we are bound to hold that we cannot but regard the Act as intended to be exhaustive and that we are not at liberty to follow English common law rules. On this ground we think the appeal fails and! must be dismissed with costs. The Second Appeals (Nos. 623 of 1921, 624 of 1921 and 625 of 1921) will follow and are also dismissed with costs. Krishnan, J.

(2.) The question that arises for our decision in this case is, whether, when the owner of a land grants a perpetual lease of it in consideration of rent to be paid, as well as a premium, he has got a charge on the leasehold right he has so created for the premium so payable.

(3.) The promissory note in this case as executed for such a premium and it is now sought in appeal before us to be enforced not against the makers of the note nor against the persons who took the lease but against certain third parties who have now become transferees or assignees of the lease right. Against them the amount of the note could be claimed if at all, only if there is a charge created in favour of the landlords on the property in their hands.