ARUMUGHAM CHETTI (DECEASED) Vs. YPRKRVSUBRAMANIAM CHETTI

JUDGEMENT

(1.) My answer to the question referred is that the transaction does not constitute a lease within the meaning of Section 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/s. Maharajah of Pittapuram (1930) 60 M.L.J. 56 : I.L.R. 54 Mad. 163 referred to by me in that judgment has since been reversed by the Judicial Committee in Zamindar of Polavaram V/s. Maharajah of Pittapuram (1936) 71 M.L.J. 347 : L.R. 63 I.A. 304 : I.L.R. 59 Mad. 910 (P.C.). 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/s. Maharajah of Pittapuram (1930) 60 M.L.J. 56 : I.L.R. 54 Mad. 163 as derivable from the judgment of the Full Bench in Madam Pillai V/s. 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 point 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.

(2.) I agree. Burn, J.

(3.) 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 immovable 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 Section 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 Section 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.