KANDASAMI PILLAI Vs. RAMASAMI MANNADI

JUDGEMENT

(1.) I entirely agree with the judgment of the learned Chief Justice and will only shortly give my reasons for the conclusion I have arrived at. The plaintiffs obtained a lease for 17 years of a certain garden, from the owner of the property, the 1st defendant in the suit. The document provides that the plaintiffs are to discharge a prior encumbrance to the extent of Rs. 2,805, besides making two other small payments. They failed to discharge the encumbrance and the mortgagee whose debt they had bound themselves to discharge brought a suit to enforce the mortgage and obtained a decree. In the meantime while the suit was pending, the 1st defendant ranted a usufructuary mortgage to defendants 4 to 7 and with the money so realised the mortgage decree was paid off. The Subordinate Judge in the court of trial held that since the plaintiffs failed to pay the amount stipulated for in the document, they were not entitled to possession of the properties, which was their chief prayer in the plaint. On appeal to this Court, the learned Chief Justice was of opinion that the fact that the plaintiffs had not paid the amount mentioned in the lease, was no answer to their suit for possession; while Kumaraswami Sastri, J, the other learned Judge who heard the appeal, disagreed and confirmed the decree of the Subordinate Judge.

(2.) On behalf of the respondents, Mr. K. Raja Aiyar sought first of all to argue that the document in question, Ex. L was not a lease at all, but a mere contract with respect to the future produce of certain trees. In the first place, this was not their case up till now, and the written statement itself proceeds on the assumption that Ex. L is a lease. No doubt it is called a contract relating to coffee and plantain produce. But that description is not ipso fact conclusive. We find that the document goes on to state "I have granted to you on lease the coffee, plantain and jack produce belonging to me." Further it says, "you shall enjoy according to your choice the coffee, plantain and jack produce for 17 years from this date, and on the expiry of the term surrender the lands to me without any objection whatsoever. The assessment due for this land shall be paid by me." Then it gives the boundaries of the land. There can be no doubt whatever that what the parties contemplated was a lease. We have got all the apt words of a conveyance by way of a lease. There would be no sense in talking about surrendering the lands, if it was only the future produce of certain trees apart from any interest in the land that was meant to be granted. Proceeding on that basis, there cannot be any doubt to my mind upon the authorities that the lessee is entitled to possession of the land demised to him, even though he has not paid the premium he bound himself to pay. This is an agricultural lease and therefore the Transfer of Property Act in its terms does not apply. But the Transfer of Property Act, when it defines a lease of immoveable property by Section 105, gives a definition which is undoubtedly applicable to agricultural leases as well in this country, Mr. Rajah Aiyar did not attempt to argue that the definition of a lease as contained in Section 105 is not applicable to agricultural leases. Section 105 says: " A lease of immoveable property is a transfer of a right to enjoy such property, etc." Now, Section 108 lays down the rights and liabilities of the lessor, and the lessee. Clause (b) of that section provides that the lessor is bound on the lessee s request to put him in possession of the property , and Clause (e) says that, the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf. And it is argued that this is a case of reciprocal contracts, and that the lessor is only bound to put the lessee in possession after the lessee has paid or is prepared to pay the premium that is agreed, upon. This, to my mind, proceeds entirely on a misconception of the true nature of a lease and of the rights of the parties arising from such a transaction. It is not a mere contract, it is a transfer of a right to enjoy the property. That means it is a transfer of an interest in improvable property, and Section 108 assumes it is a transfer of such an interest. The right of the lessee to be put into possession arises from the words of the demise which imply that the right to possession is granted to the lessee, and the lessor is not entitled to refuse to give possession to the lessee unless the document provides that the latter is not to have possession until the fulfilment of a certain condition. It is found by both the courts that no such condition exists in this case. No doubt there are also other rights and liabilities both of the lessor and the lessee, which are set out in Section l08, Transfer of Property Act, and which arise out of the general law governing the relations of landlord and tenant. "The liability of the lessor to put the lessee in possession, may be said to arise out of the implied covenant applying to leases," as put by my learned brother, Coutts Trotter, J., in The Secretary of State for India in Council v. Venkayya (1916) I.L.R. 40 M. 910 : 80 M.L.J. 575 The distinction between executory and executed contracts is well known as pointed out in Wolverhampton and Walsall Railway Co. v. London and North Western Hallway Co. 16 Eq, cases 433. "A lease is an executed contract, it is a transfer of property or of an interest in property; and all the considerations which apply to the enforcement of mere contracts do not necessarily apply to a transfer."

(3.) We have been referred to a number of cases both of this Court and other courts in which it is laid down that a vendee of immoveable property is entitled to possession of the property even though he has not paid the consideration mentioned in the deed of sale, (see for instance Velayutha Chetty v. Govindasami Naicken (1910) I.L.R. 34 M. 543 Velayutha Chetty v. Govindasmi Naicken (1907) I.L.R. 30 Mad. 624 and Govindamma v. Gopalachariar (1905) 16 M.L.J. 524) and this proposition Mr. Rajah Aiyar has not contested before us. But he says there is a distinction between a sale and a lease. His argument is that a lease for a term stands on no higher footing than a mere contract, and he has referred us for this position to the English Law. In English, law no doubt a lease for a term is a mere chattel interest and has been treated as such in some of the cases, for instance, by justice Chitty in Wallis v. Hands L.R. (1893) 2 Ch. 75. But he has not been able to cite any Indian cases to show that these technical distinctions of English law between real and chattel interest in land obtain in India. Speaking for myself, I am not aware that the peculiarities of English Law as regards leases for a term have ever been adopted in this country. The law regarding real property in India is in many respects very different from that of England, and it is especially so regarding leases; for instance Indian law recognises leases in perpetuity which are unknown to the English law though it recognises leases for such terms as 99 years or 999 years. And I do not think 1 should be justified in importing the technicalities of English law relating to leases for terms into this country.