KASHIPRASAD SUKHIRAM Vs. BEDPRASAD PARMESHWAR

JUDGEMENT

(1.) IN the course of this second appeal which is for hearing before my learned brother (Bose J.) he felt a difficulty in disposing of one matter that arises in the appeal in consequence of a decision reported in Mooratsingh v. Munilal (1927) 14 AIR Nag 320 with which he was in disagreement and has accordingly referred to this Bench the following question: Can there be a valid surrender of an absolute occupancy or an occupancy holding without a registered instrument when the landlord and the tenant are both agreed ?

(2.) THE question raises a point of construction under Section 89, Central Provinces Tenancy Act, 1920. That Section contains two subsections. The first is dealing with the case where an absolute occupancy tenant or occupancy tenant can compel his landlord to take a surrender of his tenancy. Various circumstances have to exist and if they exist, then a tenant can compel his landlord to take a surrender " by delivering...a registered document executed in favour of the landlord." The second sub-section is in the following terms: "No surrender shall be valid unless effected by a registered document." The argument before us started by saying that those provisions do not prevent surrenders which are oral or agreements which determine a tenancy by any means other than by way of surrender even though there be no registered document. That argument proceeds very largely along the lines (1) that Section 89(2) should read " No such surrender...etc." and (2) that Section 35 indicates a case where a tenancy may be determined otherwise than by surrender.

(3.) IN my opinion what the Tenancy Act is talking about in Section 89(2) is any kind of surrender whatsoever. It is not dealing with the particular type of surrender which Section 89(1) is concerned with, for if that were so, Section 89(2) is tautologous. Section 89(1) makes it necessary for the service of a registered document in order to effect that particular kind of surrender and if in order to effect that particular kind of surrender a registered document has to be served, it would be quite idle subsequently to provide that that particular kind of surrender has to be by a registered document. Section 89(1) is dealing with a particular case; Section 89(2) is dealing with the general case. Formerly it was held that the various requirements of the Transfer of Property Act and the Registration Act did not apply to surrenders because a surrender by a tenant to a landlord was not a transfer and that consequently such surrenders did not require to be by a registered deed. This resulted in a good deal of confusion and, as a consequence, in my opinion Section 89(2) was introduced. That subsection requires that surrenders, like assignments of leases, be effected by a registered document. Mr. Deo has argued that many leases of small value need not be in writing and accordingly no question of registration arises. That is very true, but the Tenancy Act provides that a surrender must be by writing and that writing must be registered. The words in the Section are, in my opinion, plain. It is true that Sir Robert Macnair, then A.J.C, uses words in his judgment reported in Mooratsingh v. Munilal (1927) 14 AIR Nag 320 which give ground for the argument that the contract of tenancy can be determined as between landlord and tenant in other ways than by surrender. Those observations are not necessary for the decision of the case he was then trying. Even if correct if there be a surrender, it must be by writing registered. The question is therefore answered in the negative. Vivian Bose, J.