Rajendra Pratap Singh Vs. Rameshwar Prasad
EmailAppeal: Special Leave Petition (C) No. 15042 of 1998 ( From the Judgment and Order dated 16.12.97 of the Patna High Court in Second Appeal No. 241 of 1996 )
Petitioner: Rajendra Pratap Singh
Respondent: Rameshwar Prasad
Apeal: Special Leave Petition (C) No. 15042 of 1998 ( From the Judgment and Order dated 16.12.97 of the Patna High Court in Second Appeal No. 241 of 1996 )
Judges: S. SAGHIR AHMAD & K.T. THOMAS , JJ.
Date of Judgment: Oct 28, 1998
Appearances:
Mr. Neeraj Kr. Jain , Mr. Manish Mohan , Ms. Anita Mohan , Mr. U.S. Prasad , Advocates for the Petitioner .
Head Note:
RENT CONTROL AND EVICTION
Bihar Building (lease, Rent and Eviction) Act, 1982
Section 11(1)(e) read with Transfer of Property Act , 1963 – Section 107 – Eviction – Expiry of lease for fixed period – Requisits of a valid lease – Phrase ” execute ” – Connotation – Whether a lease is required to be executed by both parties to become a valid lease – Plea , if available after admitting regis-tered lease for specified period – Held that having admitted the existence of valid registered deed , it was not open to lessee to raise the question that for want of signatures of both parties , lease was void and hence no eviction could be ordered under Section 11(1)(e) . Absence of signature of other party does not mean that said party has not executed the document .
Held:
Section 107 of T.P. Act consists of 3 paragraphs . The middle paragraph contains an exception to the first paragraph . The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year it can be made ” only by a registered instrument ” . If the instrument is not registered the corrolary is that no lease exceeding one year is created at all . A close reading of the third paragraph indi-cates that there is no stipulation that the instrument must be signed by both parties . The requirement is that when the lease is made by a registered instrument , ” such instrument shall be exe-cuted by both the lessor and lessee . ” What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee . ( Paras 7 & 9 )
An instrument is usually executed through multifarious steps of different sequences . If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it , of course it is only rebuttable presumption . Simi-larly if an instrument is signed by only one party it does not mean that both parties have not executed it together . Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit . Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument . When the defendant in this case did not dispute in the written statement the fact that the lease was validly made it is not open to him to raise a contention later , viz the instrument was not executed by both lessor and lessee and consequently the lease is void . ( Paras 10 & 12 )
Cases Reffered:
1 . Budh Ram v. Ralla Ram , JT 1987 (3) SC 346 . ( Para 7 )
2 . Gaon Sabha v. Jagannath Singh ( 1984 All. L.J. 518 ) ( Para 11 )
3 . Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors. ( AIR 1984 SC 143 ) ( Para 7 )
4 . Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) ( Para 11 )
2 . Gaon Sabha v. Jagannath Singh ( 1984 All. L.J. 518 ) ( Para 11 )
3 . Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors. ( AIR 1984 SC 143 ) ( Para 7 )
4 . Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) ( Para 11 )
JUDGEMENT:
ORDER
1 . Subject matter of this litigation is a shop-room . It was rented to the petitioner on a monthly rent of Rs. 90/- . Owner-ship of the building had passed from the then landlord to Smt. Indrajit Kaur who , in 1982 , started the litigation for eviction of the petitioner from the building . The landlord set up a few grounds for eviction as are envisaged in Bihar Building ( Lease , Rent and Eviction ) Control Act , 1982 ( for short ‘ the Bihar Act ‘) . During pendency of the suit for eviction , ownership of the build-ing has again been transferred and the present respondent has come into the field . After he got himself impleaded as a plain-tiff he jettisoned most of the grounds put forth in the suit for eviction and confined to the surviving ground that the period of tenancy has expired . From the trial court up to the High Court the landlord succeeded on the said ground . This Special Leave Petition has been filed in challenge of the aforesaid decree of eviction as confirmed by the High Court .
2 . Under Section 11(1) (e) of the Bihar Act a landlord has the right to evict his tenant from a building in execution of a decree passed on the ground that the period of tenancy has ex-pired . Petitioner-tenant has adopted different strategies to non-suit the respondent and the main among them is this : To attract the ground under Section 11(1) (e) of the Bihar Act there should be conjunction of two conditions . First , there should necessarily have been a valid lease for a specified period . Second , the aforesaid period should have expired . Petitioner contended that there was no valid lease by which any specified period of tenancy has been fixed .
3 . The trial court before which the aforesaid contention was raised during the time of argument spurned it down on the premise that the tenant-defendant had admitted in the written statement that the tenancy was admittedly for a fixed period of 5 years and hence he cannot be heard to argue differently . The first ap-pellate Court before which the same contention was repeated has repelled it for the following reasons :
” It is to be noted that the plaintiff-respondent in para 2 of the plaint has clearly stated that the defendant No. 1 is a tenant in the suit premises for a fixed period of five years and he executed a registered deed of Kabuliyat dated 4-10-1975 , in favour of the ex-landlord Zafir Ahmad and others on a month-ly rental of Rs. 90/- . The defendant No. 1 in his written statement in para 9 admitted that the statement made in para 2 of his plaint is correct , to this extent that there was a lease for fixed period of five years dated 4-10-1975 and rent was payable at the rate of Rs. 90/- per month . He further admitted that the said lease was due to expire on 4-10-1980 but before the expiry of the lease the defendant No. 1 gave notice to the landlord who extended the lease for a further period of five years and extension was granted on 21-6-1980 with the mutual consent of the parties on the same rate of rent .
*** *** ***
So creation of fixed term tenancy is admitted by the defendant No. 1 and his plea for extension of the lease is palpably false . I do not find that any cogent evidence has been adduced on this point by the defendant no. 1 . It is clear that the objection as to validity of the lease had been raised for the first time during the argument in the lower court. “
4 . Learned Single Judge of the High Court of Patna who declined to interfere with the said finding has observed as follows :
” It is contended by the learned counsel for the appellant that in the absence of valid execution of lease the plaintiff-re-spondent was not entitled for eviction of the appellant . I am unable to accept the submission of the learned counsel for the appellant . In view of the admitted fact that the lease under which the defendant- appellant entered the suit premises , was for a fixed term and the period had already expired , suit has rightly been decreed against the defendant-appellant , on the basis of the evidence on record . This aspect stands concluded by concurrent findings of fact . As such , no case for interfer-ence in Second Appeal has been made out . “
5 . As the aforesaid contention was seriously pursued before us we may examine it . Material portion of Section 11(1)(e) of the Bihar Act is extracted below :
” 11 . Eviction of tenants . – (1) xxx xxx where a tenant is in possession of any building , he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds :-
xxxx xxxx xxxx xxxx
(e) in case of a tenant holding on a lease for a specified period , on the expiry of the period of the tenancy . “
It is apparent that in order to make out the said ground , two conditions must be satisfied : (1) The tenant should hold on a lease for a specified period . (2) The said period should have expired . If there is no valid lease for a specified period the landlord cannot rely on the said ground for seeking a decree of eviction .
6 . Petitioner-tenant cannot now depart from the factual position which he has admitted in the trial court as well as before the first appellate Court that he had executed a regis-tered deed of Kabuliyat on 4-10-1975 (Ext. 2) in favour of Zafir Ahmad ( the predecessor in title of the present landlord ) agreeing to vacate the premises on the expiry of a period of 5 years . But the contention is that as the said instrument was not signed by both the landlord and the tenant , there was no valid lease creat-ed for a specified period . The contention , in other words , is that joint execution of a lease by both the lessor and lessee is sine qua non for creation of a valid lease .
6 . Section 107 of the Transfer of Property Act reads thus :
” A lease of immoveable property from year to year , or for any term exceeding one year , or reserving a yearly rent , can be made only by a registered instrument .
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession .
Where a lease of immoveable property is made by a registered instrument , such instrument or , where there are more instruments than one , each such instrument shall be executed by both the lessor and the lessee .
Provided that the State Government may , from time to time , by notification in the Official Gazette , direct that lease of immoveable property , other than leases from year to year , or for any term exceeding one year , or reserving a yearly rent , or any class of such leases , may be made by unregistered instrument or by oral agreement without delivery of possession . “
7 . Barring the proviso which enables the State Government to relax the conditions , the above section consists of 3 paragraphs . The middle paragraph contains an exception to the first paragraph . The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year it can be made ” only by a registered instrument ” . If the instrument is not registered the corollary is that no lease exceeding one year is created at all . Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act either for proving the terms of the lease or otherwise , vide Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors. ( AIR 1984 SC 143 ) and Budh Ram v. Ralla Ram , JT 1987 (3) SC 346 .
8 . But as for third paragraph of Section 107 of the Transfer of Property Act the only requirement is that execution of the lease through a registered instrument shall be a joint endeavour of both lessor and lessee . The said paragraph in the section was introduced by the Transfer of Property ( Amendment ) Act , 1929 ( Act XX of 1929 ) . The reason for introducing the aforesaid paragraph in the said section was to settle the conflict of opinion ex-pressed by different High Courts regarding the validity of a lease made through a rent note signed by the lessee alone . Alla-habad High Court has held the view that a lease can be created only by an instrument signed by both the lessor and lessee while Madras High Court took a contrary view . Both views received approval by different High Courts . In the light of the said conflict the legislature thought it fit to resolve it by intro-ducing the third paragraph in this section .
9 . A close reading of the third paragraph indicates that there is no stipulation that the instrument must be signed by both parties . The requirement is that when the lease is made by a registered instrument , ” such instrument shall be executed by both the lessor and lessee . ” What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee .
10 . The word ” execute ” is given the meaning in Black’s Law Dictionary as ” to complete ; to make ; to sign ; to perform ; to do ; to follow out ; to carry out according to its terms ; to fulfill the command or purpose of . ” In ” Words and Phrases ” ( Permanent Edition ) the word ” execute ” is given the meaning as ” to complete as a legal instrument ; to perform what is required to give valid-ity to . ” An instrument is usually executed through multifarious steps of different sequences . At the first instance , the parties might deliberate upon the terms and reach an agreement . Next the terms so agreed upon would be reduced to writing . Sometimes one party alone would affix the signature on it and deliver it to the other party . Sometimes both parties would affix their signature on the instrument . If the document is required by law to be registered , both parties can be involved in the process without perhaps obtaining the signatures of one of them . In all such instances the instrument can be said to have been executed by both parties thereto . If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it , of course it is only rebuttable presumption . Similarly if an instrument is signed by only one party it does not mean that both parties have not executed it together . Whether both parties have executed the instrument will be a question of fact to be deter-mined on evidence if such a determination is warranted from the pleadings of the particular suit . Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument .
11 . In this connection it is appropriate to refer to a three-Judge Bench decision of this Court in Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) . . A Kabuliat was executed by the lessees in favour of their lessors , but the latter did not execute any instrument in favour of the lessees . It was contended that the lessees could not claim the status of tenants solely on the strength of the Kabuliat which was only a unilateral undertaking . But the evi-dence showed that the lessors had accepted the Kabuliat and received rent as prescribed therein . On the aforesaid facts this Court overruled the contention that the lessees could not claim the status of tenants . The Allahabad High Court which adopted the contrary view prior to the introduction of the Amendment in 1929 to Section 107 of the Transfer of Property Act , had occasion to consider a similar contention regarding one Kabuliat executed after such amendment . In Gaon Sabha v. Jagannath Singh ( 1984 All. L.J. 518 ) the High Court following the ratio of Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) has held that there was no violation of Section 107 of the Transfer of Property Act .
12 . When the defendant in this case did not dispute in the written statement the fact that the lease was validly made it is not open to him to raise a contention later , viz the instrument was not executed by both lessor and lessee and consequently the lease is void . The High Court , has therefore , rightly confirmed the finding of the courts below that the decree for eviction on the ground under Section 11(1)(e) of the Bihar Act is not liable to be interfered with .
13 . Accordingly we dismiss this Special Leave Petition .
1 . Subject matter of this litigation is a shop-room . It was rented to the petitioner on a monthly rent of Rs. 90/- . Owner-ship of the building had passed from the then landlord to Smt. Indrajit Kaur who , in 1982 , started the litigation for eviction of the petitioner from the building . The landlord set up a few grounds for eviction as are envisaged in Bihar Building ( Lease , Rent and Eviction ) Control Act , 1982 ( for short ‘ the Bihar Act ‘) . During pendency of the suit for eviction , ownership of the build-ing has again been transferred and the present respondent has come into the field . After he got himself impleaded as a plain-tiff he jettisoned most of the grounds put forth in the suit for eviction and confined to the surviving ground that the period of tenancy has expired . From the trial court up to the High Court the landlord succeeded on the said ground . This Special Leave Petition has been filed in challenge of the aforesaid decree of eviction as confirmed by the High Court .
2 . Under Section 11(1) (e) of the Bihar Act a landlord has the right to evict his tenant from a building in execution of a decree passed on the ground that the period of tenancy has ex-pired . Petitioner-tenant has adopted different strategies to non-suit the respondent and the main among them is this : To attract the ground under Section 11(1) (e) of the Bihar Act there should be conjunction of two conditions . First , there should necessarily have been a valid lease for a specified period . Second , the aforesaid period should have expired . Petitioner contended that there was no valid lease by which any specified period of tenancy has been fixed .
3 . The trial court before which the aforesaid contention was raised during the time of argument spurned it down on the premise that the tenant-defendant had admitted in the written statement that the tenancy was admittedly for a fixed period of 5 years and hence he cannot be heard to argue differently . The first ap-pellate Court before which the same contention was repeated has repelled it for the following reasons :
” It is to be noted that the plaintiff-respondent in para 2 of the plaint has clearly stated that the defendant No. 1 is a tenant in the suit premises for a fixed period of five years and he executed a registered deed of Kabuliyat dated 4-10-1975 , in favour of the ex-landlord Zafir Ahmad and others on a month-ly rental of Rs. 90/- . The defendant No. 1 in his written statement in para 9 admitted that the statement made in para 2 of his plaint is correct , to this extent that there was a lease for fixed period of five years dated 4-10-1975 and rent was payable at the rate of Rs. 90/- per month . He further admitted that the said lease was due to expire on 4-10-1980 but before the expiry of the lease the defendant No. 1 gave notice to the landlord who extended the lease for a further period of five years and extension was granted on 21-6-1980 with the mutual consent of the parties on the same rate of rent .
*** *** ***
So creation of fixed term tenancy is admitted by the defendant No. 1 and his plea for extension of the lease is palpably false . I do not find that any cogent evidence has been adduced on this point by the defendant no. 1 . It is clear that the objection as to validity of the lease had been raised for the first time during the argument in the lower court. “
4 . Learned Single Judge of the High Court of Patna who declined to interfere with the said finding has observed as follows :
” It is contended by the learned counsel for the appellant that in the absence of valid execution of lease the plaintiff-re-spondent was not entitled for eviction of the appellant . I am unable to accept the submission of the learned counsel for the appellant . In view of the admitted fact that the lease under which the defendant- appellant entered the suit premises , was for a fixed term and the period had already expired , suit has rightly been decreed against the defendant-appellant , on the basis of the evidence on record . This aspect stands concluded by concurrent findings of fact . As such , no case for interfer-ence in Second Appeal has been made out . “
5 . As the aforesaid contention was seriously pursued before us we may examine it . Material portion of Section 11(1)(e) of the Bihar Act is extracted below :
” 11 . Eviction of tenants . – (1) xxx xxx where a tenant is in possession of any building , he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds :-
xxxx xxxx xxxx xxxx
(e) in case of a tenant holding on a lease for a specified period , on the expiry of the period of the tenancy . “
It is apparent that in order to make out the said ground , two conditions must be satisfied : (1) The tenant should hold on a lease for a specified period . (2) The said period should have expired . If there is no valid lease for a specified period the landlord cannot rely on the said ground for seeking a decree of eviction .
6 . Petitioner-tenant cannot now depart from the factual position which he has admitted in the trial court as well as before the first appellate Court that he had executed a regis-tered deed of Kabuliyat on 4-10-1975 (Ext. 2) in favour of Zafir Ahmad ( the predecessor in title of the present landlord ) agreeing to vacate the premises on the expiry of a period of 5 years . But the contention is that as the said instrument was not signed by both the landlord and the tenant , there was no valid lease creat-ed for a specified period . The contention , in other words , is that joint execution of a lease by both the lessor and lessee is sine qua non for creation of a valid lease .
6 . Section 107 of the Transfer of Property Act reads thus :
” A lease of immoveable property from year to year , or for any term exceeding one year , or reserving a yearly rent , can be made only by a registered instrument .
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession .
Where a lease of immoveable property is made by a registered instrument , such instrument or , where there are more instruments than one , each such instrument shall be executed by both the lessor and the lessee .
Provided that the State Government may , from time to time , by notification in the Official Gazette , direct that lease of immoveable property , other than leases from year to year , or for any term exceeding one year , or reserving a yearly rent , or any class of such leases , may be made by unregistered instrument or by oral agreement without delivery of possession . “
7 . Barring the proviso which enables the State Government to relax the conditions , the above section consists of 3 paragraphs . The middle paragraph contains an exception to the first paragraph . The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year it can be made ” only by a registered instrument ” . If the instrument is not registered the corollary is that no lease exceeding one year is created at all . Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act either for proving the terms of the lease or otherwise , vide Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors. ( AIR 1984 SC 143 ) and Budh Ram v. Ralla Ram , JT 1987 (3) SC 346 .
8 . But as for third paragraph of Section 107 of the Transfer of Property Act the only requirement is that execution of the lease through a registered instrument shall be a joint endeavour of both lessor and lessee . The said paragraph in the section was introduced by the Transfer of Property ( Amendment ) Act , 1929 ( Act XX of 1929 ) . The reason for introducing the aforesaid paragraph in the said section was to settle the conflict of opinion ex-pressed by different High Courts regarding the validity of a lease made through a rent note signed by the lessee alone . Alla-habad High Court has held the view that a lease can be created only by an instrument signed by both the lessor and lessee while Madras High Court took a contrary view . Both views received approval by different High Courts . In the light of the said conflict the legislature thought it fit to resolve it by intro-ducing the third paragraph in this section .
9 . A close reading of the third paragraph indicates that there is no stipulation that the instrument must be signed by both parties . The requirement is that when the lease is made by a registered instrument , ” such instrument shall be executed by both the lessor and lessee . ” What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee .
10 . The word ” execute ” is given the meaning in Black’s Law Dictionary as ” to complete ; to make ; to sign ; to perform ; to do ; to follow out ; to carry out according to its terms ; to fulfill the command or purpose of . ” In ” Words and Phrases ” ( Permanent Edition ) the word ” execute ” is given the meaning as ” to complete as a legal instrument ; to perform what is required to give valid-ity to . ” An instrument is usually executed through multifarious steps of different sequences . At the first instance , the parties might deliberate upon the terms and reach an agreement . Next the terms so agreed upon would be reduced to writing . Sometimes one party alone would affix the signature on it and deliver it to the other party . Sometimes both parties would affix their signature on the instrument . If the document is required by law to be registered , both parties can be involved in the process without perhaps obtaining the signatures of one of them . In all such instances the instrument can be said to have been executed by both parties thereto . If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it , of course it is only rebuttable presumption . Similarly if an instrument is signed by only one party it does not mean that both parties have not executed it together . Whether both parties have executed the instrument will be a question of fact to be deter-mined on evidence if such a determination is warranted from the pleadings of the particular suit . Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument .
11 . In this connection it is appropriate to refer to a three-Judge Bench decision of this Court in Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) . . A Kabuliat was executed by the lessees in favour of their lessors , but the latter did not execute any instrument in favour of the lessees . It was contended that the lessees could not claim the status of tenants solely on the strength of the Kabuliat which was only a unilateral undertaking . But the evi-dence showed that the lessors had accepted the Kabuliat and received rent as prescribed therein . On the aforesaid facts this Court overruled the contention that the lessees could not claim the status of tenants . The Allahabad High Court which adopted the contrary view prior to the introduction of the Amendment in 1929 to Section 107 of the Transfer of Property Act , had occasion to consider a similar contention regarding one Kabuliat executed after such amendment . In Gaon Sabha v. Jagannath Singh ( 1984 All. L.J. 518 ) the High Court following the ratio of Asa Ram v. Ram Kali ( AIR 1958 SC 183 ) has held that there was no violation of Section 107 of the Transfer of Property Act .
12 . When the defendant in this case did not dispute in the written statement the fact that the lease was validly made it is not open to him to raise a contention later , viz the instrument was not executed by both lessor and lessee and consequently the lease is void . The High Court , has therefore , rightly confirmed the finding of the courts below that the decree for eviction on the ground under Section 11(1)(e) of the Bihar Act is not liable to be interfered with .
13 . Accordingly we dismiss this Special Leave Petition .
