- (1.) PLAINTIFF Madanlal, who is the appellant, instituted a suit in the court of Munsiff, Jaipur City (East), on May 20, 1959, for the recovery of the arrears of rent, as well as for the eviction of defendant Noor Mohamad, on the ground that he had committed a default in the payment of rent for the period August 5, 1958 to May 4, 1959, in respect of the suit shop, and also on the ground that the shop was required by the plaintiff for his personal bona fide use. The defendant admitted the tenancy but denied the alleged defaults in the payment of the rent, as also the plaintiff's plea that he required the shop for his personal bona fide use. He challenged the validity of the notice as well. The learned Munsiff held that the defendant was not a defaulter, but he decreed the suit on October 12, 1960, for his eviction on the ground that the plaintiff had succeeded in proving his personal necessity for the shop and had also proved that he had given a valid notice to the defendant. The defendant went up in appeal which came to be heard by the learned Senior Civil Judge of Jaipur City. He held that the plaintiff had given a notice to the defendant but that the notice was not in accordance with the provisions of sec. 106 of the Transfer of Property Act, hereinafter referred to as the Act, because the tenancy commenced from April 6, 1956, while the notice did not expire with the end of the month of the tenancy. The learned Civil Judge therefore accepted the appeal of the defendant and set aside the decree which had been granted in favour of the plaintiff for the defendant's eviction from the shop. It is in these circumstances that the plaintiff has come up in second appeal to this Court.
(2.) THE controversy in this appeal centres round the question whether the instrument which was admittedly executed by the parties on April 5, 1956, in regard to the tenancy of the shop, is a lease-deed or whether it is a mere 'kabuliyat'. Mr. Bhandari has argued that the instrument is essentially unilateral in nature because its main recitals are on behalf of defendant Noor Mohamad who had undertaken upon himself the compliance of the various terms mentioned in it, and that the statement in this instrument that the terms of the rent-note were acceptable to the landlord did not change it into a bilateral agreement so as to make it a lease within the meaning of sec. 105 of the Act. THE learned counsel has further argued that the mere fact that the instrument is signed by Madanlal, the landlord, does not also detract from the fact that it is a mere 'kabuliyat' and nothing more. A perusal of the aforesaid instrument leaves, however, no room for doubt that both the landlord and the tenant were parties to it. This is apparent from the fact that the instrument clearly narrates that the terms mentioned in it were acceptable to the landlord. Then there is the further fact that the landlord has signed it along side with the signature of the tenant. It is futile therefore to argue that the instrument in question is a mere 'kabuliyat'. Now, a lease is undoubtedly a contract under the provisions of sec. 105 of the Act and it is necessary that both the lessor and the lessee must execute the lease-deed or there should be counter-parts executed by each one of them. This is in fact amply borne out by Choteylal vs. Mt. Durga Bai (l) and Tulsiram Rajaram Talwar vs. Govinda Ramji Patil (2) on which reliance has been placed by Mr. Bhandari himself. There can therefore be little doubt that the transfer in question falls within the definition of a lease contained in sec. 107 of the Act. Mr. Bhandari has however further argued that this could not be so because the instrument in question has, in the present case, been executed mainly by the lessee and that the lessor's role in respect of it having been confined to his acceptance of the terms on which the lessee undertook to take the shop on lease, the transaction would not really amount to a lease of immovable property within the meaning of sec. 105 of the Act. There is no force in this argument as well for what sec. 105 of the Act requires is that if there is a transfer of a right to enjoy immovable property, that transfer is for a certain time, express or implied, or in perpetuity, and has been made in consideration of a price paid or promised, or of money etc. and the transferee accepts the transfer on such terms, the transaction would amount to a lease of immovable property. As long as these essential requirements are fulfilled, it would not matter if any or all of them are narrated in the beginning of the instrument evidencing the transfer, or in the middle, or towards the end. As the instrument of transfer in the present case has the effect of transferring a right to enjoy the shop, to the lessee, and the period of the transfer has also been specified, along with a stipulation as to the consideration for the transfer, and when it is also undisputed that the transferee accepted the transfer on such terms, it amounts to a lease within the meaning of sec. 105 of the Act. The question then is whether the lease has in the present case been made in conformity with the requirements of sec. 107 of the Act. It is admitted that the lease is not from year to year, or for any term exceeding one year, or reserving a yearly rent, so as to be made by a registered instrument only. It is however the second paragraph of sec. 107 of the Act which is attracted in the present case because it is the plaintiff's case that the lease was for a period of 11 months and, as has been shown, it is in writing. That paragraph runs as follows - "all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. " Since the present lease has not been made by an oral agreement, and since the execution of the instrument of lease is not in dispute, it must be held that the lease should have been made by a registered instrument. Such a conclusion is inevitable from the wordings of the second paragraph of sec. 107 referred to above and to the same effect there is a decision of this Court in Banarsilal vs. Shri Bhagwan (3 ). It would follow therefore that since the lease deed is in waiting, it was compulsory registrable. Since this is not so as the instrument in question has not been registered, the lease cannot be said to be a valid lease. For the same reason, the instrument evidencing it would not be admissible in evidence. Reference in this connection may be made to a bench decision of this Court in Seth Lal Chand vs. Seth Radha Ballabh (4) in which it has been held as follows - "we feel, however, that a distinction should be made between a case where the instrument is admissible though invalid and where the instrument is both inadmissible and invalid. Where the instrument is both inadmissible and invalid no part of it can, in our opinion, be looked into or sever from it and the whole of the instrument must fail. " It would follow from the above that, in the absence of a valid lease-deed. , the tenancy in question would be monthly tenancy which would be terminable under a notice in accordance with the provisions of sec. 106 of the Act. For reasons which the learned Judge of the lower appellate court has mentioned, and which are not in dispute before me, the notice which the plaintiff gave in the present case did not fulfil the requirements of sec. 106 of the Act as the notice did not terminate with the end of the month of the tenancy and it is not therefore a valid notice. Faced with such a situation, Mr. Bhandari raised an argument that since the lease was for a period of 11 months, the defendant became nothing more than a statutory tenant at the expiry of that period and that no notice was therefore necessary u/s. 106 of the Act to terminate the lease. The learned counsel sought to support his argument by reference to Ganga Dutt Murarka vs. Kartik Chandra Das (5 ). There are however insuperable difficulties in the way of this contention. The plaintiff did not set up any such plea in the trial court and it appears that he did not raise the point in the court of first appeal. The plaintiff-appellant has not taken any such ground in the memorandum of his appeal in this Court. There is therefore no reason why he Should be allowed to set up a new case at such a late stage. Moreover, the question whether the defendant became a statutory tenant or not, is a question which essentially depends on the facts of the case. For instance, the question of statutory tenancy can be said to arise only after the expiry of the period of the contractual tenancy and it has therefore to be shown as a fact that such a period had expired. In the instant case, there is nothing in the pleadings to show that the tenancy was for a period of 11 months. The instrument by which the lease-deed was executed, and which has been referred to earlier, no doubt shows that the lease was for a period of 11 months, but, for reasons which need not be repeated, that instrument cannot be read in evidence at all. There is thus nothing on the record to show how and when the defendant became a statutory tenant. On the other hand, a perusal of paragraph (4) of the plaint lends support to Mr. Dutt's argument that the plaintiff considered him as a tenant within the meaning of sec. 116 of the Act. Lastly, Mr. Bhandari has argued that even if the lease is held to be invalid and the instrument evidencing it is rejected as inadmissible in evidence, it would still be open to the plaintiff to take the benefit of sec. 53 A of the Act. The learned counsel sought to support his argument by reference to some of the decided cases, but it would be sufficient to say that it has been decided by this Court in Motilal vs. Jaswant Singh (6) that sec. 53-A is applicable only when the defendant seeks to debar the transferor from enforcing his right against the transferee in the property which he has transferred with consideration and has parted with the possession but has not executed a registered deed. This argument of Mr. Bhandari is also of no avail to him. The result therefore is that as the plaintiff did not give a valid notice for the termination of the lease in accordance with the provisions of sec. 106 of the Act, the finding of the learned Judge of the lower appellate court must be upheld and the appeal dismissed with costs. It is ordered accordingly. There is no justification for a declaration that the case is a fit one for further appeal and the prayer for the same is disallowed. .;