JUDGMENT
Bhagwati, J.
1. This is a Letters Patent appeal from the decision of Bavdekar J. who dismissed the second appeal against the decision of the
learned Dist. J., Kanara, who in his turn diamissed the appeal from the judgment of the learned Subordinate Judge at Sirsi dismiaaing the pltf.’s suit.
2. The pltf. claimed that deft. 1 was the chalgeni tenant of his, that he had served upon deft. 1
a notice terminating the tenancy on 20-12-1942, & that he was entitled to possession of the suit property from deft. 1. The pltf. also claimed arrears
of the rent & costs.
3. The defences taken up by deft. 1 were that there was an oral agreement between his deceased brother & the pltf. to lease the suit properties as
well as other properties at mulgeni, that in pursuance of the said agreement his brother had
migrated with his family to cultivate the suit properties & that the mulgeni agreement was
written on 22 2-1915, in respect of both the bagayat & the paddy lands but that subsequently Narasinha had changed his mind & insisted on two separate documents of lease pertaining to the bagayat & the paddy lands respectively, that he
was a mulgeni tenant in respect of the suit lands, & in the alternative held the suit lands as a mulgeni tenant by virtue of the doctrine of part-performance as laid down in Section 63-A, T. P. Act.
4. The Ct. of first instance found against deft. 1 on the question of fact & this finding of fact was
confirmed by the appellate Ct. & it is not open to the applt. to question that finding, viz. that there was no oral agreement between the deceased
brother of deft. 1 & Narasinha to lease the properties at mulgeni or that deft. 1’s brother had migrated with his family to cultivate the suit
properties in pursuance of the said agreement. In regard to the applicability of Section 53-A, however, the Ct. of first instance held that the document, Ex. 18, which was executed on 22-2-1915, was in respect of both the bagayat & the paddy lands & constituted a mulgeni lease of both these lands, that deft. 1 held the said lands as mulgeni tenant
under the terms of this document & that deft. 1
was entitled to the benefit of the doctrine of part-
performance as laid down in Section 53-A, T. P. Act.
The learned trial Judge, therefore, dismissed the pltf’s suit. This decision of the learned Judge was confirmed by the learned Dist. J. as also by
the H. Ct. in second appeal, Bavdekar J., however, appears to have granted leave to file the appeal under the Letters Patent because a point was raised before him that the lease being merely a transfer of a partial right in property, viz. a
right to enjoy the property (vide Section 105, T. P. Act), it could not be said to be a transfer of property within the meaning of the expression as used in Section 53-A, T. P, Act.
5. Mr. Hattyangadi for the applt. urged before us that the document Ex. 18 executed on 22-2-1915, was superaeded by the document Ex. 19,
executed on 23-2-1915, that the arrangement which had been arrived at between the parties the previous day was thus superseded & there
was no binding agreement between the parties in regard to the paddy lands. He, therefore, urged that the document, Ex. 18, was not operative any further & the possession taken by deft. 1 could not be applied as & by way of part performance of the agreement contained in that document. Deft, 1 had stated that subsequently Narasinha changed his mind & insisted on two separate leases as regards bagayat lands & the paddy lands respectively. That does not, however mean, without anything more, that the arrangement which had been arrived at between, the parties on 22-2-1915, was set at naught. We do not find in the pleadings or in the evidence anything to suggest that after the execution of the document, Ex. 18, on 22-2-1915, any arrangement was arrived at between the parties varying the terms of that document. There is no evidence also of any novalio or a new agreement arrived at between the parties under which the whole effect of the document Ex. 18, was wiped out & the parties agreed that the bagayat & the paddy lands should be leased under the terms of specific leases to be executed in respect of each. The mere fact that Narasinha contemplated the execution of two separate leases in respect of the bagayat & the paddy lands & that one lease was executed on 23-2-1915, in regard to the bagayat lands & was duly regd. it does not follow that the non-execution of a similar lease in regard to the paddy lands on 23 2-1915 was to operate as setting at naught what had been done on 22-2-1915, by way of execution of the document, Ex. 18, in regard to the paddy lands. It may be that for the sake of convenience or for executing the mulgeni lease with the proper formalities in regard to both these lands separately the parties might have contemplated the execution of two separate leases in regard to the bagayat lands & the paddy lands. That, however, does not mean that the arrangement as embodied in the document, Ex. 18 on 22-2-1915, was set at naught. We are of the opinion that Bavdekar J. was right when he came to the conclusion that the document, Ex. 18, dated 22-2-1915, continued to be operative in regard to the paddy lands & possession taken by deft. 1 of the paddy lands was available to him for pleading part-performance within the meaning of Section 53 A, T. P. Act.
6. The next contention urged by Mr. Hattyangadi on behalf of the applt. was that according to Section 105, T. P. Act a lease of immoveable property was merely a transfer of a right to enjoy such property, that it was a transfer of a part of the rights which the owner of an immoveable property had in or over the same & that unless there was a transfer of the totality of the rights it could not be a transfer of immoveable property within the meaning of Section 53-A, T. P. Act. For the purpose of determining whether there is an agreement to transfer any immoveable property within the meaning of Section 53-A,
T. P. Act, we have got to see what is the definition of ‘immoveable property.’ Immoveable property has been defined in S. S, T. P. Act, in a negative manner. There immoveable property is said not to include standing timber, growing crops or grass. The definition does not say what immoveable property is. For that one has got to go to the definition thereof contained in the General Clauses Act & the General Clauses Act defines “immoveable property” again in an inclusive manner. It says that immoveable property shall include land, benefits to arise out of land & things attached to the earth. Immoveable property is there defined as including not only land but also benefits to arise out of land. That is the immoveable property which can be the subject-matter of transfer, & if there is a contract to transfer immoveable property comprised within this inclusive definition, that would come well within the moaning of Section 53-A, T. P. Act. The benefit to arise out of land is an interest in land & therefore immoveable property. (Vide Sir Dinshah Mulla’s commentary on Section 3, T. P. Act, p. 15.) Merely because in the definition of a lease contained in Section 105, T. P. Act, we do not find it specifically stated that a lease of immoveable property is a transfer of an interest in such property, but it is defined as a transfer of a right to enjoy such property, it does not follow that the transfer of the benefit to arise out of land, viz., the right to enjoy the immoveable property, is not a transfer of an interest in immoveable property. An interest in immoveable property can be acquired by a person not only if he has the totality of the rights in & over such property; he can also have an interest in immoveable property if he has transferred to him certain rights in or over the property which would come within the definition of a benefit to arise out of land. If Mr. Hattyangadi’s contention is correct, a mtgee. would not have an interest in the property because he has not got the totality of the proprietary rights therein. On an execution of a mtge. two interests are carved out in the property: (1) the mtgee’s interest therein, (2) the mtgor’s interest therein which is otherwise called the equity of redemption. Both these are interests in the property though they do not invest the owners of Such interests with the totality of rights hi or over the property the subject-matter of the mtge. Similar is the case of a lease. A lease is no doubt a transfer of a right to enjoy the immoveable property but by the execution of a lease again there are carved out two interests in the property: (1) the lessee’s interest, viz., the interest in the land which is created by reason of the demise of the property in his favour, & (2) the lessor’s interest which is the reversion in the land which falls in after the lessee’s interest therein has ceased or come to an end. That there are these interests in the property is well recognised in the following sections of the T, P. Act. It is provided in Section 108(j) that :
“the leases may transfer absolutely or by way of mtge. or sub-lease the whole or any part of his interest in the property, & any transferee of such interest or part may again transfer it. … ”
It is further provided in Section 111(d) and (e) that:
“A lease of immoveable property determines. . . .
(d) in case the interests of the lessee & the lessor in the whole of the property become vested at the same time in one person in the same right:
(e) by express surrender; that is to any, in case the lessee yields up his interest under the lease, to the lessor, by mutual agreement between them.” These sections go to show that a lessee has an interest in the property which is the subject-matter of the lease though the lessor also has an interest in the reversion after the lessee’s interest in the property has ceased or come to an end. On a consideration of the matter on first principles, therefore, it follows that merely because a lease of an immoycable property is defined as a transfer of a right to enjoy such property in Section 105, T. P. Act, it does not follow that it is not a transfer of immoveable property within the meaning of Section 53A, T. P. Act. The transaction is as much a transfer of immoveable property as any other which is contemplated under the terms of the T. P. Act.
7. It was urged by Mr. Hattyangadi for the applt. that their Lordships of the P C. in S. N. Banerji v. Kuchwar Lime & Stone Co., 44 Bom. L. R. 324: (A. I. R. (28) 1941 F. C. 128), expressed a doubt in regard to the correctness of this position when they observed (p. 832):
“Now whether 8. 53 A applies at all to an agreement to transfer a partial interest in property such as a right to win minerals or out timber or the like, is a question which on this occasion it is not necessary to determine.” Merely because their Lordships did not express any opinion, it does not necessarily follow that they had any doubt in regard to this proposition. It was not necessary for their purposes to go into that aspect of the case & they therefore let it well alone. The question, however, to consider is whether what is the subject matter of the transfer in immoveable property within the meaning of the definition thereof contained both in the T. P. Act & the General Clauses Act & if on a true appreciation of the whole position one comes to the conclusion that what is the subject-matter of the transfer is a benefit arising out of land it is immoveable property & is well within the meaning of Section 53A, T. P. Act.
8. We may in passing refer to a decision of Wadia J. reported in Suleman v. Patell, 35 Bom. L. R. 722 : (A. I. R. (20) 1933 Bom. 881) where the learned Judge applied Section 53-A, T. P. Act, in the matter of a lease. No doubt there is the comment of Sir Dinshah Mulla in regard to this case contained at p. 285 of his commentaries on the T. P. Act where he says:
“In a Bombay case the deft. took possession under an unregistered lease for five years & vacated after sixteen months claiming to be a ‘monthly tenant.’ The Ct. held that as the deft. had taken possession under the unregistered lease he was liable under Section 53A for the rent of the whole term & awarded damages to the pltf. In this ease part performance was used not as a ground of
defence but as a ground of attack. The cardinal principle was overlooked, viz., that part performance must be the act of the person seeking to avail himself of the equity & that acts of the person sought to be charged are of no avail.”
In spite of this comment the fact does remain that for the purposes of the applicability of Section 53A, T. P. Act, the learned Judge treated a lease of immovable property as a transfer of immoveable property & that is enough for the purposes of this case before us.
9. We may also refer to a decision of the Allahabad H. C. reported in Shyam Sundar Lal v. Din Shak. The learned Judges of the Allahabad H. G. there observed (p. 816):
“The only point that remains for consideration is whether Section 53A is applicable to lenses also. No doubt Section 105 defines ft lease as a transfer of a right to enjoy such property & does not speak of a transfer of an interest in such property. But Section 108(j) speaks of the lessee transferring the whole or any part of his interest in the property. Similarly, Section 111(d) & (e) refer to the interest of the lessee & the lessee yielding up his interest. It is also to be noted that Section 53-A has been added in Chap. II, T. P. Act, which contains a general provision governing all transfers. Indeed Section 111 which makes the provisions of Chap. V not applicable to leases for agricultural purposes would not take out even such leases from the operation of the provisions in Chap. II. Several sections in this chap, show that the Legislature intended that a lease should be treated as a transfer of property, Section 6(1) prevents a lessee of an estate under the management of a Ct. of Wards from being authorised to assign his interest as such lessee. Section 10 specifically mentions a lease as being one of the kinds of transfer contemplated in that section. Similarly, Section 12 implies that lease is a transfer of property. Illustration (a) to Section 25 is of a lease of a farm & so is also the illustration to Section 43. If a lease of property were not to be regarded as a transfer of property within the meaning of Chap. II, a considerable difficulty would be caused by not applying provisions like those in Sections 43, 62, etc., to such a transfer. We must, therefore, hold that the transfer of immoveable property contemplated by Section 53A includes a transfer by lease.”
10. Having regard to all the considerations which we have set out above, we have come to the conclusion that the lease is a transfer of immoveable property within the meaning of Section 53A, T. P. Act. We are of opinion, therefore, that the decisions arrived at by all the Cts. below as well as by Bavdekar J. in second appeal were correct & this Letters Patent appeal should be dismissed with costs.
