Devi Bhagat Trust, Agra Vs. Ram Swarup Jain  INSC 388
(14 August 1995)
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs. Sujata V. Manohar. J.
1995 AIR 2482 1995 SCC (5) 314 JT 1995 (7) 185 1995 SCALE (4)709
appellant-trust had given shop premises No. 1930/1 situated in Mohalla Ghatia Azam
Khan, Agra belonging to the appellant to the
original respondent on lease at a monthly rent of Rs. 75/- sometime in 1954.
The terms relating to the tenancy which were agreed upon between the parties
were reduced to writing. This document is Ex.12. It is, however, not
registered. As the respondent did not pay any rent to the appellant since
1.1.1960 the appellant served a notice to quit dated 27.3.1961 on the respondent
and filed a suit for ejectment and recovery of arrears of rent. The suit was
decreed by the Trial Court but was dismissed by the appellate court on the
ground that the appellant was not a registered body and all the trustees of the
trust had not joined in the suit. The appellant-trust thereafter got itself
registered on 8.5.1963. The appellant served a notice to quit on the respondent
which is dated 30th of May, 1963.
notice period is 30 days. As the respondent failed and neglected to comply with
the notice the appellant filed a suit against respondent for ejectment &
recovery of arrears of rent and other consequential reliefs. The suit was filed
before the Munsif's Court at Agra. The suit
was decreed by the trial court. The respondent filed an appeal before the
Additional Civil Judge, Agra.
only point which was raised by the respondent in appeal was that the notice
dated 30.5.1963 terminating the tenancy of the respondent was invalid because
the lease in favour of the respondent was a manufacturing lease; and six
months' notice under Section 106 of the Transfer of Property Act was necessary
in order to terminat the tenancy of the respondent. The appellate court
rejected this contention and held that in view of the agreement which was entered
into between the parties (Ex.12) there was an express term of the contract that
a notice in writing of fifteen days only was necessary for the termination of
second appeal, however, before the High Court at Allahabad, a learned Single Judge has come to the conclusion that the
terms of the lease which are recorded in Ex.12 cannot be relied upon in view of
the provisions of section 107 of the Transfer of Property Act. Hence the term
in the agreement relating to giving fifteen days' notice of termination cannot
be looked at. He held that as the lease was a manufacturing lease, six months'
notice was required under the deeming provision of Section 106 of the Transfer
of Property Act. In its absence, the suit must fail. He, therefore, allowed the
appeal and dismissed the appellant's suit for ejectment. Learned Single Judge,
however, decreed the claim of the appellant for arrears of rent. The present
appeal is from this judgment of the High Court.
Section 107 of the Transfer of Property Act a lease of immoveable property from
year to year of for any term exceeding one year can be made only by a
registered instrument. Any lease of this kind would be void unless it is
created by a registered instrument. All other leases of immoveable property may
be made either by a registered instrument or by an oral agreement accompanied
by delivery of possession. All the courts below have held that there was a
valid lease. The high Court has also recorded that it was not the contention of
the respondent that his lease was from year to year. The contention was that
the lease was for a term exceeding one year and was, therefore, compulsorily registerably
under the first part of section 107 of the Transfer of property Act. This
contention has been negatived by the High Court as also by both the courts
below. The High Court has held that the lease was not for a term exceeding one
year, and so was not compulsorily registerable under the first part of Section
107. It, however, held that since the lease was for a manufacturing purpose,
six months' notice to quit was required under section 106. In its absence,
termination was not valid.
reasoning is fallacious. It is true that Ex.12 which is not registered, cannot
be looked at because it is not registered. But the factum of lease is not in
the courts have held that it was a lease from month to month and was not for a
term exceeding one year. In view of this finding, the deeming provisions of the
first part of section 106 of the Transfer of property Act cannot be attracted
in the present case.
106 provides, inter alia, that in the absence of a contract between the
parties, a lease of immoveable property for manufacturing purposes shall be
deemed to be a lease from year to year terminable by six months' notice. In the
present case there is a clear finding to the effect that the lease in question
was not from year to year or for a period exceeding one year. Therefore, even
though the lease may be for a manufacturing purpose, since the lease was not
from year to year, six months' notice was not required. A manufacturing lease
which is not from year to year ,six months' notice was not required six months'notice
of termination. It will fall in the second half of section 106, requiring
fifteen days' notice of termination. A lease from month to month or a lease
other than a lease from year to year is terminable by fifteen days' notice.
Hence the notice in the present case is a valid notice to quit. The High Court,
having come to the conclusion that the lease was not for a period exceeding one
year, and was not a lease from year to year erred in holding that six months'
notice to quit was required. Such a notice is required, provided there is no
contract to the contrary, only when a manufacturing lease is, or is deemed to
be, from year to year. This not being the case, the lease is terminable by
fifteen days' notice even if the lease is a manufacturing lease.
appeal is, therefore, allowed with costs. The order of the High Court is set
side and the order of the first appellate court is restored.