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PETITIONER: RAJENDRA PRATAP SINGH

       Vs.

RESPONDENT: RAMESHWAR PRASAD

DATE OF JUDGMENT:       28/10/1998

BENCH: S.Saghir Ahmad, K.T.  Thomas.

JUDGMENT:

D E R         Subject matter of this litigation  is  a  shop-room. It  was  rented  to  the  petitioner  on  a  monthly rent of Rs.90/-.  Ownership 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 building has again been transferred and the  present  respondent  has come into  the  field.   After he got himself impleaded as a plaintiff he Jettisoned most of the grounds put forth in the suit far 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.

       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  expired   Petitionertenant   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 veiled 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.

       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 appellate Court before which the same contention was repeated has  repelled  it  for  the following reasons:

       "It    is    to    be   noted   that   the         plaintiffrespondent  in  para  2  of   the         plaint   has   clearly   stated  that  the         defendant No.l is a  tenant  in  the  suit         premises  for a fixed period of five years

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       and  he  executed  a  registered  deed  of         Kabuliyat  dated  4-10-1975,  in favour of         the ex-landlord Zafir Abroad and others on         a monthly  rental   of   Rs.90/-.      The         defendant No.l 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 a  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-l’980 but         before  the  expiry  of  the   lease   the         defendant No.l 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.

       XXX          XXX         XXX         XXX

       So  creation  of  fixed  term  tenancy  is         admitted  by  the  defendant  No.l and his         plea  for  extension  of  the   lease   is         palpably false.    I  do not find that any         cogent  evidence  has  been  adduced  this         point by  the defendant No.l.  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."

       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  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  interference  in         Second Appeal has been made out."

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 :

       xxx       xxx       xxx       xxx

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       (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.

       Ptetitioner-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 registered deed of Kabuliyat on 4-101975  (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 created 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.

       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.

       "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

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Registration  Act either for proving the tennis of the lease or otherwise.   "vide  Satish  Chand  Makhan  &  ors.    vs. Govardhan Das  Byas  &  Ors.  (AIR 1984 SC 143) and Budh Ram vs.  Railla Ram, (AIR 1987 SC 2078).

       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 lessen.    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 expressed by different High Courts regarding the validity of a lease made through a rent note  signed by the lessee alone.  Allahabad 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 introducing the third paragraph in this section.

       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.

       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  validity  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.   Sometime one  party  alone would affix the signature on it and delver 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  net 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.

       In this connection it is appropriate to refer to  a three-Judge Bench decision of this Court in asa Ram vs.  Ram Kali (AIR  1958  SC  183).   A Kabuliat was executed by the

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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 evidence 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 vs.  Jagannath Singh (1984 All.  L.J.  518) the  High  Court following the ratio  of Asa.  Ram vs.  Ram Kali (AIR 1958 SC 183) has held that there was no violation of Section 107  of the Transfer of Property Act.

       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.

       Accordingly we dismiss this Special Leave Petition.