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Thambi Alias Chinnasawmi Padayachi vs Avayambal on 11 March, 1910 cites

Sheo Karan Singh And Ors. vs Parbhu Narain Singh on 20 January, 1909

In Shed Karan Singh v. Maha Narain Singh (1909) I.L.R. 31 A. 276 the Full Bench of the Allahabad High Court deliberately refrained from expressing an opinion on the question. Section 107 of the Transfer of Property Act is by Section 4 of that Act to be read as supplemental to the Indian Registration Act. By Section 3 of the Registration Act " lease " is defined so as to include a Kabuliyat and an undertaking to cultivate or to occupy. The instrument in question in this case would fall within the definition of "lease'' under the Registration Act. The effect of reading Section 107 as supplemental to the Indian Registration Act cannot, it is true, affect the meaning of the term "lease " in Section 107 which follows Section 105. The latter section defines it as a transfer and the transferor is called the lessor and the transferee the lessee. The problem is whether there cannot be a transfer within the meaning of Section 105 without the signature of the transferor when only the transferee signs the instrument and the transferor accepts it. It is somewhat significant that while the signature by the mortgagor and the donor is specified in Sections 59 and 123 as the pre-requisite of a valid mortgage and gift, no mention is made of it in Section 107 relating to leases. It has been pointed out by Mr. Justice Banetjea that it is the common practice in the United Provinces to treat a Kabuliyat as an instrument creating a tenancy. That the same practice prevails in this Presidency is beyond question. And the practice has been largely encouraged by the definition of lease in the Registration Act. The question is one of great importance having regard to the large number of titles created under instruments settling the terms of a tenancy but signed only by the tenant. Assuming that there must be the language of transfer to create a tenancy does it necessarily follow that there should be any signature of the transferor appended to the instrument of transfer ? In the case of instruments requiring registration the Registration Act pre-supposes executions for the appearance of the executants or of his representative, assign or agent before the Registering Officer is made a condition of registration. See Section 34. Where a tenancy is attempted to be created by an unregistered instrument, can it be said that the lease is invalid if the instrument of transfer is signed only by the transferee and accepted by the transferor ? Is there any thing to prevent the lease running as follows : "A B transfers certain property at a certain rent for a certain term to CD" followed by the signature of C D only ?
Allahabad High Court Cites 0 - Cited by 18 - Full Document
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