TMI Blog1951 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Immovable property was merely a transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 mtge'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 Immovable 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell 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. 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 case 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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