PATNA HIGH COURT

                                                   Ganpat Turi

                                                         Vs

                                             Mohammad Asraf Ali

                                          A.F.A.D. No. 1344 of 1956

                               (V. Ramaswami, C.J. and R.K. Choudhary, J.)

                                                   21.03.1960

                                                  JUDGMENT

V. Ramaswami, C.J.

1. In the suit out of which this appeal arises the plaintiff claimed arrears of house rent from the
defendant at the rate of Rs. 20 per month from December, 1952 to March, 1955. The house was
given by the defendant in usufructuary mortgage to the plaintiff by a registered document dated
the 30th July, 1952. On the same date the plaintiff let out the house on lease to the defendant on a
monthly rent of Rs. 20 and a Kirayanama was executed to this effect by the defendant on this
date. Both the lower Courts have held that the usufructuary mortgage and the Kirayanama are not
parts of one and the same transaction, but they are two different transactions and the plaintiff was
entitled to get a decree for house rent, to the extent of Rs. 500 from December, 1952, till the
filing of, the present suit of the rate of Rs. 20 per month.

2. On behalf of the defendant who has preferred this appeal it was contended, in the first place,
that the usufructuary mortgage and the Kirayanama are parts of one and the same transaction and
so the plaintiff cannot realise the amount of house rent due from the defendant by a separate suit
based upon the Kirayanama. The principle to be applied in a case of this description has been
elaborately considered by a Division Bench, of this High Court in Umeshwar Prasad Singha v.
Dwarika Prasad1, One of the tests laid down in that case is whether it appears on a reasonable
construction of the two documents that the properties given in, security are not only for the
principal amount secured under the sudbhama bond but also for the interest accruing thereupon.
Applying this test to the present case, we hold that the kirayanama and sudbharna bond were two
different transactions. On a perusal of the sudbharna bond it is clear that no rate of interest is
prescribed, and that the amount to be paid under the kirayanama, namely, Rs. 20 per month,
cannot be treated as interest due on the principal amount of Rs. 500 advanced upon the
usufructuary mortgage bond. In view of the circumstances appearing in the present case, we are
or opinion that the kirayanama and the usufructuary mortgage bond are not parts of one and the
same transaction, and the view taken, by the lower Courts is correct. We overrule the contention
of learned counsel for the appellant on this part of the case.
3. The second argument advanced on behalf of the appellant is that, even if the two transactions
are different, the plaintiff cannot succeed in getting a decree for house rent because the
kirayanama is not a registered instrument and is not signed by the lessor and the lessee as
required by Section 107 of the Transfer of Property Act. In support of this argument learned
counsel referred to the decision in Rama Sahu v. Gowro Ratho2, which is a decision of the Full
Bench of the Madras High Court. This point does not appear to have been raised in the lower
Courts. But even assuming that the contention of learned counsel for the appellant is correct and
the kirayanama between the parties should have been registered, it does not necessarily follow
that the plaintiff cannot realize the amount of house rent for the period in question; for it is well
established by numerous authorities that if a tenant is in possession under an unregistered lease
and the landlord recognised his right by acceptance of rent, then the presumption of Section 106
of the Transfer of Property Act comes into operation.
In support of this contention learned counsel for the respondent has relied upon a decision of this
High Court in Darbari Lal v. Raneeganj Coal Association Ltd3., In the present case it was alleged
in the plaint that rent was paid under the unregistered kirayanama by the defendant to the plaintiff
for a period of four months from August, 1952, to November, 1952. The receipt for rent (Exhibit
5) was exhibited on behalf of the plaintiff in the trial Court, and signature of the defendant has
also been proved on this receipt as Exhibit 6. The finding of the trial Court is that the receipt is
genuine, and, in view of the payment of rent for four months from August, 1952, to November,
1952, the plaintiff was not entitled to realise rent for this period in the present suit. In view of this
finding, therefore, it is clear that by payment for the period in question, the defendant has
become a monthly tenant of the plaintiff because of the provisions of Section 106 of the Transfer
of Property Act. We, therefore, overrule the contention of learned counsel for the appellant that
there is no relationship of landlord and tenant between the parties.

4. In our opinion, there is no merit in this Second Appeal. It is accordingly dismissed with costs.

Appeal dismissed.

Cases Referred.

1 ILR 22 Pat 320
2 ILR 44 Mad 55
3 AIR 1944 Pat 30