judgement:
' Appeal No. '435 of 1967.
Appeal from the judgment and decree dated September 30, 1966 of the Bombay High Court Nagpur Bench in Letters Patent No. 4 of 1964.
22 I S C. India/71 338 section T. Desai and A. G. Ratnaparkhi for the appellant.
Rameshwar Dial, Jaishi Ram Goel and A. D. Mathur for the respondent.
The Judgment of the Court was delivered by Shelat J.
By a deed of lease, dated May 5, 1906, the prede cessor in title of the respondent let out to the appellant 's father an open portion of land measuring 26 ft.
x 225 ft.
out of a larger plot.
The lease was for constructing buildings and for a period of 30 years certain at the annual rate of Rs. 130.
The lease contained, iner alia, the following : "Even after the prescribed time limit, I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above.
You will have no right to increase the rent and I shall also not pay it, myself and my heirs shall use this land in whatever manner we please.
After the lease period, we shall, if we like, remove our building_ right from the foundation and vacate your land.
In case we remove our structure before the stipulated period, we shall be liable to pay to you,, the rent for all the thirty years, as agreed to above. . .
In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms in this lease deed. . .
The trouble between the parties started when the respondent commenced construction on the rest of the land in a fashion so as to be in close vicinity to the western boundary of the leased land to house an industry, called Sudha Industries.
The appellant filed the suit in 1958, out of which this appeal arises, urging that the said lease was a permanent lease, that buildings had been constructed on the leased land partly in 1906, and the rest in 1909 and 1922, that the said plot of land was subsequently demarcated into two survey numbers, 94 and 93, that a strip of land, 4 ft. in width and measuring 650 sq.
immediately to the west of survey No.,94 and forming part of survey No. 93 was covered by the said lease and was in his possession as part of the leased land or was acquired by him as accession.
Pending the suit the appellant amended the plaint asserting that the portion let out under the said deed of lease was 5850 sq.
in the aggregate, which included the said strip, of land and annexed a new plan showing details of the land which according to him was leased out under the said deed.
339 Out of the structures put up by the appellants father, the central building, as shown in the plan produced by the appellant, has windows on the ground, first and second floors, all opening on the western side.
The eaves of that building protrude on that side by about 2 1/2 ft. with the result that the rain water falls over the said strip of land.
According to the plaint.
there is a drain partly in plot No. 94 and partly over the said strip of land which carries the entire waste, water from the said building.
According to the appellant, the said construction made by the respondent shut off light and air which he had been enjoying from the aforesaid windows.
He had other complaints also to make and claimed amongst other things a declaration that the said strip of land was part of the leased land covered by the said deed, or in the alternative, that he bad acquired it by way of accession, and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it.
The respondent 's answer to the suit briefly was that the appellant was not entitled to the said strip of land either as failing under the said lease or as accession.
The respondent also denied that the appellant was entitled to any of the reliefs claimed by him, that the said lease was not a permanent lease but was for a period of 30 years in the first instance, but being a lease for constructing buildings thereon and being transferable, could at best be for the lifetime of the lessee, the appel lant 's father.
He also averred that part of the land comprised in plot No. 93 used to be let out from time to time to persons including the, appellants father, who had executed a separate rent note, dated July 21, 1935, and who had under the said note been in possession thereof as a lessee from 1935 to 1941, and that 'he having been permitted a,% such a lessee the use of the said strip of land to enable him access to the said leased portion of survey No. 93, there was no question of his having acquired any easementary rights by prescription over the said strip of land.
The Trial Court partially decreed the appellant 's suit, in that it rejected the appellant 's claim to the said strip of land, but granted a declaration of easement for light and air, through the said windows and for carrying said drain over the decree the appellant filed an appeal before the respondent also filed cross objections.
The dismissed the appellant 's appeal with the result that the appellant 's waste and rain water through the said strip of land.
Against that judgment and District court District Court and allowed the cross objections suit was dismissed.
A second appeal filed by the appellant in the High Court was heard by a Single Judge, who, held that the said lease was a permanent lease, that the appellant had acquired the said strip of land as accession to the leased land and as a consequence of those findings 340 granted a mandatory injunction directing removal of any con struction or projection by the respondent over the said :strip of land.
In view; of his finding that the said strip of land had always been in the.possession of the appellant and earlier of his father ever since 1906 and thus had been acquired as an accession, he considered it unnecessary to go into the question of easementary rights claimed by the appellant.
The principal ground on which the Single Judge founded his; judgment was that the lease was both, transferable and heritable, and therefore, had to be held as a permanent lease.
Aggrieved by the:.judgment and decree passed by the learned Single Judge, the respondent filed a letters patent appeal wherein three principal questions were canvassed , (1) whether the said lease was a permanent lease, (2) whether the strip of land in dispute was covered by the said lease, or in the alternative, acquired as accession, and (3) in.
the: alternative;: whether, the appellant had acquired easementary rights over the said strip of land (a) of light and air,.
(b) of passage and (c) of draining water, both waste and rain, over, the said strip of land.
The Letters Patent Bench answered all the, three questions, against the appellant holding that the said lease being a lease for building purposes and transferable, was a lease for an indefinite period, and therefore, for the lifetime of the: lessee, the said Dhanji, that the said strip.
of land was neither,covered.
under the said lease, nor acquired as accession through adverse possession, and lastly, that.
except for the drain extending upto 32 ft.
constructed on the said strip of land.
the appellant had not acquired any other easementary, rights over it.
As to light and air, ,the Bench held that the appellant failed to establish that the obstruction caused by the respondent 's construction was such as to give him an actionable claim against the res pondent.
The result was that except for the said drain,theBench dismissed the appellant 's suit.
Mr. Desai for the appellant raised three contentions in sup port of the appeal; (1) that on a proper interpretation of the document of lease.
the lease was a permanent lease, (2) that there was an accession in respondent of the said strip of land within the meaning of section 108,(d) of the , and therefore '.
the said strip of land must be deemed to be comprised in the lease. and (3) that the appellant had acquired by prescription rights of easement of light and air, of throwing rain water and draining waste water through the said drain and of passage over the said strip of land Under section 15 of the Easements Act, 1882.
On the question of interpretation of the document of lease, Mr. Desai supported, the View taken by the Single Judge.
The learned Single Judge construed the document to mean (a) that the 'lease was for building purposes, (b) that It was in the first 341 instance for 30 years certain (c) that the lessee was to continue to enjoy all rights as a lessee even after the expiry of 30 years, and (d) that the lesser could not increase the rent even after the expiry of 30 years.
The most important: term of the said lease.
said the Single Judge, was "the one which provides for the leasehold right continuing to the heirs and successors".
The Letter Patent Bench, however, felt that on a proper construction of the document, the lease was for an indefinite period, and though transferable, did not provide for any hereditary rights.
, In support of that conclusion the Bench pointed out that the view consistently taken by the High Court of Bombay, right from the decision in Vaman Shripad vs Maki,(1) was that such a lease is to be construed as one for the lifetime of the lessee and not as a permanent lease.
The only solitary case where a lease for an indefinite period was construed as permanent was that in Sonabai vs Hiragavri, (2) but subsequent decisions of that High Court had dissented from that decision and had consistently held leases for indefinite periods as leases for the lifetime of the lessee.
(see Donkangonda vs Revanshiddappa (3).
In Bavasaheb vs West Patent Co.(4) Sonabai 's case (2) was once again dissented from, the High Court reiterating that a lease for an indefinite period is ordinarily to be construed as one for the lifetime of the lessee and that a distinction should be made between a transferable and a. heritable lease.
The High Court.
there observed (1) that if a lease were to be for a definite period and before that period was over, the lessee died, the leasehold rights during the remainder of the period would enure for the benefit of his heirs, unless the document stipulated that in such an event the rights of the lessee were not to enure for the benefit of his successors, (2) that if the lease was for an indefinite 'period, it would not enure for the benefit of the lessee 's heirs.
such a lease would usually be for the lifetime of the lessee himself unless it clearly appeared from the contract that the benefit of the lease was intended to accrue to the lessee 's successors.
, Whether a lease was permanent or for the lifetime only of the lessee, even where it was for building structures and was transferable, depended upon the, terms of the lease and the Court must, therefore, look at the substance of it to ascertain whether the parties intended it to be a permanent lease.
But the fact that the lease provided that the lessee could continue in possession of the property so long as he.
paid 'the stipulated rent did ' hot mean that the 1ease.
was for perpetuity.
It would usually be regarded as a lease for an indefinite period and as such.
for ' the lessee 's lifetime.
The High Court also pointed out that the fact that tenancy rights were transferable,, as provided (1) I.L.R. (2) (3) (4) 56 Bom.
L.R.61 342 by section 108(j) of the , did not mean that they were also heritable.
In two of its decisions, Runge Lail Lobes vs Wilson(1) and Promada Nath Roy vs section Chowdhry(2) the Calcutta High Court took the view that where the purpose of the lease was for constructing buildings, the court could presume, even though the document did not in terms so provide, that the lease was intended to be permanent.
To the same effect was also the decision in Navalram vs Javerlial(3).
On the other hand in Lekhraj Roy vs Kunhya Singh(4) where the lease was for the period of the continuance of ,the lessors ' mokurruri, the Privy Council held that if it could be ascertained what the term was.
the rule of construction that a grant of an indefinite nature enured for the lifetime of the grantee would not apply.
But, if the grant was made to, a person for an indefinite period, it enured, generally speaking, for his lifetime and passed no interest to his heirs unless there were words showing an intention to grant a hereditary interest.
In Abdul Rahim vs Sarafalli (5) the Bombay High Court adhered to the view consistently taken by it that the lease there was for the lessee 's lifetime.
The lease there contained terms similar to those before us.
It was for building a factory and although it provided for 25 years certain in the first instance it also provided that after the expiry of that period the lessee would continue to take the agreed rent so long as the lessee remained in possession and further provided for the lessee 's right to remove the factory when he decided to hand over the land to the lessor.
The conflict of opinion amongst these decisions has since then been resolved by the decision in Bavasaheb 's case(6) having been expressly approved by this Court in Sivavogeswara Cotton Press vs Panchaksharappa (7) The lease here was for building factories and other structures and was for a period of 20 years certain.
It, however, provided that the lessee could continue to remain in possession so long as he desired and observed the terms of the lease which provided for a higher rent for the first 10 years after the expiration of the said 20 years and a still higher rent thereafter.
(14) of the lease in addition provided that it was to be binding "on me, my heirs, executors, administrators, successors and assigns, as well as on.
your heirs, executors, administrators, successors and assigns. .
The question was as to the (1) [1899]I.L.R.26 Cal.204.(2) Cal.
(3) (4) [1876 77] L. R. 4 I. A. 223.
(5) (6) 56 Bom.
L. R. 61.
(7) 343 nature of the lease.
At page 885 .of the report, the Court remarked that cl.
(14) was a very important clause "which though coming as the last clause must govern all the stipulations between the parties.
Thus the terms conditions of the km which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors in interest of the lessor the lessee".
The Court then examined various decisions of the different High Courts including Navalram 's case Promnada Nath Roy 's case (2) and lastly, Bavwaheb 's case (3).
As to the last case, the Court at page 889 of the report expressed its "complete agreement" with the observations of Gajendragadkar, J. (as he then was), namely, that the nature of the tenancy created by a document must be determined by construing the document as a whole, that if the tenancy is for building purposes, prima facie it might be arguable that it was intended for the life time of the lessee or might in certain cases be even a permanent lease, and lastly, that, whether it was a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself.
As can be seen from an earlier passage on that very same page, the Court distinguished Bavagaheb 's (3) case on the ground that the lease there did not contain a provision similar to cl.
(14) in the case before it.
Besides, the Court sought an additional support for its conclusion that the lease was permanent in the provision which stipulated that the rent would be Rs. 350 a year for the first 20 years, Rs. 400/ for the next 10 years and Rs. 500/ thereafter until the lessee continued to occupy the land, which provision indicated that the lease was not intended to be only for the life time of the lessee.
It is clear from the decision that what clearly weighed with the Court was the fact that the document of lease distinctly indicated that the parties intended that the rights under the lease were to be hereditary.
The question.
therefore,.
is whether the lease under consideration is of the type in the case of Sivayogeswara Cotton Press.(4).
Looking at the document (exhibit P 4) as a whole.
the lease un doubtedly is for building a residential structure.
Though it is for 30 years certain, the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent, which the lessor was not entitled to increase.
But, though the lease is for building structure and the period is indefinite there are at any rate no (1) (2) Cut.
(3) 56 Bom.
L.R. 61.
(4) ; 344 express words indicating that the leasehold rights thereunder were intended to be heritable.
On the other hand it expressly provides, as was the case in Abdul Rehim(1) for the right of the lessee to remove the structures, meaning thereby vacating the land, if he so desired.
The clause providing for such removal is not that the lessee would remove the structures on default in payment of rent, but depends on his own volition, a clause indicative of the parties not having intended the lease to be permanent.
For, if it was intended to be permanent, there was no necessity for providing such a right.
But the argument was that there are words in the document indicative of the lease having been indented to be heritable as was the case in Sivayogeswara Cotton Press (2).
The mere fact, however, that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that It is a permanent lease.
Such a provision can be made in two ways resulting in two different consequences.
A lease may provide a fixed period and then include a provision that in the event of the lessee dying before the expiry of such period, his heirs would be entitled to have the benefit of the lease for the remainder of the period.
In such a case, although, the lease may provide for the heirs to succeed to the interests in the leased land, it would only mean that such heirs succeed to the rights upto the expiry of the lease period.
If the lease, on the other hand, were foran indefinite period, and contain a provisions for the rights thereunder being heritable, then such a lease, though ordinarily for the lifetime of the lessee, would be, construed as permanent.
The question, therefore, is to which of these two classes, of leases the present lease belongs.
After reciting the purpose for which it was made, the term of 30 years and the rent.
the, deed provides: "Even after the prescribed time limit, I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above." Though the period is 30 years, this part of the document would make the lease for an indefinite period which would ordinarily mean a lease for the lifetime of the lessee.
What follows then, however gives, scope for the argument that it is not merely for the lifetime of.
the, lessee: "You will have no right to increase the rent and I shall also not pay it, myself and my heirs shall also not pay it, myself and my heirs shall use this land in whatever manner we please.
After the lease period, we (1) (2)[1962] 3 S.C.R. 876. 345 shall, if we like, remove our building right from the foundation and vacate your land.
In case we remove our structure before the stipulated period, we shall be liable to pay to you, the rent for all the thirty years, as agreed to above." And further: "In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms in this lease deed.
" This part of the document undoubtedly gives the lessee the right to transfer by sale the leasehold interest.
But, as already stated, a clause enabling the leasehold interest to be transferred does not render such interest heritable.
The effect of these clauses is that the first part of the document ensures that the lessor cannot charge rent higher than the agreed rent even if the lessee were to remain in possession after the period of 30 years.
That part is consistent with the lease being for an indefinite period, which means for the lifetime of the lessee.
The next part provides for the right to remove the structures "after the lease period".
The words "after the lease period" mean either at the end of the 30 years, or on the death of the lessee, because, it also says that if the lessee were to remove the buildings before the expiry of 30 years, he would have to pay the rent for the remainder of that period.
This part of the document does not show the intention that the lease was to be a permanent lease.
It merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period, i.e., either at the end of 30 years, or after the lifetime of the lessee.
The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land.
In the event of the first contingency, the lessee 's heirs would continue in possession till the expiry of 30 years and then remove the structures if they wished.
In the case of the second contingency, the, heirs of the lessee would have the right to remove the structures on the death of the lessee.
In either event the right provided for is the right to remove the structures.
It is not a provision for the lease being heritable and its being consequently a permanent lease.
Thus, the lease is for a period certain, i.e., 30 years and on the expiry of that period if the lessee still were to continue to pay the rent, for his lifetime.
In the event of his dying before that period, the benefit of the lease would enure to his heirs till the completion of 30 years.
They would be entitled to remove the structures either 346 at the end of the 30 years if the lessee were to die before the expiry of that pariod or at the end of the lessee 's fife were he to continue to be in possession of the leased property after the expiry of 30 years.
But the lease did not create hereditary rights so that on the death of the lessee his heirs could succeed to them.
In this connection it is necessary to note that, as translated in English, it would appear as if the document uses the pronoun 'I ', meaning as if the lessee in the earlier part and the pronoun "we", meaning the lessee and his heirs, in the latter part.
Such a translation, however, is not correct.
We ascertained from Mr. Ratnaparkhi who after looking at the original Marathi assured us that the pronoun used throughout is ami, which means "we,", a term often used in documents written in regional language for the executant instead of the singular 'I '.
In our view the lease before us is clearly distinguishable from that in the case of Sivayogeswara Cotton Press(1) where the leasehold rights were in clear terms made heritable and where the Court held that cl.
(14), though placed last in the document, governed all its There is no provision in the present cast comparable with such a clause.
The lease was undoubtedly for an indefinite period which only means that it was to enure for the lessee 's lifetime.
Reference in it of the heirs of the lessee is only for the.
limited purposes set out earlier and not for making the leasehold interests heritable.
We do not find in the document words such as those in Sivayogeswara Cotton Press (1) would compel us to the conclusion that the lease was intended to be permanent.
That leads us to the second contention of Mr. Desai.
Under section 108(d) of the , if any accession is made to the leased property during the continuance of a lease, such accession is deemed to be comprised in the lease.
If the accession is by encroachment by the lessee, and the lessee acquires title thereto by prescription, he must surrender such accession together with the leased land to the lessor it the expiry of the term.
The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant go long as the km continues and afterwards for the benefit of the landlord The of the appellant.
in the plaint in regard to an accession was vague and confused.
Para 2 of the plaint simply stated that the said strip of land was part of plot No. 93, but was used by the appellant as a passage.
para 7(a) of the plaint, however,used the word "accession to the leasehold rights of the plaintiff in respect of the nazul plot No. 94", but did not say that such (1) ; 347 accession came about as a result of or by means of adverse possession.
In para 8(a), which was inserted in the plaint by an amendment in 1959, an alternative plea was made that the said strip of land was part of the land under the lease.
The written statement of the respondent denied the user of the said strip of land by the appellant and also the plea of accession thereof to the leased land.
But the appellant 's case was only that the building which his father had constructed extended upto the end of the western boundary of plot No. 94, with the result that (a) the eaves of that building projected over plot No. 93 by about 21 ft., that its windows on that side opened on plot No. 93 and a drain was constructed by the side of the appellant 's western boundary through which waste water flowed from that building.
According to the appellant 's case, the said strip of land, which withou t doubt forms part of plot No. 93, was used by the appellant as a passage for going to a well situate in plot No. 93.
Plot No. 93, however, was an open plot until recently, except for a small structure on its northern side, so that there was no definite or well marked passage which was used by the appellant in order to reach the said well.
The projection of the eaves or the opening of the windows on to the said strip of land were not asserted as acts of adverse possession or encroachment but as easementary rights.
The appellant did not claim any right to the said well as admittedly the use of the said well for drawing water was with the consent of the lessor.
Therefore, the use of the passage for going to the well would be incidental to the permissive use of the said well As regards the drain, the appellant 's evidence was that it passe partially through the said strip of land.
Originally a kachha drain, it was made pucca upto a distance of 32 ft. in 1923.
No width of it, however, was shown.
Obviously, there can, therefore, be no adverse possession over the whole of the 4 ft wide strip of land.
The Letters Patent Bench has pointed out three circumstances as emerging from the evidence which clearly negative the case of accession by adverse possession: (1) that the original plot was given two numbers, 94 and 93 in 1929, plot No. 93 being shown as commencing from the western wall of the appellant 's building, (2) that no protest was ever made against such a demarcation by the appellant or his father, and (3) a clear admission by the appellant in cross examination that according to him the said strip of land was covered by the lease deed add was 'not an acquisition over and above the leased land under that deed.
Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings.
But at the stage of the evidence, no serious attempt was made by the appellant to establish accession by adverse possession.
On the contrary, the appel 348 lant sought to make out a case of easementary rights by prescription, a case incompatible with the claim of, adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a right by prescription over a servient tenement.
In this state of the evidence the Letters Patent Bench, in our judgment, was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted.
As regards the appellant 's claim to the easementary rights, assuming that a lessee can claim such rights over an adjacent property belonging to his lessor, section 15 of the Easements Act requires that the access and use, on the basis of which an easement is claimed, must be as and by way of easement and without interruption for a period of 20 years.
The enjoyment must be, in other words, as of right and not permissive either under a licence or an agreement.
In Abdul Rashid vs Brahman Saran(1) a Full Bench of the Allahabad High Court held, on the principle embodied in section 12, that the possession of a tenant being in law the possession of his landlord, the tenant cannot acquire by prescription an easement in favour of his holding except on behalf of his landlord.
The Full Bench, however, made a distinction between an easementary right of way and an easementary right of light and air mentioned in the first two paragraphs of section 15, and held that though a lessee of land, who is the owner of the building on such land, cannot acquire by prescription an easement of a right of way or one to flow water over another land of the lessor, so far as the use of light and air or support for his building is concerned he is the owner of the building and may under the first two paragraphs of section 15 acquire such easements as he would not acquire them for any one except himself under section 12.
This decision was followed in Haji Abdulla Harron vs Municipal Corporation, Karachi(2).
But in Ambaram vs Budhalal(3) the High Court of Bombay differed from the Allahabad High Court holding that the distinction in English law arising from the language of sections 2 and 3 of the Prescription Act, 1832 between an easement of light and air on the one ]hand and of easement of way on the other, did not hold good under the Easements Act as no such distinction is made in sections 4 and 12 of the Act, that it is under section 12 that an easement is acquired and not under section 15 which provides for not the persons who can acquire easementary rights but the method by which they can be acquired, and therefore, the principle laid down in sections 4 and 12 would apply, namely, that if the lessee acquires a right to light and air, he does so on behalf of the owner and therefore he cannot acquire it on behalf of the owner (1) I.L.R. [1938] All.
(2) A.T.R. 1939 Sind 39.
(3) 349 as against such owner.
There is thus clearly a conflict of view between the two High Courts.
It is, however, not necessary to resolve this conflict in this case as the question of easements in the present case can be disposed of in another way.
IV of the Act deals with the disturbance of easements and section 33, therein provides that the owner of any interest in the dominant heritage or the occupier of such heritage may institute a suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff.
Under Explanation II read with Explanation I to the section, where the disturbance pertains to the right of free passage of light passing through the openings to the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage.
Where the disturbance is to the right of the free passage of air, damage is substantial if it interferes materially with the physical comfort of the plaintiff.
In Ravachand vs Maniklal (1), it was held that an easement by prescription under sections 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man 's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.
Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights, on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement.
As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement.
But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription.
To prove the latter, it is necessary to establish that it was exercised on some one else property and not as an incident of his own ownership of that property.
For that purpose, his consciousness that he was exercising that right on the property treating it as someone else 's property is a necessary ingredient in proof of the establishment of that right as an easement.
In his evidence, the appellant did not claim the right of passage or of light and air or of draining his waste and rain water over the said strip of land as rights over the respondent 's property.
On the contrary, he made it clear that the said strip of land fell (1) I.L.R. 350 under the document of lease.
"I have a right on both, the properties under the lease dead itself".
he declared in his.
evidence, and added, "whatever rights I have acquired are under the lease deed itself and not afterwards" His claim that the strip of land was included in the leased land could not succeed because he had to admit that although two different municipal numbers, 94 and 93, were given as early as 1929 to the portions of the land, 94 to the portion under his possession, and 93 to that under the possession of the respondent, no complaint was ever made to, the municipality or any other authority that the strip of land which he claimed to be covered under the lease should be included in his plot, namely, No. 94.
In 1940, and again in 1955, when transfer deeds in respect of plot No. 94 were executed by him, the area mentioned therein was described as measuring 5182 sq.
"ft., which would not include the strip of land forming part of plot No. 93.
Having thus failed in his claim that the said strip of land was acquired either as accession or as one covered by the lease deed, he could not turn round and successfully claim that he had during the requisite period exercised rights over it on the footing of an owner of a dominant tenement exercising those rights over a servient tenement of another.
Assuming, however, that the said strip of land was used by him as a passage, the evidence clearly showed that it was permissive.
There was evidence of a permission having been asked for from the respondent 's father by the appellant for installing a handpump over the respondent 's well in plot No. 93.
If the appellant, and previously his father, were permitted to draw water from that well the use of the well for drawing water and of the strip of land as a passage for going to the well was clearly permissive and not as an open hostile use over the lessor 's property.
The appellant himself admitted that his father had taken a portion of plot No. 93 on lease paying separate rent therefore at Rs .45/ a year, and had put up thereon a tin shed which stood there from 1935 to 1941.
It is clear that the strip of land was allowed to be used as a passage both to the well and the said tin shed.
He admitted two letters, dated September 30, 1958 and December 4, 1959, having been written by him to the respondent both relating to rent due, by him in respect of :the said land on which the said tin shed stood.
On these facts it is impossible to sustain the right of passage over the said strip of land as an easementary right by prescription for a continuous period of 20 years.
As to the light and air through the windows on the western side, it is clear from Explanations II and III to section 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air is less than before.
There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, 351 according to the ordinary notions of mankind.
See Colls vs Home and Colonial Stores(1).
The plan produced in evidence shows that the central part of th e appellant 's building has five windows on the ground floor, five in addition to one smaller window on the first floor and four on the second floor.
All these windows are in the rear side of the building and open out an to the said strip of land.
There can be no doubt and the plan shows clearly that as a consequence of construction by the respondent, there would be a deprivation, partially though it would be, of light and air previously enjoyed 'by the appellant through these windows, especially as they are on the western side.
On the ground floor, all the five windows are affected.
On the first floor, only three windows are affected, and that too partially.
On the second floor, none of the four windows is affected at all.
Thus, so far as the ground and first floors are co , the appellant would not have the same amount of light and air.
as before.
But the evidence shows that there are openings, doors and windows, on each of these floors on the front side, i.e., on the eastern side.
There was some evidence also that the ground floor bad so far been used as a godown ,or a store room, though the appellant a that he had been using it also as a living room.
No attempt, however, was made on behalf of the appellant to establish that the obstruction caused by the respondent 's construction had been such as to amount to a substantial privation, so as to render occupation of the house by him uncomfortable.
In the absence of such proof he was rightly nonsuited by the High Court.
As regards the drain, we say nothing, as part of the appel lant 's claim in regard to it has been allowed by the High.
Court and there are no cross objections against it by the respondent.
In the view that we take, the appellant Cannot succeed on any one of the three questions raised by his counsel.
The appeal, therefore, fails and has to be dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
In 1906 the predecessor in title of the respondent leased out an open portion of land to the appellant 's father.
The lease was for building a residential structure, and the appellant constructed a house.
Though it was for 30 years certain, the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent, which the lessor was not entitled to increase.
There were no express words indicating that the leasehold rights were intended to be heritable.
The deed provided for the right of the lessee to remove the structures after the lease period, meaning thereby vacating the land, if he so desired.
It gave the lessee the right to transfer by sale the leasehold interest.
In 1929, the original plot was given two numbers 94 and 93 the latter being the western portion in the possession of the respondent lessor and the former being the eastern portion leased out to the appellant.
There was a strip of land, 4 ft.
in width, immediately to the west of survey No. 94 and forming part of survey no 93.
This strip of land was used by the appellant for passage for going to a well situated in plot No. 93.
The appellant 's father had taken a portion of plot No. 93, including the strip, on lease, paying separate rent therefore and put up thereon a tin shed which stood there from 1935 to 1941.
Sometime thereafter the respondent commenced construction on survey No. 93 in close vicinity to the appellant 's plot On the questions: (1) Whether the lease was a permanent lease; (2) there was an accession in respect of the strip of land within the meaning of section 108(d) of the , and therefore, the strip of land must be deemed to be comprised in the lease; and (3) whether the appellant had acquired by prescription, rights of easement of light and air and of passage over the strip of land under section 15 of the Easements Act, 1882.
HELD: (1) The question as to whether a lease was permanent or for the life time only of the lessee, even where it was for building structures and was transferable, depends upon the terms of the lease.
The mere fact that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease.
Such a provision can be made in two ways resulting in two different consequences.
The lease may provide a fixed period and then include a provision that in the event of the lessee dying before the expiry of such period his heirs would be entitled to have the benefit of the lease for the remainder 336 of the period.
In such caes, although the lease may provide for the heirs to succeed to the interests in the leased land it would only mean that such heirs succeed to the rights up. 'to the expiry of the lease period.
If the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent, it would usually be regarded as lease for an indefinite period and as such for the lessee 's life time.
In such a case, if the lease contains a provision for the rights thereunder being heritable, then, such a lease,, though ordinarily for the lifetime of the lessee, would be construed as permanent.
[341F H; 344C E] In the present case, since the lessee was entitled to remain in possession even after the lease period it was a lease for an indefinite period.
But there was no provision in the deed making the lessee 's right heritable ' and therefore, it was not a permanent lease but only for the lifetime of the lessee.
[344A; 346D E] (a) The words, if the lessee were to remove the buildings before the expiry of 30 years he would have to pay rent for the remainder of the period, do not show an intention to create a permanent lease.
The clause providing for such removal is not that the lessee would remove the structures on default of payment of rent but on his own volition, a clause indicative of the parties not having intended the lease to be permanent.
[344B; 345E F] (b) The words 'after the lease period ' mean either at the end of 30 years or at the death of the lessee.
Therefore, the clause that after the lease period we shall, if we like, remove our buildings ', merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period, that is, either at the end of 30 years or after the lifetime of the lessee.
The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land.
In the event of the first contingency, the lessee 's heirs would continue in possession till expiry of 30 years and then remove the structures if they wished.
In the case of the second contingency the heirs of the lessee would have a right to remove the structures on the death of the lessee.
In either event the right provided for is the right to remove the structures.
It was not a provisions for the lease being heritable and its being consequently a permanent lease.
[345D H] (c) The pronoun used in the document is the vernacular equivalent of 'we ' used for the executant instead of the singular 'I ' and does not mean the lessee and his heirs.
[346B C] Sivavogeswara Catton Press vs M. Panchaksharappa, ; , Lekhraj Ray vs Kunhya Singh, 1876 77 L.R. 4 I.A. 223 Vaman Shripad vs Maki, I.L.R. , Donkangonda vs Ravanshivappa, , Bavasaheb vs West Patent Co. 56 Bom.
L.R. 61 and Abdul Rahim vs Sarafalli, , referred to.
Sonabai vs Hiragayri, , Runge Lall Lobes vs Wilson, Cal. 204, Promoda Nath Roy vs section Chowdhry, Cal.
648 and Navalram vs Javerilal, , disapproved.
(2) Under section 108(d) of if any accession is made to the leased property during the continuance of a lease, such accession is deemed to be comprised in the lease.
[346F] 337 In the present case, the appellant made no serious attempt to establish accession by adverse possession.
[347H] (a) When the plots were separately demarcated including the strip in the respondent 's portion no protest was ever made against such a demarcation by the appellant or his father.
[347G] (b) The appellant made a categorical statement in evidence, that according to him the said strip of land was covered by the lease deed and was not an acquisition over and above the leased land under the deed, but the evidence showed that strip was not so included.
[347G H], (c) The appellant sought to make out a case of easementary right by prescription, a case incompatible with the claim of adverse possession [348A B] (3) Under sections 12 and 15 of the Easements Act an easement by prescription can be acquired by assertion of hostile claim of certain rights over another man 's property.
In order to acquire the easement the person who asserts the hostile claim must prove that he had, the consciousness to exercise that hostile claim on a property which is riot his ' own, and where no such consciousness is proved, he cannot establish a prescriptive acquisition of the right.
Where he has pleaded ownership and has failed, he cannot subsequently turn round and claim that right as an easement by prescription.
To prove the latter it is necessary to establish.
that it was exercised on someone else 's property and not as an incident of his own ownership of that property.
[349D G] In the present case, the appellant having claimed, though unsuccessfully, that the strip of land was included in the leased land or that there was an accession, he could not successfully claim that during the ' requisite period he exercised rights over it as the owner of a document tenement.
Further,.
he could not claim any right of passage because his use of the strip as a passage was permissive.
[350C E] As to light and air through.
the windows on the western side the appellant could succeed only if there was a substantial privation of light, enough lo render the,occupation of his house uncomfortable according to ordinary notions of mankind [350H 351IA] In the present case, the plan showed that as a consequence of construction by the respondent there would be a partial deprivation of light and air.
But no attempt was made on behalf 'of the appellant to establish that the obstruction caused by the respondent 's construction had been such as to amount to substantial privation so as to render the occupation of the house by the appellant uncomfortable.
[351 C E] Rayachand vs Maniklal, I.L.R. [1946] Boni.
184 (F.B.), approved Colls vs Home and Colonial Stores, ; , applied [The question,whether under sections 4.and,12 of the, Easement Acta lessee can acquire a right to light and air as against the owner, left open] [349A]


judgement:
Appeals Nos. 1164 and 1165 of 1967.
Appeals from the judgment and order dated December 1, 1965 of the Madhya Pradesh High Court, Indore Bench in Misc.
Petition Nos. 18 and 19 of 1964.
M. section K. Sastri, M. N. Shroff for I. N. Shroff, for the appellant (in both the appeals).
B. R. L. lyengar, R. A. Gupta and K. B. Rohatgi, for the respondent (in C. As.
No. 1164 of 1967).
P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent (in C. A. No. 1165 of 1967).
The Judgment of the Court was delivered by Mitter, J.
The State of Madhya Pradesh has come up in appeal to this Court from two orders of the State High Court allowing two writ petitions filed by the two respondents herein for quashing the orders of eviction made against them under Section 3 of the Madhya Pradesh Government Premises (Eviction) Act.
The facts in Civil Appeal No. 1164 of 1967 are as follows.
Many years back, a former Ruler of the Indian State of Jhabua in Central India had given a jagir to his mistress, Paswanji Smt.
Navratanbai.
Navratanbai had either purchased or constructed two houses on College Marg.
According to the Writ Petition fled in the High Court the acquisition was out of her private funds. 'his was not however admitted in the return to the petition.
The successor of the former Ruler Dilipsingh purported to forfeit the jagir in the year 1943.
The order of forfeiture is not on record but is sought to be borne out by an order dated 1st April, 1948, evidently made in anticipation of the merger of the State in the Union of Madhya Bharat which took place on June 29, 1948.
The order addressed to Paswanji Navratanbai ran : "In September 1943 your jagir was confiscated to the State and you were granted Rs. 100 per month by way of allowance vide Parwana No. 1735 dated 23 9 1943 and this amount was being paid to you on behalf of the Huzur from the civil list because such types of allowances etc.
are paid from it.
But now as new arrangements are being 409 made regarding the states of Malwa and there is likelihood of reduction in the percentage of the civil list, therefore, the aforesaid monthly allowance shall henceforth be paid to you every month from State, Treasury from generation to generation.
You may reside in the two big houses of Khasgi during your lifetime in which you are residing at present.
After your lifetime both these houses shall be taken in possession of the Huzur.
You shall have no right to sell or mortgage or create any charge on these houses.
" There is another Huzur order on record dated 30th March, 1948 purporting to declare a large number of immovable properties as the private property of the Ruler and the ruling family.
Among the properties set out at the foot of the order are mentioned : "6.
(e) All houses which are occupied by Bapu Ram singh.
(f) All houses which are in the occupancy of Navratanbai".
When the question of settling the list of private properties of the Rulers of the integrating Estates in Madhya Bharat came up before the Government of India, the Political and External Department of the Madhya Bharat Secretariat passed an order recording a ;decision regarding the settlement of private properties of the State of Jhabua.
The memorandum dated July 25, 1949 of the Madhya Bharat Secretariat, Political and External Department, shows that each department concerned had to take action for handing over all the property to the Ruler concerned and to see that no property out of the properties belonging to the Ruler and/or the State before the formation of Madhya Bharat was left with the Ruler excepting the properties in the enclosed list.
The relevant list,, for the Ruler of Jhabua did not include the properties occupied either by Bapu Ramsingh or Paswanji Navratanbai.
Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for amendment of the inventory submitted by the said Ruler.
No steps appear to have been taken to evict Navratanbai from the said premises in her lifetime.
On 30th April 1962 the Executive Engineer District Dhar, submitted an application under Section 3 read with Section 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for eviction of the respondents in Appeal No. 1164 of 1967 from the two properties formerly belonging to Navratanbai before the.
Sub Divisional Officer Jhabua, Constituted the competent authority under the Act.
An order of eviction made 410 by the Sub Divisional Officer was upheld in appeal to the, Collector.
Shivkunwarbai, widow of late Bapu Gordhansinghji son of Navratanbai filed a writ petition in the High Court for quashing.
the said order.
Appeal No. 1164/1967 is from the said order.
The facts in the other appeal i.e. 1165 of 1967 are similar to the facts just narrated.
In this case the same former Ruler had granted a jagir to his son Ramsingh by his mistress Paswanji Bhagirathibai.
The succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of Rs. 100.
An order similar to the one dated 30th March 1948 already mentioned was passed while the order of April 1, 1948 affected Ramsingh as it did Navratanbai in the other case.
There was an order of eviction as in the other case followed by a writ petition to the High Court.
The central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952.
This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949.
The fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Ruler as private property "were accepted as such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State.
There must be some positive evidence of such Act.
It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication.
The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties.
There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property.
As these properties originally belonged to the predecessors in interest of the respondent i.e. in C. A. 1166/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them.
In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex Ruler and had ceased to belong to Navratanbai or Bapu Ramsingh.
The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type.
On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the 411 same.
The declared that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re grant thereof for the donee 's lifetime.
If the properties remained the property of Nawatanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the provides or that the same passed to the Union of Madhya Bharat ailed from the said Union to the State of Madhya Pradesh.
When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproch able evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject he former lawful possessor.
There is no such evidence in this case.
It follows that the properties, the subject matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh.
Section 3 of the Madhya Pradesh Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in un auhorised occupation lot any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section.
Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises.
In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises.
As the State failed to establish this fact the question of eviction under the Act could never arise.
In the result, the appeals are dismissed with costs.
G.C. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The ruler of the erstwhile State of Jhabua granted jagirs to N and R. The Jagirs were forfeited in 1943.
On March.
30, 1948 the Ruler made an order purporting to declare a large number of immovable properties, including certain houses in the occupation of N and R as his private proper.
On April 1, 1948 the Ruler made another order purporting to grant to N and R the right to continue to occupy the said houses during their life time without any right to sell, mortgage or create any charge thereon.
On June 29, 1948 the State of Jhabua merged in the State of Madhya Bharat.
The Government of the State of Madhya Bharat did not recognise the claim of the erstwhile Ruler of Jhabua to all the properties claimed by him as his private properties.
The properties in the occupation of N and R were among those not recognised as the Ruler 's private property.
The possession of N on the properties in her occupation was not disturbed in her lifetime.
On April 30, 1962 the Executive Engineer District Dhar, submitted an application under section 3 read with section 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for the eviction of R and the successor in interest of N from the properties respectively occupied by them.
Orders of eviction made by the Sub Divisional Officer were upheld by the Collector in the appeals filed before him.
The high Court however allowed the writ petitions filed by N 's successors in interest and by R and quashed the orders of eviction against them.
The State of Madhya Pradesh appealed.
HELD: The appeal must be dismissed, The evidence showed that some only of the properties set forth the declaration of April, 1, 1948 and claimed by the Ruler as private property "were accepted as such by the Government of Madhya Bharat: there was no finding with regard to the others that they appertained to the Ruler as distinct from his private properties.
In order to succeed the, appellant had to show that the properties had been confiscated by the Ex ruler and had ceased to belong to N and R. [410E G].
As the properties originally belonged to N and R there must be some evidence of the displacement of their title before the Eviction Act could be made applicable to them.
The order of April 1, 1948 passed by the Ruler could not be interpreted as an order of confiscation.
It was not proved that the ownership of the properties had passed to the Ruler and thereafter first to the State of Madhya Bharat and then to the State of Madhya Pradesh [410G H] 408 In order to enable Government to take Proceedings successfully under either section 3 or 4 of the Act, it must satisfy the Court that the premises in respect whereof action was taken was Government premises.
As the State 'ailed to establish this fact the question of eviction under the Act could never arise.
[411E].


judgement:
ivil Appeal No. 786 of 1966.
Appeal by special leave from the judgment and order dated June 9, 1964 of the Andhra Pradesh High Court in Appeal No. 96 of 1969.
K. R. Chaudhuri, for the appellant.
B. V. Subramanyam, A. Subba Rao for A. V. Rangam, for respondent No. 1.
That was a suit instituted by the Andhra Bank Ltd., the contesting respondent in this appeal.
The suit was to recover the loans advanced to the Godavari Sugars Refiners Ltd., defendant No. 5 in the suit.
The suit was decreed against all the defendants and that decree was affirmed by the High Court in appeal.
The decree against the other defendants has become final.
The only question that arises for decision in this appeal is whether the decree against the appellant is sustainable.
The High Court rested the decree against the appellant only on the basis of exhibit A 6 a letter given by defendants 1, 4 and another to the Masulipatam branch of the plaintiff bank while, depositing Exhs.
A 7 and A 8.
In order to decide the correctness of the decree, it is necessary to refer to the material facts as found by the trial court and the High Court and which are no more in dispute.
Defendants I to 3 were the partners of a company known as Aid Co. Ltd. (defendant No. 6).
That company was the managing agents of defendant No. 5, the Godavari Sugars Re finers Ltd. which will hereinafter be referred as Godavari Sugars.
The first defendant was the Managing Director of the Aid Co. Ltd. On January 29, 1952, the first defendant made an appli 211 cation 'on behalf of Godavari Sugars to the Andra Bank Ltd. (which will hereinafter be referred to as the Bank) for a loan of three to four lakhs ofrupees under the keyloan and cash credit account and on the guarantee and co obligation of defendants 1 to 3 in their personal capacity also.
The Managing Director and the General ,Manager recommended 'that applicalion to the Board of Directors upto a limit of Rs. 1,25,000.
Before the sanction of the Board of Directors was obtained, the first defendant requested the Managing Director to sanction Rs. 50,000 tentatively as there was urgent need.
The Managing Director sanctioned a sum of Rs. 50,000 in anticipation of the loan to be granted in pursuance of the application (EN, A3) made by the first defendant on January 29, 1952.
The Managing Director authorised the agent of Bhimavaram branch to obtain the necessary documents signed by defendants 1 to 3 in their personal capacity as well as the first defendant as the Managing Director of the managing agents and on behalf of Godavari Sugars.
A pronote and the cash credit agreement relating to that loan were handed over to the agent of Bhimavaram branch on April 24, 1952 after the same were executed by defendants 1 to 3.
Thereafter defendant I drew from the Bhimavaram branch Rs. 20,100 on April 25, 1952 and Rs. 9,000 on April 25, 1952.
But he deposited a sum of Rs. 8,100 on April 25, 1952.
Thus a sum of Rs. 21,000 was due to the bank under the loan in question on April 26, 1952.
On that date the Board of Directors sanctioned the loan asked for under exhibit A 3 upto a limit of Rs. 1,25,000.
Sometime thereafter the authorities of the Bank learnt that on a creditor 's winding up petition a provisional liquidator for the Godavari Sugars had been appointed by the High Court of Madras without objection from defendants 1 to 3 on April 18, 1952.
That fact had not been brought to the notice of the Bank authorities by defendants 1 to 3 when the advances were made on the 25th and 26th of April 1952.
After coming to know of that fact, the Manager and the Managing Director of the Bank pressed defendants 1 to 3 to repay the amount drawn.
But they were advised by Satyanarain Chowdary, the father in law of the first defendant (2nd defendant is the wife of the first defendant and the third defendant his mother in law) lo plead before the High Court that the Bank was a pledgee of the articles pledged for the keyloan and as such had a lien over the pledged goods in respect of the advances made.
The Bank accordingly moved the High Court claiming a lien over the goods pledged but that claim was rejected by the High Court.
In connection with the proceedings before the High Court the Bank incurred an expenditure of Rs. 1548 10 6.
The claim against defendants 1 to 3 is based on the above facts.
That claim has been decreed as mentioned earlier.
The decree to that extent has become final.
212 Now coming to the claim against the appellant which is the only claim material for our present purpose, the facts disclosing the cause of action against him as set out in the plaint paragraph 9 are as follows : "The defendants 1 and 4 requested the plaintiffbank to refrain from taking legal action at that time (after the bank 's claim was rejected by the High Court) and give them time.
For all sums due till then and owing thereafter on any account by the defendants 1 and 4 either individually or jointly with others, two titles deeds (Exhs.
A 7 and A 8) were deposited with the bank on 15 1 1953 at Masulipatam thereby creating Equitable Mortgage over the properties comprised therein and situated within the jurisdiction of this Honourable Court.
In consideration of the above deposit,, the plaintiff bank refrained taking legal proceedings against the defendants 1 to 3 for the amount due and loss occurred to the plaintiff bank and an overdraft account was also sanctioned to the defendants 1 and 4.
Thus the plaintiffbank has got security over the properties shown in the schedule covered by 'the two title, deeds deposited with the plaintiff bank on 15 1 1953 at Masulipatam for the suit debt, the particular of which are "detailed hereunder".
According to the plaint a mortgage by deposit of title deeds was created in pursuance of the contract set out above.
In this appeal we are only concerned with the truth of that contract.
The appellant denied the allegations contained in para 9 of the plaint.
According to him he had nothing to do with the suit transactions and that he never requested the Bank to refrain from taking legal action against defendants 1 to 3.
He went further and averred in his written statement that he did not know anything about the suit transactions till the Bank refused to return to him Exhs.
A 7 and A 8.
Dealing with the deposit of Exhs.
A 7 and A 8, he averred that those documents were deposited to create an Equitable Mortgage to secure an overdraft loan of Rs. 25,000 borrowed by him and that deposit has nothing to do with the suit transactions.
The only question for decision is whether Exhs.
A 7 and A 8 were deposited to secure the suit debts.
In order to decide that question it is necessary to set out a few more facts.
Defendants 1 and the appellant are divided brothers.
The first defendant was having his business in Madras.
The appellant was having his business at Masulipatam.
Madras and Masulipatam are quite far off from one another.
Both the appellant and defendant No. 1 appear to have had separate dealings with the 213 Bank even prior to the suit transactions.
We have earlier referred to the loan application Exh.
A 3 made by the first defendant and the advances made.
From the pronote as well as the cash credit agreement referred to earlier, it appears that the loan was made on the security of the goods belonging to Godavari Sugars as well as on the personal security of defendants 1 to 3.
That is also the basis on which the Board of Directors of the Bank sanctioned the loan see Exh.
Neither in Exh.
A 3 nor in Exh.
A 71 nor in any of the correspondence that passed between the Bank and defendant No. 1 there is any reference to the fact of appellant 's either standing as a surety for the loans advanced to the Godavari Sugars or his having given his property as security for that loan.
It is also admitted that in the books of account kept by the Bank, the Equitable Mortgage created by the deposit of Exhs.
A 7 and A 8 is not shown as a security for the advances mentioned in the plaint.
There is neither documentary evidence nor reliable oral evidence to support the averments in para 9 of the plaint.
In none of the correspondence that passed between the Bank and defendant No. 1 or that passed between the Bank ,and the appellant, there is any mention of the fact that at the instance of the appellant, the Bank had refrained from taking action against defendants 1 to 3.
Nor is there any mention in them that because of the deposit of A 7 and A 8 along with the memorandum exhibit A 6 the Bank refrained from taking action against defendants 1 to 3.
Neither the Manager nor the Managing Director of the Bank who have been examined in support of the Bank 's claim spoke to the fact that they refrained from taking action against defendants 1 to 3 at the instance of the appellant or that they refrained from taking action against them because of the equitable mortgage referred to earlier.
Three witnesses namely P. Ws.
1 to 3 were examined in support of "the plaintiff 's case.
Neither P.W. 1 nor P.W. 2 speaks to the circumstances under which exhibit A 6 came to be executed.
P.W. 3, the Managing Director of the Bank deposed in his Chief Examination as follows: "D 4 applied for a loan as per exhibit A 67.
He met me in that connection.
D 1 also met me in that connection.
D 4 represented that D 1 had commitments in regard to Godavari Sugars, that the and D 1 wanted monies and requested me to get exhibit A.67 be sanctioned representing that they would deposit title deeds that Would be additional security to safeguard the interest of the "bank.
I told him that the loan of Rs. 50,000 could ' be" 'Sanctioned if he agreed to pay outright the amount due from D 1.
D 4 represented that might prejudice our claim before the High Court as pledgee and that there would be 214 deposit of title deeds he.
made a request ultimately to sanction at least Rs. 25,000.
D 1 also represented that title deeds would dedeposited and requested that the loan might be granted.
Under exhibit A 67 loan of Rs. 25,000 was granted.
D 1 and D 2 gave title deeds as security for it.
We did not take criminal action on the assurances given by them.
This evidence is not consistent with the averments in plaint paragraph 9 to which reference has been made earlier.
It makes out a new case.
Further from that evidence, it is clear that the deposit of title deeds exhibit A 7 and exhibit A 8 were made to secure only the loan of Rs. 25,000 given to the appellant.
The uncontroverted evidence in this case clearly establishes that the said loan was borrowed by the appellant for his own business.
Further in his cross examination P.W. 3 deposed that "the deposit of title deeds was made in terms of Board 's Resolution and as agreed to between the parties".
The Board 's Resolution granting loan to the Godavari Sugars on the application of defendant No. 1 does not either directly or indirectly refer to any mortgage by deposit of title deeds or even to any security of immovable property for the loan in question.
The question of depositing title deeds was not before the Board when the loan was sanctioned to Godavari Sugars.
But the loan granted to the appellant as we shall presently see was on the basis of a mortgage by deposit of title deeds.
Before considering the scope and effect of exhibit A 6, it is necessary to refer to the circumstances leading to the execution of exhibit A 6.
On October 15, 1952 under exhibit A 67, the appellant applied for a loan of Rs. 50,000.
Column four in that application refers to the purpose for which the loan was asked.
The answer given was "For business".
Under column "Other additional guarantee or security", answer given was "On the security of title deed i.e. sites possessed by me at Vijayawada Krishna District which costs about one Lakh at present Market value" In the covering letter the appellant stated .
"sir, As desired above, I request for sanction of loan of Rs. 50,000 on secured overdrafts Being bound by your previous Bank Rules and also bound by any changes in them, we will clear the loan according to your current Bank rate.
Otherwise if we fail to clear the loan in time, we will not only pay, as and when necessary, the penal interest, but also agree, to be bound by all the actions taken against us.
215 Further changes in the particulars of the property given in the list have been affected.
We have not made any sort of alienations whatsoever on this property.
Until your loan is cleared, we are not going to make any sort of alienations.
If becomes necessary to do so, we will do the same after obtaining your consent, Be pleased to consider Sd/ Veeramachaneni Gangadhara Rao (In Telugu)".
This application was placed before the Board of Directors on January 11, 1953.
The relevant agenda for the Board 's con sideration reads as follows: "Loans.and Overdrafts: 3.To consider the application of Mr. Veerama chaneniGangadhararao.
Masulipatam, for a secured overdraft limit of Rs. 50,000 for one year at 7% p.a. on the co obligation of Messrs. Kolli Surya Prakasa Rao and Adusumilli; Venkata Krishna Rao and on the mortgage by deposit of title deeds relating to the applicant 's sites of the extent of about 2,662 sq.
at Vijayawada of the approximate value of about Rs. One Lakh.
Resolution: Sanctioned Rs. 25,000.
" From the above facts it is clear that the loan of Rs. 25,000 granted to the appellant was a secured loan secured by a mortgage by deposit of title deeds in respect of his sites at Vijaywada.
It may be noted that neither the appellant nor his co obligants are shown to have had anything to do with Godavari Sugars.
It appears from the records of the Bank that some of documents deposited were not originals.
Therefore the Bank found it necessary to have legal advice in the matter.
According to the appellant one of the items covered by Exh.
A 7 was of the joint ownership of himself and his brother defendant No. 1, hence the officers of the Bank wanted defendant No. 1 also to join in making the deposit of title deeds; but defendant No. 1 was a that time in Madras; therefore a printed form was given to for getting the signatures of defendant No. 1; the place at defendant No. 1 was to sign in that form was marked in pencil that form was sent to Madras with his clerk accompanied by a bank official; defendant No. 1 's signatures were obtained; there after the same was signed by him in the presence of the Bank 's agent at Masulipatam and given to the Bank 's agent without scoring out any of the words in the printed form.
The appellant does not appear to be familiar with English language.
As could 216 be seen in exhibit A 67.
he has signed that same id Telugu.
exhibit A 6, as mentioned earlier, is in a printed form, That was a ready made form which could, be used for various purposes.
It was an all comprehensive form relating to the deposit of title deeds.
It is clear from the terms in that form that the parties were required to strike out the unnecessary terms and conditions in that form.
Admittedly no term in Exh.
A 7 was struck out.
According to P.W. 1, the agent of the Bank, the appellant brought that form at about 5 p.m. just when the Bank was about to close.
Therefore he did not strike out the unnecessary words in that document.
In this background, we have to see whether Exh.
A 6 ,is only a memorandum in support of the deposit of Exhs.
A 7 and A 8 to secure the loan advanced to the appellant under Exh.
A 67 or whether the deposit of title deeds in question were intended to secure that loan as well as all amounts due from defendant No. 1 to the Bank.
The loan advanced to the appellant under exhibit A 67 has been admittedly discharged and the pronote executed by him in that connection had been returned to him.
The loans granted to Godavari Sugars were disbursed at the Bhimavaram Branch of the Bank as could be gathered from plaint paragraph 5.
The loan sanctioned to the appellant was disbursed at the Masulipatam branch.
A 6, A 7 and A 8 were produced in the Masulipatam Branch.
The Masulipatam Branch does not appear to have had anything to do with the loans advanced to Godavari Sugars.
We have earlier mentioned that in the accounts relating to the loan given to Godavari Sugars, ,ther e is no mention as to the deposit of title deeds.
All the correspondence relating to the loans granted to Godavari Sugars proceed on the basis that they were granted on, the perso nal responsibility of the defendants 1 to 3 and on the pledge of the goods belonging to that company see exhibit
A 3, loan application exhibit A 2, agreement for cash credit on the security of pledged goods, exhibit A 13, letter written, to the agent, Bhimavaram Branch by the General Manager of the Bank on April 15, 1952, Exh.
A 14 letter, written by the General Manager to the Agent, Bhimavaram Branch on April 16, , letter written by the first defendant to the Bank on, October 29, 1952, But the correspondence that passed between the appellant and the Bank shows that the deposit of title.
, deeds.
was made to secure the loan advance to him under exhibit A 67.
Under exhibit A,20 the appellant wrote, to the, Bank on October, 15, 1952 as follows: "Dear Sir, I have, two sites at Bezwada worth about; Rs. 1,00,000 and 1.
propose to deposit Tide Deeds of the same and require a secured over draft of Rs. 50,000 against the same.
My property statement is with you.
I shall therefore be glad if you sanction the same at an early date. . . " 217 To the same effect is the loan application made ,by him on the same date.
But an ' overdraft of Rs. 25,000 only was sanctioned.
On February 6, 1954, the appellant wrote to the Bank that he had cleared the overdraft account of Rs. 25,000 but he wanted a renewal of over draft arrangement (exhibit A 22).
He sent a reminder in that connection on April 1, 1954 (exhibit A 23).
As the Bank delayed in making available the over draft facility asked for, he wrote to the Bank on Septr. 20, 1954 under exhibit A 25 as follows "Masulipatam Dated 20 9 54.
V. Gangadhara Rao Chowdary Managing Director, Indian Industrial & Scientific Co. Ltd. To The General Manager, The Andhra Bank Ltd., Masulipatam.
Sir, Sub: Over Draft Facility granted to me.
With reference to the over draft renewed by your Board of Directors in the month of May 1954, for Rs. 25,000 and which was not ' allowed to be drawn by me, I specially request you to kindly facilitate for my drawing an amount up to Rs. 15,000 from the over draft account, is due to the stoppage of this facility, which I am enjoying since 4 years, my business is suffering a lot and immediate investment is necessary to meet urgent demands in my business of Scientific Apparatus etc.
In this connection I confirm the discussion I had with your Managing Director at my residence, requesting me to mediate for the amicable, settlement of the affair of my brother, ' Sri V. Butchiyya Chowdary with your bank regarding the keyloan account granted to Godavary Sugars 'and Refiners Ltd. I shall be obliged for immediately allowing 'me to draw the amount.
Thanking you.
Yours faithfully, Sd/ Illegible.
" From this letter it is clear that the Bank was putting pressure on the appellant to persuade his brother defendant No. 1 to amicably settle the suit loans; That is also the ' evidence of the appellant.
The allegation in this letter that 'the Managing 218 Director was requesting the appellant: to mediate for the amicablesettlement of the affairs of defendant 1 with the Bank regarding suit loans does not appear to, have been repudiated in any of ' the letter,% written by the Managing Director to the appellant.
Though the Board of Directors of the Bank sanctioned on February 14, 1954, the renewal of.
the over draft facility asked ' for by the appellant the appellant was not permitted to utilise that facility.
The appellant 's case is that the Managing Director of the Bank was using that opportunity to put pressure on him to see that defendant 1 discharged the suit loans.
Being fed ' up with the delaying tactics of the Bank, the appellant withdrew his loan application and asked the Bank to return his title deeds.
It is only at that stage that the Bank took up the position that the title deeds deposited were also intended to secure the amounts due from defendant 1 to the Bank.
The appellant repudiated ' that claim.
Then the Bank issued the lawyers ' notice exhibit A 18 to all the defendants on April 5, 1954.
Therein it was stated ' for the first time that the Bank refrained from proceeding against defendants 1 to 3 in respect of the suit transactions at the instance of Satyanarayan Chowdary and the appellant and those two persons had agreed to indemnify the Bank any loss that may be, caused due to those transactions.
Further suggestion in that notice is that in pursuance of that agreement exhibit A 7 and A 8 were deposited under exhibit A 6.
These allegations were repudiated ' by the appellant in his registered reply notice exhibit A 19 date& April 21, 1954.
From the above discussion it is clear that apart from exhibit A 6, there is absolutely no evidence to show that the deposit of Exhs.
A 7 and A 8 was intended to secure not merely the loan advanced ' to the appellant under exhibit A 67 but also to secure the suit loans.
or other debts due from defendant to the Bank.
The oral evidence of P.W. 3, the Managing Director is of no assistance as seen earlier.
It does not connect the deposit of title deeds, Exhs.
A 7 and A 8 with any of the debts due from defendant 1.
This leaves us with exhibit A 6, the printed form containing the terms and conditions under which Exhs.
A 7 and A 8 were deposited.
The material portion of that document reads as follows: "To The Agent, The Andhra Bank Ltd., Masulipatam.
Dear Sir, I/We write to put on record that as already agreed, upon I/We have on 15 1 53 delivered by way of deposit 219 at Masulipatam the.
following documents of title to immovable property with intent to secure the repayment to, the Bank of moneys that are now due or shall from time to time or at any time be due from me/ us either solely or jointly with any other person or persons to the Bank whether on balance of account or by discount or otherwise in respect of Bills of Exchange, Promissory Notes, Cheques and other negotiable instruments or in any manner whatsoever and including interest.
commission and other banking charges and any law costs incurred in connection thereto.
LIST OF DOCUMENTS section Nature of Title Description Estimated No. deed and date property and value exact situation 1.
Sale Deed D/ 4 2 49.
Two plots of house site bearing assessment No. 7 501 in ward No. 22 and bearing No. 21612 N. T. section 663 Block No. 13 (sic) Ward No. 9 measuring 0.28 (sic) and the other O.27(sic) 2.
Registration Extract House site measuring 1140Sq.
of Sale Deed D/ 30 12 36.
bearing Town section No. 599 in new Ward No. 19 in Bezwada Town.
3.Encumbrance certificate Ec. 574152.
4.Encumbrance certificate No. Ec.
555152.
Name and Address: Yours faithfully Sd./ 1.
Veeramanchaneni Gangadhara Rao 2.
V. Butchaigh Chowdary 3.
Sri Krishna Prasad being minor by father Veeramachaneni Gangadhara Rao 5.
Plan of (sic) in N. T. section No. 663 Block No. 13 of Ward No. 9, Vijayawada Town.
220 As mentioned,earlier this is a printed form.
No part of that form had been struck out though the expressions "I" "Me" found in that document are inconsistent with the other portions of that document.
We have earlier referred to the evidence of the agent of the Masulipatam branch of the Bank (P. W. 1) that he did not strike out the unnecessary words in exhibit A 6 as it was presented before him late in the evening.
The language of exhibit A 6 is undoubtedly wide and if it governs the agreement between the parties then there can be no doubt that the suit debts are also secured by the deposit of title deeds A 7 and A 8.
In the first place exhibit A 6, for the reasons already mentioned must be held to be an incomplete document.
Therefore it can not be considered as a contract between the parties.
According to the plaintiff, the appellant agreed to secure the debt due from the first defendant to the Bank in consideration of the Bank not proceeding against defendants 1 to 3.
No such term is found in Exh.
From the recitals of Exh.
A 6, it is seen that that memorandum in question was intended to "put on record" the terms already agreed upon.
That being the case, the document cannot be considered as a contract entered into between the parties.
If the parties intended that it should embody the contract between them, it would have been necessary to register the same under section 17 of the .
As observed by this Court in Rachpal Maharaj vs Bhagwandas Daruka and ors.(1) that "when a debtor deposits with the creditor title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage and no registered instrument is required under section 59 as in other forms of mortgage.
But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms.
In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage.
As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under section 17 of the Indian , I 1908, as a non testamentary instrument, creating an interest in immovable property, where the value of such property is one hundred rupees and upwards.
" Therefore the crucial question is : Did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? If so, the document requires registration.
If on (1) ; 221 the other hand.
its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention.
and the document being merely evidential does not require registration.
The law relating to the nature of a memorandum filed along with the deposit of title deeds or one filed thereafter has come up for consideration by courts in this country as well as in England.
The decisions on the subject are numerous.
We have already referred to the decision of this Court in Rachpal Maharaj 's case (1).
We shall now refer to two of the decisions , of the Judicial Committee.
In Pranjivandas Mehta vs Chan Ma Phee(2) dealing with the law on the subject Lord Shaw of Dunfermline observed "The law upon this subject is beyond an doubt (1)Where titles of property are handed over, with nothing said except that they are to be security, the law supposes that the scope of the security is the scope of the title.
(2) Where however, titles ' are handed over accompanied by a bargain, that bargain must rule.
(3) Lastly, when the bargain is a written bargain, it, and it alone, must determine what is the scope and the extent of the security.
In the words of Lord Cairns in the leading case of: Shaw vs Foster (3), "Although it is a wellestablished rule of equity that a deposit of a document of title, without more, without writing, or without word of mouth will create in equity a charge upon the property referred to, I apprehend that that general rule will not apply where you have a deposit accompanied by an actual written charge.
In that case you must refer to the terms of the written document, and any implication that might be raised, supposing there were no document, is put out of the case and reduced to silence by the document by which alone you must be governed." In Subrmonian and anr.
vs Lutchman and ors.(4) Lord Carson speaking for the Judicial Committee stated the law thus: "The law upon the subject admits of no doubt.
In the case of Kedarnath Dutt vs Shamloll Khettry (5) Couch C. J. said: "The rule with regard to writings (1) [1950] S.C.R.548.
(2) L.R.43 I.A.123.
(3) [1872] L.R. 5 H.L.321, 341.
(4) 51),I.A.77.
(5) It Ben.
L.R.(O.C.J.)405.
222 is that oral proof cannot.
be substitute for, the written evidence ;of any contract which the parties have put into writing, And.
the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of,, their agreement.
If this memorandum was of such a nature that it could be treated as the contract for the mortgage and what the parties considered to be the only repository and ,appropriate evidence of their agreement it would he the instrument by which the equitable mortgage was created, and would come within section 17 of the :" Exhibit A 6 is not registered.
If that document is considered as a contract of mortgage between the Bank and the depositors, the same having not been registered, it is inadmissible in evidence.
If on the other band that document is considered as a mere memorandum evidencing the deposit of tide deeds in pursuance of an earlier contract then the correctness of the recitals therein can be gone into without being inhibited by sections 91 and 92 of the Evidence Act.
Whichever view is taken the plaintiffs case must fail.
On an overall consideration of the evidence and the probabilities of the case, we are satisfied that Exhs.
A 7 and A 8 were not deposited with the Bank to secure the debts due from defendant No. I to the Bank In the result this appeal is allowed, the decree and judgment against the appellant is set aside and the suit against him is .dismissed with costs throughout.
G.C Appeal allowed.

summary/full:
The respondent Bank gave a loan to Godavari Sugars Refiners Ltd., of which defendants 1 to 3, as partners, were managing agents.
Subsequently the bank filed a suit for the recovery of the loan.
The appellant, a brother of defendant No. 1, was impleaded as defendant No. 4 and Godavari Sugars as defendant No. 5.
The suit was decreed and the decree was upheld by the High Court.
Only Defendant No.4 appealed tothis Court.
The decree against the appellant was passed on the basis of Exh.
1 6, a document which was signed by Defendants 1 & 4 and in which it was recorded that the title deeds Exhs.
A 7 and Exh.
A 8 had been deposited with the respondent bank as security for money due.
According to the appellant the said title deeds had been deposited by him as security for a loan given to him by the bank in his individual capacity, and that the signature of defendant No. I had been appended to Exh.
A 6 only because he bad an interest in one of the properties covered by Exhs.
A 7 and A 8. HELD.
If the parties intend to reduce their bargain: regarding the deposit of title deeds to the form of a document the document requires registration.
If on the other hand its proper construction and the surrounding circumstances lead to the. conclusion that the parties did not intend to do so, then, there being no express.
bargain the contract to create a mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration.
[220 H 221A] Rachpal Maharaj vs Bhagwandas Daruka & Ors., ; Pranjivandas Mehta vs Chan Ma Phee, L.R. 43 I.A. 123, Shaw vs Foster: ,341 and Subramonian The language of exhibit A 6 was undoubtedly wide and if it governed the agreement between the parties then there could be no doubt that the suit debts were also secured by the deposit of title deeds A 7 and A 8.
But exhibit A 6 could not be considered a contract governing the rights of the parties because: (a) it was incomplete inasmuch as certain unnecessary words which were meant to be struck out were not actually struck out; (b) while according to the plaintiff the appellant agreed to secure the debt due from the first defendant to the Bank in consideration of the Bank not pro ceeding against defendants 1 to 3, no such term was found in exhibit A 6; (c) from the recitals of Ex A 6 it was seen that the memorandum in question was intended to 'Put on record ' the terms already agreed upon.
If the parties intended that the document should embody the contract between them it would have been necessary to register the same under section 17 of the .
[22OA D] 14 1 section C. India/71 210 Exhibit A 6 was not registered.
If that document was considered as a contract of mortgage between the Bank and the depositors, the same not having been registered it was inadmissible in evidence.
If on the other hand that document was considered as a ' mere memorandum evidencing the deposit of title deeds in pursuance of an earlier contract then the correctness of the recitals therein could be gone into without being inhibited by sections 91 and 92 of the Evidence Act.
Whichever view was taken the plaintiff 's case must fail.
On an overall consideration of the evidence and probabilities of the case it was established that Exbs.
A 7 and A 8 were not deposited with the Bank to secure the debts due from defendant No. 1 to the Bank.
[222C E] The appeal must accordingly be allowed.