Use of Affirmative Words

• “Affirmative words stand at a weaker footing

than negative words for reading the provision
as mandatory;
but affirmative words may also be so limiting as
to imply a negative.”
 Ariff (Defendant) v. Jadunath Majumdar
AIR 1931 PC 79
• Section 107 – Transfer of Property Act, 1882
• Leases how made.—A lease of immoveable
property from year to year, or for any term
exceeding one year or reserving a yearly rent,
can be made only by a registered instrument.
 Facts
• 1913 – The appellant having verbally agreed with the respondent to grant him a
permanent lease of a plot of land at Rs. 80 per month, let him into possession.
• Shortly afterwards the respondent, with the knowledge and approval of the appellant,
erected structures on the land at a cost of over Rs. 10,000.
• 1914 – At some time in the course of he year 1914, the parties seem to have agreed
that the lease should be a lease for five years, renewable at the end of every period of
five years.
• No lease was ever executed
• December, 1918 – The appellant definitely refused to grant the respondent the agreed
lease
• 1922 – Appellant served upon the respondent a notice to quit.
• 1923 – Appellant sued to eject respondent after a month’s notice to quit.
• Respondent’s right to sue for specific performance of the verbal agreement was barred
in December, 1921 under the Limitation Act, 1908, Schedule I, Art. 113.
• “There being no lease made by a registered document as required by
Section 107 of the Transfer of Property Act, 1882, the appellant was
entitled to eject the respondent, with liberty to him to apply to remove
the structures;

• had the respondent’s right to sue for specific performance not been
barred, he could have claimed the execution of an instrument, which he
could have registered, the appellant’s suit being stayed in the meantime.
• “Even if an English equitable doctrine should be applied in any case so
as to modify the effect of an Indian Act, which may well be doubted,
the English equitable doctrine of part performance… affecting the
provisions of an English statute as to the right o sue upon a contract,
cannot be applied so as to create without writing an interest which
Section 107 of the Transfer of Property Act enacts can be created
only by a registered instrument.”
• “Before considering the grounds upon which the various Courts have
refused relief to the appellant, it appears advisable to call attention to the
fact that the appellant is the legal owner of the land; and as such he is
entitled to possession thereof subject only to such right (if any) to enjoy
it as may have been conferred upon the respondent by virtue of the
verbal agreement either alone, or in conjunction with the other facts in
the case.
• Now it is clear that the verbal agreement alone
could confer upon the respondent no such right.
• S 107 amounts to a statutory prohibition of the
creation of such a right, as is claimed here by the
respondent, otherwise than by a registered
instrument.
• No registered instrument exists, and therefore, the
respondent can have no such right as he claims.
 Pir Bux Khan Bahadur Mian v. Mahomed Tahar,
Sardar AIR 1934 PC 235
• Transfer of Property Act, 1882 – Section 54

• “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-
paid and part-promised.

Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made
only by a registered instrument. …

Contract for sale —A contract for the sale of immoveable property is a contract that a sale of such
property shall take place on terms settled between the parties. It does not, of itself, create any
interest in or charge on such property.
 Facts
• The plaintiff (in the suit) (Respondent in this case) is the registered
proprietor of the half-plot in question.

• Prima facie, he is entitled to possession of it.

• The defendant whom he seeks to eject does not put forward any
title to possession; he merely pleads that the plaintiff has agreed to
sell him the half-plot, and that he is in fact in possession of it.
• In the year 1919 the plaintiff and the defendant were both applicants
for a grant of the same plot of building ground in New Sukkur.

• The Collector by order dated February 25, 1919, granted the

northern half of the plot to the defendant, and the southern half to
the plaintiff.

• Instruments giving effect to the grants were duly executed and

registered. Each party entered into possession of his respective half-
plot and began building operations.
• 4. The plaintiff is an Afghan refugee and political pensioner who formerly resided at
Quetta, but at the date of the grant in his favour was living under orders at Sukkur.

• He was understood to be desirous of returning to Quetta, and the Collector

accordingly directed in the order making the grant to him of the southern half-plot
that he "should be requested to execute a private agreement with the defendant
[the grantee of the other half-plot], to sell him his half of the land at cost price if he
gets permission to go to Quetta by the middle of May next.“

• In compliance with this request, the plaintiff on March 25, 1919, executed an
agreement declaring that if during May, 1919, he should get permission to live
permanently at Quetta as before, he would sell his half plot to the defendant at cost
price.
• 5. On May 23, 1919, the Collector addressed a communication to the
plaintiff informing him that he had been allowed by the Government to
return to Quetta, and on or about June 4, the plaintiff and his family left for
Quetta.

• He was then called upon to execute a conveyance of his half-plot in favour of

the defendant in terms of his agreement.

• He appears to have raised some question as to whether the permission

which he had received entitled him to reside permanently at Quetta, and
the Collector was authorised to inform him that this was so.
• Nevertheless, he failed to execute a conveyance in favour of the
defendant, and on December 22, 1920, the Collector made an order
cancelling the grant in his favour of the southern half-plot.

• The plaintiff appealed against this, order to the Commissioner, who

declined to recall it.

• On March 17, 1921, the Collector made a new grant of the southern
half-plot to the defendant, who entered into possession and
proceeded to carry on building operations upon it.
• 6. The plaintiff then raised the present action of ejectment.

• In his plaint, which is dated December 20, 1921, he pleaded inter alia that
he had committed no breach of the terms of his grant or of his agreement,
that the order of the Collector cancelling his grant was ultra vires, and
that the defendant was a trespasser who should be ejected.

• The defendant, in his written statement dated May 7, 1922, pleaded that
the plaintiff had failed to observe the terms of his agreement, that the
Collector's cancelling order was legal and justified, and that the plaintiff
was not entitled to dispossess him.
• Having apparently some doubt as to whether in his written statement he had
sufficiently and properly pleaded by way of defence the plaintiff's agreement to
convey the southern half-plot to him, the defendant asked leave to amend, and on
August 3, 1925, he was allowed by the Acting District Judge to add the following
paragraph:

• That this defendant further pleads that as plaintiff has agreed to convey the [half]
plot to this defendant, and as possession is with him, he could not be legally evicted.
 Court’s decision

• “An averment of the existence of a contract of sale, whether with or without an

averment of possession, following upon the contract, is not a relevant defence to an
action of ejectment in India.

• If the contract is still enforceable the defendant may found upon it to have the action
stayed, and by suing for specific performance obtain a title which will protect him from
ejectment.

• But if it is no longer enforceable, its part performance will not avail him to any effect.

• This is under the law as it stood before the new Section 53-A was inserted in the
Transfer of Property Act.
 Contention

• English (equitable) doctrine of part performance:

‘a contract for sale of real property makes the

purchaser the owner in equity of the estate.’
 Court held that:

• As the law of India stood at the date of this case, it is, in their
Lordships' opinion, no relevant defence to an action by a land-owner
for ejectment to plead that the plaintiff has agreed to sell to the
defendant the land of which the plaintiff seeks to obtain possession.

• By Section 54 of the Transfer of Property Act, a transfer by sale of

tangible immovable property of the value of Rs. 100 and upwards can
be made only by a registered instrument.
• The section expressly enacts that a contract for the sale of
immovable property "does not of itself create any interest in or
charge on such property.“

• There is, therefore, no room for the application of the English

equitable doctrine that "a contract for sale of real property makes
the purchaser the owner in equity of the estate."

• The underlying principle upon which this rule depends is inapplicable

to the sale of real estate in India in view of the express enactment
just quoted.