Hidayat MohiuddIn Vs. Karamullah - Court Judgment

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tenancy - perpetual lease - article 35 (a) (1) and (6) of stamp act, 1899 - lessee agreed to pay rent per month - no lease period determined in deed - whether such lease document governed by article 35 (a) (1) - lease document raised presumption of indefinite period of lease - held, clause (1) only applicable in case lease is of definite period - lease being indefinite not covered under article 35 (a) (1). - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - laxmibai, ilr 194s bom 342: (air 1948 bom 336) that a lease from month to month within the meaning of section 106 of the transfer of property act, 1882, was chargeable to duty under article 35(a)(iv) of schedule i to the indian stamp act, since it was a lease for no definite period, to a like effect is the judgment of the lahore high court in noor ahmed v.p. chandra reddy c.j. 1. this is a reference by the chief judge, court of small causes, hyderabad, under section 58 of the hyderabad stamp act, (iv of 1331 fasli) corresponding to section 60 of the indian stamp act.2. the circumstances under which the reference is made may be briefly set out. a suit was filed in the court of small causes, hyderabad, by the landlord of a house situated at old pheelkhana, for recovery of arrears of rent amounting to rs. 385/- due by his tenant. the parties entered into a rental agreement by and under which a monthly rental of rs. 40/- (o. s.) was payable by the defendant on the first of every month. the tenancy could be determined with fifteen days notice on either side ending with the end of the month. it was alleged that the defendant vacated the house without paying rent for nine months.3. the defendant remained ex parte.4. the instrument of lease was filed into court. the office thought that it was to be stamped under article 24(a) (viii) of the schedule to the hyderabad stamp act corresponding to article 35(a)(iv) of the indian stamp act, and that as it bore an insufficient stamp it was to be impounded and a penalty amounting to rs. 412-8-0 was levied. the plaintiff disputed the correctness of this levy and so the document was sent for realisation of the dues to the inspector general of registration and stamps.5. this was returned with the following endorsement :'document under consideration is a lease for a period of one year and for a yearly consideration of o. s. rs. 480/- and is chargeable under article 24(2) of the schedule, to the hyderabad stafhp act, with a stamp duty of rs. 6/4/0 whereas it has been executed on stamp paper of o. s. rs. 7/8/0 which is more than sufficient. hence no penalty can be levied'.as the correctness of this ruling was doubted by the chief judge, he made this reference.6. the question that calls for decision in this reference is whether the instrument falls under article 24(a)(ii) of the schedule to the hyderabad stamp act or under clause (viii) of that sub-section. this depends upon the interpretation to be placed on the two relevant clauses. it is convenient here to read both the clauses of that article.'article-24: lease, including an under lease or sub-lease and any agreement to let or sub-let: (a) where by such lease, the rent is fixed and no premium (nazarana) is paid or delivered -article-24: lease, including an under lease or sub-lease, and any agreement to let or sub-let:(a) where by such lease, the rent is fixed and no premium (nazarana) is paid or delivered -(i)'where the lease purports to be for a term of less than one year.the same duty as a bond (art. 10) for the whole amount payable or deliverable under such lease.(ii)where the lease pur-ports to be for a termof not less than one year but more(sic) than five years.the same duty as a bond (art 10) for the amount or value of the average annual rent reserved.(iii)where the lease does not- purport to be for any definite period.the same duty as a bond conveyance(sic) (art. 15) for a consideration equal to three times the amount or value of the average annual rent which would be paid or delivered for the first ten years if the lease continued so long.'7. we have now to decide as to which of these clauses governs the instrument in question. there can be little doubt that clause (ii) is inapplicable to this case for the reason that this is not a lease 'for a term of not less than one year but more than five years'. the only other two clauses are (i) and (viii).8. we may pause here to look at section 106 of the transfer of property act, which has a bearing on this enquiry:section 106: 'in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six montns' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy'. x x x x x 9. since in the present case this is a lease of immovable property 'for any other purpose', the document falls within the purview of the latter clause of the section. does this make it a lease purporting to be for a term of less than one year? at the first blush, it may appear that a monthly lease attracts article 24(a)(1). but on a careful consideration, we have come to the conclusion that the expression 'for a term of less than one year' indicates that a document which does not fix the period of lease cannot come within the sweep of that clause. if no definite term for lease is fixed and it is terminable by notice oneither side, it is difficult to postulate that it is a lease for a term of less than one year.it should be regarded as a lease for an indefinite period, having regard to the clause enabling, either party to determine the lease after giving fifteen days' notice. the lease is indefinite in the sense that under the instrument the tenancy could continue as long as both parties want it. either the land-lord or the tenant could put an end to it at any time, provided that the term as to notice is complied with. if both of them so wish, it could be continued for any length of time. therefore though the tenancy may be described as a monthly tenancy within the purview of section 106 of the transfer of property act, it does not follow that the document evidences a lease for any definite period. it is only in cases where a specified period is indicated and that period is less than a year, clause (i) is applicable. but, it the lease does not purport to be for any definite term, clause (viii) is attracted.10. this view of ours is in consonance with skinner v. arunachalam pandarara air 1939 mad 356. there, it was laid down that, where the terms of tenancy as embodied in a document were that the lessee agreed to pay a certain amount of rent per month on a particular day of each month and that in default of payment of any month's rent he. would pay the arrears and interest together with the next month's rent and in default of which the lessee would be liable to be evicted from the house at the pleasure of the lessor, the document was a lease for an indefinite term and not for a term of less than a year and was therefore liable to be stamped under article 30(a)(viii) of schedule i, a. of the indian stamp act which corresponds to article 24(a)(viii) of the hyderabad stamp act.11. to the same effect is the judgment of the allahabad high court in mangal puri v. baldco puri, ilr 1938 all 481: (air 1938 all 304). likewise the bombay high court ruled in collector and supdt. of stamps, bombay v. laxmibai, ilr 194s bom 342: (air 1948 bom 336) that a lease from month to month within the meaning of section 106 of the transfer of property act, 1882, was chargeable to duty under article 35(a)(iv) of schedule i to the indian stamp act, since it was a lease for no definite period, to a like effect is the judgment of the lahore high court in noor ahmed v. md. ali ilr 1939-20 lah 201: (air 1939 lah 531). it was held there that if a lease did not fix a term but stated that either party could terminate the tenancy on giving one month's notice, it was governed by article 35(a)(viii) of the first schedule to the stamp act.12. the only dissenting voice is to be heard in amolia v. ibrahim ishak ilr 46 cal 804: (air 1919 cal 200(1)). in similar circumstances, their lordships, saunderson c. j. and wcodroffe j. decided that such an instrument falls under article 35 clause (a) sub-clause (i) of the first schedule to the indian stamp act; but that is based on a concession made by the counsel appearing for the government and there is no discussion at all on this subject.13. thus the preponderance of authority is in favour of the opinion we have expressed and we think that represents the correct view of the relative scope of the clauses.14. our answer to the reference is that the instrument is governed by article 24 (a)(viii) of the schedule to the hyderabad stamp act.