Mohamad Noor, J.These two appeals are by the same set of plaintiffs in suits for recovery of thica rent under verbal leases which have been described as mustajiri leases. The defendant in both the suits is the same. The suits though decreed by the trial Court have been dismissed by the lower appellate Court on the ground that the lease being a verbal one was not legal u/s 107, T.P. Act, and therefore the defendant was not a tenant and the plaintiffs were not entitled to recover any rent. Decrees for use and occupation of the land were refused as the suits were not based on that ground. The plaintiffs have appealed. It will be useful to state a few facts in order to understand the legal position of the parties.

2. Nineteen gandas of the village belonged to two ladies, Bibi Tahera and Bibi Kubra, daughters of the late Nawab Amir Hasan Khan. In register D of the Collectorate however the name of their brother, Nawabzada Iqbal Husain, and not of the two ladies, was recorded in respect of these shares, and it is not disputed that the defendant took leases of these shares from the Nawabzada for the years 1321 to 1327. During the currency of the lease the ladies got their names registered in the Collectorate and, as found by the lower appellate Court, the Nawabzada directed the defendant to pay the rent of the share in question to them and the defendant did pay some rent to them. That lease ended in 1327.

3. Thereafter, according to the finding of the lower appellate Court, there were fresh verbal leases granted by the two ladies to the defendant for 7 years, i.e., for 1328 to 1334. The present plaintiffs are the representatives in interest of the two ladies, and it is on the basis of these verbal leases that the plaintiffs have instituted the suits for recovery of rent for four years from 1331 to 1334, that is, the last four years of the verbal lease. I must state at the outset that except denials of liability the defendant has not made any specific statement as to his position in respect of the rent claimed shares. Though he denies having taken a lease of the share from the two ladies, there is no denial of his being in possession of the shares during the years in suit.

4. This point however need not be pursued further as, according to the finding of the learned District Judge, it is clear that the defendant was in possession of the share in suit and there is no question that the shares in suit belong to the plaintiffs. The plaintiffs suits have been dismissed, as I have said, on the ground of invalidity of the lease as coming within the mischief of Section 107, T.P. Act. Three points of law were urged by the plaintiffs before the District Judge and have been repeated here in these appeals. They are these: (1) that the cases do not come within the mischief of Section 107, T.P. Act. The defendant having taken possession under the verbal leases and having paid rant as a lessee the equitable doctrine of part performance should be applied and rent decreed; (2) that if no decree for rent can be passed, the plaintiffs are entitled to decrees for use and occupation of the shares in suit; (3) that even if the doctrine of part performance cannot be applied, the defendant must be taken to have held over under a legal lease, either the original lease which expired in 1327, or the verbal lease which was valid for one year, i.e., 1328. I shall take up these three contentions one after the other.

5. In my opinion the plaintiffs cannot invoke the aid of the doctrine of part performance. The learned District Judge refused to apply it on the authority of Baij Nath Vs. Kundan Lal , which followed a Full Bench decision of that Court in Ramgopal Vs. Tulshi Ram and Another . The learned advocate for the appellants however relies upon the decision of the Calcutta High Court in Jogendra Krishna Ray v. Kurpal Harshi & Co. AIR 1923 Cal 63 , which followed some earlier decision of that Court. The Allahabad High Court expressly dissented from this case as they held that the equitable doctrine of part performance could not be so applied as to override an express provision of a statute. The appellants also rely upon a decision of this Court in Raghunath Bhagat and Others Vs. Sukan and Others, .

6. It is needless to discuss the conflict between the judicial pronouncements in India on this topic as, in my opinion, the question has been set at rest by the decision of the Judicial Committee of the Privy Council in AIR 1931 79 (Privy Council) . There a tenant had entered into possession of a piece of land under a contract for perpetual lease. This perpetual lease was never executed. When the suit for specific performance of contract had become barred the landlord instituted the suit for recovery of possession, which was resisted on the ground of part performance. This was accepted by the Courts in India but was overruled by the Privy Council. The last part of the judgment of their Lordships runs thus:

Their Lordships cannot find that the facts of this case raise any equity in favour of the respondent. Even if any such equity was established, their Lordships are of opinion that it could not operate to nullify the provisions of the Indian Code relating to property and transfers of property.

7. In my opinion therefore this observation of their Lordships has overruled those decisions in which the doctrine of part performance was allowed to prevail against the specific provisions of the statute. Mr. Khurshed Hussain on behalf of the appellants has however contended that this decision only applies when the remedy of specific performance of contract has become barred and their Lordships decision would have been otherwise if the remedy had not become barred He relies upon a passage in the judgment of their Lordships at p. 101 of the report. It runs thus:

Their Lordships find themselves in agreement with the High Court in the view that Walsh v. Lonsdale (1882) 21. Ch D 9 has no application to this case owing to the fact that the respondents right to enforce the verbal contract had been barred long before the commencement of the present suit, respondent was not in a position to obtain specific performance of the agreement for a lease from the same Court and at the same time as the relief claimed in this action. Had he been so entitled, the position would be very different, for then the respondent could claim to have executed in his favour by the appellant an instrument in writing which he could duly have registered, the appellants ejectment action being stayed in the meantime. In these circumstances the respondent would obtain complete protection, but consistently with and not in violation of the provisions of the Indian statute.

8. The last sentence is entirely against the argument of the learned advocate. Their, Lordships do not say that if the right of specific performance of contract had been subsisting, the respondent in that appeal could have resisted the plaintiffs suit without having instituted a suit for specific performance of contract. They say that the respondents rights would have been protected by institution of such a suit, the suit for ejectment being allowed to await the result of that suit. Apart from this, in my opinion, the effect of the case law on part performance has been affected by the passing of the Transfer of Property Amendment Act (Act 20 of 1929) which came into force on 1st October 1929.

9. The legislature must be presumed to have been aware of the case law on the doctrine of part performance as laid down by the several High Courts of India. Being cognizant of those decisions they intervened and enacted Section 53-A, T.P. Act, which has recognized the doctrine of part performance but with certain limitations, one of them being that there must be some writing from which the term of the contract can be ascertained with reasonable certainty. In my opinion therefore those decisions which allowed the doctrine of part performance to prevail even in cases where there was no writing, are no longer good law and I am unable to allow the doctrine of part performance to prevail against the express provision of the statute when it does not come within four corners of Section 53-A, T.P. Act.

10. The next point is whether the plaintiffs are entitled to decrees for use and occupation of the shares. This is resisted by Mr. Fakhruddin, who appears on behalf of the respondent, on the authority of Rachhea Singh v. Upendra Chandra Singh (1900) 27 Cal 239 and Bhuhi Koer v. Ram Khelawan Pershad (1913) 17 IC 646. These two cases lay down that in a suit for rent in the absence of alternate claim, compensation for use and occupation cannot be decreed. Mr. Kurshed Husnain however relies on Gobinda Sunder Sinha v. Srikrishna Chakravarti (1909) 3 IC 846 where at p. 543 of the report Mookerjee, J., referring to the Full Bench decision of Lukhee Kant v. Sumeerooddi (1874) 21 WR 208 on which the above cases were based observed as follows:

But the decision of the Pull Bench in the case of Lukhee v. Sumeerooddi (1874) 21 WR 208 shows that "the rule is not inflexible, because it is always in the discretion of the Court to amend the plaint or the issue, and where the omission has been from inadvertence or mistake, it would generally be proper to do so. The true test, as pointed out in the cases of Lalcshmi Rai v. Sari (1872) 9 Bom HCI and BalmaKund v. Dalu, (1903) 23 All 498, is whether the defendant will be taken by surprise. No doubt, ordinarily a plaintiff must be limited to the case which he puts forward in his plaint; but although an alternative case is not expressly put forward, he may have leave to amend his plaint, if the Court thinks that he has based his claim on wrong grounds from misinformation, ignorance of law or fact, or mistake or misconstruction of documents.

11. Even if I accept the contention of the appellants the plaint will have to be amended. As there would have been no question of prejudice to the defendant I would have adopted that course for the ends of justice, but as, in my opinion, the plaintiffs are entitled to succeed on the third ground, I do not wish to pursue this matter further. The third point raised is whether the defendant can be said to have held over after the termination of his leases. Now there are two leases in point. One is the lease which was granted by Nawabzada Iqbal Husain who was not entitled to grant such a lease of the share of the two ladies, Mt. Kubra and Mt. Tahera. The second was the verbal lease granted by the ladies themselves. The learned District Judge has considered the first only, and has refused to treat the subsequent possession of the defendant as holding over after the termination of that lease. He says as follows:

This contention is not worthy of any serious consideration, regard being had to the fact that the kabuliyat did not mention the names of the ladies as proprietors or lessors; they were not registered proprietors in respect of any share when the kabuliyat was executed and the clear specific case of the plaintiff in the plaints about the lease to the defendant (verbal) in 1328 to 1384 Fasli.

12. The fact that when the earlier lease was granted the names of the ladies were not recorded in the Collectorate is, in my opinion, immaterial. The lease was granted by a man who had no right to grant it for the ladies share. Subsequently the position was cleared up and the lessor directed the lessee to pay rent to the two ladies. The lessee attorned them and made payments of rent to them. Therefore there is no question that the lease granted by the Nawabzada enured afterwards to the benefit of the rightful owner, the two ladies. The fact that the names of the ladies were not recorded in the Collectorate record only prevented them from getting a decree for rent, but that did not affect their right in the property.

13. Once their names were registered the bar to the recovery of rent was removed and they were entitled to realise rent, I am however of opinion that the plaintiffs cannot maintain that the possession of the defendant subsequent to the year 1327 was in consequence of his holding over after the termination of this lease, because there is a definite case, as has been pointed out by the learned District Judge that there was not holding over but a creation of a fresh lease for seven years from 1328 to 1334.

14. The learned District Judge has however not considered the applicability of the principle of holding over to the verbal leases. It has been held by the Calcutta High Court in Mohammad Moossa v. Jaqanund Singh (1918) 20 IC 715 that a verbal lease for more than one year is valid for one year, if it is accompanied by delivery of possession. This decision is applicable to the facts of the present case. Here by virtue of the leases which were in contravention of Section 107, T.P. Act, the defendant did take possession of the leasehold property. The leases were perfectly valid leases for the year 1328 and for that year the defendant was their tenant.

15. The ladies were not entitled to dispossess the defendant in that year, namely, in the year 1328. There was then no fresh lease in favour of the defendant. The continuance of possession of the defendant after the termination of 1328 could not have been otherwise than the holding over by the defendant, and the provision of Section 116, T.P. Act, is attracted. This being the case, in my opinion, the defendant was the tenant of the ladies and then of the plaintiffs for the subsequent years also, the nature of his tenancy being from year to year. In that view of the case, in my opinion, the plaintiffs are entitled to rent. It may be said that the view I have taken would mean the circumvention of the statute.

16. I do not think so. The statute only prescribes the mode of creation of a lease. The effect of its non-compliance will be that the lease will be of no effect for the period. The statute does not say anything about the rights of the parties under the invalid lease and holding over has been recognized by the statute itself. The appeals are allowed with costs. The decrees of the lower appellate Court are reversed and those of the trial Court restored. The appellants will get their costs of the lower appellate Court also. The learned advocate for the respondent applies for leave to prefer Letters Patent Appeals. Leave is granted.