JUDGMENT B.D. Agarwal, J.
1. This is a defendant's second appeal.
2. On January 23, 1971, the respondent and her husband. Mohammad Yasin (since dead) executed a sale in favour of the appellant under registered instrument for consideration of Rs. 2,000/- in respect of a portion in dispute of the house concerned. On the same date there was a separate agreement executed in writing by the appellant in the respondent's favour stipulating that he would reconvey the property to the vendor on receipt of Rs. 2000/- within three years from the date of the agreement. The period was extended further up to December 31, 1974, by a subsequent agreement entered into on January 16, 1974 in writing. Despite notice from the vendor, the appellant did not execute reconveyance. The plaintiffs were ready and willing to perform their part of the agreement. With these allegations the plaintiffs brought the suit for specific performance on Jan. 31, 1975.
3. In defence the appellant admitted the execution of the deed of sale and the agreement dated 23-1-1971. In relation to the subsequent agreement, however, the plea taken was that he appended his thumb-mark under the impression that the time was being extended up to February 28, 1974. The contents of this agreement, according to him, are based upon fraud played against him, and the suit was barred by limitation. The plaintiffs had not always been ready and willing to perform their part under the contract. It was also pleaded that he had been a tenant of this portion and due to the agreement of reconveyance executed by him the tenancy is to he considered as subsisting.
4. The trial court decreed the suit for specific performance on Aug. 5, 1970 finding that there was no fraud relating to the sub-sequent agreement dated 16-1-1974: that the suit was within prescribed limitation and that the plaintiffs had been ready and willing to perform their part. An appeal filed by the defendant was dismissed on December 4, 1976. The lower appellate court specified also that the plaintiffs were entitled to recover possession along with specific performance of the agreement to reconvey and that the tenancy in the appellant's favour cannot be taken to susbsist.
5. Sri Murli Dhar, learned counsel for the defendant appellant, contends that in face of the agreement dated Jan. 23, 1971, to reconvey, the tenancy existing earlier in favour of the appellant is to be considered as still subsisting. The submission is that the intention of the parties governs and that regard being had to the great protection accorded under the general law to tenancy, it cannot be assumed that this was determined on the facts hereof, the contention cannot, in my view, be sustained either upon principle or on authority. There is no dispute that prior to the purchase made by him on January 23, 1971, the appellant was the tenant of the vendors in this premises. The sale made in his favour was absolute. In terms of Section 111(d) of the Transfer of Property Act:
"111. Determination of lease: A lease of immovable property determines:
.....
(d) in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right :
....."
6. As a result of the purchase the interest of the lessor and the lessee in the whole of the property in dispute became vested at the same time in the defendant-appellant in his same capacity as an individual. The owner normally has the right to use and enjoy the thing owned, the right to manage it, i. e. the right to decide how it shall be used and right to the income from it. The owner has a liberty to use the thing (See Sal-mond on Jurisprudence, 12th Edition, page 246). A lease is that form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the separation of ownership and possession (ibid, page 424). This also follows from the definition of the expresssion 'lease' given in Section 105 of the Transfer of Property Act as meaning a transfer of a right to enjoy the property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised. The right to enjoy the property is carved out of ownership and conveyed to the lessee. Upon the lessee acquiring the ownership itself in the property, his right to retain enioyment thereof in capacity as a lessee evidently loses its identity.
7. In Badri Narain Jha v. Ramesh-war Dayal Singh (AIR 1951 SC 186) it was pointed out that if the lessor purchases the lessee's interest, the lease is extinguished as the same man cannot at the same time be both a landlord and a tenant. In Reoti Saran v. Hargu Lal (AIR 1964 All 542) a Division Bench of this Court followed this decision of the Supreme Court and held that when the tranfer is made under a sale deed and the case is governed by Section 111(d) of the Transfer of Property Act. the question of intention of parties hardly arises and we have to decide whether, on the facts of the case, the lease determined under Section 111(d) on account of the merger of interest of the lessee. A contrary view was no doubt taken by a learned Single Judge of the Calcutta High Court in Prabhu Dayal Marwari v. Tinkari Bala Dassi (AIR 1974 Cal 35) following an earlier decision of a Division Bench of that court reported in Suraj Chandra Mondal v. Beharilal Mondal (AIR 1939 Cal 6921 cited for the appellant. With great respect. I am unable to accede to the proposition that the mere execution of an agreement to reconvey title to the property acquired under a deed of sale is to be construed in all cases as exhi-biting retention of the interest as lessee intact. Apart from the fact that the view taken by the Division Bench of our Court is binding, there is nothing to infer in the instant case expressly or by necessary implication the intention of the parties that the pre-existing interest as a tenant in favour of the appellant be allowed to subsist despite the pur-chase taken bv him merely on the footing that he entered into the agreement to reconvey within, a period of three years from the date of the purchase.
8. As mentioned above, the deed of sale executed between the parties is in unqualified terms. Nothing is pointed for the appellant therein to suggest retention of interest as a tenant by the appellant. In view of the proviso to Section 58(c) of the Transfer of Property Act. the agreement to reconvev being not incorporated in the deed of sale itself, the transaction cannot under the law be taken to be that of a mortgagee by conditional sale. The agreement to reconvey dated 23-1-1971 is also unequivocal in its terms. Both the courts below have recorded concurrent finding to the effect that there was no fraud in relation to the execution of the subsequent agreement dated January 16, 1974. The appellant's learned counsel candidly submitted that this finding of fact cannot be reagitated before this Court. In the subsequent agreement of January 16, 1974, we also find it stated by the appellant that in case the registration of the deed of sale is not permitted up to December 31, 1974. to which date the period was being extended he would accept a sum of Rs. 2,000/- and put the vendor in possession over the property and further that subsequent to the reconveyance being executed by him. in case the same has to be done earlier, he would continue as a mere licencee up to December 31, 1974. It being ruled out. and mentioned above, that there was no fraud brought to play against the appellant in the matter of execution of this agreement, there is no sound reason for not reading this document as a whole. This serves as well to negative an assumption that the tenancy was intended to be retained despite the transaction of sale and reconveyance agreement.
9. The other contention of the appellant's learned counsel then is that in the agreement dated Jan. 23. 1971 the words "Wapsi mai Qabzey ke kar doonga" were specifically interpolated as found by the trial court and therefore, it is argued, that agreement is rendered void as a whole. The contention is that the addition of these words constitutes a material alteration in the instrument. In support of this submission reliance was placed upon the observation of the Su-
preme Court in Loonkaran Sethia etc. v. Mr. Ivan E. John (AIR 1977 SC 336 at page 347). The legal position cited by the Supreme Court in this case is as under:--
"Question No. 5: Before proceeding to determine this question, it would be well to advert to the legal position bearing on the matter. As aptly stated in paragraph 1378 of Volume 12 of Hals-bury's Laws of England (Fourth Edition) if an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.
A material alteration, according to this authoritative work, is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertaned and as such void, or which may otherwise prejudice the party bound by the deed as originally executed.
The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed.
To the same effect are the observations made by the Privy Council in Nathu Lal v. Mt. Gomti (AIR 1940 PC 1601."
10. Applying this test it will be observed that the instant case may not be taken to be that of material alteration. Assuming that the words referred above were interpolated in the agreement dated 23-1-1971 the deed nonetheless recites in original admittedly that "Hissa Mub-ligh jo main ney khareed kiya hai apney kharoh par Aap.....key had men ragistry kar doonga" This was the specific stipulation on the part of the defendant appellant in that agreement to reconvey. These words themselves incorporate the undertaking to reconvey the rights acquired under the deed of sale. On account of the addition of the words "Wapsi mai qabzey ke kar doonga" there is no variation in the rights liabilities or legal position of the parties as ascertained by the deed in its original state. The words impugned are in other words redundant and superfluous even if subsequently incorporated. The agreement to reconvey is, therefore, not rendered void on this account.
11. Lastly the submission of Sri Mur-lidhar, the learned counsel, faintly made was that the plaintiffs had not been always ready and willing to perform their part under the contract. Their pleading is not alleged or shown to be lacking in statutory requirements in this behalf. As for the proof, it is on the record that the plaintiffs cave notice under registered cover to the defendant appellant requiring him to execute the sale on acceptance of Rs. 2,000/- as consideration. The notice given by the defendant appellant dated 4-3-1974 was duly replied also for the respondents on March 15, 1974 followed by another notice dated March 20. 1974. All along the plaintiffs offered the sum of Rupees 2000/- and expressed their preparedness to take the sale on the date when the defendant might come over to the office of the sub-Registrar. It was argued that in another suit No. 13 of 1975 Mohammad Yasin stated on July 11, 1975 that he would have arranged for Rs. 2000/- on taking loan from someone else and this should suggest that he was not possessed of that ready money to take the sale. The lower appellate court has rightly declined to attach importance to this since it is settled that the plaintiffs did not have to establish that they had with them all the time ready the amount of the sale consideration. There being nothing to suggest that the plaintiffs were not in a position to raise this amount of Rupees 2000/- upon the resale being made, the readiness and willingness on their part is not adversely effected.
12. The appeal for these reasons fails and is dismissed with costs.