Determination of the document whether agreement or lease or agreement for lease.

The defendant in O.S.No.105 of 1993 before the Subordinate Judge’s Court, Tenkasi, is the revision petitioner in both these revisions.

2. The suit filed by the plaintiff was one for specific performance of an agreement for lease dated 19. 1991. After the suit was filed, the petitioner filed I.A. 633 of 1993 that the suit document, i.e., agreement for lease must be impounded, since it is not properly stamped and registered. He wanted the said petition to be decided preliminarily. According to the petitioner the agreement for lease is stamped only at Rs.5. Since, it is not properly stamped it is not admissible in evidence for two reasons, i.e., it ought to have been registered and that too after impounding. According to him, the agreement for lease creates a present right in favour of the lessee. The nomenclature of the document is not conclusive.

3. For the said petition, the respondent/ plaintiff contended that the document is only an agreement and there is no present demise and no lease is created by virtue of the document. There must be some other action on the part of the landlord, and only then, the lease comes into force. According to him, the conditions to the proposed lease have been agreed.

4. Without a proper document, the lease has not come into force, for which he has filed the suit.

5. The only question that arises for consideration is, whether the document dated 19. 1991 is properly stamped.

6. Under Art.35 of the Indian Stamp Act the stamp duty for an agreement for lease is also to be calculated as if it is a lease. So, it is the contention of the petitioner that even if the document only amounts to an agreement for lease, the stamp duty payable is as if it were a lease. According to him, the law does not make any difference between the two. For the said purpose, he has relied on two decisions, namely, Narayanan Chetty v. Muthiah Servai, I.L.R. 35 Mad. 63 and Purmananddas Jiwandas v. Dharsey Virji, I.L.R. 10 Bom. 102.

7. In Narayanan Chetty v. Muthiah Servai, I.L.R. 35 Mad. 63, it was held by the Full Bench as follows:

"An agreement to execute a sub-lease and to get it registered at a future is a lease within Sec:30 of the Indian Registration Act, III of 1877 and is compulsorily registrable under clause (d) of Sec.17. Such an agreement to grant a lease which requires registration affects immovable property and cannot be received in evidence in a suit for specific performance of such agreement. It is immaterial whether possession has passed or not in accordance with the agreement. Sec.49 of the Registration Act indicates that a document should not be received in evidence even where the transaction sought to be proved does not amount to a transfer of interest in immovable property but has only created an obliga-tion to transfer the property."

From a reading of the subject matter of the lease deed in that case, it is seen that even though the document was written as an agreement, present right was created in favour of the sub-lessee.

8. In Purmananddas Jiwandas v. Dharsey Virji, I.L.R. 10 Bom. 102, the learned Judges of the Bombay High Court held thus:

"Under clause (d) Sec.17 of the Registration Act, III of 1877, an agreement for a lease needs registration if the parties to such agreement intend to create a present demise. Although the agreement may contemplate a formal document being subsequently executed, the paramount intention as gathered from the whole of the instrument must prevail."

On the basis of these two decisions, we have to analyse the wordings in the document dated 19. 1991. It is necessary to extract some of the relevant clauses in the agreement and they are as follows:

"(1) The lessor hereby leased out to the lessee the premises more fully described under Schedule ‘B’ together with land, building, Office Block, Well, O.H. Tank, etc., for a period of Ten Years commencing from the day first above written.

.(3) The LESSOR shall hand over possession of the premises to LESSEE within FOUR