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High Court Of Madhya Pradesh
S. P. Bhargava and A. P. Sen, JJ.
DHANA BAI - Appellant
Versus
KEWARA BAI - Respondents
Second Appeal 631 Of 1967
Decided On : 12/22/1971
According the section 4 of the Transfer of Property Act, the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of section 49 of the Registration Act, 1908, by the enactment of the Transfer of Property (Amendment) Supplementary Act, 1929. AIR 1969 SC 1316 relied on. [Para 5
The effect of reading section 107 of the Transfer of Property Act, with section 17 (1) (d) of the Registration Act, is to make all leases of immovable property other than those from year to year or for any term exceeding one year or reserving a yearly rent, if made in writing, compulsorily registrable. Under section 2 (7) of the Registration Act, a "lease" as defined, included a counterpart, kabuliyat, an undertaking to cultivate or occupy. A rent note or kabuliyat is merely an agreement executed by a tenant to take the tenancy. In itself it contains no agreement of the landlord on his part to lease the property. It is, therefore, not a lease within the meaning of section 107 of the Transfer of Property Act. A lease, in the nature of things, must be a bilateral agreement. The jural relationship of landlord and tenant is brought into existence on transfer by the lessor and its acceptance by the lessee. AIR 1943 Lah. 127 relied on.
Though a rent-note or a kabuliyat does not create a "lease" for purposes of the Transfer of Property Act, it nevertheless falls within the definition of "lease" c0ntained in section 2 (7) of the Registration Act, and where such rent note or kabuliyat is executed by the lessee from year to year, or for any term exceeding one year, or reserves a yearly rent, It requires registration under section 17 (1) (d) of the Registration Act and, therefore, would be inadmissible in evidence for want of registration. AIR 1959 SC 620 relied on. Case-law discussed. [Para 6
The decisions holding that a rent-note from year to year or for any term exceeding one year or reserving a yearly rent does not require registration under section 17 (1) (d) of the Registration Act, because it is not a lease within the meaning of section 107 of the Transfer of Property Act, must be overruled as not laying down good law. [Para 9
(2) Registration Act, 1908 - Ss. 49, Proviso, 17 (1) (d) & 2 (7) - kabuliyat requiring registration - cannot be used to prove the terms of the lease - collateral purpose - what is.
Collateral purpose is that which is by the side of or distinct from the main purpose. A term of a deed of lease being one of its main purposes, it could not be termed a collateral purpose within the meaning of the proviso to section 49 of the Indian Registration Act. 36 MPLC 418 & 36 MPLC 410 relied on. [Para 10
(3) Transfer of Property Act, 1882 - S. 106 - lease deed inadmissible in evidence - presumption of tenancy may be drawn - tenancy governed by section 106, T. P. Act - lease for residential purposes - deemed to be lease from month to month.
(4) Landlord & Tenant - lease deed inadmissible for want of registration - tenancy may be presumed - section 106, T. P. Act governs the lease.
Even in the absence of a registered instrument creating a lease, there is a presumption of a lease under section 106 of the Transfer of Property Act. The tenancy in question was thus governed by section 106 of the Transfer of Property Act, and as it was a lease of immovable property for residential purposes, it 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 the tenancy. AIR 1952 SC 23 relied on. [Para 11
( 1 ) THIS appeal filed by the plaintiff-landlord is directed against a decree of the First additional District Judge, Raipur, dated 12-4-1967 reversing the judgment of the First Civil Judge Class II, Raipur, dated 30-11-1965 and dismissing the plaintiff's suit for ejectment, arrears of rent and damages. The appeal has been referred to , larger Bench by the Hon'ble the Chief Justice as the questions involved are of general importance.
( 2 ) THE facts leading to the appeal may be shortly stated. The plaintiff sought ejectment of the defendants under Section 12 (1) (a) (b) and (e) of the Madhya pradesh Accommodation Control Act, 1961. The defendants contested her claim and pleaded * that the parties did not stand in the relation of landlord and tenant. Their plea was that the transaction embodied in the registered sale deed dated 286-1960 (Ex. P-15) was, in reality, a mortgage by conditional sale. That plea has not prevailed in the Courts below, and it has been found that the transaction under which the plaintiff claims was an out-right sale coupled with an agreement for reconveyance within two years and the defendants not having exercised the right of re-conveyance within the time stipulated therefor, the title of the plaintiff had become absolute. It may be stated that on 28-6-1960, contemporaneous with, the execution of the sale deed (Ex. P-15) by the defendants, the plaintiff executed an ikrarnama (Exhibit D-1) embodying the terms of the agreement. Further, on that day, the plaintiff let out the house to the defendants for a period of two years on rent of Rs. 5/- per month, and in token of the contract of tenancy, the defendants executed a rent note (Ex. P-16 ).
( 3 ) THE learned trial Judge decreed the plaintiff's claim, but that decree has been reversed in appeal. On appeal, the learned Additional District Judge has non suited the plaintiff on the ground that the rent note (Ex. P-16) being for a period of more than one year, was inadmissible in evidence for want of registration under Section 49 of the Registration Act, and no oral evidence could be let in in proof of the contract of tenancy, such evidence being barred under Section 91 of the Evidence act and, therefore, the alleged tenancy has not been proved.
( 4 ) THREE questions arise for consideration in appeal:-
(1) Whether the rent note (Ex. P-16), although for a term exceeding one year, was not a lease within the meaning of Section 17 (1) (d) and, therefore, did not require registration and was not inadmissible in evidence under Section 49 of the Registration Act? (2) Whether, even if it required registration, the rent note was admissible under the proviso to Section 49 of the Registration Act for the collateral purpose of proving the nature of possession of the defendants? (3) Whether in the absence of a registered instrument, there was a presumption under Section 106 of the Transfer of Property Act that the defendants were tenants from month to month?
( 5 ) POINT No. 1:--Section 4 of the Transfer of Property Act, 1882 makes enactments relating to contracts supplemental to the Registration Act. It reads as follows:
"section 4 -- Enactments relating to contracts to be taken as part of contract Act and supplemental to the Registration Act. The chapters and sections of this Act which relate to contracts shall be taken as part of the indian Contract Act, 1872. And Sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration act, 1908. "
The effect of Section 4 of the Act was considered by the Supreme Court in raghunath v. Kedarnath, AIR 1969 SC 1316. Their Lordships stated that the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the registration Act. 1908, by the enactment of the Transfer of Property (Amendment)Supplementary Act, 1929, Section 107 of the Transfer of the Property Act reads:"section 107 -- Leases
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