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Madhya Pradesh High Court
A. P. SEN,B. R. DUBE,S. S. SHARMA
Sardar Amar Singh - Appellant
Versus
Surinder Kaur - Respondent
Decided On : 07/08/1975
According to the first paragraph of section 107 a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered document.
With the addition of the word 'registered' in the second paragraph of section 107. It is clear that all other leases may be made either by oral agreement accompanied by delivery of possession or by registered instrument. [Para 4 (FB)
(2) Registration Act, 1908 - S. 17 (l) (d) - scope enlarged by the provisions of the Transfer of Property Act - leases registerable - Transfer of Property Act, 1882 - S. 107.
(3) Transfer of Property Act, 1882 - Ss. 107 and 4 - scope of section 17 of the Registration Act enlarged.
It is true that section 17 (1) (d) of the Registration Act makes registration compulsory only for the leases under section 107 paragraph (1) of the Transfer of Property Act. However, all other leases whose registration is not compulsory under section 17 (1) (d) of the Registration Act, become compulsorily registrable, if reduced into writing by virtue of second paragraph of section 107 of the Transfer of Property Act read with paragraph (2) of section 4 of the Transfer of Property Act, according to which sections 54, paragraphs 2 and 359, 107 and 123 of the said Act shall be read as supplemental to the Indian Registration Act, 1908. Therefore, the effect is to exclude from evidence all unregistered leases which are reduced into writing. 21 MPLC 200 relied on. [Para 4 (FB)
(4) Registration Act, 1908 - S. 49 - documents compulsorily registrable not registered - effect - may be used for proving collateral transaction - what are collateral transactions.
(5) Transfer of Property Act, 1882 - S. 107 - lease deed compulsorily registrable not registered - may be used for proving collateral transactions.
Section 49 of the Registration Act does not say that an unregistered document which requires to be registered, shall not be received in evidence. The only bar is that such a document cannot be received as evidence of any transaction affecting the property. As a matter of fact, the proviso to section 49 clearly empowers the Courts to admit any unregistered document as evidence of collateral transaction not required to be registered. AIR 1972 SC 1121 relied on. [Para 5 (FB)
The expression collateral purpose is a very vague one and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly the title to immovable property sought to be conveyed by the document. AIR 1957 Mad. 472 relied on. [Para 7 (FB)
The plaintiff having already pleaded oral tenancy prior to the execution of the lease deed, it is for the plaintiff to lead evidence in support of it and it is for the trial Court to decide that point. The lease deed certainly cannot be admitted in evidence to prove the terms of the lease. However, by the said document, the nature and quality of possession of the applicants can be proved as it would be certainly a collateral purpose. The nature of possession sought to be proved by this lease deed is not intended to be used against the applicants to affect their previous right vested in the immovable property.
In case the plaintiff can establish the tenancy by showing the nature of the applicants' possession on the suit land and other attending circumstances, the non-registration of the document in question will not come in his way. The said document would be used for the limited purpose of showing the relationship existing between the parties. [Paras 10, 12 and 13 (FB)
(6) Evidence Act, 1872 - S. 91 - lease deed not admissible - existence of oral contract of lease may be proved.
Section 91 only excludes other evidence of terms of a document but not of existence of the contract or the relationship of landlord and tenant brought about by possession and payment of rent. While considering the oral evidence about the delivery of possession, the trial Court shall take into consideration whether there was a constructive possession for creating the lease. [Para 11 (FB)
(7) Transfer of Property Act, 1882 - S. 107 - delivery of possession - constructive delivery of possession is sufficient.
The delivery of constructive possession is quite sufficient for the purposes of section 107. [Para 11 (FB)
(8) Transfer of Property Act, 1882 - Ss. 107 & 106 - lease deed in admissible in evidence - relationship of landlord and tenant proved by oral evidence - presumption is of monthly tenancy.
Where the lease-deed is inadmissible in evidence, the period of the lease and the terms of the lease cannot be proved by admitting the lease-deed in evidence. But looking to the circumstances of the case, if relationship of landlord and tenant can be said to have been established between the parties, a monthly tenancy can be presumed under section 106 of the Transfer of Property Act in view of the fact that the tenancy is not with respect to immovable property for agriculture or manufacturing purposes. [Para 14 (FB)
B. R. DUBE, J. : - The questions which are referred to the Full Bench for opinion are as under :
(i) Whether an unregistered lease-deed can be used to show the nature and character of possession of the defendant that is whether he is a tenant in the premises or not and
(ii) Whether assuming the demise of the premises to be under unregistered lease deed Ex. P.2, then whether a monthly tenancy can be presumed on the facts and circumstances of this case.
2. The facts giving rise to this reference may be briefly stated. The plaintiff filed a suit for ejectment and arrears of rent against the defendants on the basis of an unregistered lease deed dated 13-7-1972 vide Ex. P.2. It was alleged that the plaintiff had purchased the suit house from the defendant No. 1 on 13-7-1972 under a registered sale-deed and he later became her monthly tenant on a rent of Rs. 170/- per month. The tenancy was for a period of one year commencing from 13-7-1972 and it was for non-residential purposes. It was also alleged that the defendant No. 1 illegally sub-let the suit premises to the defendant No. 2. The plaintiff, therefore, served a notice
on defendant No. 1 on 6-12-1972, terminating the tenancy by the end of the tenancy month on 12-2-1973.
The defendants resisted the suit on the ground that in the money-lending transactions which took place between defendant No. 1 and plaintiffs father-in-law, a bogus sale-deed was executed by the defendant No. 1 by way of security for the loans but the parties never intended to act upon that document. It was further averred that the defendant No. 1 continued to be in possession as owner and the suit premises was not let out to him. According to the defendant No. 1, the lease deed was a bogus document. The allegations of sub-letting were also denied. It was further averred that the lease deed was under-stamped and not registered and it could not be admitted in evidence.
3. The plaintiff made an amendment in the plaint to the effect that at the time of finalisation of the sale transaction, an oral lease accompanied by delivery of possession was created and the lease deed was only a memorandum of the oral lease already entered into between the parties. At the stage of evidence, the plaintiff sought to admit the lease deed Ex. P.2 in evidence. He also desired to lead evidence with respect to the alleged oral lease. The defendants raised objections to the admissibility of the said document in evidence on the ground that it was not registered. They also objected to the recording of evidence to prove oral lease. The trial Court overruled the objections and allowed the lease deed to be admitted in evidence. It also permitted the plaintiff to lead evidence with respect to the alleged oral tenancy. Against that order, the defendants had come to this Court in revision.
Our learned brother C. P. Sen, J., who heard the revision, felt the necessity to place the record before Honourable the Chief Justice for orders to constitute a larger bench, as according to him there was apparent conflict between the division Bench decision of the Nagpur High Court in Dammulal v. Mohd. Bhai, AIR 1955 Nag 306 and the division Bench decision of this Court in Smt. Dhana Bai v. Smt. Kewara Bai, 1972 MPLJ 227 : (AIR 1972 Madh Pra 100), on the question whether an unregistered lease deed is admissible in evidence for the collateral purpose of proving the nature of possession. The learned Judge pointed out that according to the view taken in Dammulal v. Mohd. Bhai (supra) an unregistered lease deed can be used to show the nature and character of possession of the defendant, but in the later decision of this Court in Smt. Dhana Bai v. Smt. Kewara Bai (supra), the question which was dealt with as "point No. 2", that is, whether the rent note even if it required registration was admissible under the proviso to Sec. 49 of the Indian Registration Act for the collateral purpose of proving the nature of possession of the defendants, was decided in the
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