Ganapathy vs Maheshkumar and Dhanapal

S. Nagamuthu, J.—The petitioner is the 2nd plaintiff in O.S. No. 260 of 1998 on the file of the learned I Additional Subordinate Judge,

Cuddalore. The said suit has been filed for declaration of title for the suit property in favour of the plaintiffs and for recovery of vacant possession.

The suit was originally filed by one Rajavel. Pending suit, he died. The 2nd plaintiff, the revision petitioner herein has been brought on record as the

legal representative of the deceased, sole plaintiff. The respondents are the defendants in the said suit. During the trial of the said suit, on the side of

the defendant, DW-2 was examined. In the place of chief examination, his proof affidavit was filed and the defendants attempted to mark two

lease deeds dated 06.05.1985 and 28.08.1991, which have been drawn on unstamped papers and they are not registered. The lease in question,

admittedly, is agricultural lease. At that point of time, the petitioner herein filed an application in I.A. No. 242 of 2011 requesting the court to reject

the above documents and not to admit the same in evidence. In the affidavit filed in support of the petition, it was contended before the trial court

that the above lease deeds dated 06.05.1985 and 28.08.1991 are inadmissible in evidence for want of registration and for want of stamp duty.

In the counter filed by the 2nd defendant before the trial court, it was contended, among other things, that Section 117 of The Transfer of

Property Act exempts agricultural leases from the purview of the Act and further, as per Article 35 of The Stamp Act, such deeds are exempted

from stamp duty.

But, by order dated 09.11.2011, the trial court, without answering the said questions, held that these two documents are sought to be used only

for a collateral purpose viz., to prove the character of possession and, therefore, they are admissible in evidence. Challenging the same, the

petitioner is now before this Court with this revision.

In this revision, it is, again, mainly, contended by the petitioner that the documents in question require registration as per The Indian Registration

Act and they attract stamp duty as per The Indian Stamp Act. Since the documents in question suffer from these infirmities, they are not admissible

in evidence, it is contended.

Per contra, the learned counsel for the respondents would submit that these documents do not require either stamp duty or registration since, as

per Section 4(B) of The Tamil Nadu Cultivating Tenant''s Protection Act [25 of 1955] there is no need for either registration or for stamp duty.

The said provision reads as follows:-

4-B. Execution of lease.-(1) In the case of every of tenancy agreement entered into after the coming into force of the Tamil Nadu Cultivating

Tenants Protection (Amendment) Act, 1956, (Tamil Nadu Act 14 of 1996) between a cultivating tenant and a landlord, a lease deed shall be

executed in triplicate in the prescribed form, within a reasonable time after the commencement of such tenancy, specifying the name and description

of the cultivating tenant, the name (if any) survey number, description and extent of the land leased out, and the terms of tenancy: and shall be

singed both by the landlord or his agent and by the cultivating tenant. One of the three copies shall be kept by the landlord, one shall be kept by the

cultivating tenant and the third copy shall be caused to be lodged in the Taluk Office by the landlord or his agent within a fortnight of the date on

which the cultivating tenant signs it:

Provided that if the landlord or the cultivating tenant refuses or delays unreasonably to execute the lease deed, it shall be open to the cultivating

tenant or the landlord, as the case may be, to lodge the deed in the Taluk Office with a declaration that the other party has refused or delayed

unreasonably to execute it.

No stamp need be affixed to the lease deed.

In the case of any tenancy, if the landlord or his agent or the cultivating refuses to sign or fails to lodge the lease deed in accordance with the

provisions of sub-section (1), the Revenue Divisional Officer may impose on the land lord or the cultivating tenant, as the case maybe a penalty

which may extent to fifty rupees; and any penalty so imposed may be recovered as if it were an arrear of land revenue.

But, the learned counsel for the petitioner would submit that in order to secure the benefit of Section 4(B) of The Tamil Nadu Cultivating

Tenant''s Protection Act, the lease deed should have been executed in triplicate in the prescribed form in accordance with the provisions of the said

Act. Since in this case, the documents in question have not been executed strictly in accordance with Section 4(B) of The Tamil Nadu Cultivating

Tenant''s Protection Act, the benefits of the said Act shall not be available for the respondents. In order to substantiate his contention, the learned

counsel for the petitioner has placed reliance on a judgment of a learned single Judge of this Court in Arumugham v. Kulandaivelu, 1997 LW 401.

In the said judgment, in para 3, the learned Judge has held as follows:-

Though the learned Counsel for the respondent would maintain that the original lease deed was exempted from stamp duty and therefore, the

surrender of lease, though it falls under Article 61, also does not require to be stamped, it is not possible to accept such a contention. In order to

avail the benefit of the exemption from the payment of the stamp duty, u/s 4-B(2) of the. Tamil Nadu Act 25 of 1955 the lease deed should have

been executed in triplicate in the prescribed form in accordance with the provisions of Section 4-B(1) of that Act. Only in such cases, the benefit of

the exemption would be available. Here, there is absolutely no material to show that the lease was executed in conformity with Section 4-B(1) of

the Tamil Nadu Act 25 of 1955, and there is no question of the benefit of the exemption from stamp duty being available to such a lease deed.

Therefore, the claim of exemption from payment of stamp duty cannot be countenanced at all.

But, the learned counsel appearing for the respondents would rely on yet another judgment of Madurai Bench of this Court in Sikkender Anees

v. Vaiyalimuthu Thevar, CDJ 2007 MHC 4113 [CRP (PD) No. 297 of 2006, dated 09.08.2007] wherein, I had an occasion to deal with the

admissibility of an agricultural lease deed. Having considered the similar objection raised, I have held in paragraph 7 as follows:-

7....As pointed out earlier, the lower Court has held that the document is a lease deed, without expressing any opinion, whether the said finding is

correct or not, assuming that the document is only a lease deed, in my considered view, still the order of the lower Court directing the petitioner to

pay necessary stamp duty as well as penalty is liable to be set aside on the sole ground that in Section 4-B (2) of the Tamil Nadu Cultivating

Tenants Protection Act, it is provided that, no stamp need be affixed to the lease deed, if the lease is an agricultural lease. In this case, there is no

dispute that the document was executed in respect of the enjoyment of the usufructs from the Coconut trees. Assuming that the document refers to

a lease, it has to be necessarily hold that it is an agricultural lease and if that be so, as per Section 4-B(2) of the said Act, no stamp is required to

be affixed. Since, it is a special enactment, it will have overriding effect on the Indian Stamp Act. In view of the same, in my considered opinion,

the order of the lower Court directing the petitioner to pay stamp duty as well as penalty is liable to be set aside.

When I decided the above case, the earlier judgment of this Court in Arumugham v. Kulandaivelu, 1997 LW 401 was not brought to my notice.

Obviously, two conflicting views have been expressed in the above judgments. There is yet another judgment of this Court in Duraisami Naidu

and Others Vs. C. Ramakrishnan and Others, . In that case also, the lease deeds in question were unregistered agricultural lease deeds. In that

case, the learned Judge has taken the view that an agricultural lease deed need not necessarily be reduced into writing. But, once, if it is reduced

into writing, then, it is liable for stamp duty as well as registration u/s 17(1)(d) of The Indian Registration Act, 1908. Thus, according to the learned

Judge, the document is inadmissible though the lease deed is an agricultural lease deed. In paragraph 4 of the judgment, the learned Judge has held

as follows:-

In the present case, when such documents relating to the agricultural land are relying upon, it is true that it may be relied upon if not in writing.

However, if the lease is put in writing and the period is more than one year, as per Section 17(1)(d) of the Indian Registration Act, it requires

registration. When such registration is a mandatory requirement, there is absolutely no jurisdiction on the part of the Court to receive the

documents and even the same is inadmissible in evidence. Therefore, there is absolutely no point in saying that the documents can be received and

the validity can be decided at the time of trial. What is not receivable in law cannot be relied upon by the Court. In view of the same, there is

absolutely no illegality or irregularity in the order of the trial court.

The above judgment expresses a third view regarding the admissibility of the document.

Before me, a judgment of the Hon''ble Supreme Court in Tulsi Vs. Paro (Dead) (Smt), was cited. In that case, the Hon''ble Supreme Court

has made it clear that a lease deed need not necessarily be always reduced into writing. The lease can be either oral or in writing. Relying on this, it

is contended before me that the lease of agricultural lands does not come into existence upon execution of the lease deed in question. Instead, by

oral agreement, the agricultural lease had already come into existence and the purpose of making the deed in triplicate in the prescribed form as per

Section 4(B) of The Tamil Nadu Cultivating Tenants Protection Act is only for the purpose of updating the record of tenancy rights. Therefore,

according to the learned counsel, since these documents do not create lease, they cannot even be construed as lease deeds and, therefore, there is

no question of paying stamp duty and also getting it registered.

I have considered the above submissions.

As I have already pointed out, there are conflicting views expressed by this Court in the judgments cited supra. In my considered opinion, as

has been held by the Hon''ble Supreme Court, a lease can be brought into being even by means of oral agreement. u/s 4(B) of The Tamil Nadu

Cultivating Tenants Protection Act, for the purpose of updating the record of tenancy rights, the said lease is to be intimated to the authority by

sending the triplicate of the deed. The question as to whether such intimation is in the prescribed form or not, in my considered opinion, is

immaterial inasmuch as, even if such intimation is sent in a different form, other than the form prescribed in the Act, the purpose of giving such

intimation is served. Thus, the form prescribed u/s 4(B) of The Tamil Nadu Cultivating Tenants Protection Act is purely procedural and the same

cannot be construed as mandatory. But, in Arumugham v. Kulandaivelu, 1997 LW 401, the learned Judge of this Court has held that if the lease

deed, is not in the form prescribed u/s 4(B) of The Tamil Nadu Cultivating Tenants Protection Act, the same requires stamp duty as well as

registration. In Duraisami Naidu v. C. Ramakrishnan, 2006 (5) CTC 681 also more or less a similar view has been taken. But, in Sikkender Anees

v. Vaiyalimuthu Thevar, CDJ 2007 MHC 4113 a quite contrary view has been taken. Therefore, In my considered opinion, these conflicts need to

be resolved by a Division Bench. Therefore, I deem it appropriate to refer the following questions for answer by a Division Bench:-

(1) An agricultural lease deed, not drawn in the prescribed form as per Section 4(B) of The Tamil Nadu Cultivating Tenants Act [25 of 1955],

whether attracts stamp duty under The Indian Stamp Act and whether the same requires registration under The Indian Registration Act.

(2) Whether the document drawn in triplicate as per Section 4(B) (1) of The Tamil Nadu Cultivating Tenants Protection Act is only an intimation to

the authorities for the purpose of updating the record of tenancy rights or does it create lease.

The Registry is directed to submit the matter before My Lord The Hon''ble The Acting Chief Justice for placing it before an appropriate

Division Bench. The interim order of stay granted on 27.01.2012, which has been subsequently extended by this Court from time to time, shall

continue until further orders.