Iswar Dutt and Another vs Sunder Singh and Another

K.V. Gopalakrishnan Nair, J.—This is an appeal against the dismissal of a suit for eviction instituted by the Appellants before the Collector

at Jammu under the provisions of the Jammu and Kashmir Tenancy Act.

The suit was based on a lease alleged to have been executed by the first Respondent to the Appellants in respect of the suit land on 7th Katik

2011 for a period of two years. As the tenant did not surrender possession after the expiry of the two years stipulated in the lease, the Appellants

claimed that they were entitled to a decree in ejectment. They also alleged that the first Respondent had sublet the land to the second Respondent.

This was set up as another ground for eviction.

The first Respondent in his written statement denied the execution of the lease mentioned in the plaint. He claimed that he was a protected tenant

who was not liable to be evicted. The allegation that he had sub-let the lands to the second Respondent was also stoutly denied by him. He stated

that the second Respondent is his brother, that his father was holding the land as tenant and that on his death the land devolved on Respondents 1

and 2. The second Respondent was thus a co-tenant in his own right and not a sub-tenant as alleged in the plaint.

The Collector after recording somewhat elaborate evidence, came to the conclusion that the sub-letting set up in the plaint was not true. He also

held that the document of lease sued on being unregistered, could not be received in evidence. On this ground as well as on a consideration of the

evidence in the case, he came to the conclusion that the Respondents were not tenants holding for a fixed term and that they were not liable to be

evicted under the provisions of the Tenancy Act.

In this appeal, the only point urged by the learned Counsel for the Appellants is that the lower Court erred in holding that the lease deed dated

7th Katik 2011 executed by the first Respondent in favour of the Appellants could not be received in evidence. The argument on behalf of the

Appellants is that the suit lease is in respect of agricultural land and that in view of the provisions of Section 117 of the T.P. Act a registered

instrument is not necessary to create it. Section 117 of the T.P. Act excludes the application of Section 107 of that Act and therefore a lease falling

under the former section is valid without a registered document. This argument overlooks Clause (d) of Sub-section (1) of Section 17 of the

Registration Act which, so far as is material, runs as follows:

Section 17(1) -- The following documents shall be registered --

(d). Leases of immovable property from year to year; or for any term exceeding one year, or reserving a yearly rent.

It will be seen that Section 17 of the Registration Act deals only with documents and not with the validity of the transactions they embody. While

Section 17 of the Registration Act strikes at documents, Section 107 of the T.P. Act strikes at the validity of (the transactions of leases. The

Transfer of Property Act enacts that certain transactions to be valid must be in writing registered, whereas the Registration Act merely requires that

certain documents shall be registered.

It is, therefore, no answer to the provisions of Section 17 of the Registration Act to say that a particular lease could be created orally under the

T.P. Act. A lease falling u/s 117 of the T.P. Act can undoubtedly be created by oral agreement even if it be for a term exceeding one year. But if

such a lease is created by means of a written instrument, it would clearly require to be registered by reason of the provisions of Section 17(1)(d) of

the Registration Act. Please, see Sivasubramania Thevar Vs. Dewan Bahadur T.N.S. Theerthapathi, Zamindar of Singampatti, ; Ali Hossain

Shaikh and Another Vs. Jonabali Mondal and Others, and Rajendra Singh v. Hulasdass AIR 1945 Nag 69.

In the instant case, the document of lease which is for a period of two years has not been registered. The result is that it falls within the mischief

of Section 49 of the Registration Act according to which a document required by Section 17 to be registered and has not been registered should

not affect any immovable property comprised therein or be received as evidence of any transaction affecting such property. There is also Section

91 of the Evidence Act which says that where the terms of a contract or of a grant or any other disposition of property have been reduced to the

form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property except the document

itself or the secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. There

is no question in the case on hand of adducing any secondary evidence; the very lease deed is before the court.

The combined effect of the provisions of Section 49 of the Registration Act and of Section 91 of the Evidence Act in the present case is that the

document of lease cannot be received in evidence, nor can the terms of the lease be proved by any other evidence. Sita Maharani v. Chhedi

Mahto (S) AIR 1955 SC 328, is an authority for this proposition. Please see also Dammulal v. Mohd. Bhai (S) AIR 1955 Nag 306. In AIR 1945

Nag 69 at p. 70, the law on the point is stated in the following words:

The finding in the present case is that the contract was in writing. As the contract was in writing, Section 17, Registration Act, comes into operation

and it ought to have been registered. As it was not registered u/s 49 Registration Act, the lease was inadmissible in evidence, except for the

purposes stated therein. It would not affect any immovable property comprised thereunder. u/s 91, Evidence Act, when the terms of a contract

have been reduced to writing no oral evidence is admissible to prove the terms of the contract.

I may also refer to Mt. Nasiban v. Mohd. Syed AIR 1936 Nag 174, on the same point.

The learned Counsel for the Appellants attempted to show that the unregistered lease deed in question could be received in evidence to show

that the tenant was holding the land under it for a fixed term of two years. Such use of the document, according to him, would be only for the

purpose of proving a collateral transaction not required to be effected by a registered document. I am wholly unable to accept this contention. That

the tenant is to hold the property only for a fixed period of two years is one of the important terms of the lease itself. It is impossible to agree that

proof of such a term of the tenancy will be merely evidence of a collateral transaction. The suit is based on this provision of the lease deed more

than on anything else. It is because the lease is only for a term of two years that the Plaintiff has brought the present action in ejectment. To allow

the lease deed to be used for proving that a tenancy for a period of two years was created would be a flagrant and inexcusable contravention of

the provisions of Section 49 of the Registration Act. As pointed out by Rajamannar C.J. in Muruga Mudaliar v. Subba Reddiar AIR 1951 Mad 12

(FB):

Section 49(c) of the Registration Act prohibits the use of an unregistered instrument in any legal proceeding in which such a document is sought to

be relied on in support of a claim to enforce or maintain any right, title or interest to or in immovable property.

In view of the foregoing, the lower court was perfectly justified in holding that the unregistered lease in question was not receivable in evidence.

No other point has been urged before me on behalf of the Appellants. The appeal fails and is dismissed with costs.