Rama Sahu (dead) and Others vs Gouro Ratho

The question raised in the Order of Reference in this case is whether leases for less than a year, which require registration to make them

operative by virtue of Section 107 of the Transfer of Property Act, must be considered, by virtue of Section 4 of that Act which provides that that

and other sections shall be read as ""supplemental to the Indian Registration Act,"" to be documents ""required by Section 17 of the Registration Act

to be registered"" so as to bring them within the operation of Section 49 of the Registration Act which provides that ""no document required by

Section 17 to be registered shall affect any Immovable property ... or confer any power to adopt, or be received as evidence of any transaction

affecting such property or conferring such power unless it has been registered."" The question what precise effect is to be given to the provisions of

Section 4 of the Transfer of Property Act as to Section 107 and the other sections specified being read as supplemental to the Registration Act is a

very nice question upon which considerable difference of opinion has prevailed in this Court and elsewhere. The earliest case in this Court is the

case of Vaira-nanda Nadar v. Miyakan Rowther ILR (1897) Mad. 109 . That case, in our opinion, is not an authority for the proposition that this

and other sections are to be considered as read into Section 17. What the learned Judges say is that they are to be read with Section 17, and in

that case they held that the provisions of Section 107 of the Transfer of Property Act that a lease for more than a year must be registered must

take full effect and could not be read as subject to the proviso in Section 17 enabling the Local Government to grant exemption in cases where the

term of the lease does not exceed five years and the annual rent reserved does not exceed fifty rupees. That case was however treated in Kaki

Subbanadri v. Muthu Rangayya I.L.R (1909) Mad. 532 as an authority for the proposition that the provisions of Section 107 were to be treated

as inserted in Section 17 of the Registration Act. There are dicta to the same effect in the judgments of Sir Arnold White, C.J. and of

Krishnaswami Aiyer J. in the Full Bench decision in Syed Ajam Saheb v. Anantanaryana Aiyar ILR (1910) Mad. 95 but the question there was

whether a registered rental agreement executed by tenants could be held to be a registered lease granted by the landlord and the question herein no

way arose in that case. This particular question was really not considered at all in Muthukaruppan v. Muthu ILR (1914) Mad. 1158 but it was

apparently assumed that Section 107 must be taken to be inserted in Section 17.

From that time the current of authority in this Court has set the other way. We have a decision of Sadasiva Aiyar, J. and Napier, J. in Kathari

Narasimha Raju v. Bhupati Raju 31 Ind. Cas. p. 52) and the decision of Phillips and Bakewell, J.J. in Poomalai Udayan v. Kaiuppan Servai 34

I.C. 921 and the referring judgment of Spencer J. in the present case.

Turning to the other Courts, we have the two respective views of Section 4 forcibly presented by Mr. Justice Beaman on the one side and by

Mr. Justice Macleod as he then was, on the other, in Dawal Piranshah v. Dharma Rajaram I.L.R(1917) . 41 Bom. 550 As we have said the point

is a nice one and either view is a possible view but after carefully considering the question we are inclined to agree with the view of Mr. Justice

Macleod for the reasons stated by him rather than with the view taken by Mr. Justice Beaman. All that Section 4 says is thit Section 107 and other

sections are to be read ""as supplemental to "" the Registration Act. '' Supplemental'' has been defined as meaning ""added to"". We think that if the

legislature intended that these provisions should be treated for all purposes as inserted in particular sections of the Registration Act it was for the

legislature to say so. We are not prepared, as a matter of construction, to say that the provisions of Section 107 which says that a written

instrument in order to have the effect of a lease for less than a year must be registered must be taken to have been inserted in Section 17; if not,

such a lease is not a document required by Section 17 to be registered and Section 49 can have no application to the case. Spencer, J. in his

referring order has pointed out that anomalous results follow from the other view. That however is not the ground of our decision. We are not

satisfied that the legislature has sufficiently indicated its intention that these sections should be considered as inserted in Section 17. Our answer

must therefore be that the document is admissible. The question however loses much of its importance if, as has been contended before us the

Privy Council in Varatha Pillai v. Jeevarathnammal (1919) L.R. 46 IndAp 285 are to be understood as ruling that documents which are

compulsonly registrable u/s 17 and so governed by Section 49 of the Registration Act may nevertheless be admissible in evidence to prove the

character of the possession.