S.Mohinder Singh vs Mohinder Singh

(1) The question, which precisely fails for determination in this petition is : whether a document of lease of immovable property which is for a

period of less than a year and does not reserve yearly rent is inadmissible in evidence because it is not registered ?

(2) In a suit for recovery of arrears of rent, brought by the plaintiffrespondent against the defendantpetitioner, an objection was taken on behalf of

the petitioner, that the leasedeed even though for a period of II months, and not reserving yearly rent, was still inadmissible in evidence as the same

was not registered. The objection has been overruled by Munsiff, SubRegistrar Jammu, trying the suit, hence the revision petition.

(3) Section 107 of the Jammu & Kashmir Transfer of Property Act runs into two parts. The first part provides that leases of immovable property

for any term exceeding one year and reserving yearly rent exceeding Rs 50/ can be made only by a registered document. Its second part says that

all other leases of immovable property may be made either by a registered instrument or by oral agreement coupled with de every of possession.

The proviso added to the second part, however, empowers the Govt. to declare that all classes of leases, or any class of such leases as are

covered by the second part may be made either by an unregistered instrument or by oral agreement without delivery of possession. The proviso,

therefore, does not empower the Government to provide a different mode of making a lease for a period exceeding one year and reserving yearly

rent of more than Rs 50/ which must be made by a written instrument duly registered. The only difference between the State Act and the Central

Act so far as the first part of Sec. 107 is concerned is, that whereas under the State Act two conditions i e. lease period exceeding one year and

yearly rent exceeding Rs. 50 have to be satisfied before provisions of the first part of Sec 107 may be attracted to a lease. Under the Central Act,

only one of the two conditions is enough to make it applicable. The provision contained in part two are, however, identical in both the Acts. As

would appear from its language, parttwo prescribes only two modes of making leases which do not fall under the first part, i. e. either by a written

instrument duly registered, or by oral agreement accompanied by delivery or possession of the leasehold.

(4) Clause (g) of sec. 17 of the Registration Act, which corresponds to cl (d) of the Central act, provides that a lease of immovable property for

any term exceeding one year and reserving yearly rent exceeding Rs, 50/ shall be registered. In a way, therefore, this clause is a replica of first part

of Sec. 107 of the Transfer of Property Act. Taking all by itself, Section 17 of the Registration Act has no application to the lease in hand. Sec, 4

of the Transfer of Property Act, however, makes the provision of Section 107 a part of the Registration Act. It provides that Sections 54

(paragraphs 2 & 3) 59, 107 and 123 of the Transfer of Property Act shall be read as supplemental to the Registration By force of Sec 4,

therefore, Section 107 becomes part and parcel of the Registration Act as a whole though not necessarily a part of its any particular section.

Consequently, a lease falling under second part of Sec. 107 if reduced to writing, shall have to be registered as well, failing which, penal

consequences provided in Sec 49 of the Registration Act would be visited upon it. Sec 91 of the Evidence Act will be a bar against the proof of

such a transaction by adducing oral evidence, as according to this section, when the terms of contract or of a grant, or any other disposition of

property, have been reduced to the form of a document, which is required to be registered but is not registered proof either oral or otherwise of its

terms and conditions shall be excluded. What precisely would be the effect of section 49 of the lease in hand is the other question to be determined

in the case. Sec. 49 reads as under:

No document required by section 17 (or by any provision of the Transfer of Property Act to be registered shall

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.

(5) Prior to its amendment in the year 1929, the words ""or by any provision of the Transfer of Property Act. 1882."" were missing in Sec. 49 of

Central Act. There was conflict of opinion in the High Courts of Madras and Allahabad on the one hand and the High Court of Bombay on the

other hard on the point as to whether Sec. 49 would apply to a deed which was not compulsorily registerable u/s 17 of Registration Act. The view

taken by a Full Bench of the Madras High Court in Rama Sahu & Ors. Vs. Gowro Ratho, AIR 1921 Mad. 337 was that by virtue of Sec. 4 of the

Transfer of Property Act, Section 107 did not become a part of Section 17 of the Registration Act, though ii became a part of the said Act as a

whole, and provisions of Sec. 49 being applicable to only those documents which were compulsorily regilerable u/s 17 of a leasedeed which was

not covered by Cl. (d) of Sec. 17 the Registration Act which is in pari materia with part one of Sec. 107 of the Transfer of Property Act but was

covered by its second part, and was not required to be registered under Sec. 17, was yet admissible in evidence. A Full Bench of the Allahabad

High Court in Sohan Lal and ors Vs. Mohan Lal & Ors. AIR 1928 Allahabad 726. had also taken a similar view, though the deed involved in that

case WPS not a leasedeed but a saledeed pertaining to immovable property valuing less than Rs. 100/ which was not registered, and which under

section 54 of the Transfer of Property Act could be made either orally accompanied by delivery of possession or by a registered instrument. The

view taken by Macleod J. in 17 of the Registration Act or under different sections of the Transfer of Property Act mentioned in sec, 4 but, were

not so registered, ware hit by the mischief of Sec. 49. Here also it was a case u/s 54 of the Transfer of Property Act. To resolve this controversy

Sec. 49 was amended in the year 1929 by virtue of Act No. XX[ and the words ""or by any provision of the Transfer of Property Act, 1882"" were

inserted in it. By amending the section, the legislature gave effect to the view taken by Macleod J. in Dawal Piran Shah's case (supra) and

consequently made Sec. 49 applicable to not only those documents which were required to be registered u/s 17 of the Registration Act but to

those documents , also which were required to be registered under various sections of the Transfer of Property Act mentioned in Sec. 4. A similar

amendment was made in Sec. 49 of the State Registration Act to bring it in pari materia with the provisions of Sec. 49 of the Central Act. Under

the present State of law, therefore, a leasedeed even though not for a term exceeding one year or not reserving yearly rent exceeding Rs. 50/

which is not registered, is hit by the provisions of Sec 49 of the Registration Act. This inference would inevitably follow from reading Sections 4

and 107 of the Transfer of Property Act alongwith Sec. 49 of the Registration Act.

(6) Section 49 inter alia, provides that a document which is required to be registered u/s 17 of the Registration Act or under any provision of the

Transfer of Property Act, shall not effect any immovable property comprised therein nor shall it be received in evidence, of any transaction

affecting such property. Such a document in case of a leaseexcluded. What precisely would be the effect of Sec. 49 on the lease in hand is the

other question to be determined in the case deed is, thus, incapable of creating any right in favour of the lessees in the leasehold, nor is the same

admissible in evidence to prove its terms and conditions. Such a document may, nevertheless, be used to prove a collateral matter e. g. the nature

of character of a person's possession i e., whether he is holding the property as a tenant or as a trespasser etc. For what period the lease was

created, or what was the rent fixed, are essentially terms and conditions of a leasehold which, if required to be registered but is not registered, is hit

by the mischief of Sec 49 and, therefore, inadmissible in evidence to prove its terms and conditions. Viewed thus, the leasedeed in hand which

even though required to be registered under part two of Sec. 107 of the Transfer of Property Act but has yet not been registered, is clearly

inadmissible in evidence to show as to what amount the petitioner had agreed to pay to the respondent by way of monthly rent. The authority viz.

Mst. Nasiban Vs Moh'd Sayeed, AIR 1936 Nagpur 174 relied upon by Mr. J. P. Singh indubitably goes the whole length of his contention. A

similar view was taken by Patna High Court in Kuchwar Lime & Stone Co Ltd. Vs. Secy., of State. AIR 1936 Patna 372. The authorities relied

upon by Mr. Rounaq Singh are, however, clearly distinguishable in Kidar Nath Vs. Dungar Mai AIR 1931 Lahore 501, the leasedeed had been

executed in the year 1921 i e. before Sec. 49 came to be amended in the year 1929 The learned Judge following the view taken by the Madras

High Court in Rama Sahu's case (supra) had held that the leasedeed was not hit by section 49 of the Registration Act. In the other two cases,

namely, Shambu Nath Vs Samad Ganai AIR 1959 J&K 54 and Sahibzadi Mir Moh'd Ali Khan Vs. Hakim Khaja Shaffi Hassan AIR 1967 A P

185, the question involved in this petition never fell for their Lordship, determination, as it was never raised in terms in those case. These decisions

are, therefore, no authority for the proposition that a leaseheld not for a term exceeding one year, or not reserving yearly rent exceeding Rs 50/ is

admissible in evidence even though not registered.

(7) The trial court has, therefore, clearly erred in holding the rent deed in question to be admissible in evidence to prove the rate of rent payable

under it.

(8) For the foregoing reasons the revision petition is allowed and the order impugned in it is set aside. In the peculiar circumstances of the case the

parties are left to bear their own costs.