Zarif Ahmad and Another vs Satish Kumar and Another

K.C. Agrawal, J.—Finding a conflict between Fateh Chand v. Radha Rani 1956 AWR 711 and Arsad Ali Khan v. State of U.P. AIR 1978 All 59 , Sallomal Vs. Smt. Naina Baj (died) and Others, , Ram Swarup Jain Vs. Sri Janki Devi Bhagat Trust, , Jai Narain Dass and Another Vs. Smt. Zubeda Khatoon, and Ratan Lal and Others Vs. Hari Shanker and Others, a learned Single Judge referred the following two questions for decision by a larger Bench:

Whether any term of a lease deed required u/s 107 of the Transfer of Property Act to be registered, could be pressed into service for a collateral purpose within the meaning of the proviso to Section 49 of the Indian Registration Act?

Whether, in the instant case, the relationship of landlord and tenant, the rate of rent and the period for which the original lease had been granted could be looked into as a collateral purpose under the proviso to Section 49 of the Indian Registration Act.

The facts, briefly stated, are that the Plaintiff Satish Kumar brought Small Cause Court Suit No. 74 of 1972 for ejectment and recovery of arrears of rent against three Defendants. The Plaintiff alleged that the accommodation in suit had been let out to the Defendants on his behalf through rent deed dated 30th August, 1969, at the rate of Rs. 120/-per month, and as the Defendants had not paid the rent, they were liable to eviction. The suit was contested by Defendants 1 to 3. They alleged that there was no relationship of landlord and tenant between themselves and the Plaintiff, and further asserted that the premises had been taken by them on a monthly rent of Rs. 50/- from one Kishan Chand and Buddhu Ram. The trial court decreed the suit, against which the present revision u/s 25 of the Provincial Small Cause Courts Act was filed in this Court. In the revision, one of the controversies raised was that the deed, since was not registered, was not admissible. On this point, as the learned Single Judge found a conflict, he referred the two questions, mentioned above.

Section 17(1)(d) of the Indian Registration Act provides that no lease of any immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, be created other than by a registered document. This Section 17(1)(d) thus makes registration compulsory to those leases which are covered by paragraph (1) of Section 107 of the Transfer of Property Act. Leases which are reduced into writing and are otherwise not covered either by Clause (d) of Sub-section (1) of Section 17 of the Registration Act or by Paragraph (1) of Section 107 of the Transfer of Property Act, come within the purview of the second paragraph of Section 107 read with Section 4 of the Transfer of Property Act apart from various other sections mentioned therein, would be read as supplemental to the Indian Registration Act. Consequently, reading the two provisions together, it is clear that a lease for a period less than a year made in writing must be registered u/s 107 of the Transfer of Property Act, though it is not compulsorily registerable u/s 17(1)(d) of the Registration Act--Rama Sahu v. Goworo ILR 44 Mad 55 (64).

The effect of non-registration of a lease deed is dealt with in Section 49 of the Registration Act. It lays down that any document which is required to be registered shall not be looked into for the purposes of creating the rights purported to be done under it. However, the Proviso to this Section permits an unregistered document to be looked into for a limited purpose. The relevant portion of this proviso is as under:

Provided that an unregistered document affecting Immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence...or as evidence of any collateral transaction not required to be effected by registered instrument.

From the above, it is clear that an unregistered document can be looked into for collateral purposes, which is not required to be evidenced or affected by a registered document. As to what is a collateral purpose, has not been defined in either the Registration Act or in the Transfer of Property Act. For this, reference may be made to the dictionary meanings. In Webster''s Seventh New Collegiate Dictionary, this expression "collateral" has been given the meaning as "accompanying as secondary or subordinate". To the same effect is the meaning given in Black''s Law Dictionary, Fourth Edition. The meaning, according to this dictionary, is "additional or supplementary, cooperating, accompanying as a secondary fact or acting as a secondary agent". Thus, collateral purpose for which a document required to be registered and is not so registered, is only for secondary purpose.

In Mattapalli Chelamayya and Another Vs. Mattapalli Venkataratnam and Another, wherein the Supreme Court was required to examine the question with regard to the admissibility of an award which was not registered, the Supreme Court held : that under the proviso to Section 49 of the Registration Act, the Court can admit any unregistered document as evidence of a collateral transaction. To the same effect is the view of the Division Bench in Dammulal v. Mohammad Bhai AIR 1955 Nag 306.

In Padma Vithoba v. Mohammad Muitani AIR 1967 SC 70 it was held by the Supreme Court that if a document was not registered, it is not admissible in evidence except to show the character of possession of the vendee. These decisions lay down the limited purpose of admission of a document which is not registered.

Apart from these cases, others which are relevant on the question of collateral purpose for which an unregistered lease can be admitted are found to be reported in Mst. Nasiban v. Mohammad Sayed AIR 1936 Nag 174. It was clearly held by Vivan Bose, J., that an unregistered deed of lease cannot be used for the purpose of proving the period of lease. He observed as under:

But the only purpose for which the Appellant wants to use it here is to prove her agreement--She sues for possession on the ground that the lease has terminated, and so wants to show the period for which the lease was granted. She also sues for the rent payable under it. Therefore, the document is not receivable in evidence for these purposes.

In Sardar Amar Singh and Another Vs. Smt. Surinder Kaur, the Full Bench held that the period of the lease and the terms of the lease could not be proved by admitting the lease deed which was unregistered.

Section 49 of the Registration Act, therefore, puts a complete bar to the admission of a document evidencing the terms of contract for which registration is compulsorily required by Section 17(1)(d) of the Registration Act or Section 107 of the Transfer of Property Act. As to the duration for which a lease is given or about the rate of rent, a document unregistered cannot be taken into evidence inasmuch as relying upon an unregistered document for these purposes would result in nullifying the prohibition or the bar imposed by Section 49. Section 49 prohibits the reception into evidence of any document affecting any immovable property. Under the Proviso to the said Section 49, only so long as an unregistered document does not purport or operate to do anything said in Section 107, the same may be considered by a Court. But, the terms and conditions on which an immovable property is leased out and which is an integral part of the same, the law does not permit such a document to be admitted for those purposes.

In Ishwar Dutt v. Sundar Singh AIR 1961 J&K 45 , AIR 1949 265 (Nagpur) , AIR 1949 218 (Nagpur) , the same view has been taken. It is pointed in Bai Gulabai v. Shridadgari 9 B LR 393, that a collateral purpose is any purpose otherwise than of creating, declaring, assigning, limiting or extinguishing a right to immovable property.

In our opinion, therefore, an unregistered document cannot be admitted for proving either the duration or the rate of rent which is one of the terms of the contract. Accordingly, we agree with the view taken in Arshad Ali v. State of U.P. (supra), Sullo Mal v. Smt. Nayanabai (supra), Ratan Lal v. Hari Shanker (supra), Ram Swarup Jain v. Janki Devi Bhagat (supra) and Jai Narain Dass v. Smt. Zubaida Khatoon (supra).

For what we have said above, we find ourselves unable to share the opinion of the learned Single Judge taken in Fateh Chand v. Radha Rani (supra) when he said that an unregistered deed can be looked into for the purposes of (1) the date on which the tenancy began, and (2) what the right reserved was. Permitting an unregistered lease deed to be admitted in evidence for the aforesaid two purposes would directly conflict with the mandate of Section 49 of the Registration Act and Section 107 of the Transfer of Property Act. These are not, in our opinion, secondary or supplemental purposes of a deed, hence could not be considered to be collateral within the meaning of the Proviso to Section 49. They are the main purposes and for these purposes the law requires registration of the document. To hold that even for these purposes an unregistered document can be admissible would mean to defeat the provisions of the two Acts, mentioned above. We, therefore, find ourselves unable to agree with the view of the learned Single Judge taken in the above case.

So for as Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, , is concerned, it may suffice to point out that in that case the Supreme Court held, relying on Section 106 of the Transfer of Property Act, that since: the lease deed was not registered, the rule of construction embodied in Section 105 could be referred to and relied upon. The Supreme Court laid down that:

In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases implied by law which may be inferred from possession and acceptance of rent and other circumstances...

In accordance with the law laid down in the aforesaid decision, if relationship of landlord and tenant is established between the parties, a monthly tenancy can be presumed u/s 106 of the Transfer of Property Act, if the lease had not been taken for manufacturing or agriculture purpose.

In support of our view, we may also make a reference to AIR 1931 79 (Privy Council) . In this case, it was held that when a permanent tenancy could be created by a registered document alone, it was not open to a party to take recourse to any equitable principle in support of its creation.

Hon. M. P. Mehrotra, J., after referring to a large number of decisions of various High Courts, held in Gyasi Ram Vs. Ram Chandra Singh, , that the requirement of registration contained in Section 107 of the Transfer of Property Act cannot be circumvented or allowed to be defeated by setting up a case of permanent tenancy on the basis of oral evidence.

For what we have said above, it follows that an unregistered lease deed cannot be admitted to prove the terms and conditions of the lease. Accordingly, it cannot be seen either for the purposes of the period of lease or the rate of rent at which the premises had been let out. A collateral purpose is any purpose other than of creating, assigning, extinguishing a right to immovable property.

We, accordingly, answer question No. 1 in the affirmative and question No. 2 in the negative.

Let the papers of the present case with the aforesaid answers be placed before the learned Single Judge who has made the reference.