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Ram Swarup JaIn Vs. Sri Janki Devi Bhagat Trust - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1617 of 1966
Judge
Reported inAIR1974All424
ActsTransfer of Property Act, 1882 - Sections 107; Registration Act, 1908 - Sections 49
AppellantRam Swarup Jain
RespondentSri Janki Devi Bhagat Trust
Appellant AdvocateV.D. Ojha, Adv.
Respondent AdvocateB.D. Agarwal, Adv.
DispositionAppeal partly allowed
Excerpt:
tenancy - notice of termination of lease - sections 106 and 107 of transfer of property act, 1882 - document of lease to be registered if lease for a period of twelve months or less - unregistered deed cannot be put as evidence. - - 5. yeh ki bad guzarne meyad kirayanama haza jis waqat bhi makan farik awwal khali kare ga ya farik doyam khali karaya ga to har do janib se 15 din ka notice tehrir men dena lazami hoga. the parties will be entitled to their costs in proportion to their success and failure......year nor a lease in which there was a reservation of yearly rent but according to the tenor of the lease deed. ex. 12, it was a lease for a term exceeding one year and it, therefore, required registration. his further contention was that since in any went the lease deed in the present case was not a registered document it was inadmissible in evidence and further that it did not validly terminate the lease (notice ?) and, therefore, the suit could not be decreed. 4. paragraph 5 of the lease deed, ex. 12, reads as follows: '5. yeh ki bad guzarne meyad kirayanama haza jis waqat bhi makan farik awwal khali kare ga ya farik doyam khali karaya ga to har do janib se 15 din ka notice tehrir men dena lazami hoga.' learned counsel argued that if the suit premises was not vacated within the period.....
Judgment:

Amitav Banerji, J.

1. This is an appeal by the defendant. Plaintiff filed the suit for the ejectment of the defendant, for recovery of Rs. 2765 as arrears of rent and for future and pendente lite mesne profits at the rate of Rs. 75 per month. The suit was decreed by the trial court holding that the defendant had committed a default in the payment of rent and the notice of ejectment was valid. The lower appellate court in appeal decided the only question that was raised before it, namely, that the notice dated the 30th May, 1963 was a valid notice. The appeal was dismissed. Aggrieved the defendant appellant has come up in appeal in this Court.

2. The only point urged in this case was that the notice dated the 30th May, 1963 did not validly terminate the tenancy and it subsisted. There is no dispute now that the lease was for a manufacturing purpose. Normally a notice for a period of six months is necessary to terminate the tenancy. But if there is, a contract to the contrary it will be for the period stated in the contract. The case of the plaintiff is that there is a contract to the contrary for there is a lease in writing. Ext. 12 is the lease executed between the Secretary of the plaintiff Trust and the defendant, Ram Swamp Jain. It shows that the premises in suit was let out to the defendant for a period of twelve months on a rent of Rs. 75 per month. It was also stipulated that the tenancy was to begin on the first day of every month according to English calendar and was to end with the last day of that month. It was further stipulated in paragraph 5 that the tenancy was to terminate by 15 days' notice on either side.

3. The contention of the counsel for the appellant is this that under Section 107 of the Transfer of Property Act a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument and all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. He contended that in the present case it was not a lease from year to year nor a lease in which there was a reservation of yearly rent but according to the tenor of the lease deed. Ex. 12, it was a lease for a term exceeding one year and it, therefore, required registration. His further contention was that since in any Went the lease deed in the present case was not a registered document it was inadmissible in evidence and further that it did not validly terminate the lease (notice ?) and, therefore, the suit could not be decreed.

4. Paragraph 5 of the lease deed, Ex. 12, reads as follows:

'5. Yeh ki bad guzarne meyad kirayanama haza jis waqat bhi makan farik awwal khali kare ga ya farik doyam khali karaya ga to har do janib se 15 din ka notice tehrir men dena lazami hoga.'

Learned counsel argued that if the suit premises was not vacated within the period of one year and if the appellant remained in possession of the suit premises for a day more than the originally stipulated period of twelve months the provision of Clause 5 would come into play. It would then require a notice of fifteen days. He, therefore, contended that this lease deed was for a period exceeding twelve months, i.e. exceeding the year and was necessarily to be registered. A perusal of paragraph 5 above makes it clear that a notice of 15 days will be necessary if the suit premises were sought to be vacated any time after the period of the lease viz. twelve months. It nowhere stipulated that the lease was for a period exceeding twelve months. I am, therefore, not impressed by this argument and I hold that the lease deed was for a period of twelve months only and as such was not compulsorily registerable.

5. Learned counsel then urged that in view of the second part of Section 107 it is clear that the leases which do not come within the first part of Section 107 have either to be made by registered instrument or oral agreement accompanied by delivery of possession. In the present case there was a written lease deed. It was nobody's case that there was an oral agreement accompanied by delivery of possession. He, therefore, urged that the lease deed Ex. 12, required to be registered before it could be looked into or relied upon. In other words his argument is that wherever there is a lease deed granting lease for a period of twelve months or less it had to be by a registered document. In support of this contention he relied on an observation made in the case of Jai Narain Dass v. Zubeda Khatoon : AIR1972All494 . There is a discussion of the scope of Section 107 of the Transfer of Property Act in paragraph 12 of the said judgment. T. S. Mirza. J. observed:

'In other words, in all such cases which are covered by para 2 of Section 107 a lease can be made by oral agreement accompanied by delivery of possession and it is not necessary that a document should be executed evidencing the terms thereof. However, if the parties choose to execute a lease deed so as to bring the terms and conditions thereof in writing it would be necessary that such a document should be registered one. If the document is not registered, the provisions of Section 49 of the Registration Act would come into play and in that event the document itself would not be admissible in evidence except for collateral purposes.'

6. Section 49 of the Registration Act stipulates that a document which is required to be registered under Section 17 of the Registration Act or by any provisions of the Transfer, of Property Act, 1882, shall not be received in evidence unless it has been registered. It was urged that since Section 107 makes it obligatory to register every document which is reduced in writing, the non-registration of such a document would result in such a document being excluded from being received in evidence. It is true that a lease in respect of immovable property from year to year or for any term exceeding one year or reserving a yearly rent is not compulsorily registrable under the provisions of Section 17 of the Registration Act. Therefore, we are left only with the provisions of Section 107 of the Transfer of Property Act.

7. In Mst. Nasiban v. Mohd. Sayed (AIR 1936 Nag 174) Vivian Bose, J. observed as follows:

'The lower appellate court holds that the rent note Ex. P-1 being an unregistered document, cannot operate as a lease, because Section 107, T. P. Act requires a registered document in every case except where the lease is by oral agreement accompanied by delivery of possession. I thing that is the right view. Clause (1) of Section 107 states that certain kinds of leases can be made only by a registered instrument. Clause (2) states that : all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. The provisions are exhaustive, and leave no room for a written, but unregistered lease. Even if that were not clear, the proviso to Section leaves no room for doubt. It gives the local Government power to allow unregistered instruments to operate as leases in cases not covered by the first clause, with the previous sanction of the Governor-General in Council. This would be unnecessary if such leases were permissible without sanction. It is true a lease of immovable property for less than a year is not compulsory registrable under Section 17(d), Registration Act, but Section 4, T. P. Act, states that Section 107 is to be read supplemental to the Registration Act. Therefore, the effect of the two together is to exclude by unregistered leases which have been reduced to writing. A Full Bench of the Madras High Court in Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 = (AIR 1921 Mad 337) agrees with this view.'

8. It may be mentioned here that the amendment made to Section 49 of the Registration Act in the year 1929 directs every document, which is required to be registered under any provisions of the Transfer of Property Act, not to be received in evidence unless it is registered. In view of the decision of their Lordships of the Supreme Court in the case of Sita Maharani v. Chhedi Mahto : AIR1955SC328 , where it was held that since the document was not registered it was inadmissible in evidence and no evidence could be given as to its terms and contents. Their Lordships were dealing with the case of Jukumnama and held that since it had been reduced in writing it required registration. It, therefore, becomes clear that a document of lease, which is reduced in writing, is required to be registered under Section 107 of the Transfer of Property Act and cannot be received in evidence in view of the provisions of Section 49 of the Registration Act.

9. It was sought to be argued by the respondent that the document could be certainly looked into for collateral purpose even though it was not register-ed. The terms and conditions of the lease could, however, not be relied upon since the document was unregistered. One of the term was that the tenancy was terminable at the notice of 15 days. The law requires six months' notice to terminate a lease for a manufacturing purpose. That requirement could be waived if there was a contract to the contrary. It was the plaintiff's case that the said provision had been varied by the lease deed Ex. 12. But if the lease deed itself could not be looked into since it was unregistered, there was in effect no contract to the contrary in existence. In this view of the matter it will be clear that the notice terminating the tenancy giving month's time did not comply with the requirements of Section 106 of the Transfer of Property Act.

10. Learned counsel for the respondent, on the other hand, urged that the tenancy was a monthly tenancy. It was so alleged in paragraph 2 of the plaint and had also been accepted in paragraph 2 of the written statement. He contended that the notice terminating the tenancy by giving a month's time was, therefore, valid. This argument would have been sound had it not been held that the lease was for a manufacturing purpose. A six months' notice is required to terminate a lease for a manufacturing purpose. Therefore, the notice dated the 30th May, 1963 did not comply with the requirements of Section 106 of the Transfer of Property Act.

11. Learned counsel then urged that in any event the lease was for a period of one year and after the expiry of the period the lease became a month to month tenancy and six months' notice was not required. He cited a decision of Suiti Devi v. Benarasi Das : AIR1949All703 . In that case also the lease was for a period of one year and it was held that there was a contract to the contrary and the three months' notice given in the case was a valid notice. The question whether the lease deed in that case was registered or not, or was required to be registered or not, did not engage the attention of the Court. The Court interpreted the document as it existed treating it to be a contract to the contrary. If the deed in the present case was not receivable in evidence then for the purpose of the present case there existed no term even as regards the length of the period for which the lease was given. The question of holding over or the lessee be-coming a month to month tenant would not, therefore, arise. Once the lease deed Ex. 12 is held to be inadmissible in evidence it could not be looked into for the purpose of determining the term of the lease. It will, therefore, not be proper to hold under the circumstances that the lessee became a month to month tenant after the expiry of the period of one year of the lease. In my opinion, the notice dated the 30th May. 1963 did not validly terminate the tenancy which was for a manufacturing purpose. It required six months' notice and since only a month's notice had been given the tenancy was not validly terminated and it subsisted. In this view of the matter the court below erred in decreeing the suit The decree for ejectment will, therefore, have to be set aside. The plaintiff will be entitled to the decree for arrears of rent only.

12. In the result, the appeal succeeds in part the judgment and decree are set aside. The suit for ejectment of the defendant from the suit premises is dismissed but the plaintiffs suit for recovery of arrears of rent amounting to Rs. 2765 only is decreed. The parties will be entitled to their costs in proportion to their success and failure.


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