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Bhairo Prasad Vs. Pradeep Kumar Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberExecution Second Appeal No. 759 of 1977
Judge
Reported inAIR1985All366
ActsRegistration Act, 1908 - Sections 2(7) and 17(1); Transfer of Property Act, 1882 - Sections 8
AppellantBhairo Prasad
RespondentPradeep Kumar Gupta
Appellant AdvocateR.N. Singh, Adv.
Respondent AdvocateV.B. Upadhya, Adv.
DispositionAppeal allowed
Excerpt:
..... registration act, 1908 and section 8 of transfer of property act, 1882 - registration of lease - compromise - decree for eviction - security of immediate payment of arrears of rent and for balance a short time given - concession to stay in premises for three years - compromise does not create any new right in favour of the judgment debtor - held, no new lease created which would require registration. - - another condition agreed upon was that if at any time rent for any four months fell in arrears, the decree-holder-appellant would be entitled to put his decree into execution and for recovery of arrears and also for possession over the premises, 5. according to the respondent, the use of the word 'rent' and the fact that the judgment-debtor was permitted to retain possession of the..........the unfettered power to evict the tenant after ten years provides a clue for holding that the compromise decree reduced the judgment-debtor to the status of a mere licensee and not a tenant. its dominant intention was not to create a lease. the decree holder merely granted a concession to the judgment-debtor for continuing in possession for ten years and after the expiry of that period, he had a right to execute the decree.'6. in smt. nai bahu v. lala ramnarayan, air 1978 sc 22 the supreme court relying on air 1977 sc 129 held as under (at p.28) :'unless the terms of compromise decree necessarily involve the execution of a deed of conveyance also, registered deed is not necessary for its enforcement. after a careful consideration of the terms of the compromise and the whole tenor of.....
Judgment:

N.N. Mithal, J.

1. This is an execution Second Appeal by the decree-holder against whom the Courts below have found that the decree based on compromise was not executable since it created a new lease in favour of the defendant judgment-debtor.

2. The only question that has been canvassed before me in the appeal is that on a true interpretation of the compromise constituting part of the decree, a new lease was neither intended to be created nor one was created and as such it did not suffer for want of registration. Sri R. N. Singh appearing for the appellant has distinguished the Supreme Court decision relied upon by the two Courts below in the light of subsequent decisions of the Supreme Court and also the legal position as interpreted by this High Court.

3. Before entering into the legal aspect it would be relevant to have the facts and the compromise which is subject of interpretation here. The appellant filed a suit for ejectment and for recovery of arrears of rent and mesne profits etc. against the respondent which was later on compromised and the compromise petition was made part of the decree. The relevant portion of the compromise is extracted below :

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^d& ;g fd eqn~nbZ o eqnkysgds chp ;g r; o djkj ik;k gS fd eqnkysg us rkjh[k 1&6&71 bZ- yxk;r31&5&72 bZ- ;kuh 12 ekg dk fdjk;k eqckfyx 900-00 :i;k ukS lkS :i;k :c:vnkyr eqn~nbZ dks vnk dj fn;k gS A rkjh[k 1&6&72 bZ- ls 31&12&72bZ- rd dk fdjk;k eqcfyx 525&00 :i;k ikap lkS iphl :i;k gksrk gS ftldkseqn~nkysg vkt ls vUnj 2 ekg eqn~nbZ dks ns nsosxk vFkok vnkyr esa tek dj nsxk Avxj u vnk djsxk rks ctfj, fMxzh gktk csn[ky dj fn;k tkosxk vkSj :i;k olqy gksxkA rkjh[k 1&1&73 bZ- ls eqn~nk ysg tk;nkn futkbZ dk fdjk;k ctk; 75@&:i;kekgokj ds eqcfyx 90&00 :i;k ekgokj fdjk;k eqn~nbZ dks vnk fd;k djsxk vkSjvkt ls 3 rhu lky rd blh rjg fdjk;k ds fglkc ls eqn~nkysg fdjk;knkjkuk vkcknjgsxk vkSj mlds ckn [kkyh djds dCtk n[ky eqn~nbZ dk djk nsxk vkSj vxj fdlh 4 pkjekg dk fdjk;k o 'kjg 90&00 :i;k uCcs :i;k ekgokj eqn~nbZ dks vnk ugh djsxkrks og clhaxs gtjk ctfj;s fMxjh gktk eqn~nbZ dks cdk;k fdjk;k dks olqy vkSjcn[ky eqn~nkysg dks djus dk vf/kdkj gksxk A

[k& ;g fd eqn~nbZ vxj edkun[kfy;k ryc ds dksbZ rehjkr [kkyh txgksa esa nf[ku rjQ ;k mijh eafty esa djkukpkgsxk rks eqn~nkysg dks dksbZ gd mls jksdus dk u gksxk] vxj jksds rks eqrfdctqeZ dkuwuh dk gksxk*

4. Thus according to the above compromise, the rent due up to 31-5-1972 was paid at the time of compromise and the parties had agreed that the amount due for the period 1-6-1972 to 31-12-1972 would be paid within two months. They stipulated that in the event of the judgment-debtor failing to deposit the amount within the time aforesaid, the decree holder would be entitled to realise the same, and also execute the decree for eviction against him. It was further stipulated that from 1-1-1973 the amount of rent payable will stand increased from Rs. 75/- to Rs. 90/- per month and the judgment-debtor would be bound to vacate the premises on the expiry of three years from the date of the compromise. Another condition agreed upon was that if at any time rent for any four months fell in arrears, the decree-holder-appellant would be entitled to put his decree into execution and for recovery of arrears and also for possession over the premises,

5. According to the respondent, the use of the word 'rent' and the fact that the judgment-debtor was permitted to retain possession of the premises for three years as a tenant clearly indicated that the true intention of the parties was to create a new lease and since the period of new lease was more than one year, it required registration in view of Section 17(1)(d) of the Registration Act. According to the aforesaid provision, any document creating a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent was compulsorily registrable. Section 2(7) defines 'lease' as including a counter-part Kabuliat, an undertaking to cultivate or occupy and an agreement to lease. The two provisions, according to their true meaning, only provide for registration of a lease deed of a kind referred to in Sub-cl. (d) where the document created a new lease, It is, therefore, relevant to see wether the document really creates a new lease in favour of the defendant and this will depend upon the interpretation to be put on the terms of the compromise herein involved. It is a salutary principle of interpretation of documents that the form is not regarded as vital but what is of importance is its true nature and substance. The Court must probe into the intention of the parties at the time when the document was executed ignoring the colour or complexion given to it by them. In Laxman Prasad v. Shyam Swarup Chandak, AIR 1980 All 242, Hon'ble M. N. Shukla, J., as he then was, considered this aspect of the matter in detail and on a review of large number of cases held as under :

'It is the substance and not the form of the document which would determine its legalcharacter. More often than not the words 'rent' or 'tenant' are loosely used in a wide sense. The real test is the intention of the parties. From the terms of the agreement of compromise, it is quite clear that the intention of the parties is not to continue the old tenancy or create a new tenancy. The fact that the decree-holder arrogated to himself the unfettered power to evict the tenant after ten years provides a clue for holding that the compromise decree reduced the judgment-debtor to the status of a mere licensee and not a tenant. Its dominant intention was not to create a lease. The decree holder merely granted a concession to the judgment-debtor for continuing in possession for ten years and after the expiry of that period, he had a right to execute the decree.'

6. In Smt. Nai Bahu v. Lala Ramnarayan, AIR 1978 SC 22 the Supreme Court relying on AIR 1977 SC 129 held as under (at p.28) :

'Unless the terms of compromise decree necessarily involve the execution of a deed of conveyance also, registered deed is not necessary for its enforcement.

After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that 'the plaintiff shall be entitled to execute her decree against the defendants'. There was, therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the intermediate occupation of a certain portion before vacating that portion after expiry of five years.'

7. Mention may also be made to a recent decision of a learned single Judge of this Court in Shri Gandhi Ashram, Meerut v. Ram Gupta, 1983 All LJ 300 where it was held that substance and not the form of document would determine the legal character which must depend upon the intention of the parties. For ascertaining the intention, the language in the document constitutes the best guide. The attending circumstances may be looked into where there is ambiguity existing in the construction of the document.

8. Thus in the light of legal position set out above, it would be clear that the intention of the parties would always be the dominant consideration in interpreting a document and mere use of the words 'tenant' or 'rent' in a loose manner should not detract from the true substance of the document. The compromise, in the instant case, does not do away with the decree for eviction and does not create any new right in favour of the judgment-debtor. What at best it docs is to secure immediate payment of a part of the arrears of rent and for balance a short time was given. A concession to stay in the premises for a period of three years notwithstanding the decree remained binding for the eviction of the tenant. It was executable if the judgment-debtor failed to pay the balance of arrears within the stipulated two months or on his failing to clear the arrears for more than four months at any time during the period of three years. On the expiry of three years in any case, the judgment-debtor was bound to vacate on pain of execution proceedings. The terms clearly and unmistakably show that the decree for eviction still survived and did not come to an end. No new rights were created which could nullify the effect of the decree. This important factor cannot be ignored and is a clear pointer to prove the true intention of the parties. Mere use of the words 'tenant' or 'rent' and the fact that during the period of three years, the judgment-debtor was to continue to occupy the premises as a tenant, would not be sufficient to clothe the transaction with the trappings of a new tenancy.

9. Reliance on the case Mangan Lal Deoshi v. Mohammad Moinul Haque, AIR 1951 SC 11 is also not justified because the circumstances of that case were entirely different. What had happened there was that a lease was granted to the plaintiff by the defendants first set. Subsequently the defendants first set granted another lease of a portion of the demised premises in favour of the defendant second set. In a suit by the lessees, a compromise was effected and in doing so, the defendants second set were made servient to the plaintiffs as under lessees and the rate of rent was also altered and a new relationship between the plaintiff and defendants second set was created which was in the nature of a under lease. This would naturally require registration according to Section 17(1)(d) because a new right which did not exist from before had been created. This important aspect appears to have been ignored by the two Courts below and it is on this account that they fell in error in deciding this matter. Here no new rights are being created and the parties are to act in accordance with the pre-existing rights and their subsequent conduct is only to be regulated by the terms of the compromise. Since no fresh rights in favour of the judgment-debtor had been created, it is, not possible to hold that a new lease had been created which may require registration. In view of this I find force in the appeal and it must succeed.

10. The appeal is, therefore, allowed with costs.


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