Skip to content


J.N. Banerjee Vs. Sohan Lal Bhargava - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberS.A.O. No. 138 of 1968, from order of M.L. Jain, Rent Control Tribunal, Delhi, D/- 29-12-1967
Judge
Reported inAIR1971Delhi243
ActsRegistration Act, 1908 - Sections 49; Transfer of Property Act, 1882 - Sections 107
AppellantJ.N. Banerjee
RespondentSohan Lal Bhargava
Appellant Advocate A.K. Sen, Senior Adv.,; Sukumar Ghose,; D.P. Bhandari a
Respondent Advocate D.D. Chawla, Adv.
Cases ReferredIn Rama Vidya Bhushan Singh v. Ratiram C.A. No.
Excerpt:
.....upon it. the absence of registration would not prevent the admitted contents of clause 8 of the lease deed being seen for determining the purpose for which the property was let, which is a collateral transaction.; (on facts of the case) that as the premises in question were meant to be used both for residence and for clinic, the use thereof for professional purpose would take the case outside the provision of clause (e) to section 14(1) of the delhi rent control act, and the appellant--landlord was thereforee not entitled to rely on the ground specified in the said clause for claiming eviction of the respondent. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by..........to law.3. the additional controller came to the conclusion that the non-registration of the lease deed would not prevent the same from being looked into for the purpose of ascertaining the purpose for which the premises had been let out. according to its clause 8, the premises were let for the respondent's residence-cum-clinic. from an appraisal of the oral evidence and the examination of the inspection report of the local commissioner appointed for the purpose, he concluded that it left no manner of doubt that ever since the creation of the tenancy the respondent-tenant had been using part of the premises as a clinic for professional purposes. it was under these circumstances that he found the case taken outside the provisions of clause (e) of the proviso to section 14(1) of the.....
Judgment:

1. This is a landlord's second appeal directed against the judgment dated December 29, 1967 of the Rent Control Tribunal, Delhi, dismissing his appeal and confirming the Additional Controller's judgment dismissing his eviction petition under Clause (e) of S. 14(1) of the Delhi Rent Control Act, 1958, claiming the respondent's eviction on the ground that the premises in dispute were required bona fide by him for his own residence and the residence of the members of his family dependent on him, as being the owner thereof he had no other reasonably suitable residential accommodation.

2. The premises in dispute were let out to the respondent in November, 1960. A deed of lease marked `C' was duly executed and admittedly signed by the parties, Clause 8 of which reads as follows:-

'That the said premises shall be used for residential and clinic purpose and the tenant in no way will sublet, assign or part with possession of the same or a part thereof'.

The appellant alleged that due to certain family circumstances he had to leave Delhi temporarily and go to Calcutta, when the premises were let to the respondent. His only son Ajit Banerjee had left for United States in September 1960 for further studies. He returned after two years and wanted to stay in Delhi. The appellant also returned to Delhi in the later part of 1962. He, his wife and his son were, according without accommodation. Appellant's wife could no longer live in Calcutta due to the damp and humid climate of that place which did not suit her. The appellant also intended to marry his son which he could not do for want of accommodation.

In reply, the respondent stated, that the eviction petition was mala fide. The premises had been let out to him for residence and professional purposes, and had been used as such from the very inception of the tenancy. The respondent specifically mentioned and referred to the contents of the rent note dated November 2, 1960 executed between the parties. The eviction application, thereforee, it was asserted, was not maintainable and the same was prayed to be dismissed. In the replication the appellant-landlord denied having let out the premises for residential as well as professional purposes. Contents of the rent note were not denied, although it was said that there was no legal valid and binding rent not'. The rent not dated November 2, 1960 was said to be illegal and not admissible in evidence as proper same was neither engrossed on a proper stamp paper nor registered according to law.

3. The Additional Controller came to the conclusion that the non-registration of the lease deed would not prevent the same from being looked into for the purpose of ascertaining the purpose for which the premises had been let out. According to its Clause 8, the premises were let for the respondent's residence-cum-clinic. From an appraisal of the oral evidence and the examination of the inspection report of the local commissioner appointed for the purpose, he concluded that it left no manner of doubt that ever since the creation of the tenancy the respondent-tenant had been using part of the premises as a clinic for professional purposes. It was under these circumstances that he found the case taken outside the provisions of Clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act. He was not impressed by the appellant's plea that he bona fide required the premises for his own residence, as the appellant was in service in an educational institution in Calcutta, where he had been living. The appellant's eviction petition was, thereforee, dismissed.

4. The appeal, the learned Rent Control Tribunal noticed that despite respondent-tenant's specific reliance on the lease deed for proving the letting purpose of the premises, as residential-cum-professional, the appellant landlord took no exception to the correctness of its contents. Clause 8 of the lease-deed, according to the Tribunal, was not an essential ingredient of the lease and as such could be looked into and relied upon as an admission made by the appellant-landlord for a collateral purpose. It further held that even though the respondent had his clinic in Chandni Chowk, Delhi, it did not prevent him from using the premises in dispute also as a clinic during the hours other than the hours at Chandni Chowk. The Tribunal was not impressed by the bona fides of the appellant-landlord. He, thereforee, upheld the judgment of the Controller and dismissed the appeal with costs. Hence this second appeal by the appellant-landlord.

5. The learned counsel for the appellant contended that the lease deed marked `C' could not be looked into as it was not registered, although it was required by section 107 of the Transfer of Property act and Section 17 of the Registration Act, to be compulsorily registered. It could not be received in evidence for proving the letter purpose. It cannot be gainsaid that the lease deed required to be registered under Section 107 of the Transfer of Property Act and Section 17 of the Registration Act. The deed marked `C'. being an unregistered document cannot be used to prove the existence of the lease which is a transfer of the right to enjoy such property for certain time for consideration.

Under the proviso to Section 49 of the Registration Act, an unregistered document affecting the immovable may partly and required to be registered may be received as evidence of any collateral transaction not required to be affected by registered instrument. According to the appellant's learned counsel, Cl (c) of Section 108 of the Transfer of Property Act requires the lessee to use the property for the purpose for which it was leased and not for any other purpose. This duty of the lease was inherent in the lease itself and was, thereforee, a part of the lease. The use of which the property can be put is not a collateral purpose, said the learned counsel, and if the document cannot be received in evidence of the transaction of lease, affecting the immovable property, it cannot be relied upon to prove the purpose for which the property was leased, because the two are inseparable.

This contention, however, is not well founded. Section 108 of the Transfer of Property Act deals with the rights and liabilities of the Lesser and the lessee and govern their relations inter se, in the absence of any contract or local usage to the contrary. It does not mean that the purpose for which the property is let is the lease itself, or that without specifying the purpose, the lease would not come into effect. The lease under Section 105 of the Transfer of Property Act is a transfer of a right to enjoy property for a certain time or in perpetuity for certain consideration. The purpose for which it is created is something different from its creation itself. The lease otherwise valid, would not become ineffective, if the clause dealing with the purpose of the lease is missing. The purpose for which the premises were let thereforee, is collateral and not dependent upon the lease nor does the lease depend upon it. The absence of registration would not prevent the admitted contents of Clause 8 of the lease deed being seen for determining the purpose for which the property was let, which is a collateral transaction.

6. The learned counsel for the appellant placed reliance on Martin v. Sheo Ram Lal (1882) 2nd 4 All 232 where it was held that the lease being unregistered, could not be received as evidence even for proving the Lesser's personal liability there under. In Gurunath Shrinivas Desai v. Chanbasappa (1894) 18 Bom 745, it was held that the clause by which the Lesser agreed to indemnify the lessee in case he should incur any loss in consequences of the disputes between the Lesser and his kinsmen could not be separated from the unregistered lease itself and the plaintiff's claim based thereon must, thereforee, be rejected. In Sachindra Mohan Ghose v. Ramjash Agarwalla : AIR1932Pat97 it was held that 'to use the document for the purpose of proving an important clause for the lease is not using it for a collateral purpose'.

7. On the other hand, the learned counsel for the respondent relied on G. Balakishtaih v. B. Ranga Reddy, : AIR1960AP112 , where it was held that a `Kabulliat' though unregistered is admissible in evidence for a collateral purpose for proving the admission contained therein. In Om Prakash v. Addl. Commr., Patna Division, Patna, : AIR1956Pat305 , it was held that non-registration of the deed of agreement should not debar the petitioner from establishing the period for which the tenancy was created. In other words, it was held to be admissible to determine the nature of the tenancy whether it was from mouth to mouth or for a specified period.

8. In Padma Vithoba Chakkayya v. Mohd. Multani, , a registered sale deed has an endorsement of cancellation on its back which however, was Air 1963 Sc 70not registered. The Supreme Court held that the said endorsement of cancellation did not extinguish the vendee's title and was inadmissible in evidence, except to prove the character of the possession of the second vendee from the vendor, the second vendee having purchased after the said unregistered sale. There was no transfer of title and first transferees would in consequence continue to be the owners, but the endorsement taken along with the sale deed was admissible in evidence to show the character of possession, which was clearly adverse to the owners.

9. In Rama Vidya Bhushan Singh v. Ratiram C.A. No. 460 of 1966, decided on 28-6-1969 and reported in the 1969 Uj (SC) 21 the Supreme Court again held that the defendant, in order to support his plea that his possession was that a tenant was entitled to rely on recitals contained in the unregistered agreement of lease, which otherwise was inadmissible to support his plea of a lease for 15 years. Shah, J. speaking for the curt observed: 'A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property'.

10. In this case, the lease deed is not admissible in evidence to prove that lease or for showing the creation, declaration, assignment, limiting or the extinguishing of a right to immovable property; but it provides good evidence to prove the nature of the respondent-tenant's possession, that he is in possession of the premises in dispute for purposes of having his residence and carrying on his profession there. Clause 8 of the said deed, thereforee, can be looked into for this purpose, which is only a collateral purpose.

11. The Additional Controller even after appraisal of the oral evidence came to the conclusion that from the very beginning of the lease, the tenant had been using the premises for residence and professional purposes. This conclusion was not varied by the Rent Control Tribunal. This is a concurrent finding of fact and this Court would not interfere with the same. This would show that the premises were meant to be used both for residence and for the purposes of the respondent's clinic. The use of the premises for professional purpose would take the case outside the provisions of Clause (e) of the proviso of Section 14(1) of the Delhi Rent Control Act. The appellant-landlord, thereforee is not entitled to reply on the ground specified in the said clause for claiming eviction of the respondents.

12. In view of the above, it is not necessary to go into the bona fide of the claim of the appellant-landlord for the premises for his personal residence or the residences of his son. But, the interference in this regard as drawn by the Additional Controller and the Tribunal, appears to be correct on the basis of the appellant-landlord having accepted service in some educational institution in Calcutta where he is normally required to live and the appellant-landlords' son having accepted service in Bangkok. It was under these circumstances that the claim of the appellant-landlord was considered to be mala fide. The conclusions of the Tribunal are not unjustified. Under these circumstances there is no merit in this appeal and the same is dismissed. There shall be no order as to costs.

13. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //