1. The only question that this petition under Section 115 of the Code of Civil Procedure, by a defendant in the suit out of which it has arisen, raises is as to whether the document of July 23, 1971, on which the suit of the plaintiff is based, is inadmissible in evidence either because being compulsorily registrable, it is not registered or because it is insufficiently stamped.
2. The facts and circumstances leading to the petition are not in dispute and may be briefly stated. The premises in dispute was, during the material time held by the respondent the plaintiff in the suit, as a tenant. By an agreement of July 23, 1971, entered into between the parties, it was envisaged that the petitioner would set up in place of the premises a multi-storeyed building on the site and in consideration of the respondent delivering vacant possession of the premises to the petitioner, the petitioner would give to the respondent a flat on the ninth floor with certain specified dimensions on the terms and conditions set out in the agreement and that in case the work on the proposed multi-storeyed building was not commenced before a certain date the petitioner would hand over to the respondent the vacant possession of the premises on the same terms and conditions on which it was hitherto held by the respondent. It was further provided that that the agreement will be valid for a period of 10 years from the date the flat in the proposed multi-storeyed building was handed over to the respondent and that thereafter will be renewable on the terms and conditions as may be mutually agreed between the parties. Pursuant to the aforesaid agreement, the respondent admittedly delivered vacant possession of the premises to the petitioner but, for reasons which are not material for our present purpose, the petitioner did not or could not pursue the project. By the suit the respondent seeks to enforce the aforesaid agreement. The suit is contested and in the written statement, the petitioner has, inter alia, raised the plea that the aforesaid agreement is inadmissible in evidence because being compulsorily registrable, it has not been registered and being a lease was insufficiently stamped. The agreement is on a stamp paper of Rs. 2/-. By the order which is impugned, the trial Court has held that the document is not in admissible. The learned Additional District Judge repelled the contention that the document is inadmissible in evidence for want of registration holding, following Hemanta Kumari Devi v. Midnapur Zamindari Co. Ltd., Air 1919 Pc 79 and Trivenibai v. Smt. Lilabai, : AIR1959SC620 , that it did not create a present demise. The learned Additional District Judge further held that even if the document was an agreement of lease and was, thereforee, compulsorily registrable, it could nevertheless be used for the collateral purpose of substantiating a plea for the possession of the premises. The learned Additional District Judge, however did not deal with the question if the document was insufficiently stamped and as to its inadmissibility on that account apparently because of the finding that the document did not create a present demise and did not even appear to be an agreement of lease.
3. I have heard Bakshi Shiv Charan Singh, learned counsel for the petitioner with regard to the question as to the inadmissibility of the document and as to whether it could be used for any collateral purpose both with reference to the reason on which the impugned order is based as well as the additional reason as to the insufficiency of stamp and it appears to me that there is no merit in the contention.
4. For the purpose of stamp duty, an agreement or memorandum of an agreement is to be stamped in accordance with Article 5 of Schedule 1 of the Stamp Act. An agreement to lease is, however, one of the exceptions and such an agreement has to be stamped in the same way as a lease under Article 35 of Schedule 1 to the Act. inter alias because by virtue of Section 2(16) of the Stamp Act, 'lease' includes such an agreement to lease. By virtue of Section 17(1)(d) of the Registration Act, 'lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent' are compulsorily registrable. The expression 'lease' in the Registration Act includes 'an agreement to lease' by virtue of the definition contained in Section 2(7) of that Act. If the document in the present case is an agreement covered by Article 5 of Schedule 1 of the Stamp Act, it is sufficiently stamped. If the document in question is a lease or an agreement to lease or the agreement to let, it is insufficiently stamped. Its registrability, however, would depend on if such a lease or agreement to lease, being admittedly in respect of immovable property, is from year to year.
5. The first question that, thereforee, requires consideration is as to whether the agreement is either a lease or an agreement to lease. It is well settled and was not disputed on behalf of the petitioner, that a document to be treated as a lease must satisfy the test of immediate and present demise in respect of the property covered by it and an agreement to lease is no exception. Reference may be made to Hemanta Kumari Devi v. Midnapur Zamindari Co. Ltd., Air 1919 Pc 79 and Trivenibai v. Smt. Lilabai, : AIR1959SC620 . It is equally well settled that this test would apply to determine not only the liability of a document to stamp but also as to its registrability. The document in question deals in the first instance, with the flat that may be built by the petitioner and in the second instance, with the premises in dispute should the multi-storeyed building be never put up. So far as the multi-storeyed building is concerned, the document does not create any immediate or present demise in respect of a part of it because the multi-storeyed building had not as yet come into existence and one does not know whether it would ever be put up. It has not been put up so far and would perhaps never be put up. The right, being conferred by the document on the respondent is contingent on a number of imponderables and at best would be a right to ask for a lease of the flat after one comes into existence. So far as the premises in dispute is concerned there is no question of an agreement or an agreement to lease because month to month tenancy in favor of the respondent was never surrendered either by the document or otherwise. All that the document provides is surrender of possession by the respondent of the demised premises with a right, subject to the terms of the agreement, to the possession being delivered as if nothing had happened. Mere delivery of possession of a demised premises by a tenant to a landlord does not by itself constitute a surrender of tenancy. Nothing more has happened in the present case which may sublimate the mere delivery of posession with the right to its restoration to the Position of a surrender. The provision in the agreement, thereforee that in the event of the petitioner failing to put up the multi-storeyed building, the petitioner would , 'hand over' to the respondent the vacant possession of the demised premises 'on the same terms and conditions as covered in the previous lease' does not and could not be tantamount to either a lease or an agreement to lease. It is a mere reiteration of the right of the respondent to the vacant possession of the demised premises being restored, if the limited purpose, for which the vacant possession of the premises was being delivered to the petitioner, was frustrated. The document, thereforee, could not be said to be either a lease or an agreement to lease with reference to either of the properties and was, thereforee, not liable to be stamped under Article 35 of Schedule 1 of the Stamp Act, or be compulsorily registrable and would, thereforee, be admissible.
6. In the view that I have taken of the admissibility of the document, the question whether it could be used for a collateral purpose does not survive and need not be considered.
7. In the result, the petition fails and is hereby dismissed with costs.
8. The parties are directed to appear before the trial Court on August 20,1975, before which date the records be transmitted to that Court.
9. Petition dismissed.