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Pray in S. Shah Vs. Govind K. Sharma Etc. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 461 of 1968
Judge
Reported in1974RLR128
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Transfer of Property Act, 1882 - Sections 107
AppellantPray in S. Shah
RespondentGovind K. Sharma Etc.
Advocates: N.R. Suri and; I.C. Jain, Advs
Excerpt:
- - ] para 12 onwards the judgment is :(2) in the present case the landlord admitted unequivocally in his petition for eviction that there was an agreement of tenancy between himself and the tenant (respondent 1). that was clearly an admission of the existence of a document in writing executed between himself and the tenant......(3) the second contention of the learned counsel was that even if there was a written agreement of tenancy or lease, secondary evidence of the same was not admissible as (a) the document was not properly stamped and (b) the document was unregistered. the agreement of tenancy was admitted by the landlord, but the document was not produced by him. he pleaded subsequently that no such agreement was ever executed which plea hat, however, been rejected. the non-availability of the original document was thus obvious, and secondary evidence of the contents of the document could, thereforee, be adduced by the tenant, during the examination of l.k.joshi, r.w. 2. the learned counsel for the tenant sought permission to adduce secondary evidence of the terms of the agreement of tenancy, and the.....
Judgment:

T.V.R. Tatachari, J.

(1) Appellant is and was residing at Bombay. He had let the suit premises to respondent 1 through his agent who was residing in neighbouring house for Rs. 235.00. A lease deed was drawn up which was sent to Bombay for appellant's signature. Consent to sub-let was given on condition of enhancement of rent to Rs. 250.00. After about 5 years appellant sued respondent for unlawful sub-letting stating in the petition that a lease deed was executed between the parties. Later alleging that no such deed was written, he applied for permission to amend the petition which was refused. The controller and the Tribunal hied that such a deed was written and the landlord through his agent had given consent to sub-let. Appellant appealed to the High Court.] Para 12 onwards the judgment is : -

(2) In the present case the landlord admitted unequivocally in his petition for eviction that there was an agreement of tenancy between himself and the tenant (respondent 1). That was clearly an admission of the existence of a document in writing executed between himself and the tenant. The said admission itself is sufficient proof of the execution of the document, and no further proof was called for in view of the provision in section 58 of the Indian Evidence Act it is, thereforee, not necessary to go into the question as to whether the statement of R, 4 was sufficient proof of the execution of the document or not. In the decisions referred to by the learned counsel, there was no such admission as there is in the present case and so they are not of any assistance. Further, the Additional Controller and the Rent Control Tribunal had given concurrent findings of fact, and the same have to be regarded as binding on this court in the present Second Appeal under section 39 of the Delhi Kent Control Act, as the learned counsel has not been able to show any legal infirmity in the said concurrent findings which calls for interference under the aforesaid section. The first contention of the learned counsel for the appellant thus tails and cannot be accepted.

(3) The second contention of the learned counsel was that even if there was a written agreement of tenancy or lease, secondary evidence of the same was not admissible as (a) the document was not properly stamped and (b) the document was unregistered. The agreement of tenancy was admitted by the landlord, but the document was not produced by him. He pleaded subsequently that no such agreement was ever executed which plea hat, however, been rejected. The non-availability of the original document was thus obvious, and secondary evidence of the contents of the document could, thereforee, be adduced by the tenant, During the examination of L.K.Joshi, R.W. 2. the learned counsel for the tenant sought permission to adduce secondary evidence of the terms of the agreement of tenancy, and the Additional Controller granted permission, in my opinion rightly, in view of the admission of the landlord about the agreement of tenancy and its non-production by the landlord. The appellant, thereforee, cannot have any grievance on that ground. The argument of Mr.Suri, however, was that the original document was not properly stamped and was not registered and, thereforee it was not admissible in evidence, and that consequently secondary evidence of the contents of the document was also not admissible. This objection was raised before the Additional Controller during the examination to R.W. 2, and the same was noted by the Additional Controller in recording the statement of R. W. 2. As regards the stamp duty, Mr. Suri pointed out that the rent agreed upon was Rs. 250.00 per month i.e. Rs. 3,000.00 per year or Rs. 30,000.00 for ten years, that according to Article 35 read with Article 23 of the Indian Stamp Act, the stamp duty payable on the document was about Rs. 300.00, and that according to R.W. 2 and R.W. 4, the document in question was typed on a stamp worth about Rs. 10.00 or Rs. 20.00 or Rs. 30.00. It is true that it the original document was not duly stamped, it could not be admitted in evidence in view of the provision in section 35 of the Indian Stamp Act. But, the defect was curable under proviso (a) to the said section, and the non-production of the document by the landlord prevented the same. As already stated, the landlord admitted the existence of the document in his petition for eviction, but resoled from it subsequently. The result was that the document was not available and as such the tenant was prevented from curing the defect by paying deficit stamp duty under proviso (a) to section 35. In the circumstances, the landlord cannot be permitted to lake advantage of his own action to the detriment of the opposite party. It has, thereforee, to be held that it is not open to the landlord to plead in admissibility of the original document on the ground that it was not duly stamped.

(4) As regards the objection on the ground of non-registration, Mr Suri pointed out thai the tenant admitted in his evidence as R. W. 4 that he took possession of the premises in the end of March, 1962, and that the agreement of tenancy was executed subsquently on June 12. 1962. The learned counsel submitted that in such a case the agreement of tenancy could be made only by a registered instrument in view of the provision in section 107 of the Transfer of Property Act which was made applicable to the Union Territory of Delhi on May 7, 1957 (vide 1957 Lahore Law Times, Part Vi, page 48, Notification S. R. O. 431), This contention was raised before the Rent Control Tribunal. and the Tribunal pointed out that the important question for determination was as to whether a term of the agreement of tenancy made in writing and granting permission of the landlord to the tenant to sublet the premises in favor of other persons was a term of the lease deed and was, thereforee, hit by section 107 of the Transfer of Property Act or whether it was a mere writing implicate granting permission to the tenant by the landlord to sublet the premises in favor of other persons. The Rent Control Tribunal pointed out that a mere writing implicate granting permission to the tenant to sublet would not by itself require compulsory registration and not be inadmissible in evidence if unregistered, and that such a writing, even when embodied in a lease deed, could not be said to require registration and would not be inadmissible in evidence if unregistered, and that such a writing, even when embodied in a lease deed, could not be said to require registration would not be inadmissible on the ground of non-registration of the lease deed. In that view, the Tribunal held that such a writing could be proved even in the absence of the registration of the lease deed containing such a term, and on proof of the loss or withholding of the original document by the person in possession thereof secondary evidence in respect thereof could be adduced. Mr. Suri conceded that a term of an agreement permitting a tenant to sublet premises would not strictly be an essential ingredient of a lease hit by section 107 of the Transfer of Property Act, and that such a term, if separable from the other terms of the agreement, and is an independent term, can be separated and proved by secondary evidence. He, however, urged that in the present case the alleged term giving permission to the tenant to sublet has not been shown to be such a separable and independent term. There is no substance in the said argument. As conceded by the learned counsel, a term giving permission to the tenant to sublet is by itself not an essential ingredient of a lease as defined in section 105 of the Transfer of Property Act. It has, thereforee, to be presumed that it is a separable and independent term even wh;n incorporated in the agreement of tenancy and, if at all, it is for the landlord to show that the term was an inseparable one. No such attempt was made and not even a question about the separability of the term was put to the tenant R. W. 4 in cross examination. The tenant R. W. 4 deposed that according to the terms of the agreement he had been authorised by the landlord to sublet the premises in dispute or any portion thereof. Having regard to the nature of the term, and in the absence of anything elicited in the cross-examination to the contrary, it has to be assumed that the term was an independent one unconnected with the other terms of the agreement of tenancy. The view taken by the Rent Control Tribunal has, thereforee, to be accepted as correct and the second contention of the learned counsel has to be rejected as untenable. Appeal Dismissed


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