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Raghunandan Saran Ashok Saran Vs. Amrit Lal Chopra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 445 of 1979
Judge
Reported inAIR1986Delhi301; 29(1986)DLT430; 1986(10)DRJ1
ActsCode of Civil Procedure (CPC), 1908 - Order 13, Rule 2
AppellantRaghunandan Saran Ashok Saran
RespondentAmrit Lal Chopra and ors.
Advocates: P.S. Mahendra, Adv
Cases ReferredRam Kumar Das v. Jagdish Chandra Deo
Excerpt:
.....the mode for creation of a valid lease under the said act. thus, it is obvious that unless the lease in question falls within any of the categories mentioned in first paragraph of section 107, transfer of property act or clause (d) of section 17(1) of the registration act it could be validly created by an oral agreement or by an unregistered document like a kabuliyat or rent note which need not have been registered. (7) it is well settled that in order to operate as a lease or even an agreement to lease the document must amount to an actual demise i. and there is no doubt that under section 105 a lease of immoveable property is a transfer of right to enjoy such property made in the manner specified in the said section. ..it would thus be reasonable to hold that, like the instruments..........yearly rent which can be made only by a registered instrument. thus, it is obvious that unless the lease in question falls within any of the categories mentioned in first paragraph of section 107, transfer of property act or clause (d) of section 17(1) of the registration act it could be validly created by an oral agreement or by an unregistered document like a kabuliyat or rent note which need not have been registered. (6) under the stamp act too, there it is an inclusive definition of the word 'lease' and includes a patta, a kabuliyat or any other undertaking in writing and an agreement of lease etc. so, an instrument may be a lease both for the purposes of registration act and the stamp act even though it does not fall within section 105 of the transfer of property act. (7) it is well.....
Judgment:

J.D. Jain, J.

(1) The facts giving rise to this revision petition which is directed against order dated 9th February 1979 of a Sub-Judge 1st Class. Delhi, succinctly are that way back in 1977 the petitioner, a Hindu Undivided Family, instituted a suit for possession against the respondents on the allegations that the premises in question viz. Flat No. 39, Saran Building, Ram Nagar, Qutab Road, New Delhi, had been let out to Ram Chand Chopra, deceased father of the respondents, at a monthly rent of Rs. 29.69P. The contractual tenancy of Ram Chand Chopra was terminated vide registered A.D. notice dated 12th December 1969 and he was called upon to hand over the vacant possession of the premises to the plaintiff-petitioner on 1st February 1970. However, on the termination of his contractual tenancy Ram Chand Chopra continued to occupy the premises as a statutory tenant. He died on 9th May 1975 leaving behind the respondents as his legal representatives. So, the contention of the petitioner was that respondents I & 2 who were in actual possession of the premises in question were continuing in possession there of unauthorisedly and illegally and as such they were no better than mere trespassers.

(2) The suit was resisted by the respondents, who inter valid, contended that their father Shri Ram Chand Chop had taken the premises on rent in his capacity as a Karta of the Joint Hindu Family and was not a tenant in his personal capacity as such. So, according to him, the contractual tenancy of the Joint Hindu Family was never terminated and they were in possession of the premises in question as tenants and not as unlawful occupants. Issues were accordingly framed by the trial Court on 7th September 1978 and the case was fixed for evidence of the plaintiff-petitioner on 2nd & 3rd January 1979. On that date the petitioner moved an application under Order Xiii Rule 2 read with Section 151, Code of Civil Procedure (hereinafter referred to as 'the Code') for permission to file a letter dated 16th July 1949 purporting to have been written by Ram Chand Chopra-deceased to the then landlord confirming the terms of the tenancy in respect thereof. The request was opposed by the defendants-respondents, inter alia, on the ground that the document sought to be produced was a lease-deed but being neither properly stamped nor registered was inadmissible in evidence. This ground prevailed with the learned Sub-Judge, who, inter alia, observed that 'As the document sought to be produced on record is neither stamped nor registered and. its genuineness is not undoubted, I hold there is no sufficient ground to allow the applicant to file this document at this stage.' Accordingly, he dismissed the application.

(3) There is no appearance on behalf of the respondents today. None was present on their behalf even yesterday, when the case was called. I have, thereforee, heard the counsel for the petitioner and gone through the entire material on record carefully.

(4) The document in question purports to be a letter of confirmation of an oral tenancy created in favor of the lessee with effect from 6th December 1947/lst June 1949. It is a kind of printed form containing the terms and conditions of the tenancy. However, the blanks have been filled in hand which show that it was written on 18th July 1949 by Ram Chand Chopra- 3 deceased. M/s Raghbir Saran Raghunandan Saran, the then landlords. It opens with the words 'I confirm that I have taken on rent your Flat No 39 in your said Building at a monthly rental of Rs. 28/11.00 Rupees Twenty Eight &-/11.00 only (Rent Rs.27.00 , House-tax Rs. 1/11.00 and Water-rate Rs. nil) with effect from 1st June 1949/6.12 47 on the following terms and conditions'. It then proceeds to recite various terms and conditions of the tenancy. It may be significant to notice here that the date 6th December 1947 below the date 1st June 1949 appears to have been written by way of correction. It bears further writing in hand which is as under : 'Rent @ Rs. 25.00 P.M. up to 30th June 49 has already been paid to the Custodian.' It would thus appear that Ram Chand Chopra was formerly a tenant under the Custodian and thereafter he attorney to the landlords M/s. Raghbir Saran Raghunandan Saran. According to the counsel for the petitioner, the writing adverted to above, is in the hand of Manohar Lal Chopra son of the deceased tenant, who is now respondent No. The document also purports to have been attested by him as a witness. So, the submission of the learned counsel for the petitioner is that its genuineness cannot be doubted and is at best a matter of proof. As for the delay in producing the same. it was stated in the application itself that this document was not traceable earlier.

(5) The crucial question for determination is whether this document constitutes a lease-deed within the meanings of Section 17(l)(d) of the Registration Act and Section 2(16) and Article 35, Schedule I of the Stamp Act. Section 17(1) of the Act deals with documents of which registration is compulsory. Clause (d) of its Sub-section (1) requires leases of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent to be compulsorily registered. So, it is to be seen if the document in question falls in any of the categories enumerate therein. Section 2(7) states that 'lease includes a counterpart, kabuliyat. an undertaking to cultivate or occupy, and an agreement to lease'. Obviously the inclusion of counterpart, kabuliyat etc. within the purview of 'lease' widens the scope of this term and it will cover documents other than a pure and simple lease as understood in its ordinary signification under Section 105, Transfer of Property Act. The legal concept of a lease as defined in Section 105. Transfer of Property Act is that it is transfer of a right to enjoy certain immoveable property for a certain time as may be expressly or impliedly agreed upon or in perpetuity in consideration of a price paid or promised which is generally called 'rent'. Section 107 of the Transfer of Property Act prescribes the mode for creation of a valid lease under the said Act. Its perusal would show that a lease of immoveable property may be made either registered instrument or by rail agreement accompanied by delivery of possession unless it is a lease from year to year or for any term exceeding one year or reserving a yearly rent which can be made only by a registered instrument. Thus, it is obvious that unless the lease in question falls within any of the categories mentioned in first paragraph of Section 107, Transfer of Property Act or clause (d) of Section 17(1) of the Registration Act it could be validly created by an oral agreement or by an unregistered document like a kabuliyat or rent note which need not have been registered.

(6) Under the Stamp Act too, there it is an inclusive definition of the Word 'lease' and includes a Patta, a kabuliyat or any other undertaking in writing and an agreement of lease etc. So, an instrument may be a lease both for the purposes of Registration Act and the Stamp Act even though it does not fall within Section 105 of the Transfer of Property Act.

(7) It is well settled that in order to operate as a lease or even an agreement to lease the document must amount to an actual demise i.e. it molt effect an actual demise and operate as a lease. The test to see whether a document is an agreement to lease creating the present demise in the property is the intention of the parties as gathered from the language of the document and the surrounding circumstances (See Hemanta Kumari Debi v. Midnapur Zamindari Co., Air 1919 Pc 79 and Trivenibai and another v. Smt. Lilabai, : AIR1959SC620 ). In the latter case affirming the decision of the judicial Committee in Hemanta Kumari Debi's case the Supreme Court observed that: 'It would be noticed that if Section 19 has to be read as supplemental to the definition of the word 'lease' prescribed by Section 105 would inevitably become relevant and material; and there is no doubt that under Section 105 a lease of immoveable property is a transfer of right to enjoy such property made in the manner specified in the said section.........It would thus be reasonable to hold that, like the instruments mentioned in clause (a), (b) and (c) of Section 17(1), leases las are instruments which transfer lessee's rights in the property immediately and in presenti.' Evidently, thereforee, the document in question must satisfy this test before it can be said to be lease within the meanings of Section 17(1)(d), Registration Act or Article 35 of the Stamp Act. On its plain reading it purports to confirm and recite the terms and conditions of an already accomplished transaction. As stated above, the deceased tenant was apparently in possession of the demised premises even prior to the writing of the letter in question. So, it would appear to be a mere record of part transaction even though it contains certain binding undertakings on the part of the tenant. Surely it does not effect a present demise. The law is well settled that in interpreting fiscal statutes like the Stamp Act, the interpretation has to be according to the strict letter of the law and in the case of any doubt a beneficial interpretation favoring the subject has to be put. Both these Acts deal with the instruments or documents rather than the transactions of lease etc. So, the crucial question would be whether without this document there bad come into existence a lease or demise that bound the parties in the matter of rights transferred for the enjoyment of the property in question. That would appear to be so on the plain language of the document especially the fact that the rent for the past period was stated to have been already paid. So the terms and conditions recited therein would at best be collateral terms as distinct from the demise or the lease of the property itself. In Chief Controlling Revenue Authority v. Smt. Satyawati Sood and others, : AIR1972Delhi171 , a Full Bench had to consider the definition of the term- lease as embodied in Section 2(16) of the Stamp Act. Said the Full Bench : 'The definition of 'Instrument' in Section 2(14) is the most fundamental. It includes two distinct types of documents, namely '.-' 5 (a) a document by which any right or liability is or extended, extinguished, and (b) a document by Which any such right or liability is only recorded even though the document itself does not create such a right or liability. This definition is a key to the understanding of the whole of the Stamp Act. It shows the legislative intention to make a distinction between an instrument which itself forms a legal transaction creating a right or liability and an instrument which does not itself form such a legal act but is only a subsequent record of an act-in-law. It is well known that while the Transfer of Property Act concerns itself primarily with transactions or acts-in-law, the Registration Act and the Stamp Act are concerned with documents or instruments only.' The Full Bench further observed : 'If the intention of the Legislature under those Acts was to regard an oral lease accompanied by delivery of possession as valid, it would follow that those two statutes would not regard the subsequent record of the terms of an oral lease as in any way superseding the previous oral lease. Such a '...subsequent record would not, thereforee, amount to the making of a lease under those statutes,' A bare reading of the letter in question shows that it was not recorded contemporaneously with the act-in-law embodied therein but it purports to be a mere subsequent record of the transaction which had already come into existence. Hence, it would not be hit by the provisions of either Section 17(l)(d) of the Registration Act or Article 35 of the Stamp Act. It is rather unfortunate that the learned Sub-Judge has given no reason whatsoever either in support of his finding that the document in question was compulsorily registrable or that it was not properly stamped. Had he applied his judicial mind to the relevant provisions of law he would have in all probability come to a different conclusion. 7. There is yet another aspect of the matter. The document in question does not specify any particular term/period of tenancy. It is totally silent with regard to the same. Hence, provisions of Section 106 of the Transfer of Property Act would be at once attracted. The said Section lays down a rule of construction for determining the duration of leases where the period is neither agreed upon between the parties nor fixed by any local law or usage. It says that a lease of immoveable property for any purpose other than agricultural or manufacturing shall be deemed to be a lease from month to month terminable on the part of either Lesser or lessee by 15 days' notice expiring with the end of the month of tenancy. Thus, by operation of the said Section the tenancy in question would be deemed to be from month to month and as such the question of the document being compulsorily registrable does not arise. In this context it may be useful to advert also to the observation of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, : [1952]1SCR269 , that as has been recognised in several cases the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently when the rent reserved is monthly the presumption would arise 6 that the tenancy is from month to month. Applying this test to the document in question when there is nothing to point out to the contrary, the tenancy must be presumed to be from month to month. Looked at from this angle too, the question of the document being compulsorily registrable does not arise.

(8) To sum up, thereforee, the impugned order cannot be sustained. No doubt, under Order Xiii Rule I the parties are required to produce all the documentary evidence of every description in their possession or power on which they intend to rely and which has not been already filed in Court, at or before the settlement of issues but Rule 2 of the said order confers a discretion on the court to allow production of such documents at any subsequent stage of the proceedings if good cause is shown to its satisfaction for non-production thereof. It is well settled that all discretion vesting in Court must be exercised judiciously keeping in view well settled principles. A good cause means adequate, sound and genuine ground or reason. The ground for late production of the document in question was that it was not traceable earlier. Bearing in mind that there was no apparent reason for the petitioner to with-hold this document which is of vital importance to his case, this submission of the learned counsel for the petitioner cannot bs brushed aside lightly, more so when it is the positive case of the petitioner that the rent note in question was duly attested by no other person than respondent No. 4 himself. The interests of justice required that proper opportunity should have been afforded to the petitioner to prove this document and at best the petitioner could be burdened with costs for its late production. The learned Sub-Judge has obviously acted in unholy haste in rejecting his prayer, without even caring to apply his judicial mind to the controversy raised by the respondents regarding its admissibility.

(9) As a result, I allow this petition and set aside the impugned order. The petitioner shall be entitled to produce the said document in question and the Court shall then proceed with the suit in accordance with law. The parties arc directed to appear in the trial Court on 17th October 1985 for further proceedings. The trial Court record be sent back forthwith.


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