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Vaidyanathan Nadar Ananthan Nadar Vs. Kochuraman Lakshmanan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 963 of 1976-B
Judge
Reported inAIR1980Ker207
ActsKerala Land Reforms Act, 1964 - Sections 106; Transfer of Property Act, 1882 - Sections 107
AppellantVaidyanathan Nadar Ananthan Nadar
RespondentKochuraman Lakshmanan
Appellant Advocate K.S. Paripoornan and; P.K. Varghese, Advs.
Respondent Advocate V. Vyasan Poti and; N. Sugathan, Advs.
DispositionAppeal dismissed
Cases ReferredRamjiwan v. Mt. Maharani
Excerpt:
.....executed to create relationship of landlord and tenant - creation of relationship of landlord and tenant is purpose for which lease deed executed and transaction on which it is founded - no collateral purpose exist - relationship of landlord and tenant can be proved in case where person claims benefit under section 106 relying upon document which does not satisfy requirement of section 107 - lease deed looked into for purpose of section 106 - requirement of section 106 satisfied - held, respondent entitled to benefit of section 106. - - b-1 fixing an annual rent was bad for want of registration under section 107 of the t. b-1 failed technically, the defendant could fall back upon the original lease. this is met by the appellant with the plea that the terms of the earlier lease have..........apply to the facts of the case, that the full bench of the lahore high court was considering an unregistered document of lease which did not in law require to be registered, that the said case had to be distinguished on this vital difference, that this distinctive feature was not noted by the leaned judges and that therefore the learned judge slipped into an error in accepting the principle enunciated in that decision.6. strong reliance was placed by the appellant's counsel in support of the contention that ex. b-1 could not be used to prove the relationship of landlord and tenant on the decision of the nagpur high court rendered by bose j., in ramjiwan v. mt. maharani (air 1936 nag 295). according to him the proviso to section 49 of the registration act cannot be pressed into service.....
Judgment:

V. Khalid, J.

1. This second appeal arises from a suit for declaration of title and for recovery of possession. The suit property is a shop building within the Trivandrum Corporation. The plaintiff is the appellant. According to him the suit building was built by the predecessor of his vendor. One Padma-nabhan was the original tenant. The defendant occupied the building after 1120 agreeing to pay a rent of Rs. 25/-per month. The plaintiff filed O. S. No. 198 of 1965 in the Munsiff's Court, Trivandrum for recovery of arrears of rent and B. R. C. No. 19 of 1965 in the Rent Control Court for eviction. The defendant pleaded that the building was constructed by him, that the lease was only of the site and that the rent was Rs. 80/- per annum. The suit and the B. R. C. were dismissed. Appeals were filed against them. The appeals were ultimately withdrawn. Thereafter the present suit was filed.

2. The trial court found that the lease was of the site, that the building was constructed by the defendant prior to 1120 M. E. and that the defendant was entitled to the protection under Section 106 of Act 1 of 1964 and the suit was dismissed. This was confirmed by the appellate court. Hence this second appeal.

3. The appellant's counsel raised two questions of law conceding for the purpose of this appeal that the findings of facts were conclusive against him :

(i) when the plaintiff's title is admitted, the onus to prove the derivative title put forward by the defendant is heavy on him. If this burden is notdischarged -- and in this case the burden has not been discharged -- a decree for recovery has to follow directing the plaintiff to pay value of improvements.

(ii) Ext. B-1 is not admissible in evidence and cannot be made use of to prove the lease or the relationship of landlord and tenant between the parties.

Both the points are interlinked since both are based on Ex. B-1. The thrust of the argument was that the lease deed Ex. B-1 fixing an annual rent was bad for want of registration under Section 107 of the T. P. Act; hence no evidence could be let in to prove it as the same was barred under Section 91 of the Evidence Act. The respondent's counsel countered this argument with the plea that strict adherence to the requirements of the Transfer of Property Act to prove the lease should not be insisted upon while considering the special benefits conferred on tenants under Section 106 of Act 1 of 1964.

4. From the pleadings and from the findings of the courts below I have no hesitation to hold that the case put forward by the plaintiff that the building was constructed by him and that the defendant was holding the property as lessee of the building is absolutely false. The appellant's counsel accepted this finding for the purpose of the second appeal and put forward the argument that Ex. B-1 lease deed produced in the case was not sufficient to establish the relationship of landlord and tenant between the plaintiff and the defendant since it was not registered. It reserves yearly rent. Under Section 107 of the Transfer of Property Act, a lease of immovable property reserving an yearly rent can be made only by a registered instrument. Since Ex. B-1 is not registered it is submitted that it is not admissible in evidence. It is further contended that under Section 91 of the Evidence Act when the terms of a contract have been reduced to writing, no evidence shall be given to prove the terms. Thus Ex. B-1 fails to prove the lease put forward. The defendants' counsel submitted that Ex. B-1 was only a renewal and that the defendant had been in possession even before that and therefore even if Ex. B-1 failed technically, the defendant could fall back upon the original lease. This is met by the appellant with the plea that the terms of the earlier lease have not been clearly set out and that there was no finding by the courts below about the said lease.

5. The legal plea based on the in-admissibility of Ex. B-1 was met by the respondent's counsel relying upon Section 49 of the Indian Registration Act, the proviso to which section enabled the use of such a document as evidence of any collateral transaction not required to be effected by a registered instrument. Reliance was placed for this purpose on a decision of this court reported in Sreedharan v. Nara-yanan Bhakthan, 1975 Ker LT 128: (AIR 1976 Ker 47), which decision has been relied upon by the court below. In that decision, Viswanatha Iyer J., held that a rent deed, though not registered, was admissible to prove the creation of a lease by oral agreement accompanied by delivery of possession. The learned Judge held that the Rent Deed could be relied upon to establish the jural relationship between the parties since it contained an admission of or an acknowledgment by the defendant that he was a tenant. The learned Judge relied upon a Full Bench decision of the Lahore High Court in Mohan Lal v. Ganda Singh (AIR 1943 Lah 127) which held that in all cases of lease reduced to writing, there would be a previous oral agreement and a document though not registered could be made use of to prove such oral agreement. This decision was subjected to severe attack by the appellant's counsel and a fervent plea was made that this decision required reconsideration. It was contended that the principle enunciated in the Lahore decision could not apply to the facts of the case, that the Full Bench of the Lahore High Court was considering an unregistered document of lease which did not in law require to be registered, that the said case had to be distinguished on this vital difference, that this distinctive feature was not noted by the leaned Judges and that therefore the learned Judge slipped into an error in accepting the principle enunciated in that decision.

6. Strong reliance was placed by the appellant's counsel in support of the contention that Ex. B-1 could not be used to prove the relationship of landlord and tenant on the decision of the Nagpur High Court rendered by Bose J., in Ramjiwan v. Mt. Maharani (AIR 1936 Nag 295). According to him the proviso to Section 49 of the Registration Act cannot be pressed into service here. The connotation of the expression 'collateral purpose' has to be clearly borne in mind. The lease deed is executed essentially to create a relationship of landlord and tenant. Collateral purpose is any purpose other than the one for which the lease deed is executed. To say that the relationship of landlord and tenant could be established by the production of such an inadmissible document is without understanding what is meant by collateral purpose. The creation of the relationship of landlord and tenant is the very purpose for which the lease deed was executed and the transaction on which it is founded. It can never be said to be a collateral purpose. Bose J., in the aforesaid decision was dealing with an oral lease, on an annual rent of Rs. 9/- which lease, according to him could only be made or created by a registered document. The learned Judge after quoting from Privy Council decision observed as follows:--

'But what are these other means in this case? The right claimed is that of a landlord under a perpetual lease. There is only one way in which a right of this nature can be established and that is by the production or proof of a registered instrument of lease. (1913) 9 Nag LR 179 merely states that an unregistered document of lease is admissible for a collateral purpose, and it was there used to show that the defendant's possession was permissive. In the present case, there is no document at all, and if there had been one, the purpose cannot be described as collateral. The object is to establish the plaintiffs right to recover a specific sum of money as rent by the landlord that is to establish the very title and terms which the law says can be effected only by a registered instrument. That is not a collateral purpose; nor is it collateral transaction. It is the very purpose for which the suit was brought and the very transaction on which it is founded.'

Basing on this decision, it was strongly contended that no evidence could be let in to prove the jural relationship of landlord and tenant since it offended Section 91 of the Evidence Act, that Ex. B-1 was inadmissible in evidence, and that Section 49 of the Registration Act enabled a party to use a document compulsorily registrable which had not been registered only for a collateral purpose and not for the purpose for which it was created.

7. The observation of Viswanatha Iyer J., in 1975 Ker LT 128 : (AIR 1976 Ker 47) reflects a common sense approach to questions like this. Certain sections of the Transfer of Property Act reflect the English concept of property rights and rights and liabilities of tenants in England. According to me they need a fresh look and a re-articulation consistent with the concept of tenant's rights now extant in this country where the horizons of tenancies have considerably expanded in their amplitude. To hold that a lease-deed executed more than a quarter of century ago should not be looked into for the purpose of proving the relationship of landlord and tenant will be hard on tenants. The approach that documents of tenancies are always preceded by an oral agreement cannot be said to be wrong and I do not see any reason why such a concept should fail in the case of a document compulsorily to be registered and should not fail when it need not be registered. Even so, the submission made under Section 107 of the Transfer of Property Act has considerable force as the law stands today. But this case can be decided without resolving the dispute highlighted by the appellant's counsel.

8. That a defendant who admits the title of the plaintiff but puts forward a derivative title, has to prove such title cannot be disputed. Here the plaintiff bases his entire case on the fact that Ex. B-1 is not registered. The question is whether the plaintiff should be given a decree on the technical plea. The tenant had at the earlist opportunity put forward a case based on Section 106 of the K. L. R. Act. That he is entitled to the benefits of the section had been found in the earlier proceedings, which ultimately culminated in the withdrawal of the appeals. That the defendant was a lessee of the land is evident from Ex. B-1. Ex. B-1 is the certified copy which the defendant diligently obtained when the same was produced by the appellant in the earlier case. That this document has the imprint of truth about it is clear from the fact that the plaintiff himself produced it at the earlier opportunity. Section 106 reads thus :

'Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.'

The special benefit which a tenant is entitled to under Section 106 can be claimed notwithstanding anything to the contrary contained in any law. Therefore, the inhibition contained in Section 107 of the Transfer of Property Act regarding a document of lease reduced to writing which is compulsorily registrable but not registered cannot govern a case under Section 106 of the Land Reforms Act. The relationship of landlord and tenant can be proved in a case where a person claims benefit under Section 106 of the Act relying upon a document which does not satisfy the requirements of Section 107 of the Transfer of Property Act. I note the distinction between the phraseology used in Section 106 and Sections 7 and 7-A of the K. L. R. Act. While in the former, the non obstante clause only mentions notwithstanding any law, in the latter transfer of property also is specifically excluded. Even so, I hold that the non obstante clause in this case should come to the rescue of the respondent. The rigour of Section 107 of the T. P. Act is sought to be applied to defeat the benefit conferred on the tenant. Courts have necessarily to act in furtherance of the object of legislation enacted to ameliorate the weaker sections and not to stifle the object of such legislation. This court has held that Section 106 of the K. L. R. Act cannot violate Section 52 of the T. P. Act (vide 1976 Ker LT 919 (FB)). But unlike Section 52 of the T. P. Act, there is no public policy behind Section 107.

9. While considering Section 108 of the K. L. R. Act, Section 107 of the Transfer of Property Act has to give place. The one is meant to safeguard the interests of the tenants, while the other is meant to deny the protection.

When there is a conflict between the two, the tenant's interests should prevail. I, therefore, hold that Ext. B-1 can be looked into for the purpose of Section 106 of the Kerala Land Reforms Act. The defendant here satisfies all the requirements of that section. Though the defendant had put forward a lease of the year 1933, there is no finding by the courts below nor any discussion about it. In any case, the lease of 1956 evidenced by Ext. B-1 is sufficient to give relief to the respondent. I hold that the respondent is entitled to the benefits of Section 106 of the Kerala Land Reforms Act.

In the result, I dismiss this Second Appeal with costs.


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