Skip to content


N. Sambaudan and anr. Vs. Saraswathi Ammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)2MLJ116
AppellantN. Sambaudan and anr.
RespondentSaraswathi Ammal
Cases ReferredMohammad Ghouse Sahib v. Jamila Bi
Excerpt:
- .....to the conclusion that first petitioner had not established that he had taken only the land of lease. exhibits p-5, p-6 and p-7 are the demand notice issued by the corporation of madras claiming property tax showing the name of natesa mudaliar, the husband of the landlady' and exhibit p-9 is the extract of the demand register showing the receipt of payment of taxes for the superstructure in the name of the husband of the respondent. though first petitioner claims that he has spent rs. 40,000/. in 1974 to put up the structure, he has neither produced the plan of the corporation nor any accounts to show about his putting up the superstructure. as r.w. 1, first petitioner had stated that on 14th march, 1974, he had taken on lease the site. he admits that in the corporation records his.....
Judgment:
ORDER

T. Sathiadev, J.

1. C.R.P. NO. 2875 of 1983 : Tenants are petitioners. Respondent filed a petition under Section 10(2)(vii) of Act XVIII of 1960 claiming that the first petitioner herein, in spite of full knowledge of existence of relationship of landlord and tenant in respect of petition premises, had deliberately denied her title joining hands with the second petitioner who is an unauthorised sub-tenant, and hence, they are liable to be evicted. She preferred H.R.C. No. 2776 of 1981 for eviction of these two persons on the ground of wilful default committed by first petitioner and unauthorised subleting by him to the second petitioner herein and in the course of the said proceedings, since a stand had been taken that the Rent Controller had no jurisdiction to entertain the petition because land alone had been taken on lease, she had to file the present petition.

2. Both the petitioners herein, as respondents in H.R.C. No. 2776 of 1981, filed a common counter claiming that second petitioner herein is the elder brother of the first petitioner and had been helping him in the business and that first petitioner had constructed the superstructure spending Rs. 40,000/- and that only land was taken on lease and the lease agreement dated 14th March, 1974, being an unregistered document, it cannot be relied upon and as he was badly in need of alternative place to run the repair shop, he signed the agreement without knowing that it contained a clause that superstructure was also being leased out, that the monthly rent is only Rs. 200/- and was enhanced to Rs. 250-per month with effect from January, 1981, that the son of the landlady not having come to collect the rent payment was not made and that no receipts are issued by her and hence, the present petition is not maintainable under Act XVIII of 1960 and that she can only have recourse to a civil suit if so advised. Both the courts having concurrently held that there had been a wilful denial of title of the landlady, in this revision petition it is contended by Mr. T, S Subramaniam, learned Counsel for petitioners, that both the courts have relied upon Exhibit P-4 agreement dated 14th March, 4974, which is an unregistered one and hence, its terms having been relied upon to decide as to whether the superstructure was leased out or not, the orders are vitiated as they treat Exhibit P-4 as substantive evidence, It is admitted that the lease deed was not registered though it was executed for a period of three years. The following decisions are relied upon by him to plead that such an unregistered lease deed can be looked upon only for the collateral purpose of finding out the nature of possession and nothing more whereas the Appellate Authority has held that Exhibit P-4 can be looked into by the court for collateral purpose for finding out as to what is the property that has been teased out even if it cannot be looked into for the purpose of finding out the nature of the tenancy, which line of reasoning is contrary to decisions of this Court.

3. Miss. O.K. Sridevi, learned Counsel for the landlady, submits that an unregistered document can be looked into for finding out not only the nature of possession, but terms contained therein can be treated as admission made by the parties to the document and taken into account as a piece of evidence and hence. when the property that was leased out is described in Exhibit P-4 to that extent, it can be collaterally utilised for finding out whether the lease was only in respect of vacant site or both of vacant site and the superstructure.

4. Mr. T.S. Subramaniam first refers to Ram Nath Mandal v. Jojan Mandal : AIR1964Pat1 (F.B.) which took the view that an unregistered lease deed will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. A Division Bench of this Court in Mohammad Ghouse Sahib v. Jamila Bi. : AIR1950Mad433 while dealing with a partition koor-chit which required to be registered under Section 17 of the Registration Act but not registered, held that it cannot affect immovable property nor can it be used in evidence. In Sita Maharani v. Chhemi Mahto : AIR1955SC328 . it was held that when a settlement of a 'Raiyati' interest had been reduced to writing and it required registration and since it was not registered it was treated as inadmissible, and no evidence could be given as to its terms. It was also held that the contents of the document cannot be treated as admission by one of the parties. In Iswar Dutt v. Sunder Singh A.I.R. 1960 J&K.; 63, it was held that Section 17 of the Registration Act strikes at a document and Section 107 of the T.P. Act strikes at the validity of the transactions of leases. If a document of lease is for a period of two years and had not been registered, the combined effect of Section 49 of the Registration Act and Section 91 of the Evidence Act is that the document cannot be received in evidence nor can the terms of the lease be proved by any other evidence. Hence, the proof of the terms of the tenancy will not be merely evidence of collateral transaction, and hence, the lease deed cannot be used for proving the terms of tenancy. A Division Bench of the Patna High Court in Sobharam v. Raja Mahton : AIR1957Pat278 held that a document which required registration but not so done, is not inadmissible but no evidence could be given as to its terms and that its contents could not be used for that purpose. The decision in The Official liquidators of R.E. Moolia Sons Limited v. Mrs. Perrin R. Burjorjee is to the effect that there is nothing to Section 49, when properly construed, to compel the Court to take notice of the non-registration of an admitted document unless at any rate the document must, if treated as effective, be the foundation of a judgment affecting immovable property comprised in such document. In dealing with a partition deed which required to be compulsorily registered, in Shiromani v. Hem Kumar : [1968]3SCR639 it was held that in the absence of such registration it is inadmissible to prove the title of any of the co-parceners to any of the properties, and such a document is, however, admissible to prove the intention of co-parceners to become divided in status and nothing more. In Velusami v. Velusami : AIR1962Mad153 in dealing with the principles that should govern partition deeds, it was held that, if the document purports by itself to effect a division and embodies all the terms of the bargain, then it would require registration, and in its absence, it cannot be admitted in evidence, and secondary evidence of the factum of partition would not be admissible by reason of Section 91 of the Indian Evidence Act. In Raghunath v. Kedarnath : [1969]3SCR497 , also it was held that, in the absence of registration, a document cannot be received in evidence of any transaction affecting immovable property. Lastly he refers to Muruga Mudaliar v. Subba Reddiar : AIR1951Mad12 , wherein a Full Bench of this Court in dealing with the scope of Section 49(c) of Registration Act held that an agreement of lease in writing required to be registered can be used as evidence, if only it is intended to establish a claim of personal nature seeking relief for breach of contract and unrelated to immovable property,

5. Miss O.K. Sridevi, learned Counsel for the landlady, refers to Rani Vidya Bhushan Singh v. Rati Ram : AIR1960AP112 , which held that though inadmissible in evidence, an unregistered agreement to lease immovable property, can be admitted and taken as evidence of collateral facts or for purposes like character of possession, i.e,, for any purpose other than for creating, declaring assigning, limiting or extinguishing a right to immovable property. The decision in Balakrishna v. Ranga Reddy (1969) 1 S.C.W.R. 341, is to the effect that an unregistered document could be taken in evidence for a collateral purpose of proving the admissions contained therein. In Periaswami Pillai v. Arunjagadeswaraswami Temple : AIR1967Mad257 , where a document of lease which required to be registered under Section 107 of T.P. Act was not registered, it was held that Section 106 of the Act would be attracted and statutorily the lease would be deemed to be a lease from month to month. The decision in Ram Kishore v. Ambika Prasad A.I.R. 1966 All. 515, is also to the effect that when a lease deed is not registered and is inadmissible to prove the lease, then it can be received in evidence for proving collateral purposes like the nature of possessiosn, i.e., whether a tenant or a licensee or a trespasser. In M. Chalamayya v. M. Venkataratnam : AIR1972SC1121 , it was held that if a document cannot be received in evidence because of Section 49, it is still receivable in evidence for a collateral purpose. Equally in Bhaiya Ramanuj Pratap Deo v. Lalu Maheshnuj P. Deo : [1982]1SCR417 , it was again held that such a document could be received for collateral purpose, of ascertaining nature of possession. As to what is a collateral transaction, in Kumaraswami Goundar v. Arunagiri Goundar : AIR1974Mad239 it was held that a collateral transaction means a transaction other than the transaction affecting immovable property but which is in some way connected with it, A collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.

6. These decisions are to the effect that a lease of immovable property for more than one year requires registration, and if not registered, the document can be admitted in evidence only for the purpose of ascertaining the nature of possession and nothing more. The contention of the landlady that the terms contained therein could be treated as admission relying upon Balakrishna v. Ranga Reddy : AIR1960AP112 , cannot be entertained in the light of the decision in Sita Maharani v. Chhedi Mahto : AIR1955SC328 . which held that 'no evidence could be given as to its terms, and the contents of the admission by B could not be used for that purpose'. A Division Bench of this Court in Mohammad Ghouse Sahib v. Jamila Bi : AIR1950Mad433 , having held that a collateral purpose is any purpose other than a purpose covered by the transaction, the existence of superstructure cannot be taken note of as a piece of collateral evidence, unconnected with leasing of property, by looking into the recitals in Exhibit P-5, and hold that a superstructure was also leased out. Hence, to establish as to whether a superstructure was leased out or not, Exhibit P-4 cannot be received as a piece of evidence. It can be referred to only to establish the nature of possession. Hence, this point taken by petitioners is held in their favour.

7. If courts below have rested only on Exhibit P-4 and the terms contained therein, then the revision petition could have been allowed. But, the orders go to show that they have rested upon other documents to come to the conclusion that first petitioner had not established that he had taken only the land of lease. Exhibits P-5, P-6 and P-7 are the demand notice issued by the Corporation of Madras claiming property tax showing the name of Natesa Mudaliar, the husband of the landlady' and Exhibit P-9 is the extract of the demand register showing the receipt of payment of taxes for the superstructure in the name of the husband of the respondent. Though first petitioner claims that he has spent Rs. 40,000/. in 1974 to put up the structure, he has neither produced the plan of the Corporation nor any accounts to show about his putting up the superstructure. as R.W. 1, first petitioner had stated that on 14th March, 1974, he had taken on lease the site. He admits that in the Corporation records his name is not registered as owner of the superstructure and that it stands only in the name of Natesa Mudaliar. He has no accounts to show the investment of Rs. 40,000|- made by him. For securing electric connection from landlady and her children. he had secured consent in the application filed by him. He would further state that within one month from 14th March, 1974, landlady agreed to construct the building, and in spite of reminders she did not do so and hence he put up the superstructure in the month of April. The Rent Controller also took note of the statement of first petitioner, that he took custody of the keys, which could only be referable to superstructure, and could have no reference to taking possession of vacant site. He tried to explain it away in his re-examination by saying that there was a compound wall and hence, he took the keys of the gate. There is no evidence to show that there was any compound wall on all sides. The Rent Controller adverting to the evidence of R. Ws. 4 and 5, the building contractor and the car driver of Natesa Mudaliar, had held that their evidence does not show that a construction was put up by first petitioner. As for drainage connection, evidence of R.W. 2 was treated as not to clinch that it is only the owner of the property who could secure the drainage connection and not a tenant. Thus, when both the courts, on an analysis of the oral evidence let in and with particular reference to Exhibits P-5 to P-9 and P-11, had come to the conclusion that denial of title of the respondent was not 'bona fide' the concurrent finding arrived at cannot be interfered with under Section 25 of Act XVIII of 1960. Hence, this revision petition is dismissed. No costs.

8. C.K.P. No. 4778 of 1982:Petitioners in C.R.P. No. 2875 of 1983 are the petitioners herein. Respondent-landlord filed a petition for eviction of tenants under Sections 10(2)(i), 10(2)(ii)(a) and 10(2)(vi) of Act XVIII of 1960 claiming that wilful default had been committed. that the premises has been sublet unauthorisedly and that there has been cessation to occupy the premises consequent to the sub-letting. Respondents-petitioners herein stated that the land and building were leased out for Rs. 200/- per month for non-residential purposes of carrying on car repair workshop and that first petitioner herein had committed default in payment of rent from October, 1980 to April, 1981. The amount of Rs. 250/- sent by money order in March, 1981 was refused as he was in arrears from August, 1980. A further pay order sent on 3rd May, 1981 for Rs. 250/- was also returned, since it was accompanied with several false allegations in the covering letter. First petitioner having unauthorisedly sublet the premises in favour of second petitioner and the premises not being used for the last 4 months, the respondent herein is entitled to an order of eviction.

9. The petitioners in their counter stated that first petitioner is the tenant and second petitioner is not a sub-tenant, because he is his elder brother who is assisting him in his business and that the business is carried on in the name and style of Sivan Auto Services. Apart from this he is also carrying on another business in the name and style of Vimal Turning Works at No. 19, C.P. Ramaswamy Iyer Road, Madras-18 and that originally only the land was taken on lease, and the superstructure was put up by the first petitioner. Since the respondent's son had not turned up to collect rent, it was not paid. But in spite of attempts to send the rent by money order and pay order, and they having been refused, no wilful default had ever been committed. Hence they have sought for the dismissal of the petition.

10. Both the courts having concurrently held against petitioners herein, in this revision Mr. T.S. Subramaniam, their learned Counsel, apart from reiterating the points taken by him in C.R.P. No. 2875 of 1983, relating to the claim that only land was taken on lease and not the superstructure, also argues that the findings on wilful default, subletting and non-user are based on no evidence. He strenuously pleads that the unregistered lease deed marked as Exhibit P-3 in this proceeding had been solely rested upon to hold that tenancy relationship exists between the parties.

11. No doubt, the courts below have relied upon the unregistered lease agreement and referred to certain terms contained therein but every caution had been taken to analyse the other evidence on record independent of the un-registered lease deed. Appellate Authority after referring to the terms in Exhibit P-3 and holding that the as per its terms the superstructure belongs to the respondent, proceeds to consider the other evidence dissociating from Exhibit P-3. After giving its finding relying on Exhibit P-3, he states ''Apart from that on the side of P.W. 1 Exhibit P-8 series are relied upon...'

This clearly shows that he had dissociated the finding on Exhibit P-3, while taking into account the other evidence on record. It is on a consideration of Exhibit P-8 series, the property tax receipts, and Exhibit R-1 marked by petitioners herein, which is an extract from the register of assessment for the years 1975 to 1982, Courts below came to the conclusion that the superstructure belongs to respondent. It is not necessary to reiterate what materials had been already taken into account in C R.P. No. 2875 of 1983 therefore, when courts below have concurrently held, on an analysis of relevant evidence adduced herein that superstructure belongs to respondent' no perversity in the finding having been made out, no cause is made out to interfere under Section 25 of Act XVIII of 1960. It is only that portion of the order which dealt with the terms and conditions of Exhibit P-3 and which had been separately considered, it is beset with an incorrect understanding of the law relating to unregistered lease deeds.

12. On the aspect of wilful default, apart from relying upon the evidence of P.W. 1, courts below have pointed out that there is no evidence on record to show that at any time rent at Rs. 250|- was demanded. When first petitioner attempted to send a higher amount, it was promptly refused. On the plea that no receipt was ever given, it was again pointed out that, if such was the position, then recourse could have been made to Section 8 of the Act by depositing rent in a bank or in the court. When first petitioner had failed to discharge his burden by establishing that he had paid rents for the period claimed, there was no illegality committed by the courts below in giving credence to the evidence of P.W. 1 for rendering a finding on this aspect.

13. As for sub-letting, merely because first petitioner's brother had assisted him in conducting the business, and another business is conducted by first petitioner under the name and style of 'Vimal Turning Works', there cannot be a presumption that first petitioner had sub-let the premises to the second petitioner. No doubt, originally the business was carried on in the petition premises under the name of Mani Automobile Service but later on changed as Sivan Auto Service. Change in the name of the business could never mean that there has been sub-letting. The burden of proving sub-letting is on the respondent, and even if direct evidence is not there, circumstantial evidence could be acted upon, but what has been done is to infer-subletting because of the following two factors, namely, (i) second petitioner, the elder brother, is assisting the first petitioner, and (ii) the name of the business had been changed. These factors would not suffice to arrive at a legal inference of sub-letting. Hence, this finding, having been rested practically on no evidence, is set aside.

14. As for cessation of occupation of the petition premises, this finding was tendered as a consequential one to the finding on sub-letting. In the light of what has been stated above, this point is also held in favour of petitioners-tenants.

15. Since the finding on wilful default has been upheld, this revision petition is dismissed. No costs.


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