1. This appeal is by the defendant in a suit for ejectment. The plaintiff instituted the suit against the defendant alleging that he was a thika tenant liable to ejectment without any notice according to the terms of a kabuliyat executed by him on the 23rd May 1938. The defence of the defendant, inter alia, was that the suit was liable to be dismissed as the plaintiff had no right to terminate the tenancy of the defendant without service of a notice to quit.
2. The trial Court accepted the above plea of the defence and held that the document upon which the plaintiff relied, namely, the document of the 23rd May 1938, was not admissible in evidence and therefore the plaintiff was required to serve a notice for the purpose of terminating the tenancy of the defendant. The learned Munsif accordingly dismissed the plaintiff's suit and against that decision the plaintiff filed an appeal The lower appellate Court has come to the conclusion that the document upon which the plaintiff relied was not a lease within the meaning of the Transfer of Property Act and therefore did not require registration and should therefore be admitted into evidence and secondly, even if this document was not admissible for the purpose of proving the terms of the lease, it was at any rate admissible for a collateral purpose. The appellate Court accordingly set aside the decision of the learned Munsif and remanded the case to that Court for trial of other issues which wereraised by the parties. Against that judgment, the defendant has filed the present appeal.
3. Mr. Mukherjee appearing in support of the appeal has argued in the first instance that the document upon which the plaintiff bases his case is a lease and as it is not registered, it is not admissible in evidence and he has, therefore, argued that the Court of Appeal below has erred in law in holding that the term embodied in the document to the effect that the defendant would vacate without any notice is one of the terms of the lease and the document cannot be admitted into evidence for proving this term. Mr. Banerjee appearing for the respondents at one stage attempted to support the decision of the lower appellate Court on the ground that the plaintiff could rely upon the provisions of Section 53A of the Transfer of Property Act for the purpose of his case but it seems to me that Section 53A can have no application to the present case because here the document upon which the plaintiff was relying was not a contract of transfer by the lessor but is a kabuliyat executed by the lessee. In our opinion, in a case of this description Section 53A of the Transfer of Property Act can have no application. This conclusion is supported by the decision of Mr. Justice Chunder in the case of --'Sm. Krishnamoni Dasi v. Fanindra Kumar Mukherjee', Second Appeal No. 264 of 1950, D/-20-3-1952 (Cal) (A). We respectfully agree with the view expressed by Mr. Justice Chunder in that case.
4. Mr. Banerjee appearing for the respondents ultimately abandoned his point about the applicability of Section 53A of the Transfer of Property Act. The most important question that falls for consideration in this case is whether the document which has been marked as Ex. 1 in this case and upon which the plaintiff relies is admissible in evidence. It purports to be a 'meyadi kabuliyat' executed by the lessee alone in favour of the lessor and it recites that the lessee had taken a previous settlement from the same lessor and that settlement having come to an end and the lessor being anxious to take khas possession, the lessee approached the lessor for a fresh settlement and the lessor having granted the lessee's prayer for fresh settlement, the lessee was taking a settlement of .07 decimal plot of land at an annual rent of Rs. 30/- for a period of 5 years from Baisakh 1345 B. S. to Chaitra 1349 B. S.
The important part of the kabuliyat upon which the plaintiff relies is to the effect that on the expiry of the said period of 5 years, the lessee would vacate the land and remove his structures at his own expense and without any notice by the lessor. This document was not registered. Mr. Banerjee contends that as this document was required to be executed by both the lessor and the lessee under the third paragraph of Section 107 of the Transfer of Property Act and as in fact it was executed only by the lessee it was not a lease within the meaning of Section 107 of the Transfer of Property Act and therefore not required to be registered under Section 17(l)(d) of the Registration Act and was not therefore hit by Section 49 of the Indian Registration Act and accordingly he argued that this document is admissible in evidence. If however this document is not a lease at all there can be no doubt that Section 17(1)(d) of the Indian Registration Act will not apply and the document would not be hit by Section 49 of the Indian Registration Act.
On a careful consideration of this point however we have come to the conclusion that it cannot be said that this document is hit by thethird paragraph of Section 107 of the Transfer of Property Act. The third paragraph of Section 107 of the Transfer of Property Act runs as follows: 'Where a lease of immovable property is made by a registered Instrument.....such instrument shallbe executed by both the lessor and the lessee'. On a plain reading of this section it appears to us as at present advised, that the requirement of joint execution by the lessor and the lessee applies only to a case where a lease of immovable property is made by a registered instrument.
In the present case, however, the kabuliyat executed by the lessee was unregistered and there-fore it does not come within the mischief of the third paragraph of Section 107. Accordingly it cannot be said that this kabuliyat is not a lease on the ground that it was not executed by both the lessor and the lessee. If it is a lease, it is a lease for a term exceeding one year because according to the recital which I have already quoted the lessee was taking settlement for a period of 5 years. It was, therefore, compulsorily registrable under Section 17(1)(d) of the Indian Registration Act and was, therefore, inadmissible in evidence under Section 49 of the Indian Registration Act. We, therefore, hold that the learned Subordinate Judge was not correct in holding that this document is admissible in evidence as it was not a lease but 'a unilateral document'.
5. The second point that requires consideration is whether this document can be admitted into evidence for any collateral purpose. It has been established by a long line of authorities that even if a document is inadmissible, for want of registration it can be admitted into evidence for a collateral purpose for proving the character and nature of possession. The question in the present case is whether the agreement to vacate without notice could be said to be a collateral purpose relating to the nature and character of possession of the lease. On a careful consideration of the argument of both sides, we have reached the conclusion that the agreement to vacate without notice cannot be said to be a collateral purpose but it is one of the essential terms of the lease itself because the agreement to vacate without notice would take effect on the expiry of the lease. The lease was for a period Of 5 years. Therefore before the period of 5 years, the agreement to vacate without notice would not come into operation. To allow the plaintiff to prove this recital would, in our opinion, be equivalent to allowing him to prove the terms of the lease itself which is inadmissible under the law. We cannot, therefore, agree with the learned Subordinate Judge that Ex. 1 can be admitted into evidence for a collateral purpose.
6. In the result, this appeal succeeds. The judgment and decree of the learned Subordinate Judge are set aside and those of the Munsif restored. In the circumstances of the case there will be no order as to costs.
7. I agree.