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2005 DIGILAW 1214 (MAD)

Gowthamchand Jain & Another v. N. Elumalai

2005-07-29

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgement and decree dated 16.12.2002 and made in R.C.A.No.21 of 1997 on the file of the Rent Control Appellate Authority (Sub Court), Villupuram, confirming the order and decretal order dated 18.3.1997 passed in R.C.O.P.No.4 of 1995 on the file of the Rent Controller (District Munsif Court), Villupuram.) The Respondents 1 and 2 in the Rent Control Original Petition No.4/1995, on the file of the Rent Controller, (District Munsif Court) Villupuram, are the Revision Petitioners herein. This Revision Petition is directed against the order dated 18.3.1997 passed by the learned Rent Controller (District Munsif Court), Villupuram, rejecting the memo, filed by the respondent herein, for receiving the unregistered lease deed, dated 26.1.1994 executed by the 2nd Revision Petitioner and his mother Pachaiyammal, wife of deceased Natesa Achari, in respect of the petition premises, as confirmed by the learned Rent Control Appellate Authority, (Sub Court) Villupuram, as per the judgement dated 16.12.2002 passed in R.C.A.No.21/1997, which is under challenge in this Revision Petition. 2. The respondent herein is the elder brother of the 2nd Revision Petitioner. The Rent Control Original Petition No.4/1995 was filed by the respondent herein against the Revision Petitioners for eviction, on the grounds of wilful default in payment of the rent and denial of title, stating that the petition shop originally belonged to one Natesa Achari, the father of the 2nd Revision Petitioner and the respondent herein, and on his death, it devolved on his wife Pachaiyammal, his two sons, namely the respondent herein and his brother, the 2nd Revision Petitioner, besides the three daughters. 3. The 1st Revision Petitioner, as a tenant of the petition shop, is carrying on business in the name and style of "The Santhinath Benefit Fund Ltd.", on a monthly rent of Rs.1,500/-. The Rent Control Original Petition No.4/1995 was filed by the respondent herein, on the strength of power of attorney deed, dated 16.9.1994, executed in his favour by his mother Pachaiyammal and his sisters, authorising him to realise the rent, etc., of the petition premises and other premises. The Rent Control Original Petition No.4/1995 was filed by the respondent herein, on the strength of power of attorney deed, dated 16.9.1994, executed in his favour by his mother Pachaiyammal and his sisters, authorising him to realise the rent, etc., of the petition premises and other premises. The Rent Control Original Petition was filed against the 2nd Revision Petitioner also, in that, the 1st Revision Petitioner/tenant has been paying the rent to the 2nd Revision Petitioner, the younger brother of the respondent herein, who claims that as per the registered Will dated 21.5.1973, executed by the said Natesa Achari, the 2nd Revision Petitioner alone is entitled to receive the rent from the 1st Revision Petitioner. It is also denied that the said Natesa Achari executed the registered Will dated 21.5.1973, giving life interest in favour of his wife Pachaiyammal and the vested interest to his other legal heirs, and therefore the 2nd revision petitioner alone cannot claim the rent for the petition premises, as landlord. 4. During the pendency of the Rent Control Original Petition No.4/1995, the respondent herein filed a memo, praying, not to receive the lease deed dated 26.1.1994 said to have been executed by the widow, namely, Pachaiyammal and the 2nd Revision Petitioner, in respect of the petition premises, in that, the lease deed dated 26.1.1994 is an unregistered one, and it is for a period exceeding one year, and so it should be registered. Further, the said lease deed is inadmissible, without payment of sufficient stamp duty and penalty. 5. The learned Rent Controller, after hearing both sides, allowed the memo, as per the order dated 18.3.1997 passed in R.C.O.P.No.4/1995, on the ground that the lease deed dated 26.1.1994, which was sought to be marked as a document, is an unregistered one and it is for a period of more than three years, and even for collateral purpose, including proving the factum of possession, the document cannot be received. The said order was confirmed by the learned Rent Control Appellate Authority in R.C.A.No.21/1997, as per the judgement dated 16.12.2002, which is under challenge in this Revision Petition. 6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 7. The said order was confirmed by the learned Rent Control Appellate Authority in R.C.A.No.21/1997, as per the judgement dated 16.12.2002, which is under challenge in this Revision Petition. 6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 7. Learned counsel for the Revision Petitioners submitted that though the lease deed dated 26.1.1994 is an unregistered one and is for a period of more than three years, it can be received for collateral purpose to prove the factum of possession and to show that life interest was given to the said Pachaiyammal and the vested interest to the other legal heirs of the deceased Natesa Achari, in respect of the petition premises. 8. Learned counsel for the Revision Petitioners relied on the decision in Subramania Pillai – vs. - The Pennington Committee reported in 1987(2) MLJ 39 , which was cited by the learned counsel who appeared before the learned Rent Controller and also the decision in Chilakuri Gangulappa – vs. - Revenue Divisional Officer, etc. & anr. - 2001-3-L.W.113. 9. In the earlier judgement, namely, 1987(2) MLJ 39 (cited supra), it is held by this Court that for collateral purpose, to prove the factum of possession, unregistered document can be received in evidence. In the later judgement, cited by the learned counsel for the Revision Petitioners, namely, 2001-3-L.W. 113 (supra), it is held by the Hon'ble Supreme Court that unregistered document can be admitted, on receiving stamp duty together with penalty. 10. Learned counsel for the Revision Petitioners submitted that as per Section 17 of the Registration Act, 1908, for leases of immovable property from year to year, or for any term exceeding one year, the lease deed should be registered. Learned counsel also submitted that Section 49 of the said Act, unregistered document cannot be received as evidence of any transaction, unless it is registered. According to the learned counsel, though Section 49 of the Registration Act stipulates registration of lease deed, the same can be received for collateral purpose to prove the factum of possession, as it is for a period of more than three years, life interest was given to the said Pachaiyammal and the vested interest to the other legal heirs of the deceased Natesa Achari, with respect to the petition premises. 11. 11. Learned counsel for the respondent herein submitted that it is seen from the document, namely, unregistered lease deed dated 26.1.1994 that the same is for a period of more than three years, but there is no evidence to show the possession of the first Revision Petitioner as tenant in respect of the petition premises. Learned counsel relied on the decision in Mathuram - vs. - Alagu reported in 2003-4-L.W. 289, in which this Court held that by the simple device of calling it as a collateral purpose, the party cannot be permitted to use the unregistered instrument, when the sale deed should have been registered as per law. 12. In this case, the facts are not in dispute, as stated above. The Rent Control Original Petition No.4/1995 for eviction of the Revision Petitioners is filed by the respondent herein on the grounds of wilful default in payment of rent and denial of title. The Rent Control Original Petition was resisted by filing counter by the 1st Revision Petitioner/tenant and the 2nd Revision Petitioner, who is the younger brother of the respondent herein, stating that by virtue of registered Will dated 21.5.1973, executed by his father, life interest was given to Pachaiyammal, the wife of the deceased Natesa Achari, to whom the petition premises originally belonged to, and the vested interest was given to the other legal heirs. It is also stated that the respondent on the strength of the power of attorney dated 16.9.1994 executed by the mother and his sister in favour of the respondent herein in respect of the petition premises, cannot claim the rent. 13. As stated above, during the pendency of the Rent Control Original Petition No.4/1995, the 1st Revision Petitioner/tenant sought to mark the unregistered lease deed dated 26.1.1994, executed by the widow Pachaiyammal and the 2nd Revision Petitioner, in favour of the 1st Revision Petitioner/tenant. It is also stated by the 2nd Revision Petitioner that as per the registered will dated 25.1.1973, the said Pachaiyammal has got life interest in the petition premises, which was objected to by the respondent herein, who is the elder brother of the 2nd Revision Petitioner. 14. It is also stated by the 2nd Revision Petitioner that as per the registered will dated 25.1.1973, the said Pachaiyammal has got life interest in the petition premises, which was objected to by the respondent herein, who is the elder brother of the 2nd Revision Petitioner. 14. As discussed already, the said memo filed by the respondent herein, was allowed by the learned Rent Controller as per the order dated 18.3.1997 passed in R.C.O.P.No.4/1995, and the same has been confirmed by the learned Rent Control Appellate Authority as per the judgement dated 16.12.2002, passed in R.C.A.No.21/1997. 15. As held by the Hon'ble Supreme Court in the decision in Chilakuri Gangulappa vs. - Revenue Divisional Officer, etc. & anr. - 2001-3-L.W.113 (cited supra), unregistered document can be received for collateral purpose to prove the factum of possession. The document sought to be marked by the respondent herein, is an unregistered lease deed dated 26.1.1994 said to have been executed by Pachaiyammal, the widow of the deceased Natesa Achari and the 2nd revision petitioner, in favour of the 1st Revision Petitioner/tenant, and it is for a period of more than three years as the lease period. 16. Even as per the memo filed by the respondent herein, it is clear that the lease deed dated 26.1.1994 is insufficiently stamped and it is an unregistered one. In that case, the document which is sought to be marked, namely, the lease deed dated 26.1.1994 can be received, for collateral purpose to prove the factum of possession that the 1st Revision Petitioner is a tenant as claimed under the widow Pachaiyammal, on payment of stamp duty together with penalty, in accordance with law, as held by the Hon'ble Supreme Court in 2001-3 Law Weekly 113(cited supra). In that way, the order dated 18.3.1997 passed by the learned Rent Controller, as confirmed by the learned Rent Control Appellate Authority as per the judgement dated 16.12.2002 being erroneous and improper is to be set aside. 17. In the result, the Civil Revision Petition is allowed. The judgement dated 16.12.2002, passed by the learned Rent Control Appellate Authority (Sub Court), Villupuram is set aside. The learned Rent Controller (District Munsif Court) Villupuram, is directed to receive the unregistered lease deed dated 26.1.1994 on payment of the stamp duty together with penalty, in accordance with law. No costs.