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2010 DIGILAW 3116 (MAD)

A. Iqbal Ahamed v. J. Tajmul Hussain & Others

2010-07-28

K.MOHAN RAM

body2010
Judgment 1. The respondents herein filed RCOP No.1068 of 2009 against the petitioner in the above Civil Revision Petition for eviction under Sections 10 (2) (i) and 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (As amended by Act 23 of 1973 and Act 1 of 1980). 2. The case of the respondents is that the petitioner is a tenant under them. The petitioner, by filing a counter, contested the Eviction Petition inter-alia contending as follows:- In consideration of the financial assistance extended by the respondents father Mr. K.Jaffar Hussain, the predecessors interest of the respondents, permitted the petitioners father to carry on the business in 1/3rd portion of the petition premises i.e., the entire ground floor for a period of 99 years. The intention of the petitioners father in giving lease of the ground floor for 99 years was in effect to transfer the ownership of the ground floor to the respondents father. The said mutual agreement was reduced into writing by an agreement, dated 07.01.1955. By virtue of the above agreement, the respondents father is entitled to have the use of the entire ground floor till 2054. It was the further case of the respondents that the petitioners father was using the premises without paying any rent. 3. The RCOP was taken up for enquiry and number of documents were filed by the respective parties. The petitioner herein wanted to mark the lease deed, dated 07.01.1955, as an exhibit in the RCOP, but the respondents objected to the marking of the lease deed as an exhibit on the ground that since the petitioner is contending that the lease deed has been executed for 99 years, the same cannot be marked as an exhibit, unless the said lease deed is properly stamped and registered. 4. The learned Rent Controller has held that the lease deed, dated 07.01.1955, cannot be marked as an exhibit. Being aggrieved by that, the petitioner / tenant has filed the above Civil Revision Petition. 5. Heard the learned counsel on either side. 6. Learned counsel for the petitioner submitted that the Rent Controller ought to have allowed the marking of the lease deed, to prove the nature and character of possession of the petitioner of the petition property. Being aggrieved by that, the petitioner / tenant has filed the above Civil Revision Petition. 5. Heard the learned counsel on either side. 6. Learned counsel for the petitioner submitted that the Rent Controller ought to have allowed the marking of the lease deed, to prove the nature and character of possession of the petitioner of the petition property. He further submitted that even if the lease agreement is unregistered, it can be looked into for collateral purpose, namely, to ascertain the nature and character of possession of the petitioner. In support of the said contention, the learned counsel based reliance on the decisions of this Court reported in 2009 (5) CTC 822 (P.Narayanan v. Kasi) and 2010 (1) CTC 27 (Kalaivani @ Devasena v. J.Ramu). 7. In both the said decisions, the learned Judge of this Court has held that though the document is un-registered and un-stamped, it can be looked into for collateral purpose, provided the deficit stamp duty and penalty is paid up to date. Learned counsel for the petitioner also based reliance on a decision of the Apex Court reported in (2008) 4 Supreme Court Cases 530 (THIRUVENGADAM PILLAI V. NAVANEETHAMMAL). In the said decision, in paragraph 13, it has been laid down as follows:- "13. The Stamp Act is a fiscal enactment intended to secure revenue for the State. In the absence of any rule requiring consecutively numbered stamp papers purchased on the same day, being used for an instrument which is not intended to be registered, a document cannot be termed as invalid merely because it is written on two stamp papers purchased by the same person on different dates. Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold that the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under Sections 35 or 37 of the Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues." 8. Countering the said submissions, the learned counsel for the respondents submitted that since it is the case of the respondents herein that the petitioner is in possession of the petition premises as a tenant under them, there is no need to ascertain the nature and character of possession of the petitioner; an undisputed fact need not be proved. He further submitted that the lease deed, dated 07.01.1955, being not properly stamped and unregistered, though under the lease deed, the premises has been leased out for a period of 99 years, none of the terms of the lease deed can be looked into for any purpose including collateral purpose. In support of the said contention, the learned counsel based reliance on a decision of the Apex Court reported in 1999 (I) CTC 87 (Rajendra Pratap Singh v. Rameshwar Prasad). In the said decision, in paragraph 8, it has been laid down as under:- "8. Barring the proviso which enables the State Government to relax the conditions, the above section consists of 3 paragraphs. The middle paragraph contains an exception to the first paragraph. The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year, it can be made "only by a registered instrument". If the instrument is not registered, the corollary is that no lease exceeding one year is created at all. Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act, 1908 either for proving the terms of the lease or otherwise, vide Satish Chand Makhan v. Govardhan Das Byas, 1984 (1) SCC 369 : AIR 1984 SC 143 and Budh Ram v Ralla Ram, 1987 (4) SCC 75 : AIR 1987 SC 2078 )." 9. In 2008 (5) CTC 260 (K.B.Saha & Sons Pvt. Ltd. v. Development Consultant Ltd.) (SC), the Apex Court, on a consideration of the number of decisions of the Apex Court and other High Courts, has laid down the following principles regarding the admissibility of an unregistered document in evidence. In paragraph 21 it is laid down as follows:- "21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: 1. A document required to be registered is not admissible into Evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an importance clause would not be using it as a collateral purpose." 10. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 11. It is seen from the order passed by the Rent Controller that the counsel for the tenant had represented that the tenant is prepared to pay the deficit stamp duty upon the lease deed for looking into the document for collateral purpose i.e., to prove the character and nature of possession, but the counsel for the land lords has strongly objected to mark the lease deed as an exhibit contending that the landlords / respondents herein have admitted the possession of the petitioner as a tenant. The lease deed cannot be said to be relied upon by the tenant for the collateral purpose. The lease deed cannot be said to be relied upon by the tenant for the collateral purpose. The Rent Controller, basing reliance on a decision reported in 2008 (5) CTC 260 (referred to supra), has dismissed the petition, holding that the lease of immovable property from year to year or for any term extending one year could be made only by a registered document and therefore the lease deed sought to be marked by the tenant being the lease deed for 99 years and further the said lease being un-registered one, the same cannot be taken into consideration even for collateral purpose. 12. In this regard, this Court has to consider whether the said finding of the Rent Controller is correct or not. 13. In all the three decisions relied on by the learned counsel for the petitioner, the learned Single Judge of this Court has held that though the document is un-registered and un-stamped, it can be looked into for collateral purpose provided the deficit stamp duty along with penalty is paid up to date. In the decision reported in (2008) 4 Supreme Court Cases 530 (referred to supra), it has been held that the agreement which is un-stamped can be looked into for collateral purpose, if the stamp duty and penalty are paid. But the Apex Court has not considered the effect of non-registration of the agreement. Since that question did not come up for consideration in that decision and since the agreement, being a sale agreement, which is not compulsorily registrable one. 14. In the considered view of this Court, the said decisions do not support the case of the petitioner for the reasons set out below:- In the decision reported in 1999 (I) CTC 87 (referred to supra), the Apex Court has held that if a lease is to be created for any term exceeding one year, it can be made "only by a registered instrument". If the instrument is not registered, the corollary finding is that no lease can be created for a period exceeding one year. Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act, 1908 either for proving the terms of the lease or otherwise. In 2008 (5) CTC 260 (referred to supra), the Apex Court has considered the admissibility of un-registered release deed in evidence. Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act, 1908 either for proving the terms of the lease or otherwise. In 2008 (5) CTC 260 (referred to supra), the Apex Court has considered the admissibility of un-registered release deed in evidence. After referring to a number of decisions, the Apex Court has laid down the various principles, which have been extracted above. One such principle is that an unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. It has been further laid down in that decision that the collateral transactions must be independent of, or divisible from, the transaction to effect which the law required registration. The collateral transaction must be a transaction not itself required to be effected by a registered document, i.e., a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards. It has been emphasised that if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 15. The said principles has to be applied to the facts of this case. In this case, the specific case of the respondents is that the petitioner is a tenant under them on a month to month basis. Whereas, it is the case of the petitioner that under the lease deed, dated 07.01.1955, executed by the predecessors in interest of the respondents herein in favour of the father of the petitioner herein, the petition premises has been leased out for a period of 99 years and that too for no rent. To prove that contention only, the said lease deed is sought to be marked as an exhibit. To prove that contention only, the said lease deed is sought to be marked as an exhibit. Even though, an unregistered lease deed can be looked into for a collateral purpose namely to ascertain the nature and character of the possession of the party to the document, since in this case, the nature and character of the possession of the petitioner is not in dispute, but is admitted to that of a tenant, there is no need to prove the nature and character of the possession of the petitioner / tenant; for no other purpose, the unregistered lease deed, dated 07.01.1955 can be looked into. 16. The intention of the petitioner seems to be to mark the said document to prove that the lease is for a period of 99 years and no rent is payable as per the terms of the lease deed. The terms relating to the period of lease and the rent payable are vital terms of the lease deed and as such the said terms cannot be looked into under the guise of collateral purpose. The decision reported in 2008 (5) CTC 260 (referred to supra) directly deals with the question arising under an unregistered lease deed. Therefore, the said decision squarely covers the issue that arises for consideration in this case. Therefore, this Court is unable to accept the contentions of the learned counsel for the petitioner. 17. This Court does not find any jurisdictional error in the order passed by the learned Rent Controller. Therefore, this Court is not inclined to interfere with the order. Accordingly, the above Civil Revision Petition fails and the same is dismissed. No costs. Consequently, the connected MP is closed.