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2016 DIGILAW 264 (RAJ)

Mahaveer Prasad v. Sayra Devi

2016-02-17

ARUN BHANSALI

body2016
ORDER : These cross writ petitions have been filed by the parties to the suit aggrieved each against part of the order dated 24.4.2015 passed by the court of Additional District Judge, Bhadra, District Hanumangarh, whereby the application filed by the plaintiff challenging the admissibility of the document dated 15.5.1973 on account of same being unstamped has been accepted, however, it has been held that the document did not require registration. The plaintiff-Sayar Devi filed a suit against the defendant – Mahaveer Prasad for possession of the shop, arrears of rent and mesne profit. The plaintiff claimed that the suit property belongs to her father-in-law Pratap Mal Ji, which was succeeded by her through will; the rent was paid till 31.12.2006, where after the rent has not been paid, tenancy has been terminated by issuing notice under Section 106 of the Transfer of Property Act, 1882 ('T.P. Act') w.e.f 31.1.2009, which notice has been received by the defendant and based on the said averments, the reliefs as indicated were claimed. The defendant filed a written statement inter-alia indicating that probate of the will has not been obtained and in absence of succession certificate, it cannot be said that the plaintiff has legally succeeded to the property and therefore, the suit was liable to be dismissed; the rent is not monthly but yearly; the shop was taken on rent in the year 1973 with annual rent of Rs.1200/-; no default has been committed; the rent was not accepted despite repeated attempts made by the defendant and he was prepared to make payment of the arrears; the notice is not valid and no default has been committed. In the additional pleas, a plea was taken that the shop in question was taken on rent in the year 1973 from Pratap Mal Ji, who was paid Rs.25,000/-as advance by way of premium and the shop was given on rent forever and the annual rent was fixed at Rs.1200/-; a document was executed, original of which was kept by Pratap Mal Ji and as the cost of the shop has been paid in advance to Pratap Mal, the shop cannot be got vacated. During the pendency of the suit, an application was filed by the defendant under Order XI, Rule 12 CPC for a direction to the plaintiff to produce the original of document dated 15.5.1973. During the pendency of the suit, an application was filed by the defendant under Order XI, Rule 12 CPC for a direction to the plaintiff to produce the original of document dated 15.5.1973. Where after, an application under Order VIII, Rule 1A(3) CPC was also filed for taking on record a copy of the document dated 15.5.1973. By order dated 29.9.2012, the trial court allowed the application under Order VIII, Rule 1A(3) CPC on a cost of Rs. 500/-and permitted leading of secondary evidence on application filed under Order XI, Rule 12 CPC subject to the admissibility of the document. The order dated 29.9.2012 was challenged by the plaintiff by filing SBCWP No.11825/2012. The writ petition was disposed of without interfering with the order dated 29.9.2012 with the liberty to the petitioner to raise objection about the admissibility of the document. Where after, the present application under Order XIII, Rule 3 CPC was filed by the plaintiff inter-alia with the submissions that the document in question creates right in immovable property and its value is indicated at Rs.25,000/-and therefore, the document is compulsorily register able under Section 17 of the Registration Act, 1908 ('the Registration Act') and as per the defendant, the document is a perpetual lease which under Section 107 of the T.P. Act is compulsorily register able. It was further contended that the document is on a plain paper whereas under Article 33 of Schedule under the Rajasthan Stamp Act, 1998 ('the Stamp Act'), stamp duty is payable and therefore, the document is not admissible in evidence. It was also contended that the document is a mortgage deed on which stamp duty was payable and was compulsorily register able and therefore, the same was not admissible in evidence. It was prayed that the document deserves to be excluded and placed in part 'D'. A reply to the application was filed by the defendant denying the averments made in the application. It was denied that the documents creates any right in the property; as under the document, the tenant has been permitted to use the shop against rent, tenant has not got any title and therefore, provisions of Section 17 of the Registration Act are not applicable. It was further contended that the provisions of Section 107 of the T.P. Act are not applicable as the document is not a perpetual lease and therefore, the registration is not compulsory. It was further contended that the provisions of Section 107 of the T.P. Act are not applicable as the document is not a perpetual lease and therefore, the registration is not compulsory. Qua the objections regarding payment of stamp duty it was claimed that the document was only a receipt of a sum of Rs. 25,000/-regarding which the defendant was prepared to pay the requisite stamp duty as a receipt, the claim that the document was a mortgage deed was also denied. The trial court after hearing the parties by the impugned order came to the conclusion that as in the document, tenant-defendant Mahaveer Prasad has been granted right to vacate the shop, the tenancy is 'at will' and relying on the judgment in Uda Ram v. Tej Karan & Ors. : 1975 WLN 141 , it was held that the registration was not necessary. Regarding the objection about non-payment of stamp duty, the trial court came to the conclusion that the document was covered under Article 35(c) under Schedule-II of the Rajasthan Stamp Law (Adaptation) Act, 1952 and stamp duty was payable accordingly and calculated the stamp duty at Rs.1226/-and found that as no duty was paid and though the court has power to treat the document as duly stamped on payment of deficient stamp duty along with ten times penalty, however, relying on the judgment of the Hon'ble Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subharao & Ors. : AIR 1971 SC 1070 held that stamp duty cannot be recovered on a photocopy of the document and on further coming to the conclusion that as an insufficiently stamped document cannot be used for any purpose the document was not admissible in evidence and consequently while holding that the registration of the subject document was not compulsory, as the document was insufficiently stamp held the same as inadmissible. It is submitted by learned counsel for the plaintiff-petitioner that the trial court committed error in coming to the conclusion that the document did not require registration. It is submitted by learned counsel for the plaintiff-petitioner that the trial court committed error in coming to the conclusion that the document did not require registration. It was submitted that a bare reading of the document reveals that the same creates interest in the property and therefore, under the provisions of Section 17(1)(b) of the Registration Act, its registration was compulsory; the document would fall within the category of conveyance and therefore, was required to be registered and in absence thereof the same is inadmissible, and therefore, the trial court committed error in coming to the conclusion that the registration of the document was not compulsory. Reliance was placed on Yellapu Uma Maheshwari & Anr. v. Buddha Jagadheeswararao & Ors.: 2015 DNJ (SC) 1018. Learned counsel, fairly conceded that the trial court was in error in coming to the conclusion that the stamp duty cannot be recovered on a copy of the original document as the same was in ignorance of proviso (e) to Section 39 of the Stamp Act, which provides that on payment of stamp duty or a deficient portion of the stamp duty and penalty, a copy of any instrument is admissible. Learned counsel for the defendant-Mahaveer Prasad submitted that as the counsel for the plaintiff has conceded on the aspect of payment of stamp duty / portion of deficient stamp duty in view of proviso (e) to Section 39 of the Stamp Act, the order passed by the trial court cannot be sustained to the extent it has rejected the prayer of the petitioner for payment of deficient stamp duty only on account of the fact that the document in question was a copy of the instrument. Qua the submissions made by learned counsel for the plaintiff regarding requirement of registration of the document in question, it was submitted that the trial court has rightly held the document as creating tenancy at will as it is specifically provided in the document that if business of defendant – Mahaveer in the shop does not succeed, Mahaveer will have right to vacate the shop and on vacating the shop sum of Rs.25,000/-and interest @ 1% would be payable, which clearly makes it a tenancy at will and in view of the fact that for a document which creates tenancy at will does not require any registration, order passed by the trial court does not call for any interference. Further submissions were made that the plea raised by the petitioner terming the document as creating right, title or interest in the immovable property is baseless only on account of stipulation made in the document that the lessor would have no right to get the shop vacated. Reliance was placed on Karani R. Manika Mudaliar v. T.Chinnappa Mudaliar and Ors. : (1913) 24 MLJ 641 ; Ram Lal Sahu & Anr. v. Mt. Bibi Zohra & Ors. : AIR 1941 Patna 228; Babu Lall Seth & Ors. v. Gopi Lal Seth & Ors. : AIR 1957 Patna 490 and Uda Ram v. Tej Karan & Ors. : AIR 1975 Rajasthan 147. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Regarding the finding of the trial court regarding inadmissibility of copy of the document and that a copy of a document cannot be impounded, suffice it to notice the provisions of proviso (e) to Section 39 of the Stamp Act, which provides as under :- “Section 39. Instruments not duly stamped inadmissible in evidence, etc. -No instrument chargeable with duty under this Act shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that,- ..... ..... ..... ..... ..... ..... ..... ...... .... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ...... .... ..... ..... ..... ..... ..... ..... ..... ..... ..... (e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid.” In view of above specific provision the law laid down in the case of Jupadi (supra) has no application as the said judgment is based on provisions of Section 35 of the Indian Stamp Act, 1899, which does not have proviso like proviso (e). As such, learned counsel for the plaintiff rightly conceded the said issue. For considering the next issue, at the outset, it would be appropriate to reproduce the document in question :- ^^eS izjrkiey iVkojh esjh nqdkuks esa ls o nqdku tks ljdkjh vLirky ds lkeus cuh gqbZ S nqdku eSa egkohj iq= jkedqekj ekyh lkykuk fdjk;k 1200@& eghuk 100@& fdjk;s ij ns jgk gwa vkt rkjh[k 15&5&1973 dks fyf[kr ‘krZ ls 25000@& udnh ysdj nqdku ns jgk gwa esjs larku iq= ugh gS rhu iq=h;k gS Hkfo”; esa nqdku [kkyh djokus dk eq>s ;k esjh lEifr okfjl dks vf/kdkj nqdku [kkyh djokus dk ugh gksXkkA vxj egkohj dk nqdku esa dke ugh pyrk gS rks egkohj dks nqdku [kkyh djus dk vf/kdkj gksxk nqdku [kkyh djus ij 25000@& o C;kt 1@& lSdM+k okfil nsmaxkA eq>s o esjh lEifr okfjl dks mij fy[kh ‘krZ ekU; gksxh vkt rkjh[k 15&5&1973 eqŒHkknjk izjrkiey iVkojh iq= ghjkyky lgh@& xokg Hkwjkjke thFkkjke dsljkstkV^^ A bare look at the document reveals that the shop in question has been let out by Pratap Mal to Mahaveer for annual rent of Rs.1200/-, monthly Rs.100/-on 15.5.1973 by a written document on receiving Rs.25,000/-, the lessor had no son and three daughters. It was stipulated that in future, the lessor or his successors would have no right to get the shop vacated and it was also stipulated that if Mahaveer's business in the shop does not succeed, Mahaveer will have right to vacate the shop and on vacating the shop the sum of Rs. 25,000/-and interest @ 1% would be payable. From a perusal of the above stipulations, it is apparent that the document does not stipulate any specific period for the lease in question. 25,000/-and interest @ 1% would be payable. From a perusal of the above stipulations, it is apparent that the document does not stipulate any specific period for the lease in question. The stipulations with regard to period for which the shop had been let out are two fold, (i)-so far as the lessor is concerned, he has no right to get the shop vacated and (ii)-qua the tenant, if his business did not succeed, he could vacate the shop at any point of time subject of-course to refund of the sum of Rs. 25,000/- with interest. So far as the submissions made by learned counsel for the plaintiff terming the document as falling within Section 17(1)(b) of the Registration Act creating right in the property is concerned, by mere stipulation in the document taking away the right of the landlord to get back the possession of the property it cannot be said that the same creates any interest in the property. The submission that the document could be termed as conveyance also has no basis as the fundamental requirement for such creation of interest is missing. Even otherwise in view of specific provision relating to leases in Section 17(1)(d) of the Registration Act, the general stipulation under Section 17(1)(b) would even otherwise not apply. The judgment cited by learned counsel for the plaintiff in the case of Yellapu Uma Maheshwari (supra) has no application to the facts of the present case as in the case cited, the document in question was a relinquishment deed and had created life estate. The submissions made by learned counsel for the defendant – Mahaveer Prasad on the strength of the stipulation in the document giving defendant – Mahaveer Prasad, a choice to vacate the premises, in case his business does not succeed, that the said document only creates a 'tenancy at will' requires examination. The Madras High Court in the case of Karani R. Manika Mudaliar (supra) held that leases held for such time as they require or wish, is tenancy at will of the lessee and so by implication of law a tenancy at the will of the lessor also and therefore, the plaintiff is entitled to terminate the tenancy. The Madras High Court in the case of Karani R. Manika Mudaliar (supra) held that leases held for such time as they require or wish, is tenancy at will of the lessee and so by implication of law a tenancy at the will of the lessor also and therefore, the plaintiff is entitled to terminate the tenancy. Similarly, in Ram Lal Sahu (supra), it was held that when a tenancy is terminable at the will of the tenant, it must be held to be terminable at the will of the landlord also and in Uda Ram (supra), this Court held that a tenancy where the tenant has agreed to vacate the premises whenever the landlord should desire him to do so, is a tenancy at will and the mere fact that the rent note provided for payment of rent per annum does not and cannot make any material difference and no registration of such a lease deed was required. From the above judgments cited by learned counsel for the defendant, it is apparent that in a case where the lease / document provides for tenancy terminable at the will either of the lessor or the lessee irrespective of the fact that the lease stipulates annual rent, the same would be a tenancy at will and such tenancy would be terminable by both the tenant and the landlord which is clear from the law laid down in the case of Karani R. Manika Mudaliar (supra) and Ram Lal Sahu (supra). However, the present case pose a different circumstance wherein though the document provides for termination of tenancy at the will of the tenant, there is a specific bar qua the exercise of said right by the landlord, inasmuch as, as noticed herein-before the document clearly indicates the landlord or his successors would have no right to get the shop vacated. The document is required to be read as a whole and one of the stipulations cannot be read independent of the other stipulations. The document is required to be read as a whole and one of the stipulations cannot be read independent of the other stipulations. For the purpose of terming a tenancy or the document containing stipulations between the landlord and tenant as 'tenancy at will', the same should be terminable at the instance of either party and in the judgments cited by learned counsel for the defendant, the said aspect has been highlighted and irrespective of a stipulation that the tenancy can be terminable at the instance of the tenant, it has been held that the same is terminable at the instance of the landlord also, however, in none of the cases, there has been a stipulation in the nature of the prohibition against the landlord in terminating the tenancy as in the present case, which clearly distinguishes the said judgments from the facts of the present case. In Nagar Palika Dungarpur v. Keshav Dass : 2006(4) WLC 566, wherein it was indicated in the document that till the land shall remain land of public park, the lessor shall have not right to take possession of the suit property, the same was held as a perpetual / permanent lease. The circumstances of the present case as noticed hereinbefore wherein the document contains a stipulation that the landlord or his successors shall have no right to get the shop vacated, irrespective of a further stipulation that the tenant would be entitled to vacate the shop in question in case his business failed cannot make the tenancy a tenancy at will rather the same is a perpetual lease and therefore, in terms of Section 107 of the T.P. Act, the same could be made only by a registered instrument and the determination made by the trial court in this regard cannot be sustained. In view of the fact that the lease is a permanent lease, the same being unregistered cannot be used for proving the term in the document purporting to create a permanent lease as held in the case of V. Muralidhar v. S. Anjaiah Goud & Anr. : AIR 2007 AP 347 . In view of the above discussion, the order passed by the trial court to the extent it holds that the document did not require registration, cannot be sustained. : AIR 2007 AP 347 . In view of the above discussion, the order passed by the trial court to the extent it holds that the document did not require registration, cannot be sustained. Similarly, the finding that the deficient stamp duty cannot be ordered to be paid on a copy of instrument, also cannot be sustained. However, in view of the fact that the document requires registration and is admittedly unregistered, the direction of the trial court holding the document as inadmissible is sustained, but for the reasons indicated herein-before. Consequently, while SBCWP No.7289/2015 filed by the plaintiff Smt. Sayari is allowed, SBCWP No.4918/2015 filed by the defendant – Mahaveer is dismissed. No order as to costs.