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2018 DIGILAW 987 (RAJ)

Atma Ram v. Gajendra Kumar Joshi

2018-04-11

NIRMALJIT KAUR

body2018
JUDGMENT Nirmaljit Kaur, J. - The present writ petition has been filed by the petitionertenant challenging the order dated 10.01.2018 passed by Rent Tribunal, Jodhpur Metropolitan, vide which, the application filed by the respondent-landlord under Sections 15 & 21 of the Rajasthan Rent Control Act, 2001 was allowed and the application filed by him under Sections 39 & 42 of the Rajasthan Stamp Act and under Section 21 of the Rent Control Act was disposed of with a direction to impound the alleged rent-note and send it to the Collector (Stamp), Jodhpur to make up the deficiency of stamp. 2. Two applications were filed by the respondent-landlord before the Rent Tribunal. Through the first application, the respondent-landlord sought to file a certified copy of the Will dated 17.01.1994. The second application was filed by the respondent-landlord seeking permission to allow the unregistered rent-note dated 04.05.2006 to be read as admissible in evidence. 3. While praying for setting aside the impugned order, learned counsel for the petitioner-tenant raised twofold arguments: firstly, the rent-note, which is in fact rent agreement is neither sufficiently stamped nor registered, hence, the same is not admissible in evidence and it should not be allowed to be exhibited. Reliance was placed on the judgment rendered by Division Bench of this Court in the case of Banwarilal Sharma vs. Ram Swaroop, reported in AIR 1974 Raj 178 to contend that as per section 107 of the Transfer of Property Act, 1882, any lease which is produced in writing, should be registered and any written document, which is not registered, even if the same is less than one year, cannot be used in evidence. 4. Similarly, reliance was also placed on judgment rendered by the Apex Court in the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra, reported in 2009 DNJ (SC) 364 and the judgment rendered by the Single Bench of this Court in the case of Smt. Jamna Bai vs. Tulsi Ram, reported in 1996 DNJ (Raj.) 717 as well as the judgment of Punjab & Haryana High Court in the case of Darshan Kaur vs. The Amritsar Primary Co-operative Agricultural Development Bank Ltd. Amritsar & Anr., reported in 2010(1) Civil Court Cases 810 (P&H) to contend that a document which cannot be admitted in evidence, cannot be read even for a collateral purposes. 5. 5. The second argument was with respect to the application for placing on record the certified copy of the Will. It was submitted that the same cannot be allowed to be placed on record at the stage of final hearing. 6. Taking up the first argument that the document being an unregistered document was not admissible in evidence, it would be appropriate to reproduce section 107 of the Transfer of Property Act, 1882, the same reads as under:- "107. A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the Government may, from time to time, by notification in the official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession." 7. Section 49 (with its proviso) of the Registration Act, 1908, which is relevant, is reproduced as under:- 49. Effect of non-registration of document required to be registered.-No document required by section 17 (or by any provision of the Transfer of Property Act, 1882 to be registered shall- (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received such property of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." 8. A perusal of the said Section makes it clear that only a lease, which is for more than one year, requires to be registered. All other leases can always be made either by written agreement or by oral agreement. Meaning thereby, a lease-deed which is less than one year need not be registered. 9. Admittedly, the rent note/rent agreement in the present case was only of 11 months i.e. less than one year. Hence, it did not require to be registered. 10. In the judgment rendered by the Division Bench of this Court, as relied by learned counsel for the petitioner, in the case of Banwarilal Sharma vs. Ram Swaroop (supra), it was held that in case, a lease although of a period of one year or less if reduced in writing then in that case, the same should be effected by a registered document. The Apex Court in the judgment of Avinash Kumar Chauhan vs. Vijay Krishna Mishra (supra) while dealing with section 35 of the Registration Act, 1908 held that document not duly stamped is not admissible in evidence and nor it would be admissible for collateral purposes. 11. On the other hand, the learned Single Bench of this Court in the case of Kesa vs. Ganesh, reported in (1981) 2 RCR(Rent) 276 held that "although a rent deed, which is inadmissible in evidence for want of registration, cannot be received in evidence for proving the terms of the contract of lease, yet the unregistered rent-deed can be received in evidence for proving the relationship of landlord or tenant or for proving the nature of possession". Para 9 of the said judgment reads as under:- "9. Of course, evidence of the conduct of the parties regarding payment or acceptance of rent can be admitted for the purpose of arriving at a finding regarding the rent agreed upon between the parties. In Ram Kumar vs. Jagdish Chandra, AIR 1952 Supreme Court 23 , Dao Dhabal Das and another a similar situation arose, as there was a kabuliyat for a period of ten years executed by the tenant alone. It was held by their lordships of the Supreme Court that even on an assumption that though the parties might have intended to create a lease for ten years, no operative lease came into existence in the absence of a registered document. It was held by their lordships of the Supreme Court that even on an assumption that though the parties might have intended to create a lease for ten years, no operative lease came into existence in the absence of a registered document. But from the fact of payment and acceptance of rent a tenancy could be fairly presumed. It was held in the aforesaid case that in the absence of a valid agreement of lease evidenced by a registered instrument, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all. But if once a lease is proved to exist and the relationship of landlord and tenant is proved by evidence of conduct of the parties such as payment and acceptance of rent, then it would be quite proper to hold that the tenancy was one from month to month, terminable on the part of either party by 15 days' notice expiring with the end of the month of tenancy, as provided in section 106 of the Transfer of Property Act. Thus, although a rent deed, which is inadmissible in evidence for want of registration, cannot be received in evidence for proving the terms of the contract of lease, yet the unregistered rent-deed can be received in evidence for proving the relationship of landlord or tenant or for proving the nature of possession. Of course, neither Section 53-A of the Transfer of property Act nor section 49 of the Registration Act can help the landlord to recover rent from the alleged tenant. On the basis of an unregistered document of lease, it is however, settled law that an unregistered deed can be looked into for the purpose of finding the nature of possession of the party, as provided in the proviso to section 49 of the Registration Act. If the rent-deed is inadmissible in evidence, although it cannot be used for the purpose of giving evidence of the terms of the contract of lease entered into by the parties, yet it could be used for a collateral purpose, namely to prove he admission or acknowledgement contained therein that the tenant was in occupation of the premises in the capacity of a tenant. Thus the unregistered document can be looked into for the purpose of finding out the nature of possession of the defendant." 12. Thus the unregistered document can be looked into for the purpose of finding out the nature of possession of the defendant." 12. Thereafter, this Court in the case of Roshan Bai vs. Madan Lal, reported in 2007 (3) RLW 2364 , after taking into consideration the judgments rendered by the Division Bench of this Court in the case of Banwarilal Sharma vs. Ram Swaroop (supra) as also various decisions of the various High Courts and the Apex Court in the cases of Kesa vs. Ganesh & Ors. ( AIR 1972 SC 1121 ) ; Mattapalli Chelamayya vs. Mattapalli Venkataratnam ( AIR 1972 SC 1121 ) ; Lachhmi Narain vs. Kalyan (AIR 1960 Rajasthan 1 (Full Bench) ; Kewalchand vs. Smt. Phoolabai [1976(3) WLN (UC) 265 (Division Bench)] and S. Amar Singh vs. Surinder Kaur (AIR 1975 Madhya Pradesh 230 (Full Bench) held that a rent note not compulsorily required to be registered could always be read for collateral purposes and while distinguishing the case of Banwari Lal Sharma observed as under:- "(63). So far as the present case is concerned, it is clear from the rent-note (Exhibit-1) that it was executed only for nine months i.e. for a period less than one year, therefore, as per provisions of section 17 of the Registration Act, 1908, it was not required to be registered. The lower court as well as lower appellate court, both have relied upon the Division Bench decision of this Court in Banwarilal Sharma vs. Ram Swaroop (1974 RLW 125) (supra) , wherein section 17(1)(d) of the Registration Act, 1908 was not taken into consideration. It is further clear that in Banwarilal Sharma's case (supra) this Court did not consider the proviso to Section 49, which makes it clear that an unregistered document may be received as evidence of any collateral transaction not required to be effect by registered instrument. Therefore, Banwarilal Sharma's case (supra) is not applicable in the present case and both the court below committed a serious illegality in applying the ratio of Banwarilal Sharma's case (supra). However, the lower appellate court itself recorded a finding that so far as for collateral purpose is concerned, the rent-note (Exhibit-1) is admissible in evidence and the said finding has not been challenged by the respondent." 13. However, the lower appellate court itself recorded a finding that so far as for collateral purpose is concerned, the rent-note (Exhibit-1) is admissible in evidence and the said finding has not been challenged by the respondent." 13. The Apex Court in the case of Bondar Singh vs. Nihal Singh, reported in (2003) 4 SCC 161 , also held that the document, which is unstamped and unregistered, even though not admissible in evidence, can be looked into for collateral purposes. The relevant para 5 of the judgment is reproduced as under:- "5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes." 14. The present case is on an even better footing. The rent-note/agreement was for a period of less than one year. As per section 107 of the Transfer of Property Act, 1982, it was not required to be reduced in writing being less than one year. section 49 of the Registration Act is clear that the same could be read for collateral purposes. Hence, the decision rendered in the case of Banwarilal Sharma (supra) will not be applicable as the same was passed without taking section 49 of the Registration Act into consideration. 15. Accordingly, the rent note/agreement although is not admissible in evidence for the purpose of being read as a rentdeed or a lease-deed but the same is duly admissible for proving the relationship of landlord & tenant and for any other collateral purpose. 16. The second argument with respect to the certified copy of the Will cannot be sustained. Copy of the Will is already on record. 16. The second argument with respect to the certified copy of the Will cannot be sustained. Copy of the Will is already on record. The respondent-landlord has simply placed on record the certified copy of the Will. There is no reason as to why the same cannot be permitted. 17. In view of the above, the writ petition is partly allowed to the extent as under:- (i) The rent note dated 04.05.2006 is not admissible in evidence for the purpose of being read as a rent-deed or lease-deed. However, the said document will be permitted to be taken in evidence for other collateral purposes. (ii) The impugned order dated 10.01.2018 allowing the certified copy of the Will to be taken on record is upheld.