Allahabad High Court
Padam Chandra Sahu And Another vs Smt. Suman Sahu And 2 Others on 9 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 2712
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 52 Case :- MATTERS UNDER ARTICLE 227 No. - 9645 of 2019 Petitioner :- Padam Chandra Sahu And Another Respondent :- Smt. Suman Sahu And 2 Others Counsel for Petitioner :- Kamlesh Kumar Tiwari Counsel for Respondent :- Rishikesh Tripathi Hon'ble Neeraj Tiwari,J.
Heard Sri K.K. Tiwari, learned counsel for the petitioners and Sri Rishikesh Tripathi, learned counsel for the respondents.
Learned counsel for the petitioners submitted that the house in question was taken on rent by father of the petitioners from one Smt. Shanti Devi-landlady. After death of their father, petitioners inherited the tenancy. In the year 2002, S.C.C. Suit No. 45 of 2012 was filed by the plaintiff-respondents for payment of rent and eviction, which was decreed by Judge, Small Causes Court, Jhansi in favour of the plaintiff-respondents vide judgment and order dated 24.7.2018. Against the said judgment, Revision No. 41 of 2018 was filed by petitioner-defendants, which was dismissed vide judgment and order dated 27.11.2019 confirming the judgment and decree passed by the Judge, Small Causes Court, Jhansi.
The basic argument of the learned counsel for the petitioners is that earlier a sale deed was drafted and executed by husband of respondent-plaintiff no. 1 in the year 1995, but the same was not registered. Ultimately, for registration of said sale deed, Case No. 341 of 2000 (Om Prakash Sahu Vs. Vinod Kumar Seth) was filed for mandatory injunction. The said suit was allowed and sale deed was registered on 25.6.2011. He next submitted that in the plaint rent was claimed by the plaintiff-respondents w.e.f. 3.7.2009 to 13.6.2012. He further submitted that as the sale deed was registered on 25.6.2011, therefore, prior to that, the plaintiff-respondents were not entitled to recover the rent and suit was not maintainable.
Learned counsel for the petitioners next submitted that the plaintiff-respondents were never the landlord of the petitioners. In fact Smt. Shanti Devi was the landlady of the house in question from whom tenancy was obtained by father of the petitioners, therefore, the suit is not maintainable.
In support of his contention, learned counsel for the petitioners has placed reliance upon Sections 17 and 49 of the Registration Act, 1908. Section 17 provides the list of documents of which registration is compulsory. Section 49 provides the effect of non-registration of documents required to be registered and according to Section 49(b) of the Registration Act, 1908, on the basis of unregistered document, no right can be created.
He has further placed reliance upon judgment of the Apex Court in the case of Yellapu Uma Maheswari and another Vs. Buddha Jagadheeswararao and others, 2015 LawSuit(SC) 998 which interpreted the Section 17 read with Section 49 of the Registration Act, 1908 and provides that unregistered document cannot be admissible in evidence. Paragraphs 15, 17 and 18 of the said judgment are quoted below:-
"15. Section 17(1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17 of the Act.
17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 (A.P.) 242 has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."
He has also placed reliance upon another judgment of the Apex Court in the case of Subraya M N Vs. Vittala M N and others, 2016 LawSuit(SC) 654 and paragraph 16 of the said judgment also interpreted Section 17 read with Section 49 of the Registration Act, 1908 and says that the document which was not registered, is not admissible in evidence and therefore, cannot be produced for evidence, therefore, the respondent is not entitled to recover the rent from the petitioners prior to date of registration and plaint is liable to be dismissed and revision is liable to be allowed. Paragraph 16 of the said judgement is quoted below;
"16. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act."
Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners and placed reliance upon Section 47 of the Registration Act, 1908 which deals with time from which registered document operates. Section 47 of the Registration Act, 1908 is quoted below:-
"47. Time from which registered document operates.-A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
He submitted that the present suit was filed in the month of July, 2012 whereas the said sale deed was registered on 25.6.2011, therefore, when the suit was filed, the sale deed was duly registered under the provisions of Registration Act, 1908. He further submitted that once there is no dispute on the point that at the time of filing of the suit sale deed was registered, the arguments raised by learned counsel for the petitioners have no force and the writ petition is liable to be dismissed. He further submitted that by perusal of the written statement, it is very much clear that there is no dispute on the point that Smt. Shanti Devi was the landlady and thereafter the petitioners obtained sale deed of the house in question, which is duly registered against which no cancellation application is pending. Once this fact is not disputed that Smt. Shanti Devi is the landlady and sale deed was registered under the provisions of Registration Act, 1908, only information of change of landlord is required to the petitioners for tenancy purpose.
In support of his contention, learned counsel for the respondents has placed reliance upon the judgment of Apex Court in the case of Ambica Prasad (Dr.) Vs. Md. Alam and another, 2015 (2) ARC 313 which provides that transferee of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy and Section 109 of the Transfer of Property Act, 1882 does not insist that transfer will take effect only when the tenant attorns. Paragraphs 9 and 10 of the said judgment are quoted below:-
"9. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act.
"109. Rights of lessor's transferee.-If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
10. From perusal of the aforesaid Section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment."
He has also placed reliance upon judgment of this Court in the case of Gausul Azam Vs. State of U.P. through Secretary Revenue, Lucknow and others, 2019 (143) RD, 215 in which it was held that once a sale deed is registered even at a later date, it will operate from the date of its execution. Paragraph 15 of the said judgment is quoted below:-
"15. There is no doubt or ambiguity in holding that a sale becomes complete only after its registration. Section 47 of the Registration Act quoted above, clearly states that a registered document operates from the time when it would have commenced to operate if no registration was required or made and not from the date of its registration. Mere execution of a sale deed without its registration does not make the sale complete, however, once a sale deed is registered even at a later date, it will operate from the date of its execution."
Learned counsel for the respondents has further placed reliance upon the judgment of this Court in the case of Kanhaiya Lal Sharma Vs. Dr. Sushil Kumar, 2015 (6) ALJ 284 which provides that in view of Section 109 of the Transfer of Property Act, 1882, the attornment takes place by operation of law. There is no need of consensual attornment. Paragraph 7 of the said judgment is quoted below:-
"7. The trial court has held that Smt. Shivmurti Devi had executed a sale deed in favour of the plaintiff-respondent in September, 1990. This finding has not been assailed before this court. As such, even if for argument sake, the agreement for sale (Paper No. 47-Ga) and the possession memo (Paper No. 48-Ga) are ignored from consideration, it would have no effect on the title of the plaintiff-respondent over the demised premises. It has been held by the Supreme Court in the case of Mohar Singh v. Devi Charan that in view of section 109 of the Transfer of Property Act, 1882, the attornment takes place by operation of law. There is no need of consensual attornment. Same view has been taken by a three Judges bench judgment in Pramod Kumar Jaiswal v. Bibi Husn Bano. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, the Supreme Court has held that liability to pay rent to the assignee landlord is postponed till the knowledge of transfer is gained by the tenant, but it does not have the effect of postponing the assignment or transfer of property. A specific finding has been recorded by the trial court that the petitioner came to know about assignment on service of notice upon him in January 1997 and again in July 1997. It was not necessary for establishing relationship of landlord and tenant that there should have been payment of rent by the petitioner to the plaintiff, as the attornment had taken place by operation of law. On gaining knowledge of the transfer, the liability to pay rent comes into existence and the petitioner should have tendered rent to the plaintiff. However, having failed to do so, inspite of notice of demand admittedly served upon him in January, 1997 and again in July 1997, which notice has also been held to be served on the petitioner, there was a clear default in payment of rent. Concededly, no rent was deposited by the petitioner under Section 30 or in the suit, on the date of first hearing. Thus, there was a clear default in payment of rent, within the meaning of Section 20(2)(a) of U.P. Act XIII of 1972. The trial court was fully justified in decreeing the suit for arrears of rent and for ejectment."
He also submitted that by perusal of the written statement filed by the petitioners, it is also clear that they had full knowledge about both the facts that earlier Smt. Shanti Devi was the landlady and the plaintiff-respondent had purchased the said house in question after taking loan of Rs. 10,000/- from the petitioners-defendant, therefore, in light of Section 109 of the Transfer of Property Act, 1882 as well as law laid down by Apex Court and this Court, tenancy is established between the petitioners and respondents, therefore, no separate agreement is required and under such facts, the writ petition is liable to be dismissed.
Learned counsel for the petitioners in his rejoinder argument could not dispute the factual position raised by the counsel for respondents, but reiterated the legal position as well as judgments relied upon.
I have considered the rival submissions of learned counsel for the parties and perused the record as well as judgments relied upon by them. Undisputed facts of the case are that Smt. Shanti Devi was the landlady of the house in question and further for the very same house in question, sale deed was drafted and executed in the year 1995. Sale deed was registered on 25.6.2011 under the provisions of Registration Act, 1908, after the decision in the suit No. 341 of 2000 filed for mandatory injunction vide order dated 24.7.2018. It is also undisputed that on the date of filing of the suit, sale deed was duly registered and further no dispute is pending in any court of law with regard to genuineness of the sale deed. It is also not disputed that the petitioner-defendants are having the knowledge of execution of sale deed in favour of respondent-plaintiff no. 1.
In light of undisputed facts, the arguments raised by learned counsel for the petitioners does not help him. Section 17 as well as Section 49 of the Registration Act, 1908 and its interpretation by the Apex Court might come to the rescue of the petitioners provided the suit had been filed prior to registration of sale deed i.e. before 25.6.2011, but here it is not the case of both the parties, it is accepted fact that the suit was filed in the month of July, 2012 after registration of sale deed.
The Apex Court in the matter of Ambica Prasad (supra) has considered the issue of tenancy after considering the provisions of Section 109 of Transfer of Property Act, 1882, the Court had held that after the transfer of lessor's right in favour of the transferee, the later gets all rights and liabilities of the lessor in respect of subsisting tenancy and Section does not insist that transfer will take effect only when the tenant attorns.
This Court in the case of Gausul Azam (supra) has clearly held that once the sale deed is registered even a later date, it will operate from the date of its execution. Similarly so far as the landlord and tenant relationship is concerned, this fact is not disputed in light of written statement filed by the petitioner-defendants that Smt. Shanti Devi was the original owner of the house in question and the plaintiff-respondents have taken loan of Rs. 10,000/- to purchase the house in question from Smt. Shanti Devi. They have also full knowledge of execution of the sale deed, therefore, relationship of landlord and tenant is very well established from the date of knowledge and for that further attornment is not required.
This Court has considered the same issue in the matter of Kanhaiya Lal Sharma (supra) that in light of Section 109 of Transfer of Property Act, 1882, the attornment takes place by operation of law and given specific finding relying upon certain other judgments that liability to pay rent to the assignee landlord is postponed till the knowledge of transfer is gained by the tenant, but it does not have the effect of postponing the assignment or transfer of property.
In light of Section 47 of the Registration Act, 1908, it is very much clear that a registered document shall be given effect from the date of its execution and not from the date of registration, in case no registration is required and after registration, it will operate from the date of its execution. Meaning thereby, after registration there would be no ambiguity and document shall be treated very well valid from the date of execution and not from the date of registration. The same was interpretation by this Court also in the matter of Gausul Azam (supra).
Section 109 of Transfer of Property Act, 1882 also provides that after transfer of rights of lessor to transferee, transferee shall possess all rights and liabilities of lessor for the purpose of existing tenancy and there is nothing in the section which provides that transfer will be given effect only tenant attorns the same.
In the present case too, once the facts are undisputed with regard to ownership of Smt. Shanti Devi, thereafter sale deed was executed in favour of respondent-plaintiff no. 1, its registration and further about the knowledge of transfer of right from Smt. Shanti Devi to plaintiff-respondent no. 1, in light of provision of Section 47 of Registration Act, 1908 read with Section 109 of Transfer of Property Act, 1882 as well as law laid down by this Court, the Judge Small Causes Court has rightly allowed the suit in favour of the plaintiff-respondents and Revisional Court dismissed the revision. Therefore, I find no illegality in the impugned orders dated 24.7.2018 and 27.11.2019 passed by the courts below. The writ petition lacks merit and is accordingly dismissed. No order as to cost.
At this stage, learned counsel for the petitioners requested that the petitioners may be granted some reasonable time to vacate the house in question.
Considering the request of learned counsel for the petitioners, six months time from today is granted to the petitioners to vacate the house in question subject to payment of rent at the rate of Rs. 500/- per month. They shall also file an undertaking before the court below to this effect. In case, undertaking is not filed by the petitioners, the plaintiff-respondents are free to proceed for eviction of the house in question Order Date :- 9.1.2020 Rmk.