Andhra HC (Pre-Telangana)
Psg Industrial Institute Rep. By Its ... vs R. Randhir Singh on 24 December, 1996
Equivalent citations: 1997(3)ALT473
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. The petitioners are defendants in the suit O.S. No. 923 of 1991 (on the file of the 18th Assistant Judge, City Civil Court). The suit was filed for eviction of the petitioners from the premises and recovery of mesne profits. The agreement dt. 19-12-1987 termed as a lease agreement which was filed by the plaintiff himself was sought to be marked by the petitioners in support of their case that the lease was renewable for a further period at their option. The plaintiff's counsel objected for marking the document on the ground that it is an unregistered document and therefore hit by Section 17(b) of the Registration Act. It was also pointed out that the document bears deficit stamp-duty and on this ground also, it is inadmissible in evidence.
2. The learned Assistant Judge held that the defendants can mark the document for the limited purpose of proving the nature of possession. He relied inter alia on the decision of this Court reported in T. Venkatamma v. M. Aswathanarayanappa, 1984 (1) An.W.R. 149 wherein Ramaswamy, J (as he was then) observed "the non-registration thereof precludes adduction of evidence to prove the terms of the lease, since the lease deed is the source of title to the lessee". However, the learned Judge observed that "it is admissible in evidence to establish the collateral purpose of the character of the petitioner as a tenant and her continuance in possession as such."
3. Having observed that the document could be marked only for a limited purpose of proving the nature of possession, the trial court directed the impounding of the document and collection of deficit stamp duty and penalty before admitting the same into evidence for collateral purpose. It is this order that has been challenged in this C.R.P.
4. The learned Counsel for petitioner submits that the trial court erred in law in confining the admissibility of the document only to the collateral purpose, that is to say, the nature and character of possession of the premises. The learned Counsel further submits that as the document falls within the proviso to Section 49 of the Registration Act, the ban Under Section 17(b) is lifted and therefore the document can be relied upon in toto for any purpose. It is therefore his contention that the clause in the lease deed as regards the renewal of lease can be relied upon by the petitioners-defendants. It is pointed out that no purpose will be served if the petitioners are allowed to rely upon the unregistered document only for the purpose of proving the possession inasmuch as the petitioners' possession as tenants is an admitted fact.
5. The learned Counsel for the petitioner relied on the decisions reported in Ram Reddy v. Venkat Reddy, , Manek Lal v. Hormusji Jamshedji, , and Durga Prasad v. Kanhiyalal, .
6. I find no substance in the contention advanced by the learned counsel for the petitioners. The material portion of Section 49 of the Registration Act reads as follows :-
"No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall -
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt; or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 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, or as evidence of part performance of the contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."
7. The learned Counsel seeks to place reliance on that part of the proviso which says that an unregistered document can be received as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act.
8. Going by the plain terms of the language used in the proviso, it is clear that the unregistered document can be received as evidence only to substantiate the plea of part-performance of a contract- whether it be a contract of sale or lease or mortgage. The document can be looked into only in so far as it serves as evidence of the part performance of a contract. So also, it can be received as evidence of a collateral transaction not required to be effected by registered instrument. If the transaction is such that it requires to be registered in order to give effect to the same, the document cannot be relied upon to prove the transaction as such. Realising the difficulty in bringing the case within the concluding part of the proviso, the learned Counsel for petitioner, as already stated, argues that by virtue of the second clause of the proviso, the terms in the document can be looked in to. It is difficult to subscribe to this contention. The exception to the general ban against the reception of certain unregistered documents in evidence must be strictly construed and a purposive interpretation ought to be given.
9. It was held in Rama Vidya Bhushan Singh v. Ratiram, 1969 Unreported Judgements (SC) 21, that the unregistered lease agreement could not create in favour of the defendant the right of a tenant for a period of fifteen years. It was further held that "the agreement was on that count inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant, the defendant was entitled to rely upon the recitals contained in that agreement of lease".
10. After having referred to Section 49 their Lordships observed that "a document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property." The learned Judges cited the passage in Mulla's Registration Act wherein it is stated that a document which requires registration Under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it. The Supreme Court also referred to the decision in Padma Vithoba v. Mohd. Multani, AIR 1963 SC 70. The facts in that case were summarised by their lordships in the following words :-
"In that case one R executed a usufructuary mortgage of certain lands in favour of M. He later executed a sale deed of the same lands in favour of Rajanna. Rajanna found it difficult to obtain possession. Rajanna, R & M entered into an arrangement under which the sale deed was cancelled by making endorsements on the deed and the lands were thereafter sold by R to M. After the death of Rajanna his legal representatives filed a suit against M for possession of lands. M pleaded that the sale deed of 1923 was cancelled. The plaintiff urged that the endorsement was ineffective, as it was not registered and the sale deed in favour of M passed no title to him."
11. In dealing with the question that the endorsement of cancellation was inadmissible in evidence, Venkatarama Aiyar, J. observed at P.236:
"The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923 has been held.......to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter."
12. There is a decision of this Court rendered by Ramachandra Raju, J. in B. Narayanamma v. Ramaiah, 1975 (2) APLJ 298 = 1975 ALT 138 (NRC), which is quite opposite in the context of the contentious issue involved in this revision petition. The learned Judge observed :
"If a lessee comes into possession of immovable property under an unregistered lease deed which requires to be registered under law, certainly it would be admissible in evidence to show the character of his possession, viz., that his possession is that of a lessee and therefore permissive in nature, since a lessor, who parts with physical possession to a lessee, under law, is always considered to be in constructive possession through the lessee."
13. The learned Judge having held that Exs.A-1 to A-3 which purported to confer leasehold rights for a period of two years were not admissible in evidence to prove any rights under them, observed "To put in other words, the plaintiffs canuse Exs.A-1 to A-3 not to estop the 1st defendant from denying their title but to show that the possession which he had was permissive in nature." The Judgment of Ramaswamy, J. (1 supra) referred to above reflects the same line of approach. I am, therefore, of the view that the trial Court has not committed any illegality or material irregularity in the exercise of jurisdiction in receiving the unregistered 'lease agreement' for the limited purpose of proving the nature of possession of the petitioners. True, if the document can be looked into only for that limited purpose, the petitioners may not get an additional advantage inasmuch as the factum of possession as a tenant is an admitted fact. But that cannot be a ground to build up an agreement that the unregistered document should be looked into for the purpose of proving the extension of the term of lease at the option of the lessee or otherwise. The petitioners cannot press into service the proviso to Section 49 in order to rely upon any term of the said document without regard to the limitations envisaged by the proviso itself as to its use and evidentiary value. I, therefore, find no merit in the C.R.P.
14. The decisions cited by the learned Counsel for petitioner are of no relevance at all. In Ram Reddy's case (2 supra) it was held that Section 53-A can be invoked by an usufructuary mortgagee also. In Manek lal's case (3 supra) the Supreme Court extended Section 53-A to the case of a lease. The Supreme Court opined that an agreement of lease creating a present demise but not registered is admissible Under Section 49 of the Registration Act as evidence of part-performance. But that is not the question in controversy here. I find nothing in the decision of Rajasthan High Court in Durga Prasad's case (4 supra), which supports the contention of the petitioner. In fact, the interpretation of Section 49 of Registration Act did not come up for consideration at all.
15. The learned Counsel for the petitioner also referred to the decision of the Nagpur High Court in Radhabai v. N.J. Nayadu, AIR (38) 1951 Nagpur 285. It was held therein that the contract of lease reduced in writing though not registered will serve as a protection Under Section 53-A of Transfer of Property Act. The decision does not throw light on the question whether the entire terms of such document could be looked into for the purpose of determining the mutual rights and obligations of the parties.
16. The CRP is, therefore, dismissed at admission stage. No costs.