Calcutta High Court (Appellete Side)
( vs M/S. Sevoke Properties Pvt. Ltd on 14 November, 2018
Author: Biswajit Basu
Bench: Nadira Patherya, Biswajit Basu
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Nadira Patherya, J.
And Hon'ble Justice Biswajit Basu, J.
F.A-135 of 2006 THE WEST BENGAL STATE ELECTRICITY BOARD A BODY CORPORATION (Defendant)..... APPELLANT
-versus-
M/S. SEVOKE PROPERTIES PVT. LTD.
(PLAINTIFF)...... RESPONDENT For the appellant : Mr. Anindya Kumar Mitra (Senior Advocate), Mr. D. Bera Mr. B. Mitra Mr. S.S. Koley.
For the respondent :Mr. Jayanta Kumar Mitra (Senior Advocate), Mr. Budha Dev Ghosal Mr. Rajashree Roy Mr. V.S Menon Mr. Abhirup Chakraborty.
Heard on : 16.07.2018, 08.08.2018, 19.08.2018, 24.08.2018 29.08.2018,07.09.2018,12.09.2018,14.09.2018, 26.09.2018, 28.09.2018, 03.10.2018, 05.10.2018.
Judgment on : 14.11.2018 Biswajit Basu, J.
1. The present first appeal is at the instance of the defendant in suit for eviction and mesne profit and is directed against the judgment and decree dated November 30, 2005 passed by learned Civil Judge (Senior Division), Jalpaiguri, in Title Suit No. 65 of 2005.
2. The brief details of the plaintiff's case in the suit is as follows:-
(i) Mohan Lal Khemka, Mahabir Prasad Bhartia, Rama Sankar Bhartia, by different deeds of settlement created private trusts thereby appointed different trustees to hold the land described under the schedule appended to the plaint (hereinafter referred to as the 'Suit Land' in short) for the benefit of the minors of the family of the said settlors with the direction to handover the trust money to the beneficiaries of those trusts on their attaining the age of 18 years or 21 years as the case may be, as per the terms of the said deeds of settlement.
(ii) The trustees of the said trust by an indenture of lease dated May 25, 1981 jointly sublet the suit land to the defendant, for the period of 15 years. Pursuant to and in terms of the said lease deed the defendant took possession of the suit land as sublessees of the said trusts and paid rent till April 19, 1994 but from May1984 the defendant failed, neglected or refused to pay any rent to the said trustees.
(iii) The State of West Bengal initiated the proceeding for requisition of the suit land under the provisions of West Bengal Land (Requisition and Acquisition) Act, 1948. The plaintiff challenged the legality and validity of the said acquisition proceeding in a writ petition being W.P. No. 13268 (W) of 1984. On August 19, 1985 in the said writ petition a direction was passed directing the defendant, the respondent No. 5 in the said writ petition to pay arrears of rent to the plaintiff for the period from May 1, 1984 to August 31, 1985. The said writ petition was allowed by the judgment and order dated September 25, 1998 thereby the said requisition/acquisition proceeding was quashed. The defendant unsuccessfully challenged the said order in appeal which was dismissed on November 16, 2000. The said trustees after much harassment on May 16, 2001 received the arrear rents for the period of September 1985 to May 24, 1996 from the defendant.
(iv) In view of the pending writ proceedings the said trustees were unable to initiate eviction proceedings against the defendant, although the said lease had expired by efflux of time. In the mean time the beneficiaries under the said five trusts attained majority and the suit lands vest to the beneficiaries of the said trusts in terms of the direction of the deeds of settlement. The said beneficiaries of the said trusts alongwith two other persons formed a partnership firm under the name and style of "Shrinidhi Enterprices". The said beneficiaries contributed the suit land to the capital of the said partnership firm. The partners of the said firm thereafter formed a Joint Stock Company to carry on the business of the said partnership firm under the name and style "Sevoke Properties Limited", i.e. the plaintiff herein. The suit land thus has become the property of the plaintiff.
(v) The provisions of Transfer of Properties Act, 1982 are applicable in the instant case. The defendant has not been accepted as a tenant after the expiry of the 15 years period under the lease dated May 25, 1981, nor it's continued possession assented to in any form or manner.
Upon the expiry of the said period of the lease the plaintiff and/or its predecessors in interest have not accepted any rent from the defendant with regard to the said demised premises and as such the defendant is not entitled to occupy or possess the said demised premises or any part or portion thereof. The defendant was and is bound and obliged to quit and vacate the said demised premises upon the expiry of the period limited by the said lease. The defendant since is in wrongful possession of the suit land after the expiry of the said lease by efflux of time, the plaintiff is entitled to mesne profit and/or damages and/or compensation form the defendant.
3. The defendant, the appellant herein entered appearance and contested the suit by filing the written statement. The defendant in it's written statement denied and disputed each and every allegations of the plaint. The specific case of the defendant in the said written statement is that the suit is bad for want of notice under the Transfer of Property Act, 1882 and Premises Tenancy Act. The defendant, however, did not adduce evidence in the suit.
4. The learned Trial judge on the basis of the pleadings in the suit framed the following issues:-
(1) Is the suit maintainable in its present form and in law? (2) Is the plaintiff entitled to get the decree as prayed for? (3) What other relief/reliefs the plaintiff is entitled to?
5. The executive officer of the plaintiff company deposed in the suit as P.W. 1, and proved several documents. The deed of lease dated May 25, 1981 is one of those documents, which has been proved in the suit and marked as Exhibit
3.
6. The learned Trial Judge decreed the suit holding, inter alia, that the deed of lease dated May 25, 1981 although in contravention of the requirements of Section 107 of the Transfer of Property Act, 1882 (hereinafter referred to as the said Act of 1882 in short) but the same has been marked as Exhibit 3 in the suit without objection, therefore, the question of admissibility of the said document cannot be reopened. The defendant after the expiry of the lease period of 15 years, neither had tendered the rent nor the plaintiff had accepted the same as such there is no holding over. The lease has been determined by efflux of time by virtue of Section 111 (a) of the said Act of 1882.
7. The learned Counsel for the appellant submits that the learned Trial Judge has failed to appreciate that the document dated May 25, 1981 under which the defendant has come into possession of the suit land does not satisfy the mandatory requirement of Section 107 of the said Act of 1882 as the same is not a registered instrument. He, therefore, submits that the said document is inadmissible in evidence as the Section 36 of the Indian Stamp Act saves only those documents which are unstamped or insufficiently stamped. According to him a document which is compulsorily required to be registered under the law even if marked exhibit in the suit cannot be looked into for the purpose of determining the period of lease fixed by the said document. He, therefore, submits that the learned Trial Judge has committed error in holding that the Exhibit 3 i.e. the lease deed has already been admitted into evidence and as such reliance can be placed upon the said document.
8. The learned counsel for the appellant submits that Exhibit 3 i.e. the lease deed not being registered is not a valid lease within the meaning of the first paragraph of Section 107 of the said Act of 1882 but the said lease and /or the said instrument comes within the purview of second paragraph of Section 107 of the said provision of the said Act of 1882. He submits that the said document can only be received as evidence for the limited purpose as envisaged under the proviso of Section 49 of the Registration Act, 1908 i.e. as evidence of a contract in a suit for specific performance under the Specific Relief Act, or as evidence of part performance of a contract for the purpose of Section 53A of the Transfer of Property Act, 1882 or as evidence of any collateral transaction not required to be effected by registered instrument.
9. The learned counsel for the appellant places reliance on the decision of the Hon'ble Apex Court in the case of Satish Chand Makhan and others, appellant v. Govardhan Das Byas and others, Respondents reported in AIR 1984 SUPREME COURT 143 and also the decision of the Division Bench of this Court in the case of Pieco Electronics and Electricals Ltd Appellant v. Smt. Tribeni Dev Respondent reported in AIR 1990 CALCUTTA 135 to contend that the terms of lease is not a collateral purpose within the meaning of the proviso appended to Section 49 of the Registration Act, 1908.
10. He further submits that as the deed of lease is void for want of registration. The duration of the lease period of 15 years fixed by the said void deed of lease by virtue of which the defendant has come into possession of the suit land, therefore, cannot be given effect to, by treating the said term of the said lease as 'contract to the contrary' within the meaning of Section 106 of the said Act of 1882. Under such circumstances the lease shall be deemed to be a lease from month to month terminable by fifteen days notice. In the present case before filing of the suit no such notice determining the said lease has been given as such the suit is not maintainable. In support of his such contention he places reliance on the decisions of the Hon'ble Apex Court in the case of PARK STREET PROPERTIES PRIVATE LIMITED Appellant Versus DIPAK KUMAR SINGH AND ANOTHER Respondents reported in (2016) 9 Supreme Court Cases 268 and the case of Biswabani Pvt. Ltd., Appellant v. Santosh Kumar Dutta and others, Respondents reported in AIR 1980 SUPREME COURT 226.
11. The learned counsel for the appellant further submits that Section 53A of the Transfer of Property Act, 1882 cannot be invoked for enforcing rights under the said lease. The said provision is only available as a defence to a lessee. In support of his said contention he places reliance on the decision of the Hon'ble Apex Court in the case of Delhi Motor Co. and other Appellants v. U.A. Basrurkar (dead) by his legal representatives and others Respondent reported in AIR 1968 SUPREME COURT 794.
12. The learned counsel for the respondent refuting the submissions of the learned counsel for the appellant at the threshold emphatically submits that the defendant in it's written statement has categorically admitted the execution of the Exhibit 3 i.e. the deed of lease dated May 25, 1981 for a period of 15 years with effect from 1981 expiring on May 24, 1996. The said document is not under any challenge. On the contrary the said document has been marked exhibit in the suit without objection. He, therefore, contends that the admissibility of the said document at this stage cannot be questioned and/or reopened in support of his such said contention he places reliance on the decisions of the Hon'ble Apex Court in the case of Javer chand and others, Appellants v. Pukhraj Surana, Respondent reported in AIR 1961 SUPREME COURT 1655 and the case of SHYAMAL KUMAR ROY Appellant v. SUSHIL KUMAR AGARWAL, Respondent reported in (2006) 11 Supreme Court Cases
331.
13. The learned counsel for the respondent submits that in the present case admittedly after the period of 15 years there was no payment and acceptance of rent, therefore, there is no case of holding over. Under such circumstances the appellant had the right to protect possession over the suit land only for the period of 15 years and on expiry of the said period the defendant has no defence to protect it's said possession. On the contrary the defendant was obliged to put the plaintiff into possession of the suit land on expiry of the said period, in terms of Section 108 (q) of the said Act of 1882. It is, according to him a case of determination of lease by efflux of time under Section 111(a) of the said Act of 1882, therefore, no notice under Section 106 of the said Act to determine the said lease is required.
14. The learned Counsel for the respondent contends that no case of monthly tenancy has been made out either in the written statement or in course of the trial of the suit in any manner whatsoever. The appellant, therefore, is not entitled to make out such a case before the Appeal Court.
15. The Learned Counsel for the respondent further contends that the defendant has come into possession of the suit land under a void lease, as the document is not registered as required under Section 107 of the said Act of 1882 it, therefore, would not affect the immovable property to which it relates i.e. the suit land. According to him the said document is admissible as evidence of part performance of the contract for the purpose of Section 53A of the said Act of 1882 and after the expiry of the period of 15 years fixed by the said deed of lease, the defendant has no right to protect it's possession over the suit land as a monthly tenant. The learned counsel for the respondent in support of his aforesaid contention heavily placed reliance on the decision of the Hon'ble Apex Court in the case of M/S. TECHNICIANS STUDIO PRIVATE LTD. Appellant v. SMT. LILA GHOSH AND ANOTHER Respondent reported in (1977) 4 Supreme Court Cases 324, the decision of the Division Bench of this Court in the case of Braithwaite & Co. Ltd. Appellant v. M/s. R.P. Agarwalla & Bros. (P) Ltd. & Anr. Respondents reported in 1984 (2) CLJ 1 and the decision of the Division Bench of this Court in the case of Ram Pratap Kayan Appellant v. The National Petroleum Co. Ltd. Plaintiff, Respondent reported in AIR 1950 CAL 23.
16. The Learned Counsel for the respondent concludes by submitting that the lease has been determined by efflux of time i.e. on the expiry of the period of 15 years fixed by the said deed of lease as such no notice under Section 106 of the said Act of 1882 is required to be served upon the defendant to determine the said lease. He, to get support of his such contention placed reliance on the decisions of the Hon'ble Apex Court in the case of Smt. Shanti Devi, Appellant v. Amal Kumar Banerjee, Respondent reported in AIR 1981 SUPREME COURT 1550, the case of Pooran Chand, Appellant versus Motilal and Others, Respondent reported in AIR 1964 SUPREME COURT 461 and the case of M. Vijayalaxmi, Appellant Versus G. Goverdhan Reddy, Respondent reported in (1997) 11 SUPREME COURT CASES 358.
17. Heard the learned Counsels for the parties at length. It appears from the aforesaid rival contentions of the learned counsels for the parties and on careful perusal of the materials on record, the following issues fall for consideration of this Court in the present appeal.
(i) Whether the instrument dated May 25, 1981 by virtue of which the appellant has come into possession of the suit land is a valid lease or not?
(ii) If the said instrument is not a valid lease what is the relationship between the plaintiff and the defendant and whether the said relationship can be determined without a valid notice under Section 106 of the said Act of 1882.
18. The following facts are admitted in the present appeal:-
(i) The instrument dated May 25, 1981 on the basis of which the defendant has come into possession of the suit land is an unregistered document.
(ii) The said instrument has been proved and marked as Exhibit 3 in the suit.
(iii) The defendant was inducted in the vacant land, i.e. the suit land by virtue of the said instrument as such the relationship between the appellant and the respondent are not governed by the West Bengal Premises Tenancy Act.
(iv) The incidents of the tenancy created by the said instrument are governed by the provisions of the said Act of 1882.
19. The issues to be determined in the present appeal demand consideration of the following clauses of the said instrument dated May 25, 1981 as such reproduced below:-
"2. The lessee to the end and intent that the obligations shall continue throughout the term hereby created doth hereby covenant with the Lessors as follows:-
a) To pay to the lessors monthly and every month a monthly rent at the rate of 20 paise per square feet for the first term of Five years and thereafter at the rate of 25 paise per square feet for the succeeding term of Five years and thereafter at the rate of 31 paise per square feet for the balance term of Five years.
i) On the expiry of the term of 15 years the parties hereto shall be at liberty to negotiate for the renewal of the lease and upon the terms and conditions, amount of rent, period of lease and other covenants and conditions being mutually agreed upon the Lessee shall have the option to renew the Lease on such mutually agreed terms, covenants and conditions there.
3. The Lessors do hereby covenant with the Lessee that the Lessee paying the monthly rent hereby reserved and observing and performing the terms covenant and conditions herein contained shall and may peaceably and quietly hold, possess and enjoy the demised premises during the term hereby created without any interruption or disturbance by the Lessors or any other person claiming through or under or in trust for the Lessors."
20. It is, therefore, clear from the above quoted three clauses of the said document that clause 2(a) stipulates the rate of rent, the duration of the possession of the defendant over the suit land is fixed by clause 2(i) and the appellant by virtue of clause 3 is entitled to enjoy the uninterrupted possession over the suit land for the period fixed by the said instrument subject to payment of the rent and performance of it's other obligations under the said instrument. The clause 2(i) is obviously the most important and vital term of the said instrument, in the context of the present issues of the present appeal.
21. The instrument dated May 25, 1981 has been styled as 'deed of lease'. The lease has been defined under Section 105 of the said Act of 1882, which reads as under:-
"105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
22. The provision of Section 107 of the said of Act of 1882 prescribes the formalities that must be adopted in order to effect a valid lease under the said Act. The said provision of the said Act reads as under:-
"107. Lease how made.- 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.
Whether 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 State 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."
23. In the present case the defendant was put into possession of the suit land by virtue of the said instrument for a period of 15 years. The first paragraph of Section 107 of the said Act of 1882 mandates that a lease of immoveable property for a term exceeding one year can only be made by registered instrument. Therefore, the said instrument is not a valid deed of lease within the purview of the first paragraph of Section 107 of the Said Act of 1882.
24. The Second paragraph of the Section 107 of the said Act of 1882 envisages creation of leases of immovable property otherwise than registered instrument. A lease by the said part of the said provision of the said Act can even be made by oral agreement accompanied by delivery of possession. In the present case the defendant was put into possession of the suit land for a period of 15 years in terms of clause 2(i) of the said instrument. The said instrument, therefore, comes within the purview of the second paragraph of the Section 107 of the said Act of 1882 and the jural relationship between the parties is established on payment of rent by the defendant and acceptance thereof by the plaintiff in terms of clause 2(a) of the said invalid deed of lease.
25. The Three Judges Bench of the Hon'ble Apex Court in the case of ANTHONY, Appellant -Versus- K.C. ITTOOP & SONS AND OTHERS, Respondents reported in (2000) 6 Supreme Court Cases 394(Supra), relied on by the learned counsel for the appellant had the occasion to deal with the issue as to whether a lease could be made by an unregistered instrument. In the said decision the Hon'ble Apex Court held that such an unregistered instrument cannot create a lease on account of three-pronged statutory inhibititions. First interdict is contained in the first paragraph of Section 107 of the said Act of 1882 the second inhibititions from Section 17(1) of the Registration Act, 1908, which mandates compulsory registration of a deed of lease of immovable property. The third interdict is contained in Section 49 of the Registration Act, 1908, which speaks about fetal consequence of non- compliance of Section 17 thereof. The Hon'ble Apex Court in the said decision after consideration of the aforementioned provisions of the aforementioned Acts at paragraph no. 11 held that the Court is disabled from using the instrument as evidence and hence it goes out of the consideration. The said paragraph 11 of the said decision is reproduced below:-
"11. The resultant position is insurmountable that so far as the instrument of lease is concerned there is no scope for holding that the appellant is a lessee by virtue of the said instrument. The Court is disabled from using the instrument as evidence and hence it goes out of consideration in this case, hook, line sinker (vide Shantabai v. State of Bombay, Satish Chand Makhan v. Govardhan Das Byas and Bajaj Auto Ltd. v. Behari Lal Kohli.)"
The Hon'ble Apex Court at paragraph no. 12 of the said decision further held that 'above finding does not exhaust the scope of the issue whether the appellant is a lessee of the building'.
26. The Hon'ble Apex Court in the said decision ultimately held that an unregistered instrument came into existence would not stand in the way to determine whether there was in fact a lease otherwise than through such deed. The paragraph Nos. 13, 14 and 16 of the said decision being relevant to the present context are quoted below:-
"13. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was in fact a lease otherwise than through such deed.
14. When it is admitted by both sides that the appellant was inducted into the possession of the building by the owner thereof and that the appellant was paying monthly rent or had agreed to pay rent in respect of the building, the legal character of the appellant's possession has to be attributed to a jural relationship between the parties. Such a jural relationship, on the fact situation of this case, cannot be placed anything different from that of lessor and lessee falling within the purview of the second para of Section 107 of the TP Act extracted above. From the pleadings of the parties there is no possibility for holding that the nature of possession of the appellant in respect of the building is anything other than as a lessee.
16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non-registration of the document had caused only two0 consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creating of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted."
27. The defendant was put into possession in the suit land by virtue of the said invalid deed of lease and paid rent to the plaintiff in terms of clause 2(a) thereof. The jural relationship, therefore, created by virtue of the said void lease between the plaintiff and the defendant cannot be placed different from a lessor and a lessee.
28. Now the question cropped up whether the duration of the said lease can be fixed for 15 years by virtue of clause 2(i) of the said invalid lease. The provisions of Section 106 of the said Act of 1882 determines the duration of certain leases in the absence of written contract or local uses to the contrary.
Sub-Section 1 of Section 106 of the said Act of 1882 being relevant to the context is quoted below:-
"106. Duration of certain leases in absence of written contract or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2)............................................................ (3)............................................................... (4)..................................................................."
29. It is apparent from the Sub-Section 1 of Section 106 of the said Act of 1882 that in the absence of contract or local uses to the contrary a lease of immovable property for any purpose other than agricultural or manufacturing purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 15 days notice.
30. The instrument dated May 25, 1981 is not valid lease, therefore, the clause 2(i) of the said instrument cannot determine the duration of the lease since to come within the ambit of the connotation of Sub-section 1 of Section 106 of the said Act of 1882 "contract to the contrary" the document must be a valid contract. This has been held by the Hon'ble Apex Court in the decision of Ram Kumar Das, Appellant v. Jagdish Chandra Deo, Dhabal Deb and another, Respondents reported in AIR 1952 (Supreme Court) 23 (paragraph. 13 pages. 26-27).
31. The Hon'ble Apex Court in the case of SAMIR MUKHERJEE, Appellant versus. DAVINDER K. BAJAJ AND OTHERS, Respondents. reported in (2001) 5 Supreme Court Cases 259 relied on by the learned counsel for the respondent also held that to invoke rule of construction and the deeming provision of Section 106 of the said Act of 1882 a valid lease is prerequisite.
32. The Hon'ble Apex Court in (2016) 9 Supreme Court Cases 268(Supra) considered the aforemetioned decisions of the Hon'ble Apex Court reported in AIR 1952 (Supreme Court) 23(Supra), (2001) 5 Supreme Court Cases 259(Supra) and (2000) 6 Supreme Court Cases 394(Supra) and held that "contract to the contrary" in Section 106 of the said Act of 1882 does not include those contained in inadmissible unregistered lease deed. The paragraphs 18 and 20 of the said reported decision being relevant are quoted below:-
"18. At this stage, it will also be useful to examine Clause 6 of the agreement dated 7-8-2006, which reads as under:
"6. Default.- In the event of any default on the part of the tenants in making payment of the rent for 3 consecutive months or in the event of any breach of any of the terms and conditions herein contained and on the part of the tenants to be performed and observed and the landlord shall be entitled to serve a notice on call upon the tenants to make payment of the rent and to remedy for the breach of any of the remaining terms and conditions herein contained and if within a period of 30 days, the tenants shall fail to remedy the breach, the landlord shall be entitled to determine or terminate the tenancy.
Thus, in terms of Clause 6 of the agreement, the landlord was entitled to terminate the tenancy in case there was a breach of the terms of the agreement or in case of non-payment of rent for three consecutive months and the tenants failed to remedy the same within a period of thirty days of the receipt of the notice. The abovesaid clause of the agreement is clearly contrary to the provisions of Section 106 of the Act. While Section 106 of the Act does contain the phrase "in the absence of a contract to the contrary", it is well-settled position of law, as pointed out by the learned Senior Counsel appearing on behalf of the appellant that the same must be a valid contract.
20. Thus, the question of remanding the matter back to the trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 7-82006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in the absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of Clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase "contract to the contrary" in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned Senior Counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable."
33. The decision of the Hon'ble Apex Court reported in AIR 1980 (Supreme Court) 226(Supra) relied on by the learned counsel for the appellant is of no help to determine the issues of the present appeal. In the said case the tenant was inducted under a valid lease deed and during continuance of the said lease, Rent Control Act came into operation. The lease was renewed for a further period which was found to be void. The Hon'ble Apex Court under such facts and circumstances of the said case held that the tenant cannot be treated as licensee or trespasser. In the present case the facts and circumstances and the issues involved are completely different.
34. It is clear from the discussion made above that the duration of lease of 15 years fixed by clause 2(i) of the said deed of lease being a term of the invalid lease cannot be construed as "contract to the contrary" as contemplated under Sub-Section 1 of Section 106 of the said Act of 1882. The said lease, therefore, shall be deemed to be a lease from month to month, terminable, on the part of either plaintiff or the defendant, by 15 days notice by virtue of Section 106 of the said Act of 1882.
35. The admissibility of the said void lease is now required to be looked into. The said void lease in terms of Section 49 of the Registration Act, 1908 cannot affect the suit land and same cannot confer any power to adopt or be received as evidence of any transaction affecting the suit land or conferring such power. By virtue of the proviso appended to the said provision of the said Act. The said document can only be received as evidence of contract or as evidence of any collateral transaction. The said provision of the said Act is reproduced below for ready reference:-
"49. Effect or non-registration of documents 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 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 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 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
36. The Hon'ble Apex Court in the decisions reported in AIR 1961 Supreme Court 1655(Supra) and (2006)11Supreme Court Cases 331(Supra) relied on by the learned counsel for the respondent, has held that the admissibility of the documents already admitted in evidence and marked as exhibit, cannot be questioned at the subsequent stage of the proceeding on the ground that the document is unstamped. There is no dispute with regard to the said proposition of law inasmuch as the Section 36 of the Indian Stamp Act, 1899 provides that the document which has already been admitted, such admission cannot be questioned at any stage of the same suit or proceeding except as provided under Section 61 of the said Act. But In the present case the admissibility of the instrument dated May 25, 1981 has been questioned by the appellant on the ground that the said document being not registered is in inadmissible in terms of Section 49 of the Registration Act, 1908. Therefore, the said decisions of the Hon'ble Apex Court relied on by learned counsel for the respondent have no application in the facts and circumstances of the present case.
37. The learned counsel for the appellant has rightly submitted that the Section 36 of the Indian Stamp Act, 1899 cannot save the said document. The decision of the Hon'ble Apex Court reported in AIR 1984 Supreme Court 143(Supra) relied on by the learned counsel for the appellant is apposite in the facts and circumstances and the issues involved in the present appeal. The Hon'ble Apex Court in the said reported decision held that the unregistered lease deed is inadmissible in evidence under Section 49 of the Registration Act, 1908 but the said document can only be looked into for the collateral purpose of showing the nature and character of possession of the lessee. It has been further held that the terms of such lease are not a "collateral purpose" within the meaning of proviso appended to Section 49 of the said Act. The relevant portion of paragraph 6 of the said reported decision is reproduced below:-
"6. ......................The unregistered draft lease agreement Exhibit B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendants. The document Exhibit B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Exhibit B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act."
38. The Division Bench of this Court in the decision reported in AIR 1990 (Calcutta) 135(Supra) relied on by the learned counsel for the appellant, had the occasion to deal with the issue, "What should be the status and nature of possession of a person who enters into possession of the premises on the basis of a deed of lease which turns out to be void and inoperative for want of registration?"
The Division Bench relying on the AIR 1984 Supreme Court 143(Supra) at paragraph No. 14 held that the unregistered deed can at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provision which are collateral to the principal transaction. This should be true import of the Section 49 of the Indian Registration Act, 1908. Paragraph 14 of the said report is quoted below:-
"14. It is not disputed that the deeds of lease dated 1-2-55 are void and inoperative. That being the position it is impossible to look into the deeds for the purpose of ascertaining the intention of the lessor as to the duration of the lease. The decisions in the cases of Bastacolla Colliery Co. (AIR 1960 Pat 344) (FB) (Supra) and Biswabani P. Ltd. (Supra) respectively are authorities for such proposition. The following observations of Their. Lordships in Biswabani's case would be relevant, "Now, if the lease is void for want of registration neither party to the indenture can take advantage of any of the terms of the lease." It was further observed that at best the equitable doctrine of part performance contained in S. 53A of the T.P. Act can be relied upon to protect possession, but no other terms of such an indenture inadmissible for want of registration can be the basis for a relief. The same view has been expressed by the Supreme. Court in the case of Satish Chand Makhan v. Govardhan Das Vyas, reported in AIR 1984 SC 143 in the following terms, "The unregistered deed of lease cannot also be taken into consideration on the ground that such deed can be admitted for collateral purpose, invoking proviso to S.49 of the Registration Act, as terms of lease are not for collateral purpose within its meaning". We may also refer to an earlier decision of this Court in the case of Indramoni Dasi v. Snehalata Dutta, reported in (1922)59 Cal WN 1150, wherein it was held that an unregistered lease being inoperative, the express contractual lease did not take effect in law. It therefore follows from the observations quoted above that the plaintiff-respondents cannot ask for ejectment of the defendant-appellant solely on the basis of the duration clause in the unregistered deed. The unregistered deed can at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. This should be the true import of the proviso to Section 49, Indian Registration Act, 1908. It could never have been the intention of the Legislature that under the first part of the section we should be discard an unregistered document for want of registration and at the same time under the camouflage of the proviso we should be permitted to look into and rely upon all the terms of the inoperative document which do form the integral parts of the principal transaction."
39. The duration of the lease of 15 years fixed by Clause 2(i) of the said void lease cannot, therefore, be a collateral purpose within the meaning of proviso appended to Section 49 of the Indian Registration Act, 1908.
40. We are unable to accept the submission for the learned counsel for the respondent that the appellant is entitled to protect it's possession over the suit land only for a period of 15 years in terms of clause 2(i) of the said deed of lease by virtue of Section 53A of the said Act of 1882 and on expiry of the said period, the said lease is determined by efflux of time as contemplated under Section 111(a) of the said Act of 1882 and is bound to put the lessor into the possession of the suit land in terms of Section 108(q) of the said Act of 1882, for the following reasons:-
(i) The doctrine of part performance under Section 53A of the said Act of 1882 is only available as defence to a lessee and not as conferring a right on the basis of which lessee can claim rights against the lessor as has been held by the Hon'ble Apex Court reported in AIR 1968 Supreme Court 794(Supra) relied on by the learned counsel for the appellant.
Moreover, in the instant case the defendant, the appellant herein is not seeking protection under Section 53A of the said Act of 1882.
(ii) The lease of immovable property is determinable by efflux of time under Section 111(a) of the said Act of 1882 only when the duration of lease is fixed by a valid deed of lease and Section 108(q) of the said Act of 1882 makes lessee of a valid lease liable to put the lessor into possession of the property on determination of the lease. In the present case the deed of lease is invalid. Therefore, both the aforementioned provision of the said Act of 1882 are inapplicable in the present case.
(iii) The duration of15 years of the said lease cannot be fixed by clause 2(i) of the said void lease as the said term is not a collateral purpose under the proviso appended to the Section 49 of the Registration Act, 1908.
(iv) The deed of lease dated May 25, 1981 being invalid the duration of the said lease cannot be fixed by clause 2(i) of the said void lease as the said clause is not a "contract to the contrary" with the meaning of Sub-section 1 of Section 106 of the said Act of 1882.
41. The decisions of the Hon'ble Apex Court reported in (1977) 4 Supreme Court Cases 324(Supra), (2001) 5 Supreme Court Cases 259(Supra) and the Division Bench of this Court reported in 1984 (2) Calcutta Law Journal 1 (Supra) relied on by the learned counsel for the respondent are not relevant to the issues involved in the present appeal inasmuch as in those cases the lessor determined the lease by asking the lessee to quit and vacate the suit premises. In the present case admittedly there is no such determination of lease. The decisions of the Hon'ble Apex Court reported in AIR 1964(Supreme Court) 461(Supra) and (1997) 11 Supreme Court Cases 358(Supra) relied on by the learned counsel for the respondent are not relevant to the issues of which we are concerned in the present appeal inasmuch as in those cases the duration of the leases were such which did not attract the provision of Section 107 of the said Act of 1882. AIR 1950 (Calcutta) 23(Supra) relied on by the learned counsel for the respondent is also not applicable in the facts and circumstances of the present case.
42. Summing up the discussion made above it is held that the deed of lease dated May 25, 1981 although void for want of registration but the lessor and lessee relationship between the plaintiff and defendant is established by virtue of the said instrument. The duration of the lease fixed by the term of the said void lease is neither a collateral purpose within the meaning of the proviso appended to Section 49 of the Registration Act, 1908 nor is a "contract to the contrary" within the meaning of Sub-section 1 of Section 106 of the said Act of 1882. The said lease by virtue of Section 106 of the said Act of 1882 shall be deemed to be a lease from month to month, terminable, on the part of either plaintiff or the defendant, by 15 days notice. In the present case admittedly no notice determining the lessor and lessee relationship between the parties has been given by the plaintiff prior to filing of the suit as such the suit is not maintainable for want of such notice.
In view of aforesaid F.A. 135 of 2006 is allowed and the connected application being CAN No. 1278 of 2017 filed by the respondent is dismissed. The judgment and decree under appeal are set aside, Title Suit No. 65 of 2005 is dismissed. However, there will be no order as to costs.
I agree.
(Patherya,J.) (Biswajit Basu,J.)