Allahabad High Court
Kshetriya Sri Gandhi Ashram And Another vs Ajay Kumar And Others on 27 September, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 05 Case :- CIVIL REVISION No. - 561 of 2014 Revisionist :- Kshetriya Sri Gandhi Ashram And Another Opposite Party :- Ajay Kumar And Others Counsel for Revisionist :- Tarun Verma,M.K.Gupta,Pankaj Agrawal Counsel for Opposite Party :- Ajay Kumar Singh,A. Chaturvedi,Ashish Kumar Singh,Madhur Prakash,Sah O.P. Agarwal WITH Case :- CIVIL REVISION No. - 141 of 2007 Revisionist :- Ajay Kumar And Others Opposite Party :- Kshetriya Sri Gandhi Ashramand Another Counsel for Revisionist :- Sah. O.P.Agarwal,A. Chaturvedi,Ajay Kumar Singh,Ashish Kumar Singh,Madhur Prakash Counsel for Opposite Party :- M.K.Gupta,Pankaj Agarwal Hon'ble Surya Prakash Kesarwani,J.
" If on expiry of lease period of a registered lease deed, a request for further lease for nine years on fresh terms and conditions is made by the tenant without registration of lease under Section 17 read with Section 49 of the Registration Act, 1908, then what shall be the status of the tenant, the tenancy and his eviction? Is the main controversy involved in the present revision."
1. Heard Sri Pankaj Agarwal, learned counsel for the defendants/revisionists and Sri Madhur Prakash, learned counsel for the plaintiffs/ opposite parties in Civil Revision No.561 of 2014, and, Sri Madhur Prakash, learned counsel for the plaintiffs-revisionists and Sri Pankaj Agarwal, learned counsel for the defendants/ respondents in Civil Revision No.141 of 2007.
2. Both the aforesaid civil revisions have been filed under Section 25 of Provincial of Small Causes Courts Act, 1887 (hereinafter referred to as 'the Act 1887') and arise from the impugned judgment dated 31.01.2007 in S.C.C. Suit No.04 of 2006 (Ajay Kumar and others. vs. Kshetriya Sri Gandhi Ashram and another). Therefore, with the consent of the learned counsels for the parties, both the revisions are being heard together.
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3. On removal of defect in Civil Revision Defective No.4 of 2007, it has been numbered as Civil Revision No.561 of 2014 which has been filed by the defendantstenants/ revisionists challenging the impugned judgment, whereby the S.C.C. Suit No.04 of 2006 was decreed and and the defendants-tenants/revisionists were directed to be evicted and were held liable to pay balance amount of rent from 01.01.2006 to 16.01.2006 and, thereafter, damages @ Rs.18,515/- per month from 17.01.2006 till actually vacating the disputed accommodation.
4. Civil Revision No.141 of 2007 has been filed by the plaintiffs-landlords/revisionists challenging the impugned judgment, whereby damages have been awarded to the tune of monthly rent of Rs.18,515/- as against the damages claimed @ 32 per square feet, i.e. Rs.64,000/- per month. Facts of the Case:-
5. Briefly stated facts of the present case are that plaintiff Nos. 2 and 3, namely Aditya Kumar and Anupam Kumar are the sons of plaintiff No.1 Ajay Kumar. They are co-owners and landlords of House No.C-21/4A-1, Maldahiya Varanasi. A registered lease deed dated 13.02.1981 of the disputed shop, was executed by the plaintiff No.1 Ajay Kumar for himself and on behalf of his two sons (other co-owners, namely Aditya Kumar and Anupan Kumar, who were minor at that point of time) in favour of the defendants/revisionists, namely Kshetriya Sri Gandhi Ashram (a Society registered under the Societies Registration Act having its office at Shalimar, Ghazipur, through its Secretary), whereby an area of 2000 square feet being part of aforesaid house No.C-21/4A-1, Maldahiya 3 Varanasi, was let out by the plaintiff/respondents to the defendants/revisionists for a period of nine years at the monthly rent of Rs.4,000/- for the first three years, Rs.4,600/- for the second term of three years and Rs.5,290/- for the third term of three years. The term of the aforesaid registered lease deed expired on 12.02.1990.
6. Thereafter, on 06.03.1990 the defendants/revisionists sent a letter to the plaintiffs/respondents requesting for tenancy for further nine years on certain terms and conditions. On this letter, plaintiff No.1 for himself and on behalf of two minor sons (plaintiff Nos.2 and 3) gave their acceptance on 03.02.1990. Accordingly, the defendants/revisionists continued as a tenant of the disputed shop for a further period of 9 years ending in February, 1999.
7. The defendants/revisionists again wrote a letter dated 23.02.1999 to the plaintiff No.1 Sri Ajay Kumar requesting him to extend the tenancy of the disputed shop for a period of nine years on certain terms and conditions. This letter/ offer was accepted only by the plaintiff No.1. As per this letter dated 23.02.1999, the defendants/revisionists offered to pay for first three years monthly rent @ Rs.4,000/-, monthly maintenance Rs.6,000/- and monthly security Rs.4,000/-. In the next three years, the rent was offered Rs.4,600/- per month, maintenance expenses Rs.6,900/- per month and security expenses Rs.4,600/- per month. For the last three years, the rent was offered to be Rs.5,300/- per month, maintenance expenses Rs.7,915/- per month and security expenses Rs.5,300/- per month, total Rs.18,515/- per month.
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8. By a notice dated 12.12.2005 sent by registered post, the plaintiffs gave 30 days' notice determining the tenancy and clearly indicated that they do not want to keep the defendants/revisionists as tenant of the disputed shop. It was further stated that if the disputed shop is not vacated and its vacant possession is not handed over, then after expiry of 30 days the defendants/revisionists shall be liable to pay damages @ Rs.32/- per square feet, i.e. Rs.64,000/- per month.
9. Since the aforesaid notice was not complied with by the tenants-defendants/ revisionists, therefore, the plaintiffs-respondents filed S.C.C. Suit No.4 of 2006 (Ajay Kumar and two others vs. Kshetriya Sri Gandhi Ashram and another) praying for a decree of eviction against the defendants and decree for arrears of rent and damages. The pleadings were exchanged and the evidences were led by the parties. Thereafter, the aforesaid S.C.C. suit was decreed by the impugned judgment dated 31.01.2007. Eleven issues were framed in the said suit. Crucial issues were with regard to period of tenancy on the basis of letter/ lease dated 23.02.1999 and default in payment of rent which all were decided in favour of the plaintiffs and against the defendants. Aggrieved with the aforesaid impugned judgment, the tenants-defendants/ revisionists have filed Civil Revision No.561 of 2014 for setting aside the judgment and the plaintiffs have filed Civil Revision No.141 of 2007 on the quantum of damages.
10. With the consent of learned counsels for the parties, the following questions are framed for determination in these 5 two revisions:
Questions:
(a) Whether a lease for nine years by letter dated 23.02.1999 is a valid lease?
(b) Whether under the facts and circumstances of the case, the letter/ lease dated 23.02.1999 (paper No.39ka/ 45ka) is a document inadmissible in evidence under Section 17 of the Indian Stamp Act, 1899 and, therefore, it was rightly held by the court below to be not admissible in evidence?
(c) Whether under the facts and circumstances of the case, even if the lease deed dated 23.02.1999 is found to be not valid in law, yet the tenancy of the defendants-revisionists would be governed by the provisions of Section 116 of the Transfer of Property Act, 1882 and in that event all the terms and conditions of the original lease deed dated 13.02.1981, would apply to the parties and in that situation, the tenancy could be determined only on breach of the conditions of the registered lease deed dated 13.02.1981 by the defendants-tenants?
(d) Whether under the facts and circumstances of the case, the plaintiffs were entitled for damages @ Rs.32/- per square feet per month for an area of 2000 square feet, i.e. Rs.64,000/- per month or any other amount higher than the rent of Rs.18,515/-? Submissions on behalf of the tenants-defendants/ revisonists:-
11. Sri Pankaj Agarwal, learned counsel for the defendantstenants/ revisionists submits, as under:-
(i) After filing the original lease letter dated 23.02.1999 being paper No.45ka, the plaintiffs are stopped to deny its execution even though this letter bears only the signature of plaintiff No.1 - Sri Ajay Kumar who has always been 6 representing his sons, namely the plaintiff Nos.2 and 3 and all the plaintiffs have been regularly accepting the rent and other amounts at the revised rates. The lease/ letter dated 23.02.1999 was not the result of any fraud by the tenantsdefendants/ revisionists rather it was executed/ accepted by the plaintiffs by their own free-will. Therefore, the plaintiffs are stopped from raising any objection against the lease/ letter dated 23.02.1999.
(ii) In view of own admission of the plaintiffs regarding execution of the renewed lease deed/ letter dated 23.02.1999 and filing it as paper No.45ka, the nonregistration of the aforesaid renewed lease deed/ letter dated 23.02.1999 looses its importance. Therefore, the paper No.45ga was a document admissible in evidence but the court below committed a manifest error of law to hold otherwise. Reliance is placed upon the judgment of Hon'ble Supreme Court in S. Kaladev vs. U.R. Somasundaram and others, (2010) 5 SCC 401 (Paras-16 and 17), Thulasidhara and another vs. Narayanappa and others, (2019) 6 SCC 409 (Paras 9.3 to 9.4), in which it has been held that in cases, where execution of a deed is established by admission then non-registration is of no consequence. Reliance is also placed upon a judgment of this court in Shiv Ram and others vs. Lakshman and others, 2013 (6) ADJ 348 (Para-21) holding that even an inadmissible document could be looked into for collateral purposes. Alternative argument of the tenants-defendants/ revisionists
(iii) Even after the term of original lease deed dated 13.02.1981 expired on 12.02.1990, the tenant continued in 7 possession and the plaintiffs-landlords have always been regularly accepting the enhanced rent and other amounts. Therefore, the status of the tenants-defendants/ revisionists would be "tenant holding over" under Section 116 of the Transfer of Property Act, 1882 and not an unauthorised occupant. The tenants-defendants/ revisionists continued in possession of the disputed accommodation with the assent of the plaintiffs-landlords. Therefore, the tenancy could be determined only as per provisions of Section 106 of the Transfer of Property Act, 1882 and not otherwise. Since there is a contract between the parties as evident from the lease deed dated 13.02.1981, therefore, unless any of its conditions are violated, the tenancy could not be determined by the plaintiffs-landlords.
On Revision No.141 of 2007
(iv) Damages for the period covered by lease/ letter dated 23.02.1999, cannot be granted as the occupation of the disputed accommodation by the tenants-defendants/ revisionists was not unauthorised occupation. For the period subsequent to the expiry of the period of Lease/ letter dated 23.02.1999, damages can be determined at an appropriate rate in a separate suit and not in the suit in question. Therefore, the defendants are not liable to pay damages @ Rs.32 per square feet, which has no basis and in any case, it is highly excessive.
12. Learned counsel for the plaintiffslandlords/ respondents submits as under:
i. The lease has expired on 03.02.1999. Mere acceptance of rent, thereafter, would not mean that a valid lease deed came into existence. The terms of the lease deed, which 8 expired on 12.02.1990, came to an end by expiry of the period of tenancy under the said lease deed. ii. Even if the submission of the learned counsel for the tenants/petitioners with reference to the provisions of Section 116 and Section 106 of the Act 1882 is considered, it would only mean that after expiry of the lease deed on 12.02.1990, the tenancy was on month to month basis and the tenancy could be determined by notice under Section
106.
iii. By notice dated 12.12.2005 the plaintiffs/landlords determined the tenancy of the defendants-revisionists. After expiry of the period given in the notice the tenantsrevisionists became an illegal occupant. Since the disputed shop was not vacated by the defendants-tenants/ revisionists, therefore, the plaintiffs filed S.C.C. Suit No. 04/2006 which has been lawfully decreed by impugned judgment dated 31.01.2007.
iv. The findings recorded in the impugned judgment dated 31.01.2007 are findings of fact based on consideration of relevant evidences on record which cannot be interfered in revisional jurisdiction. The findings recorded in the impugned judgment do not suffer from any perversity.
13. In support of his submissions, learned counsel for the plaintiff-landlord/respondent relied upon judgment of this Court dated 07.12.2018 in Civil Revision No. 126 of 2010 ( Rahul Dixit & another v. Shri Chandra Kumar Agarwal) reported in 2019 (1) A.R.C. 160 (paragraph nos. 13 to 17), Rajesh Kumar Gupta v Shri Satish Chandra Khera, 2009, A.C.J. 1185 (paragraph no. 7), Punjab National Bank v. Smt. Geeta Devi in 9 Civil Revision No. 130 of 2012 decided on 30.03.2012, Central Bank of India v. Mahohar Lal & Ors. 1997 All C.J. 1257 (paragraph nos. 13, 14, and 17) and a judgment of Hon'ble Supreme Court in Criminal Appeal No. 1371 of 2019 (Bajrang Shyamsunder Agarwal v. Central Bank of India & Anr.), judgment dated 11.09.2019 (paragraph nos. 21 and 34). Discussion and findings
14. I have carefully considered the submissions of the learned counsel for the parties.
15. Before I proceed to examine the questions framed above, it would be appropriate to reproduce the relevant provisions of Section 17 and Section 49 of the Registration Act, 1908 (hereinafter referred to as the Act, 1908) (as amended by U.P. Act 57 of 1976) and Section 106 and 116 of the Transfer of Property Act 1882 (hereinafter referred to as the Act 1882), as under :-
Registration Act 1908 Sec.17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:-
(a) ..............
(b) .............
(c) ............
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) PROVIDED that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.
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Sec. 49. Effect of non-registration of documents required to be registered (As made applicable in Uttar Pradesh, by U.P. Act 57 of 1976) No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], or of any law for the time being in force to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power or create any right or relationship, or
(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, 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 (4 of 1982), to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument. Transfer of Property Act,1882 Sec. 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 immovable 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 immovable 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) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.] Sec. 116. Effect of holding over.--If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in 11 the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106. Illustrations
(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month to month.
(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A's assent. B's lease is renewed from year to year.
COMMENTS Holding Over: The holding over, if inferred by the conduct of parties, will bring out a new tenancy even though many of the terms thereof the expired lease deed exist. Therefore, to constitute a valid assent under section 116 of the Act, bilateral contract must exist between the lessor and the lessee: R.S. Iron Industries Pvt. Ltd. v. Calcutta Pinkjarapole Society, AIR 2013 Cal 94.
Tenant at sufferance: A person who is a tenant at sufferance has no estate or interest in the leasehold property. A tenant holding after the expiry of his term is a tenant at sufferance, which is a term useful to distinguish a possession rightful in its inception but wrongful in its continuance from a trespass which is wrongful both in its inception and in its continuance. A co-owner can maintain a suit by himself in ejectment of a trespasser or a tenant at sufferance; B. Valsala v. Sundram Nadar Bhaskaran, AIR 1994 Ker 164.
Questions (a) and (b)
16. Questions (a) and (b) are interlinked and therefore, both are being considered together.
Principles of admissibility of an unregistered document and consequence of non registration:
17. In K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 (para 34) the Hon'ble Supreme Court considered its various judgments as well as judgments of various High Courts and laid down the law as under:
I. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. II. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
12 III. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. IV. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. V. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
18. The principles laid down in the case of K.B. Saha & Sons (P.) Ltd. (supra) as reproduced above, have been reiterated by Hon'ble Supreme Court in S.Kaladevi vs V.R.Somasundaram & Ors. (2010) 5 SCC 401 (para 13).
19. Thus, in view of the provisions of Sections 17 and 49 of the Act, 1908 and the law laid down by the Hon'ble Supreme Court in K.B. Saha & Sons (P.) Ltd. (supra) and S.Kaladevi (supra) it can be safely concluded that if a document compulsorily required to be registered under Section 17 of the Act, 1908, is not registered, then it is not admissible into evidence under Section 49 of the Act, 1908. However, such unregistered document can be used as an evidence of collateral purpose in terms of the proviso to Section 49. A collateral transaction must be independent, or divisible from, the transaction to effect which the law required registration. A collateral transaction must be a transaction not itself required to be effected by a registered document, i.e., the transaction creating etc. any right, title or interest in immovable property of the value of 100/- Rupees and upwards. If a document compulsorily required to be registered under Section 17 of the Act, is not registered, then it is not admissible into evidence, for want of registration, and none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it 13 as a collateral purpose. As per exceptions provided in the proviso to Section 49 of the Act 1908, an unregistered document affecting immovable property and required under the Act 1908 or the Act 1882 to be registered, may be received as evidence of any collateral transaction not required to be affected by a registered instrument.
20. Exceptions of non admissibility of an unregistered document can be summarised as under:
I. Those as provided in the proviso to Section 49 of the Act, 1908.
II. Certain family arrangements with regard to properties and family settlement resulting in complete estoppal. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in Kale & Others v. Deputy Director Of Consolidation(1976) 3 SCC 119, S. Shanmugam Pillai And Ors v. K. Shanmugam Pillai And Ors (1973) 2 SCC 312 and Thulasidhara v. Narayanappa, (2019) 6 SCC 409 (paras 9.3 and 9.4).
III. An unregistered sale deed can be received in evidence in suit for specific performance as proof of oral agreement to sale, vide para 34 of the judgment in case of K.B. Saha & Sons (P.) Ltd. (supra) and para nos. 12 to 15 of the judgment in S.Kaladevi (supra).
IV. A lease deed of an immovable property for any term exceeding one year can be made only by an registered instrument in view of the provisions of Section 105 readwith Section 107 of the Act, 1882, 14 subject to the proviso to Section 107 but claim arising from an unregistered lease deed of a period exceeding one year can be granted on the basis of other uncontroverted evidence available on record supporting the claim of rent and determination of the question whether there was in fact lease other wise than through such lease deed. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in Ahmedsaheb v. Sayed Ismail (2012) 8 SCC 516 (paras 5 to 19).
V. If under the evidence Act a document is receivable in evidence for a collateral purpose, then Section 49 of the Act 1908, shall not bar it, vide Mattapalli Chelamayya And Anr. v. Mattapalli Venkataratnam, 1972 3 SCC 799 (para 10).
Admissibility of an unregistered lease deed/ rent deed for a period of one year or more and claim of right there under by the tenant.
21. Section 105 of Act 1882 defines the word "lease". It provides that 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. Section 107 provides that a lease of immovable property, from year to year, or for any term exceeding one year, or reserving yearly rent can be made only by a registered instrument.
22. Section 49 of the Act 1908 provides for the consequence of non registration of documents required to be registered under 15 Section 17. It provides ( as amended by U.P. Act 57 of 1976) that no document required by Section 17 or by any provision of the Transfer of Property Act 1882 to be registered shall, affect any immovable property comprised therein, or confer any power or create any right or relationship, or 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 under the Act 1908 or the Act 1882 to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument. Thus, as an exception an unregistered document affecting immovable property as aforesaid may only be received as evidence of any collateral transaction not required to be effected by registered instrument.
23. Therefore, the alleged letter dated 23.02.1999 allegedly creating a lease of the disputed shop for nine years is not admissible into evidence under Section 49 of the Act, 1908. None of its terms can be admitted in evidence. Therefore, all its terms i.e. the terms of the letter/ lease dated 23.02.1999 were inadmissible. There can be no estoppal against the statute. An unregistered lease deed can be relied upon for limited purpose for showing that the possession of the lessee is lawful possession or for some collateral transaction.
24. The conclusions as reached in just preceding paragraphs are also fortified by the law laid down by Hon'ble Supreme Court in Bajaj Auto Limited vs Behari Lal Kohli, 1989 4 SCC 39 ( paras 7 and 8), Rai Chand Jain vs Miss Chandra Kanta Khosla (1991) 1 SCC 422 (para 10),K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 (paras 29 to 34), M/S Sms Tea Estates P.Ltd vs M/S Chandmari 16 Tea Co.P.Ltd , 2011 14 SCC 66 (paras 11, 22 and 23).
25. In Samir Mukherjee vs Davinder K. Bajaj & Ors, (2001) 5 SCC 259 (para 6 and 7) Hon'ble Supreme Court held as under:
"6. Section 106 prescribes the procedure for execution of a lease between the parties. Under the first paragraph of this section a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by registered instrument and remaining classes of leases are governed by the second paragraph that is to say all other leases of immovable property can be made either by registered instrument or by oral agreement accompanied by delivery of possession."
7. In the case in hand we are concerned with an oral lease which is hit by the first paragraph of Section 107 of the Transfer of Property Act. Under Section 107 parties have an option to enter into a lease in respect of an immovable property either for a term less than a year or from year to year, for any term exceeding one year or reserving a yearly rent. If they decide upon having a lease in respect of any immovable property from year to year or for any term exceeding one year, or reserving yearly rent, such a lease has to be only by a registered instrument. In absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yearly rent can be created. If the lease is not a valid lease within the meaning of the opening words of Section 106 the rule of construction embodied therein would not be attracted. The above is the legal position on a harmonious reading of both the sections."
26. In M/S Park Street Properties (Pvt) Ltd. vs Dipak Kumar Singh And Anr , 2016 9 SCC 268 Hon'ble Supreme Court held that in absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act. Since the alleged unregistered letter dated 23.02.1999 providing for lease of the disputed shop for a period of 9 years is an unregistered document, therefore, the tenancy can be deemed to be a month to month tenancy and the termination of tenancy is governed by Section 106 of the Act, 17 1882. Paragraph 17 and 19 of the judgment of Hon'ble Supreme Court in the case of M/S Park Street (supra) are reproduced below:
"17. A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the respondents is that the impugned judgment and order is valid in light of the second part of Section 107of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrument.
19. It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop & sons (4), held as under:
"A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section which reads thus......... 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.
.................. 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 18 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 two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted." (emphasis laid by this Court) Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act."
(emphasis supplied by me)
27. For all the reasons, aforestated I hold that the alleged lease of the disputed shop by letter dated 23.02.1999 for a period of 9 years is not admissible in evidence in view of the provisions of Section 107 of the Act 1882 and Sections 17 and 49 of the Act, 1908. Therefore, the Court below has not committed any error of law to hold that the aforesaid alleged lease deed/ letter dated 23.02.1999 is not admissible in evidence. Question nos. a and b are answered accordingly. Question no. c.
28. The contractual tenancy created by the plaintiffs-landlords in favour of the tenant-defendant/ revisionist by a registered lease deed dated 13.02.1981 came to end on expiry of its period of 9 years i.e. on 12.02.1990. Further, continuance of the defendanttenant/ revisionist under letter dated 06.03.1990 and thereafter, by letter dated 23.02.1999 accepted only by the plaintiff no. 1, resulted in month to month tenancy. In absence of any valid registered lease deed it become a month to month tenancy under Section 106 of the Act 1882. Similar view has been taken by Hon'ble Supreme Court in the case of M/S Park Street (supra) wherein, Hon'ble Supreme Court clearly held ( para 19) that in absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is 19 governed by section 106 of the Act, 1882. In view of the settled law as discussed above, the condition of the registered lease deed dated 13.02.1981 shall also not be admissible in evidence and none of its terms and conditions can be pressed or any right there under can be claimed by the defendant-tenant/revisionist since the said registered lease deed expired by efflux of time on 12.02.1990.
Effect of holding over
29. Section 116 of the Act 1882 provides that if a lessee or under lessee of an immovable property remains in possession thereof after the determination of the lease granted to lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or other wise assents for continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified under Section 106 of the Act 1882. Thus, applying Section 116 of the Act, 1882 on the fats of the present case, the best case of the defendant-tenant/ revisionist may be that he is a tenant from month to month. Undisputedly, the letter dated 23.02.1999 issued by the defendant-tenant/ revisionist and accepted by the plaintiff no. 1 for lease of the disputed shop for 9 years, is an unregistered document. Therefore, in absence of registration, the tenancy shall be deemed to be a month to month tenancy and its termination is governed by Section 106 of the Act 1882 as also held by Hon'ble Supreme Court in the case of M/s Park Street (supra). If a tenant remains in possession after determination of the lease, he is called a tenant on sufferance. If a tenant continues in possession after determination of the term with the consent of the landlord then he is a tenant at will or a 20 tenant holding over. Since, the disputed accommodation is a shop, therefore, in terms of section 106 readwith section 116 of the Act 1882, the tenancy in question would be a month to month tenancy which has been lawfully determined by the plaintiffslandlords by notice dated 12.12.2005.
30. In Bhawanji Lakhamhi & Ors vs Himatlal Jamnadas Dani & Ors. 1972 1 SCC 388 (para 13), Hon'ble Supreme Court has held as under:
" Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Section 116. We are not inclined to accept this contention. We have already shown that the basis of the, section is a bilateral contract between the erstwhile landlord and the erstwhile tenant If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in Ganga Dutt Murarka v. Kartik Chandra Das regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy. Besides, as we have already indicated, the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in Ganga Dutt 21 Murarka v. Kartik Chandra Das, Which followed the principles laid down by the Federal Court in Kai Khushrao Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another(1) is correct and does not require reconsideration."
31. In Burmah Shell Oil Distributing vs Khaja Midhat Noor And Others (1988) 3 SCC 44 (para 5 and 6) Hon'ble Supreme Court held that after expiry of the lease period under the registered lease deed, the tenancy automatically stood determined. When thereafter, lessee is allowed to continue to be in possession of the property without executing any fresh registered lease deed, the lessee must be treated as holding over month to month.
32. In Anthony v. K.C.Itloop and sons and Ors. 2000 6 SCC 394 (para 8 to 16) Hon'ble Supreme Court considered a case where a lease of a building for a period of 5 years was granted by an unregistered instrument and held that such an instrument can not create the lease on account of three-pronged statutory inhibitions i.e. section 107 of the Act 1882, section 17 (1) and section 49 of the Act 1908. However, Supreme Court held that 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 other wise than through such deed. It further held on facts of that case that the tenant was inducted into the possession of the building by owner thereof and the tenant was paying monthly rent or had agreed to pay rent in respect of the building, therefore, the legal character of the tenants possession has to be attributed to a jural relationship between the parties and such a jural relationship, on the fact and situation of the case can not be placed anything different from that of lessor and lessee falling within purview of section 107 of the Act 1882. Thus, 22 applying the principles laid down in case of Anthony (supra), the presumption would be that a lease not exceeding one year stood created by conduct of the parties. Therefore, the plaintiffslandlords lawfully determined the lease by notice dated 12.12.2005. Since the disputed shop was not vacated by the defendant-tenant/ revisionist despite notice dated 12.12.2005, therefore, the plaintiffs-landlords filed SCC Suit No. 4 of 2006 which has been lawfully decreed by the impugned judgment dated 31.01.2007. The question no. (c) is answered accordingly. Question no. (d)
33. The contention of the plaintiffs-landlords that for his entitlement to damages @ Rs. 32/- per square feet per month for an area of 2000 square feet i.e. Rs. 64,000/- per month or any other amount higher than Rs. 18,515/- per month, is not supported by any evidence. The plaintiffs-landlords failed to lead any evidence to justify his demand of damages at the rate of Rs. 32/- per square feet per month. Therefore, the Court below has not committed any error of law in not accepting the claim for damages @ Rs. 32 per square feet per month. Thus, I do not find any manifest error of law in the impugned judgment with regard to quantum of damages.
34. For all reasons aforestated, I do not find any merit in both the Civil Revisions. Therefore, the Civil Revision No. 561 of 2014 filed by the tenant and Civil Revision No. 141 of 2007 filed by the landlords, are dismissed. However, there shall be no order as to costs.
Order Date :- 27.09.2019 Deepak/