JUDGMENT
Mohan Shantanagoudar, J.
1. Assailing the correctness of the judgment and decree dated 16-7-2001 passed by the II Additional District and Sessions Judge, Bangalore Rural District, Bangalore in R.A. No. 7 of 1995 by which the judgment and decree of dismissal of suit dated 14-12-1994 passed by the Principal Civil Judge, Bangalore Rural District, Bangalore in O.S. No. 12 of 1992 is reversed, the defendant has preferred this second appeal.
2. Heard the learned Advocates appearing on behalf of both sides and perused the material on record. For the sake of convenience, the parties are referred to as per their ranks before the Trial Court.
3. Brief facts of the case are:
The plaintiffs-respondents herein filed suit for ejectment against the defendant-appellant herein in respect of A Schedule property and also for mandatory injunction against the defendant to remove the unauthorised construction put up on B Schedule property and for delivery of vacant possession of the suit schedule property.
It is the case of the plaintiffs that they executed an unregistered lease deed in favour of defendant on 1-8-1986 leasing the suit property measuring 150′ x 150′ in Sy. Nos. 38/2 and 46/2 of Chikkabidarakallu Village of Dasanapura Hobli, Nelamangala Taluk, Bangalore Rural District for a period of 30 years to enable the defendant to put up a Petrol Bunk on a monthly rent of Rs. 1.750/- by taking security deposit of Rs. 25.000/- from the defendant; that in pursuance to said lease, the defendant was put in possession of the suit schedule land who in turn put up a Petrol Bunk thereon and is running the said petrol bunk and is paying the rents every month as on today; that one of the condition of the said lease deed is that the lessee shall leave 20′ width space as passage for the usage of the plaintiffs on the eastern side to go to their land which is situated behind the demised property; that since the defendant did not leave any space as agreed on the eastern side, there is a violation of the terms and condition of the lease; that the defendant has trespassed into the land of the plaintiff to the extent of 6M> x 150 East-West and 7 1/2 x 150 foot towards North-South in B Schedule land; that as the defendant has committed breach of terms of lease deed, a statutory notice under Section 106 of the Transfer of Property Act, 1882 was issued by the plaintiffs to the defendant to quit the property and thereafter, the present suit came to be filed for getting back the possession of the demised suit premises.
4. The defendant resisted the suit by contending that there is no breach of terms of lease and there is no illegal construction or encroachment on Schedule 13′ property as alleged by the plaintiffs; that though there is an agreement between the parties to leave 20′ width space on the eastern side so as to enable the plaintiffs to approach their remaining land which is situated behind the suit schedule property, the defendant has left about 20′ width space on the western side in pursuance to the subsequent oral request of the plaintiffs inasmuch as, leaving the said space on the western side instead of eastern side would be convenient to them; that as there is no breach of any of the conditions contained in the lease deed, there cannot be termination of the lease within the period of thirty (30) years. Thus, the defendant prayed for dismissal of the suit.
5. In support of the case of the plaintiffs, one witness was examined and five documents were got marked at Exs. P. 1 to P. 5. On behalf of defendant, one witness was examined and two documents were got marked at Exs. D. 1 and D. 2. The Trial Court after appreciating the oral and documentary evidence adduced by the parties, dismissed the suit by its judgment and decree dated 14-12-1994 in O.S. No. 12 of 1992. However, on appeal by the plaintiffs, the judgment and decree of the Trial Court was reversed by the First Appellate Court by its judgment dated 16-7-2001 and consequently, suit came to be decreed. It is held by the First Appellate Court that the lease is a monthly lease and that lease is validly terminated by issuing 15 days notice under Section 106 of the Transfer of Property Act. It is also held that lease is to be treated as lease for a period less than one year and that the condition in the lease deed that it is for thirty years will not be of any help to the defendant in view of non-registration of lease deed. Hence, this second appeal by the defendant.
6. Before adverting to the merits of the appeal, it is relevant to note here itself that, on the earlier occasion as against the judgment and decree of the First Appellate Court dated 6-12-1997, the defendant-appellant herein preferred appeal in R.S.A. No. 343 of 1998 before this Court. As the lease deed in question which is necessary and relevant to decide the question involved in the matter was not produced and marked before the Trial Court, this Court remanded the matter back to the First Appellate Court by the judgment dated 13-7-1999 with a specific direction to consider the amendment application filed by the defendant to amend the written statement and to allow the parties to adduce the additional evidence if any, on their behalf and thereafter decide about the admissibility of the lease deed in question. But, the First Appellate Court, after remand, did not allow the request of the defendant for production of xerox copy (photocopy) of the lease deed, since the original was not produced. Thus, the said lease deed was not brought on record before the First Appellate Court. However, the lower Appellate Court allowed the application for amendment of written statement. On the basis of the material available on record, the First Appellate Court decreed the suit by allowing the appeal filed by the plaintiffs.
7. In this second appeal, the defendant-appellant herein has filed an application praying for permission to produce the xerox copy of the lease deed as additional evidence before this Court. The said application is heard along with main appeal. During the course hearing, a memo is filed by the plaintiffs which reads as under:
Memo filed by the respondents
The respondents submit that the photocopy of the unregistered lease deed dated 1-8-1987 may be marked as Exhibit D. 3 (subject to objection regarding admissibility) in the above case.
Sd/- Sd/-
S.R. Krishna Kumar, K.B. Basasubramaniam
Advocate for Respondents Respondent 2
Bangalore
Date: 4-7-2006
Thus, the plaintiffs-respondents herein submitted that they have no objection (but subject to the question of admissibility) for marking the said lease deed as Ex. D. 3. Both the learned Advocates submitted before this Court that by exhibiting the said lease deed as Ex. D. 3, the matter may be heard on merits and that it is not necessary to once again remit the matter to the lower Appellate Court for the purpose of marking the document. Hence, this appeal is heard on merits by marking the said lease deed as Ex. D. 3.
8. Learned Counsel appearing on behalf of the defendant-appellant herein vehemently contended that the First Appellate Court is not justified in decreeing the suit by holding that the lease transaction between the parties is a monthly lease and that the term relating to the period of lease of thirty (30) years cannot be looked into, in view of non-registration of the said lease deed. According to the defendant-appellant, the lease deed Ex. D. 3 can be looked into for collateral purposes, which means and includes the term relating to lease period of thirty years also; that when once the parties have agreed that the lease period would be for thirty years, it is not open for the plaintiffs-respondents herein to terminate the tenancy within the said period, particularly in the absence of any breach of terms of the lease; that though it is agreed between the parties that 20′ width space has to be left on the eastern side of the suit schedule property so as to enable the plaintiffs to go their land, subsequently, the plaintiffs themselves have requested the defendant to leave 20′ width space on the western side instead of eastern side, inasmuch as, the same would be convenient to the plaintiffs; thus, on the request made by the plaintiffs, the defendant has left 20′ width space on the western side of the suit schedule property. In view of the same, there is no breach of any of the conditions as alleged by the plaintiffs.
It is further contended on behalf of the defendant-appellant that he is entitled to continue in possession of the property for period of 30 years inasmuch as, he has got right to protect his possession till then, in view of Section 53-A of the Transfer of Property Act. That the lease deed in question may be treated as an agreement of lease and as the lessee has performed his part of the contract viz., taking possession and paying rents, the possession of the lessee shall be protected in pursuance of Section 53-A of the Transfer of Property Act.
9. Per contra, it is contended by the learned Counsel appearing on behalf of the plaintiffs-respondents that because of non-registration of the document, the lease cannot treated as the lease exceeding one year and that the instrument became unless insofar as creation of lease for a period of 30 years is concerned; that at the most, the lease can be treated as a monthly lease and that therefore, termination of lease by issuing 15 days quit notice under Section 106 of the Transfer of Property Act is just and proper. He further points out that there is a breach of a condition of the lease by the defendant-appellant in not leaving the passage of 20′ width on the eastern side of the suit schedule land, as agreed in the lease deed and therefore, the defendant is liable to be evicted from the suit schedule land because of the forfeiture of tenancy.
It is further contended by the learned Counsel for the plaintiffs-respondents that Section 53-A of the Transfer of Property Act will not be of any help to the defendant, inasmuch as, the transaction in question is a lease and not an agreement of lease; that it is not anybody’s case that the transaction is an incomplete transaction and that looking to the deed in question it is clear that it is a completed transaction of lease; even otherwise, agreement of lease also shall have to be treated a lease deed in view of provision of Section 2(7) of the Registration Act, 1908, for the purpose of Section 17(1)(d) of the Registration Act; that even assuming that the defendant has got right to continue in the property, he can do so till he is evicted from the suit schedule property in due process of law.
10. In view of the aforesaid contentions of the parties and the material on record, the following substantial questions of law arise for consideration in this appeal:
(a) Whether the First Appellate Court is justified in construing the lease as a month to month lease, in view of non-registration of lease deed?
(b) Whether the First Appellate Court is justified in holding that the lease in question is for a period of less than one year, despite the condition in the lease deed that the lease is for a period of thirty years? And whether the defendant shall be protected from eviction for thirty years in view of Section 53-A of the Transfer of Property Act ?
As these questions are inter-linked, they are taken up together for consideration.
11. It is well-settled that unregistered lease deed can be looked into for collateral purposes, such as, to know the nature and character of possession. In the instant case also, as the defendant has entered into possession of the suit schedule property by virtue of unregistered lease deed, it can be safely said that he is in possession of the property as a lessee. Thus, his possession will be lawful till he is evicted in due process of law. Learned Counsel for appellant-lessee relies upon proviso to Section 49 of the Registration Act, which permits admission of an unregistered document for the purpose of Section 53-A of the Transfer of Property Act. The lessee is entitled to prove the document as a contract for the purpose of Section 53-A of the Transfer of Property Act and take shelter to protect his possession. In other words, Section 53-A of the Transfer of Property Act can be used by the transferee as “shield” to defend his right and he can resist the attack made by the transferor. But the mute question that still remains is as to whether lessee is entitled to continue for a period of 30 years, as agreed by the parties in unregistered lease deed, under the protected umbrella of Section 53-A of the Transfer of Property Act.
12. Sri M.P. Eshwarappa, learned Senior Counsel appearing on behalf of the appellant argued that the conditions of Section 53-A of the Transfer of Property Act are fully satisfied and therefore, the plaintiff cannot eject the defendant for thirty years, i.e., the agreed period of lease, on the ground that the lease deed is not registered. He relies upon the following judgments in support of his contention:
(i) Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons AIR 1950 SC : 1950 SCJ 317;
(ii) Lal Behari Sasmal v. Kanak Kanti Roy ;
(iii) Conceicao Antonio Fernandas v. Dr. Arfano De Lovola Patricia Furtado and Anr. AIR 1975 Goa, Daman and Diu 27;
(iv) T.S. Karthikeya Mudaliar v. Singaram Pillai and Anr. AIR 1956 Mad. 693;
(v) Ramkrishna Singh v. Mahadei Haluai and Anr. ;
(vi) B.P. Sinha v. Soni Nath ;
(vii) Shrimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Suryavanshi (dead) by L.Rs and Ors. .
By placing reliance on the above judgments, he contended that the lessee obtaining possession of the property in part performance of the agreement of lease can defend his possession in a suit for recovery of possession filed by the lessor, for thirty years in this case.
13. In the judgments of various High Courts cited in the cases of Conceicao Antonio Fernandes; T.S. Karthikeya Mudaliar; Ramkrishna Singh and B.P. Sinha, the High Courts have laid down the principle that proviso to Section 49 of the Registration Act specifically permits admission of an unregistered document for the purpose of Section 53-A of the Transfer of Property Act. That the lessee will not be able to claim any right under the terms of the lease but he will be entitled to prove the document as a contract for the purpose of Section 53-A of the Transfer of Property Act and can take shelter to protect his possession. There cannot be any dispute about the aforesaid proposition. If the requirements as contemplated under Section 53-A of the Transfer of Property Act are fulfilled, the transferee is entitled to get the benefit of protection from eviction under the said section. But in the aforesaid judgments, the High Courts were not called upon to decide the question as to what would be the effect of lease period exceeding one year, which is created under an unregistered lease deed. In the aforesaid matters, the High Courts have merely held that the tenant has got the protection from eviction though the lease is created under unregistered lease deed. Thus, the question, as to whether the lease for the fixed period exceeding one year created under unregistered lease deed can be acted upon to protect the possession for the said fixed period was not decided by the High Courts in the aforesaid judgments.
14. The Apex Court in the case of Shirmant Shamrao Suryavanshi, held that person obtaining possession of the property in part performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property, even if a suit for specific performance of the agreement of sale has become barred by limitation. It is further held therein that if the conditions enumerated under Section 53-A of the Transfer of Property Act are fulfilled, the provisions of said section can be invoked to defend or protect the possession of the transferee and that the law of limitation does not apply to a plea taken in defence of the defendant. In the said case, the question involved was as to whether the defendant-transferee can defend on protect his possession over the suit property obtained in pursuance of a part performance of an agreement to sell under Section 53-A of the Transfer of Property Act, even if a suit for specific performance of agreement of sell is barred by limitation. There, the Apex Court has dealt with the question relating to possession of the transferee under an agreement of sell. But in the case on hand, the question involved is as to whether the lessee under an unregistered lease deed creating lease for 30 years can protect his possession by taking shelter under Section 53-A of the Transfer of Property Act, for thirty years.
15. The Apex Court in the case of Maneklal Mansukhbhai, has held that though the registered lease deed was not executed by the Government in favour of the defendant, once the terms of the lease had been reduced to writing, the said terms of the lease themselves should be treated as lease deed and the benefit of proviso to Section 53-A of the Transfer of Property Act is extendable to the defendant. The Apex Court observed that as the conditions of Section 53-A of the Transfer of Property Act are fully satisfied, the plaintiff cannot eject the defendant on the ground that there is no registered lease. Based on the said dictum laid down by the Apex Court, the Calcutta High Court in the case of Lai Behari Sasmal has also held that though the lease deed was unregistered, the terms of patta (lease deed) itself can be treated as lease inasmuch as, the terms necessary to constitute a transfer can be ascertained with reasonable certainty and as the defendant has performed his part of the contract, the plaintiff is debarred from enforcing against the defendant any right other than the right expressly provided by the terms of the contract. Thus, the Calcutta High Court, in the said judgment held that the defendant should remain in premises undisturbed till the expiry of 25 years i.e., the term prescribed in the patta (lease deed).
16. It is no doubt true that the Apex Court in the case of Maneklal Mansukhbhai, as well as the Calcutta High Court in the case of Lai Behari Sasmal have held that the transferee is entitled to protect his possession for the lease period agreed upon by the parties, even under an unregistered lease deed, in view of proviso to Section 53-A of the Transfer of Property Act. However, it is necessary to note the subsequent enunciation of the law by the Hon’ble Supreme Court on the subject, in order to come to just conclusion.
17. The Apex Court in the case of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Limited v. Khaja Midhat Noor and Ors. , has held as under:
In view of the paragraph 1 of Section 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be “lease from month to month”. It is clear from the very language of Section 107 of the Act which postulates that 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. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right.
It is clear from the aforesaid dictum that in the absence of registered lease deed, the lease shall be deemed to be lease from month to month, as contemplated under the provision of Section 107 of the Transfer of Property Act which reads thus:
107. Leases how made.A lease of immovable 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 immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property if- made by a registered instrument, such instrument or, whore 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 immovable 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.
18. It is clear from plain language of Section 107 of the Transfer of Property Act that the lease of immovable property for any term exceeding one year can be made only by registered instrument. In the absence of registered instrument, the lease must be a monthly lease and not yearly lease or a lease beyond one year. In this case also, as the lease is for a period beyond one year and as the same is created by unregistered instrument, it shall have to be construed only as monthly lease and not yearly lease or a lease beyond one year and therefore, the termination of lease would be only by giving 15 days quit notice under Section 106 of the Transfer of Property Act. It is not in dispute that quit notice is issued under Section 106 of the Transfer of Property Act by the plaintiffs calling upon the defendant-lessee to quit and vacate the premises, in this matter.
In the case of Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors. , it is held as under:
The unregistered draft lease agreement Ex. 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 Ex. 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 Ex. 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.
19. In the case of Mis. Bajaj Auto Limited v. Behari Lal Kohli , the Apex Court has observed thus:
The contention of the learned Counsel for the respondent that the aforesaid clause cannot be looked into for want of registration of the lease deed appears to be correct. Reliance has been placed on the observations of Fazal Ali, J. in Sachindra Mohan Ghose v. Ramjash Agarwalla AIR 1932 Pat. 97, that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as collateral purpose.
The learned Counsel for the appellant attempted to meet the point by saying that so far the consent of the landlord permitting sub-letting is concerned, it does not require registration and clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence. We do not see any force in this argument. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord’s permission to his tenant to sublet. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed.
(emphasis supplied)
Thus, it is clear from the aforesaid judgments of the Apex Court that if the lease deed is unregistered, none of the terms of the lease can be admitted in evidence and that therefore, the defendant cannot rely upon the said clause relating to thirty years lease period by using the same under the garb of collateral purpose. The term relating to period of lease is not a collateral purpose within the meaning of proviso to Section 49 of the Registration Act. Collateral purpose is only to see the nature and character of possession. As aforesaid, the unregistered lease deed can be used by transferee only to show that he is in possession of the property as a lessee. Thus, none of the terms of the lease including the clause relating to the period of leasing the property for a period of thirty years can be admitted in evidence, for want of registration of the document.
Again in the case of Rajendra Pratap Singh v. Rameshwar Prasad , the Apex Court held as under:
Barring the proviso which enables the State Government to relax the conditions, Section 107 of the Transfer of Property Act consists of 3 paragraphs. The middle paragraph contains an exception to the first paragraph. The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year, it can be made “only by a registered instrument”. If the instrument is not registered, the corollary is that no lease exceeding one year is created at all. Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act, 1908 either for proving the terms of the lease or otherwise.
(emphasis supplied)
Thus, it is clear that the Apex Court, subsequent to 1950 time and again has reiterated the position of law that if the lease to be created for a term exceeding one year, it can be done only by a registered instrument. If such an instrument is not registered, it cannot be admitted in evidence for proving the terms of the lease. Thus, in the instant case, any of the terms of the lease including the term relating to period of lease for a period of thirty years cannot be said have been proved.
20. In the case of Samir Mukherjee v. Davinder K. Bajaj and Ors. , the Apex Court has laid the following dictum:
Section 106 of the Transfer of Property Act lays down a rule of construction, which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is prerequisite to invoke the rule of construction embodied in Section 106.
Under Section 107 of the Act 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 executed by a registered instrument. In the 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. This is the legal position on a harmonious reading of both the sections.
In the present case, though the appellant has claimed that it was a lease for manufacturing purpose, admittedly there was no registered written lease. Therefore, the rule of construction as envisaged in Section 106 would not be applicable as the statutory requirement of Section 107 of the Transfer of Property Act has not been satisfied. The plea of the appellant that 15 days’ notice terminating the present tenancy is bad in law would not be sustainable.
In the aforesaid judgment, though the lessee claimed that it was of lease for manufacturing purpose (yearly lease), the Apex Court held that the same cannot be treated as annual lease inasmuch as, the lease deed is not a registered one. Consequently, the Apex Court held that 15 days notice issued by the lessor to the lessee under Section 106 of the Transfer of Property Act for terminating the tenancy is legal and justified.
Further, in the case of Anthony v. K.C. Ittoop and Sons and Ors. , the matter was referred to Larger Bench of the Hon’ble Supreme Court, in view of conflicting opinions rendered by the Benches consisting of two Judges. Ultimately, after considering several of its earlier judgments on the subject, the Apex Court observed thus:
The lease deed relied on by the plaintiff was intended to be operative for a period of five years. It is an unregistered instrument. Hence, such an instrument cannot create a lease on account of three pronged statutory inhibitions. The first interdict is contained in the first paragraph of Section 107 of the Transfer of Property Act, 1882 (for short, the TP Act’), which reads thus:
107. A lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument.
The second inhibition can be discerned from Section 17(1) of the Registration Act, 1908 and it reads thus (only the material portion):
17. Documents of which registration is compulsory.(1) The following documents shall be registered, if the property to which they relate is situated 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) to (c) x x x x xxx
(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent.
The third interdict is contained in Section 49 of the Registration Act which speaks about the fatal consequence of non-compliance of Section 17 thereof, Section 49 reads thus:
49. Effect of 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 immoveable 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 the 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 a 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.
No endeavour was made by the Counsel to obviate the said interdict with the help of the exemptions contained in the proviso.
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 and sinker.
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 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 unrebutted.
(emphasis supplied)
21. Thus, it is clear from the aforesaid dictums laid down by the Apex Court that non-registration of the lease deed cannot create lease for a period exceeding one year. Thus, in view of non-registration of the document, no lease exceeding one year is said to have been created. However, the presumption is that the lease not exceeding one year stood created by conduct of parties. In this matter also, though the lease deed specifies the period of lease as thirty (30) years, in view of non-registration of the lease deed (Ex. D. 3) no lease exceeding one year is said to have been created. Thus, the tenancy in question would be only month to month tenancy and not the tenancy beyond one year.
22. At this stage, it is relevant to note another judgment of the Apex Court (rendered by the three Hon’ble Judges) in the case of Rana Vidyabhushan Singh and Anr. v. Rati Ram (1969) 1 SCWR 341, which is directly on the point involved in this matter, wherein it is held thus:
The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account 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. Section 49 of the Indian Registration Act, 1908 insofar as it is relevant provides. 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.
(emphasis supplied)
This Court in the case of Abdul Razack Sab v. H.K. Gopal Shetty 1973(1) Mys. L.J. 541 : AIR 1974 Mys. 7, while dealing with the question relating to Section 49 of the Registration Act and admissibility of the unregistered documents for collateral purposes has observed thus:
4. In the instant case, the document relied on by the plaintiff purports to create a lease for a period of 4 years. It is no doubt true that it cannot be relied upon by either party to establish the lease for a period of 4 years. But as observed by the Supreme Court in the above decision, it can be relied upon to prove that the respondent is a tenant.
The dictum laid in the aforesaid two judgments by the Hon’ble Supreme Court and this Court make it amply clear that the term relating to the period of lease created under an unregistered lease deed cannot be relied upon to establish the fact that the lease is for a period of thirty years. However, said lease deed however can be relied upon only to prove that the transferee is a tenant. If the said clause relating to thirty years lease period cannot be relied on by the defendant-appellant herein, it is open for the plaintiff to file suit for eviction by treating the lease as the lease within the period of one year i.e., monthly lease. Consequently, the lease between the parties being only a monthly lease which can be terminated by issuing 15 days notice under Section 106 of the Transfer of Property Act. As aforesaid, there is no dispute that 15 days quit notice as contemplated under Section 106 of the Transfer of Property Act is issued by the lessor (plaintiffs) to the lessee (defendant), in this case for terminating the lease.
It is also not disputed by the lessee that he has not left space of 20′ width as passage on the eastern side of the property so as to enable the plaintiffs-respondents to go to their land which is situated behind the suit schedule property, as agreed between the parties in the lease deed. The contention of the defendant that in pursuance to the subsequent oral request of the plaintiffs, he has left the 20′ width space on the western side instead of eastern side is not accepted by the Court below on appreciation of facts. On reconsideration of the material, I agree with the said finding of fact. Consequently, it is to be held that the defendant has failed to prove his contention. Thus, there is breach of condition of lease deed as well.
23. Thus, in view of aforesaid discussion, it has been held that the terms of the lease deed in question including the term of lease period of 30 years cannot be looked into because of non-registration of the document (Ex. D. 3). It is also to be held that no lease exceeding one year is created by virtue of unregistered lease deed. The lease between the parties is a monthly lease and the term stipulated in the lease deed fixing the period of lease as thirty (30) years will not be of any help to the defendant, as the same is inadmissible on account of non-registration of the lease deed. In view of the above, the defendant cannot take advantage of the provisions of Section 53-A of the Transfer of Property Act to protect his possession for 30 years.
Thus, the appeal filed by the defendant is devoid of merits and consequently, the same is liable to be dismissed. The appeal is accordingly dismissed.
However, having regard to the fact that the defendant-appellant herein is running a petrol bunk over the suit schedule property, two years time is granted to him to quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiffs subject to condition of payment of rents regularly. Under the facts and circumstances of the case, the parties are directed to bear their own costs.