JUDGMENT
M.S.A. Siddiqui, J.
1. The plaintiff filed the present suit seeking, inter alia, the following reliefs:
“(A) Decree the suit of the plaintiff against the defendant directing the defendant to execute and register in favour of the plaintiff lease deeds every three years and when so claimed by the plaintiff with respect of Flat No. 402, Guru Angad Bhawan, 71, Nehru Place, New Delhi on the terms and conditions stated in the lease deed dated 1.12.79 and on payment of enhanced rent by 10% at the time of exercising each option.
(B) Injunct the defendant from in any manner interferring with the rights of the plaintiff as a lessee in the aforesaid subject property. The defendant be injuncted from in any manner disturbing the possession of the plaintiff or evicting the plaintiff from the subject premises till it pays the enhanced rent by 10% every three years. Costs of the suit be awarded.
Such other and further orders be passed as this Hon’ble Court deems fit and proper in the facts and circumstances of this case.”
2. According to the plaintiff he took the suit property on rent for a period of three years w.e.f. 1.5.1979 at the rate of Rs. 2120.60 per month after executing an unregistered indenture of lease dated 1st December, 1979. After the expiry of the period of three years, the plaintiff is entitled for renewal of lease for a further period of three years. Inasmuch as the agreement dated 1st December, 1979 containing renewal clause of the lease constituted an agreement in writing to lease the property in suit, the plaintiff is entitled to claim specific performance of this contract.
3. Learned Counsel for the plaintiff contended that the agreement dated 1st December, 1979 amounted to an agreement to lease and as such it could be used as a basis for the present suit for specific performance of contract. Elaborating his arguments, he submitted that the renewal, Clause (paragraph 14) of the agreement is really in the nature of an agreement to lease for the renewal periods and such a term/clause is independent of the terms of the main lease deed. It does not create immediately a relationship of between lessor and lessee as this in only a promise to create a relationship of lessor and lessee in future and in this view of the matter, it does not require registration under Section 17 of the Registration Act. He further submitted that assuming that the said agreement requires registration, even then such an un-registered document can be used as a basis for a suit for specific performance of a contract. Reliance has been placed on the decision of the Supreme Court in State of Maharashtra and Ors. v. Atur India Pvt. Ltd. Delhi Development Authority v. Dugra Chand Kaushish, Hamda Animal v. Avadiappa Pathar and Ors., .
4. In State of Maharashtra and Ors. v. Atur India Pvt. Ltd. (supra), it was “held by their Lordships that the correspondence between the Government and the respondent Company with regard to the plot in question amounted to an agreement to lease and as such the transaction was not chargeable to duty under the Bombay Stamp Act. In this connection, I may usefully excerpt the following observations of their Lordships : 28. If it is merely an agreement to lease as to whether it requires registration has come up for discussion of this Court in Tiruvenibai v. Lilabai. At page 111 it was held as under:
“Before dealing with these points, we must first consider what the expression ‘an agreement to lease’ means under Section 2(7) of the Indian Registration Act, hereinafter referred to as the Act. Section 2(7) provides that a lease includes a counterpart, Kabuliyat, an undertaking to cultivate and occupy and an agreement to lease. In Hemanta kurnari Debi v. Midnapur Zamindari Co. Ltd., the Privy Council has held that ‘an agreement to lease, which a lease is by the statute declared to include must be a document which effects an actual demise and operates as a lease’. In other words, an agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a present and immediate demise in his favour is not included under Section 2, Sub-section (7). In Hemanta Kumari Debi case a petition setting out the terms of an agreement in compromise of a suit stated as one of the terms of that the plaintiff agreed that if she succeeded in another suit which she had brought to recover certain land, other than that to which the compromised suit related, she would grant to the defendants a lease of that land upon specified terms. The petition was recited in full in the decree made in the compromised suit under Section 375 of the Code of Civil Procedure, 1882. A subsequent suit was brought for specified performance of the said agreement and it was resisted on the ground that the agreement in question was an agreement to lease under Section 2(7) and since it was not registered it was inadmissible in evidence. This plea was rejected by the privy Council on the ground that the document did not effect an actual demise and was outside the provisions of Section 2(7). In coming to the conclusion that the agreement to lease under the said section must be a document which effect’s an actual demise the Privy Council has expressly approved the observations made by Jenkins, C.J., in the case of Panchanan Bose v. Chandra Charan Misra in regard to the construction of Section 17 of the Act. The document with which the Privy Council was concerned was construed by it as “an agreement that, upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted”; and it was held that until the happening of that event, it was impossible to determine whether
there would be any lease or not’. This decision makes it clear that the meaning of the expression ‘an agreement to lease’ which, in the context where it occurs and in the statue in which it is found, must relate to some document that creates a present and immediate interest in the land’. Ever since this decision was pronounced by the Privy Council the expression ‘agreement to lease’ has been consistently construed by all the Indian High Courts as an agreement which creates an immediate and a present demise in the property covered by it.”
29. Examining in the light of above, we hold that the notice of the appellant dated November 30, 1970, the offer of the respondent dated December 15, 1970 and the acceptance of the Collector of the tender of respondent for lease dated January 1, 1979 would merely constitute an agreement to lease. Clause 13 clearly contemplates that the licensee will be put in possession of plot of his executing the agreement to lease. Therefore, it is clear that by the respondent accepting the offer on December, 15. 1970, the relationship of lessor and lessee between the appellant and the respondent had not come to be established. Further as pointed out earlier there was no actual demise on the date of the accepting of tender. Therefore, it is only an agreement to lease. It will, not fall under Section 2(n) of the Act in which case, it is not an instrument chargeable to duty and the question of impounding does not arise, much less, there could be a demand for stamp duty.”
5. The case of Delhi Development Authority v. Durga Chand Kaushish (supra) is an authority for the proposition that a renewal of a lease is really the grant of a fresh lease. In Hamda Ammal v. Avadiappa Pathar and Ors. (supra), it was held by the Apex Court that even an unregistered document can be received as evidence for purpose mentioned in the proviso to Section 49 of the Registration Act.
6. The question is : Does the document dated 1.12.1979 amount to an agreement of
lease under Section 2(7) of the Registration Act. On a perusal of the said document,
it appears that the rent of the suit premises is made payable under the agreement; that
the plaintiff was inducted as a tenant of the suit premises and possession was given to
the plaintiff under the said agreement and other terms including the option for
renewal of lease have been set out in the agreement. This document cannot be constructed as an agreement to create a lease on a future day. Since the lease was for a
period exceeding one year, it could only have been extended by a registered instrument. In the absence of registered instrument, the lease shall be deemed to be a lease
from month to month. Section 107 of the Transfer of property Act postulates that a
lease of the 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.
7. Section 17(1) of the Registration Act deals with documents of which registration is compulsory. It is obvious that documents falling under Clauses (a), (b) (c) and (e) of Sub-section (1) are all documents which create an immediate and present demise in immovable properties mentioned therein. Thus the conclusion is inescapable that the document dated 1.12.1979 required registration.
8. The only important clause with which we are concerned in the present case is as to the stipulation containing an option for renewal of lease. Learned Counsel contended that Clause 14 of the lease deed is independent of the agreement of lease. I am unable to accept this submission. The plaint clearly shows that it is in pursuance of the agreement dated 1.12.1979, the plaintiff was included as a tenant in the suit premises. Stipulation contained in Clause 14 of the agreement is subject to other terms and conditions contained in the said document and it is one of the terms of the agreement of lease.
9. learned Counsel for the plaintiff contended that the said lease deed is admissible under the proviso to Section 49 of the Registration Act to prove the terms of the agreement of lease. I am unable to accept the submission of the learned Counsel that the authorities cited by him should be read as recognising a right of the lessee to enforce rights on the basis of an unregistered lease by resort to Section 49 of the Registration Act. It is well settled that Section 53A of the Transfer of property Act is only available as a defense to a lessee and not conferring a right on the basis of which the lessee can claim rights against the lessor (Delhi Motor Co. v. U.A. Basrurkar, ) and (Biswabani Pvt. Ltd. v. Santosh Kumar Dutta, ).
10. In my opinion, the unregistered lease deed dated 1st December, 1979 is 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 plaintiff. As stated earlier that the option for further extension of the lease is one of the terms of the lease agreement, the proviso to Section 49 of the Registration Act is not applicable to the present case inasmuch as the terms of the lease are not “collateral purpose” within its meaning (Satish Chand v. Govardhan Das, ). Consequently, I hold that the renewal clause of the agreement dated 1.12.1979 being a term of an inadmissible document could not form the basis of the present suit for specific performance of contract.
11. For the foregoing reasons, the plaint is rejected under Order 7 Rule 11 of Code of Civil Procedure.