JUDGMENT
C.M. Nayar , J.
(1) This revision petition is directed against the judgment dated February 4, 1984, passed by the court of Shri T.D.Kashav, Sub Judge, 1st Class, Delhi. The learned judge disposed of an objection raised by the respondent/defendant regarding exhibiting a document dated April 4, 1977 which was filed as an agreement of contract with the list of documents by the petitioner/plaintiff on December 24, 1980. The appellant had given property No. 5307 fitted with flour mill with all its accessories including scales and weights etc. situated at Shora Kothi, Pahar Ganj, New Delhi, to the respondent/tenant Ramesh Chand with a condition that Ramesh Chand will pay a sum of Rs.300.00 per month and will also pay electricity charges directly to the authorities, by virtue of the Agreement as referred to above. The respondent was also to be responsible for all kinds of repair of the flour mill and its engine etc. The contract between the parties, it is alleged, was valid for a period of one year i.e. from April 1, 1977 to March 31, 1978 and it was agreed that the owner was the license-holder yet the license fee shall be paid by the respondent/defendant on behalf of the owner and the respondent shall abide and comply with all the rules and regulations in this regard.
(2) The appellant/plaintiff filed a suit in the trial court for recovery of Rs.11,400.00 and for ejectment of the respondent. It is stated in the plaint that the respondent had paid hire money up to September 30, 1977 and has not paid heir money from October 1, 1977 to March 31, 1978. The hiring contract came to an end by efflux of time on March 31, 1978 and otherwise also notice dated March 22, 1978 was given to the respondent intimating that the hiring contract came to an end on March 31, 1978 and respondent was called upon to hand over the flour mill in working condition together with Scales and Weights and Electric motor etc. on the expiry of hiring contract and seize to occupy the premises where the mill was fixed. The suit is pending trial before the trial court and in the present petition this Court is only concerned with the short question, as to whether, the document dated April 4, 1977 required compulsory registration under Section 107 of the Transfer of Property Act and the same having not been registered whether it could be exhibited and was admissible in evidence. The respondent contended before the trial court that the document was an instrument of lease of immovable property which required compulsory registration and, therefore, the same could not be exhibited and was inadmissible in evidence. The learned Trial judge considered the judgments of various High Courts cited to reiterate the proposition that the absence of registration of the document prevented the same being exhibited and it was, therefore, in-admissible in evidence. He, accordingly, held that an unregistered document can be used in evidence only to the extent to prove a collateral purpose and it was to be seen as to whether the present document was being used for collateral purpose for proving the terms of lease between the parties. Reliance was placed on the statement made by the appellant Kirpa Ram that the document was sought to be exhibited by him for proving the contents of the same including the lease. This could not be allowed as per the settled law as referred to in the judgments of various High Courts. The other aspect of the matter, it was considered was whether the document could be separated in two parts, first for immovable property and second for movable property. The document contained lease of the shop as well as the machinery, electricity meter and other fittings installed therein. Thus, it could not be separated in two parts one for movable property and the other for immovable property. Therefore, it was held that the document could not be used in evidence inasmuch as it was not a registered document.
(3) The learned counsel for the petitioner has vehemently contended that the impugned document related to movable property as well as to immovable property and it was merely a hiring document of a running business. The suit was filed on that basis. The nature of the respondent/tenant’s possession and the purpose of alleged lease was only a collateral purpose and, therefore, the document could be looked into and the trial court has fallen in error by misinterpreting and by mis-applying the law as well as the judgments cited before the Court. Secondly, it is contended that the dominant intention of the parties for which the lease was executed was only a collateral purpose and the non- registration of the same was of no consequence. The part of the document relating to the hiring of movable property does not require compulsory registration and the same can be admitted in evidence as a whole.
(4) The learned judge has referred to the judgment of this Court as reported in J.N.Banerjee v. Sohan Lal Bhargava but it seems that he has misconstrued and misapplied the same without caring to discuss the reasons for the same. I may also refer to the following passage from the judgment at page 245 which reads as follows: @SUBPARA = “The lease under Section 105 of the Transfer of Property Act is a transfer of a right to enjoy property for a certain time or in perpetuity for certain consideration. The purpose for which it is created is something different from its creation itself. The lease otherwise valid, would not become ineffective, if the clause dealing with the purpose of the lease is missing. The purpose for which the premises were let, therefore, is collateral and not dependent upon the lease, nor does the lease depend upon it. The absence of registration would not prevent the admitted contents of Clause 8 of the lease deed being seen for determining the purpose for which the property was let, which is a collateral transaction.”
(5) The learned Single Judge has then relied upon two judgments of the Supreme Court, as referred to in paragraphs 8 & 9. Paragraph 9 reads as follows: “IN Rama Vidya Bhushan Singh v. Ratiram, C.A.No.460 of 1966, decided on 28.6.1969 and reported in the 1969 Uj (SC) 21 the Supreme Court again held that the defendant, in order to support his plea that his possession was that of a tenant was entitled to rely on recitals contained in the unregistered agreement of lease, which otherwise was inadmissible to support his plea of a lease for 15 years. Shah, J. speaking for the court observed: “A document required by law to be registered, if un-registered, 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.”
(6) The position of law is further stated by an elaborate judgment of P.K.Bahri,J. as reported in Smt. Vidya Wati (deceased) through her L.Rs. v. Hans Raj (deceased) through his L.Rs. which are of relevance read as follows: “41.FORdetermining the dominant intention of the parties the aforesaid articles and equipments and tools given for running the business and the fact that the business in a particular name and style was to be run by the tenant and Rs.500.00 was fixed for running the business and the said amount could not be split up as some portion as rent for the shop and some portion as hire charges for the articles cumulatively go to show that parties intended to let out the business and not the shop. 42.Assuming for the sake of arguments that the document in question was required to be registered compulsorily even then proviso to Section 49 of the Indian Registration Act makes such a document which is not registered, admissible in evidence for knowing the nature and character of the possession. So, the document terms of which are being even verbatim quoted by the tenant in his plaint, could be looked into to see as to what sort of possession was being given to the tenant. So, examining the evidence and the terms of the document in question and the attending circumstances an irresistible conclusion can be reached that the dominant intention of the parties was to create a lease of the business and not the lease of the shop and the first appellate court went wrong in upsetting the well considered judgment of the first court in this connection and thus, the judgment of the first appellate court is liable to be reversed.”
(7) There is, therefore, no dispute with the proposition as has been advanced before the trial court as well as before this Court that part of the document relating to movable property do not, in any manner, require compulsory registration and the same can be looked into to determine the nature and character of the possession and for collateral purpose. The dominant intention of the parties in this case as in the case of Smt. Vidya Wati (supra) was to create a lease of the business and not the lease of the premises and the trial judge has mis-interpreted and mis-applied the law on the subject. He further fell into error by stating that when the document contained lease of the shop as well as the machinery etc. the document could not be separated in two parts, one for movable property and other for immovable property. The facts of the case do not justify this conclusion as the collateral purpose for which the agreement was entered into between the parties could always be looked into.
(8) The revision petition is, accordingly, allowed. The judgment of the trial court dated February 4, 1984 is set aside. The parties are directed to appear before the trial court on May 3, 1995. The record shall be sent back through special messenger.