BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/08/2007 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Civil Revision Petition (PD) No.297 of 2006 and C.M.P No.2580 of 2006 $Sikkender Anees ... Petitioner Vs 1. Vaiyalimuthu Thevar 2. Senthil Kumar alias Senthil Pandiyan ... Respondents Prayer This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order passed in I.A.No.641 of 2004 in O.S.No.35 of 2003 on the file of the learned Additional Sub Court, Tenkasi dated 17.01.2006. !For Petitioner ... Mr.K.Srinivasan ^For R.1 ... Mr.T.S.R.Venkataramana For R.2 ... Mr.D.Nallathambi :ORDER
The petitioner who is the plaintiff in O.S.No.35 of 2003, on the file of
the learned Additional Sub Judge, Tenkasi, has come forward with this revision
challenging the order dated 17.01.2006 made in I.A.No.641 of 2004. The
respondents are the defendants in the suit.
2.The petitioner has filed the above suit for recovery of a sum of
Rs.2,00,000/- with interest and costs. The substance of the plaint would be that
on 01.01.2000, the petitioner entered into a lease agreement (Kuthagai) to enjoy
the usufructs from the coconut trees belonging to the defendants for a period of
5 years. There is a specific allegation made in paragraph No.3 of the plaint
that to evident the said lease, a lease agreement was executed on 01.01.2000 by
the parties. It has been further stated in the plaint that as per the recitals
of the said lease deed, a sum of Rs.4,00,000/- shall be paid by the plaintiff to
the defendants towards rent for 5 years. Already on 01.01.2000, itself a sum of
Rs.1,00,000/- was paid towards rent and there was also an arrangement regarding
the balance of amount i.e., Rs.1,00,000/- should be paid on 15th day of Tamil
month Thai and Rs.2,00,000/- should be paid within 1 1/2 years from 01.01.2000.
Apart from that, as per the lease agreement, during every season, whenever the
coconuts are plucked, 150 coconuts should be given to the defendants and
maintenance of the land and irrigating the Coconut trees should be undertaken by
the petitioner/plaintiff. The petitioner can use the electric motor to irrigate
the Coconut trees from the Well which is situated in the suit property till the
expiry of period of lease agreement dated 01.01.2005. It has been further stated
that as agreed upon the rent of Rs.4,00,000/- was paid in four equal monthly
installments on the dates viz., 01.01.2000, 29.01.2000, 29.06.2001 and
11.09.2001 and due endorsements have been made on the rear side of the lease
deed in acknowledgment of the said amount. It has been further stated that since
there was no sufficient water in the Well and since the defendants did not make
any arrangement to deepen the Well, the plaintiff could not irrigate the coconut
trees and as a result, he suffered loss and therefore, by mutual agreement, the
lease was terminated on 30.06.2002. Therefore, according to the plaintiff
since, he did not enjoy the usufructs for the period of 5 years, as per the
lease agreement, the defendants are liable to repay Rs.2,00,000/-, which was
paid under the lease agreement on various dates as stated above.
3.In the written statement, the first defendant has admitted that such a
right to enjoy the usufructs from the Coconut trees for the period between
01.01.2000 to 01.01.2005, was given to the petitioner. But, he has denied the
execution of the lease agreement. He has further disputed the claim of the
petitioner that the defendants are liable to repay Rs.2,00,000/-. The second
defendant has filed a separate written statement wherein, he has disputed the
payments said to have been made by the plaintiff on 01.01.2000, 29.01.2000,
29.06.2001 and 11.09.2001. Further, he has stated that the lease agreement dated
01.01.2000, was not executed by him consciously.
4.During the trial of the suit, the plaintiff attempted to mark the above
said lease agreement dated 01.01.2000 and he has filed I.A.No.641 of 2004,
requesting the Court to admit the said document in evidence. The same was
opposed by the defendants. The learned Subordinate Judge by order dated
17.01.2006, has passed a conditional order directing the plaintiff to pay
necessary stamp duty and penalty as required under the Stamp Act, within a
period of 15 days from the date of the order and on such payment being made, the
document shall be admitted in evidence. Challenging the said order, the
petitioner/plaintiff has come forward with this revision.
5.Heard the learned counsel for the petitioner, the learned counsel for
the first respondent and the learned counsel for the second respondent.
6.At the outset, it is to be noticed that the respondents have not
preferred any revision challenging the order passed by the learned Subordinate
Judge dated 17.01.2006 made in I.A.No.641 of 2004. Only, the
petitioner/plaintiff has come forward with this revision challenging the said
order. The finding of the lower Court is that the document which is sought to be
marked is a lease deed and the same requires stamp and therefore, the lower
Court has passed conditional order directing the petitioner to pay necessary
stamp duty as well as penalty as required under the Stamp Act.
7.Though, the learned counsel for the petitioner has advanced lengthy
arguments to substantiate that the document in question is only a licence and
not a lease deed and therefore, the lower Court was not right in directing the
petitioner to pay necessary stamp duty as well as penalty, in my considered
opinion, the scope of this revision does not warrant any answer for the said
question at all. A perusal of the document in question does not clearly indicate
whether it is a lease deed or it is a deed of licence. Of course, in a case
where the recitals are so clear, indicative of the nature of the document, the
Court need not wait for evidence to be recorded to gather the intention of the
parties to know the nature of the document. But in this case, the recitals of
the document are not so clear enough to give definite indication about the
nature of the document. The question whether the said document is a lease deed
or it is only a licence could be decided only by gathering the intention of the
parties at the time of evidence to be let in by both parties. Further, I am of
the considered opinion that considering the scope of this revision, the said
question whether the document is a lease deed or it is only a licence does not
require any consideration at all at this stage. As pointed out earlier, the
lower Court has held that the document is a lease deed, without expressing any
opinion, whether the said finding is correct or not, assuming that the document
is only a lease deed, in my considered view, still the order of the lower Court
directing the petitioner to pay necessary stamp duty as well as penalty is
liable to be set aside on the sole ground that in Section 4-B (2) of the Tamil
Nadu Cultivating Tenants Protection Act, it is provided that, no stamp need be
affixed to the lease deed, if the lease is an agricultural lease. In this case,
there is no dispute that the document was executed in respect of the enjoyment
of the usufructs from the Coconut trees. Assuming that the document refers to a
lease, it has to be necessarily hold that it is an agricultural lease and if
that be so, as per Section 4-B(2) of the said Act, no stamp is required to be
affixed. Since, it is a special enactment, it will have overriding effect on the
Indian Stamp Act. In view of the same, in my considered opinion, the order of
the lower Court directing the petitioner to pay stamp duty as well as penalty is
liable to be set aside.
8.The learned counsel for the first respondent would submit that the
document is still inadmissible in evidence on one another ground viz., for want
of registration.
9.Per contra, the learned counsel for the petitioner would submit that the
said document does not require registration at all. Though there is no express
provision in the Tamil Nadu Cultivating Tenants Protection Act, exempting
registration of the lease deeds relating to agricultural leases, a close
scrutiny of the provision of the Act, would certainly indicate the intention of
the legislature, wherein the legislature in its wisdom has not required any
deed relating to agricultural lease to be registered and instead, it has been
provided that the document shall be prepared in triplicate and one shall be
given to the Taluk Office. Thus, in my considered opinion, any lease deed in
respect of the agricultural lease does not require any registration.
10.The learned counsel for the petitioner would rely on Section 117 of the
Transfer of Property Act, wherein, it has been provided that one of the
provisions of Chapter V of the said Act, shall apply to leases for agricultural
purposes, except in so far as the State Government may by notification published
in the official Gazette, declare all or any of such provisions to be so
applicable [the case of all or any of such leases], together with or subject to,
those of the local law, if any for the time being in force. The learned counsel
would submit Section 107 of the Transfer of Property Act, which requires
registration of an instrument of lease has no application to the agricultural
leases in the state of Tamil Nadu since there is no notification issued by the
Government of Tamil Nadu, declaring the application of Section 117 of the said
Act, in respect of the agricultural leases. Therefore, according to the learned
counsel for the petitioner, in the present case, the document does not require
any registration. But, the said stand taken by the learned counsel for the
petitioner is disputed by the learned counsel for the first respondent. So far
as the present case is concerned, there is no need to into this question since
the respondent has not preferred any revision challenging the impugned order of
the lower Court and thus, the question is only academic. As concluded above, a
reading of Section 4-B of the Tamil Nadu Cultivating Tenants Protection Act,
itself gives an indication that any deed relating to agricultural lease does not
require any registration and therefore, in my considered opinion, the document
in question in this case does not require registration.
11.At this juncture, the learned counsel for the petitioner would submit
that assuming that the document requires stamp and registration, still it can be
used for collateral purpose. The learned counsel would rely on 2004 (1) L.W. 706
(Bondar Singh & others v. Nihal Singh & others) wherein, the Hon’ble Supreme
Court has held that even a sale deed which has not been sufficiently stamped and
registered could be admitted in evidence for collateral purpose.
12.Per contra, the learned counsel for the first respondent would submit
that in the case on hand, the claim for Rs.2,00,000/- has been made on the basis
of a lease agreement and therefore, the document which is now sought to be
admitted in evidence cannot be admitted even for collateral purpose and as a
matter of fact, it is sought to be used only for main purpose. But, I do not
propose to give any finding on this disputed question also, since I have already
held that the document is admissible in evidence even for main purpose though
the lease deed has not been either registered or stamped.
13.For all the reasons stated above and the legal positions enumerated, I
have to set aside the direction issued by the lower Court directing the
petitioner to pay necessary stamp duty and penalty for the document which is
sought to be marked.
14.In the result the order passed by the learned Additional Subordinate
Judge, Tenkasi, dated 17.01.2006 made in I.A.No.641 of 2004 in O.S.No.35 of
2003, directing the petitioner to pay necessary stamp duty and penalty is set
aside and the lower Court is directed to admit the said document in evidence. It
is made clear that the respondents are at liberty to raise all their objections
in respect of the genuineness or otherwise of the said document when the
document is admitted in evidence and the lower Court is further directed to
decide the said question in the suit.
15.With the above directions, the civil revision petition is allowed. No
costs. Consequently, connected C.M.P is closed.
jbm
To
The Additional Subordinate Judge,
Tenkasi.