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TMI Blog2023 (9) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... 106 of the said statute is concerned, in which distinction is made between lease of immovable property for agricultural or manufacturing purpose and lease of immovable property for any other purpose, the same provides that a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year- to-year terminable by six months' notice. In other cases, termination would require fifteen days' notice. The subject agreement had a duration of five years with a provision for renewal for a further period of five years. Hence under the first part of Section 107, for the said lease agreement to be admissible, registration of the same would have been necessary. The deeming provision of Sub-section (1) of Section 106 so far the same related to lease for agriculture or manufacturing purpose would not be applicable as the deed was not registered. The Appellant has argued that the Trial Court had admitted the lease agreement in evidence, and for determining the purpose of lease, we can examine the deed. But this argument is flawed. In Park Street Properties Private Limited v. Dipak Kumar Singh and Anr. [ 2016 (8) TMI 1447 - SUPREME COURT] , which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of approximately 16 cottahs (one cottah is equivalent to approximately 720 sq. ft.) of land situated at Radha Madhab Dutta Garden Lane, within the city of Kolkata. The tenure of the agreement, as stipulated therein was for a period of five years with provision for renewal for further five years. There is stipulation for further renewal for such period and on such terms and conditions as might have been agreed upon by the parties. This is contained in Clause 2 of the agreement. But no such renewal was effected. First five years of the tenancy stood completed on 31.10.2007, and a letter was sent by the landlady on 07.11.2007 seeking enhancement of rent. It does not appear that the Defendant had paid rent thereafter. It had, however, raised a plea that such rent used to be collected on behalf of the landlady on due date, but this was stopped after October 2007. Thereafter, on 06.03.2008, the landlady served a notice requiring the Defendant to vacate the subject-premises with effect from 31.03.2008. In this letter of 06.03.2008, the Defendant was addressed as monthly tenant. Default in payment of monthly rent was highlighted in this letter. It was also specified therein that the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s claims. We quote below the said three paragraphs of the written statement: 6. As a matter of fact, the Plaintiff by representating herself to be the Owner/Landlady of the suit premises inducted the Defendant therein as a lessee as would be evident from the Agreement dated 27.3.2003. The Plaintiff has not sought any leave from this Learned Court to rely upon the said Agreement neither a copy of which has been filed. However this Defendant craves leave of this Ld. Court to rely upon the said Agreement at the time of hearing. The aforesaid Agreement on the face of it was an Agreement of Lease not registered under the statute and accordingly the suit is not maintainable. 8. It is denied that the tenancy if at all, expired on 31.01.2007 as the Defendant was assured of a renewal by the Plaintiff and the Defendant was willing to renew the same which was known to the Plaintiff. 10. The notice of the Plaintiff served upon the Defendant is defective. Admittedly the Defendant was a Lessee under the Plaintiff on the strength of the aforesaid Agreement and on expiry of the initial period of five years was subject to a renewal. The Plaintiff never denied the fact of renewal to the Defendant an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and hand over the peaceful possession of the same to the Plaintiff. As such, the Plaintiff is entitled to get relief as prayed for. Hence, the above issues are also decided in favour of the Plaintiff. (quoted verbatim from the paper book) 6. The Trial Court found that the tenancy of the Defendant was month by month governed under the 1882 Act and after the expiry of the lease, the said tenancy was not renewed by the parties on mutual consent as per the terms and provisions of the agreement dated 27.03.2003. On the question of Thika tenancy, the Trial Court recorded that the Thika Controller had already held that the Plaintiff was the owner of the suit premises. 7. The appeal of the Defendant was examined by the Division Bench of the High Court and on considering a large body of authorities, the High Court found no reason to interfere with the judgment of the Trial Court. The appeal was dismissed. It was the view of the High Court that the agreement being unregistered, the same could not be looked into for determining the rights and liabilities of the parties and for its duration. On the question as to whether the purpose of the lease was manufacturing or not, the High Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.] 107. Leases how made.-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. [All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. [Where a lease of immoveable property is made by a registered instrument, such instrument or, where 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 immoveable 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.] Sections 17 and 49 of the 1908 Act read: 17. Documents of which registration is compulsory. - (1) The following documents shall be registered, if the property to which they re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such Company; or (v) [any document other than the documents specified in Sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or (vii) any grant of immovable property by [Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. This was a case in which the Respondent was inducted into possession of a premises under a lease deed for a period of five years, but the deed was not registered. It has been held in this judgment: 11. 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 (vide Shantabai v. State of Bombay [AIR 1958 SC 532: 1959 SCR 265], Satish Chand Makhan v. Govardhan Das Byas [(1984) 1 SCC 369] and Bajaj Auto Ltd. v. Behari Lal Kohli [(1989) 4 SCC 39: AIR 1989 SC 1806]. 12. But the above finding does not exhaust the scope of the issue whether the Appellant is a lessee of the building. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far the same related to lease for agriculture or manufacturing purpose would not be applicable as the deed was not registered. The Appellant has argued that the Trial Court had admitted the lease agreement in evidence, and for determining the purpose of lease, we can examine the deed. But this argument is flawed. This provision contemplates lease for manufacturing purpose, in absence of contract or local law to the contrary, shall be deemed to be year to year lease. In that case, it would require six months' notice for termination. But here, the agreement itself provides a five year duration, and hence ex-facie becomes a document that requires compulsory registration. That is the mandate of Section 107 of the 1882 Act and Sections 17 and 49 of the 1908 Act. The Court cannot admit it in evidence, as per the judgment in the case of Anthony (supra). A coordinate Bench in the case of Shyam Narayan Prasad v. V. Krishna Prasad and Ors. [(2018) 7 SCC 646] has re-affirmed this view, referring to Section 49 of the Registration Act. This is a prohibition for the Court to implement and even if the Trial Court has taken it in evidence, the same cannot confer legitimacy to that document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was unregistered, contents of the instrument were inadmissible in evidence. There was admission in the written statement of Respondent in the case of Sevoke Properties (supra) by the Defendants that they were in occupation under the lease agreement (in controversy in that case) for a period of fifteen years with effect from 1981 and that period of lease had expired on 24.05.1996. The issue decided in that case was whether the lease stood determined by efflux of time and once it did, what would be the position of the lessee? The coordinate Bench found that the position of the lessee would be that of a tenant at sufferance. In that context, it was held that there was no necessity to terminate the lease Under Section 106 of 1882 Act. That case was decided on the basis of admission in written statement and has no application to the facts of the present case. The observation made in the case of Sevoke Properties (supra) that only purpose for which the lease can be looked at for assessing nature and character of the possession was in that context and that judgment proceeded on the basis that the period of lease had expired on a certain date. This decision is not an authority for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out. Thus, the lease deed was referred to for the sole purpose to defeat the claim of subsistence of an oral agreement. The ratio of this authority has been considered in the case of K.B. Saha and Sons Private Limited (supra) and we follow that ratio. In the case of Satish Chand Makhan (supra), another coordinate Bench of this Court declined to accept admissibility of an unregistered lease agreement for determining duration of the lease (9 years in that case) on the reasoning that terms of lease would not constitute collateral purpose. It was observed in this judgment that nature and character of possession could constitute collateral purpose but that was not the point which was directly in lis before this Court. In our opinion, nature and character of possession contained in a flawed document (being unregistered) in terms Section 107 of the 1882 Act and Sections 17 and 49 of the Registration Act can form collateral purpose when the nature and character of possession is not the main term of the lease and does not constitute the main dispute for adjudication by the Court. In this case, the nature and character of possession constitutes the primary dispute and hence the Court is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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