Sudhir Agarwal, J.@mdashThis revision at the instance of defendant-revisionist K.K. Kamani under section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887") has arisen from judgment and decree dated 8th August, 2002 passed by Sri Gopal Krishna Chaturvedi, Additional District Judge, Court No. 8, Kanpur Nagar in Small Cause Suit No. 11 of 1998 (Harish Kumar and others Vs. K.K. Kamani). Trial Court has decreed the suit for recovery of arrears of rent of Rs. 1,08,000/-, damages of Rs. 30,200/- and mesne profit @ Rs. 3,000/- per month for the period suit remained pending till actual delivery of possession, with further direction to hand over vacant possession of disputed premises to plaintiff-respondents.
2. Dispute relates to house No. 117/580 (new No. 117/H-1/149), Pandu Nagar, Kanpur. Defendant-revisionist, was let out a part of the aforesaid house on ground floor comprising of a drawing room, three bedrooms, two kitchens, two latrines and bathroom.
3. Plaintiff-respondents instituted SCC Suit No. 11 of 1998 stating that aforesaid premises was let out to defendant-revisionist tenant on a monthly rent of Rs. 3,000/-. An agreement dated 09.09.1988 was executed wherein parties agreed for enhancement of rent by 15% after expiry of every two years without any further or fresh agreement. Defendant revisionist fell into arrears of rent since 01.08.1988. A composite notice of demand and termination of tenancy was given by landlord which was served upon defendant on 03.04.1997. Neither notice was complied nor premises in question was vacated. Premises in dispute was exempted from U.P. Act No. 13 of 1972 (hereinafter to referred as "Act, 1972") since monthly rent was more than Rs. 2,000/-. There was also arrears towards electricity charges to the tune of Rs. 37, 897.50, hence the suit.
4. Defendant-revisionist contested the suit by filing written statement wherein it was not disputed that plaintiff is owner and landlord of disputed premises. It was, however, said that defendant is tenant of entire ground floor which included lawn, portico etc. besides accommodation mentioned in para 2 of plaint. It was let out on a monthly rent of Rs. 750/-, besides electricity, water supply charges and drainage taxes. Total rent payable by defendant, thus, was Rs. 1,500/- per month which included electricity, water supply charges and drainage taxes. No agreement was executed by defendant agreeing to enhance rent by 15% after every two years and said document, if any, has been fabricated by landlord. No rent is due from 01.08.1988. The rent has throughout been paid from the date of commencement of tenancy i.e. 01.08.1988. However, plaintiff never issued rent receipt to defendant though he always requested for the same. Defendant sent two registered letters dated 30.08.1994 and 21.03.1996 but both were returned with postal remark (refused). Plaintiffs admitted before Income Tax Authorities of having received rent from defendant in cash. Statement of Ramesh Kumar Arora was recorded before Income Tax Officer in November, 1991. Plaintiffs said that they shall open bank account for rent purposes in April, 1997 and receive rent by cheque but they did not do so and instead, created trouble to tenant and did not accept rent, peacefully tendered to them, between April, 1997 to July, 1997. Since 04.04.1997 plaintiffs had illegally stopped water supply and disconnected electricity. Rent of two or three months was remitted by defendant to plaintiffs by money order at the correct address in the name of Harish Kumar and Ramesh Kumar, but was returned with postal remark (refused). Rate of rent is only Rs. 750/- per month and premises is well within ambit of Act No. 13 of 1972. Defendant is not liable to pay any damages. When plaintiff disconnected electricity connection, defendant applied for fresh connection which was sanctioned and meter was installed on 09.05.1997. Similarly, a new water connection was also installed on 10.05.1997. Though due rent was only Rs. 750/- per month but to avoid any technical objection defendant is depositing Rs. 18,000/- in court towards rent, water supply, electricity charges and drainage tax etc. in order to comply with Order 15 Rule 5 CPC and undertakes to deposit Rs. 1500/- per month to avoid any technical objection and also to get benefit of Section 20(4) of UP Act No. 13 of 1972. The break up of amount of Rs. 29,760/-deposited by defendant has been given as under:-
1. Rent from 01.04.1997 to 31.03.1998 Rs. 9,000.00.
2. Water charges, electricity charges and drainage taxes Rs. 9,000.00.
3. Interest on rent and other charges @ 9% Rs. 880.00.
4. By way of precaution cost of suit and other expenses etc. Rs. 10,880.00.
5. The defendant also pleaded that plaintiff''s earlier Suit No. 523 of 1997 is pending before IIIrd Additional Civil Judge (Senior Division), therefore, present one being subsequent suit between the same parties, involving same issues, is liable to be stayed under Section 10 of Code of Civil Procedure. Notice given to defendant stood exhausted when Original Suit No. 523 of 1997 was filed and hence, notice dated 26.03.1997 cannot validate subsequent suit i.e. SCC Suit No. 11 of 1998.
6. Plaintiff filed replication wherein reiterated what he had stated in plaint and otherwise facts stated in regard to electricity and water supply charges were denied. It is said that OS No. 523 of 1997 is in respect of the dispute of electric connection and electricity charges only.
7. Suit was filed by two plaintiffs i.e. Harish Kumar and Ramesh Kumar, both being real brothers and co-owners of disputed premises. During pendency of suit, plaintiff No. 2 Ramesh Kumar died and substituted by his legal heirs.
8. Plaintiff No. 1 Harish Kumar appeared in witness box and deposed as PW-1. He said that tenancy commenced on 01.08.1988 and possession of disputed premises was given on that very date. Agreement of tenancy was executed on 09.09.1988. It was signed by both plaintiffs and defendant-tenant K.K. Kamani. It also has signatures of two witnesses - S.K. Khanna and Kripa Shanker. Monthly rent agreed between parties was Rs. 3,000/- liable for enhancement by 15% after every two years. Tax etc. was excluded from the amount of rent.
9. In documentary evidence, plaintiffs filed copy of notice, assessment orders dated 11.03.1983 and 24.09.1985, tenancy agreement, five years Municipal assessment for years 1987 to 1992.
10. Defendant-revisionist deposed his own statement as DW-1 and in documentary evidence filed copy of affidavits dated 14.03.2001, 05.04.2001 and 04.09.2001. He also filed copy of application dated 13.09.2001, his affidavit dated 13.09.2001 and copy of notice and admission by plaintiffs before Income Tax Authorities, audit report and five years Municipal assessment for 1987 to 1992, besides some other documents.
11. Actual dispute, therefore, between the parties, was with respect to rate of rent; whether it included water charges, electricity charges and other taxes; and whether there was default in payment of rent on the part of defendant.
12. Trial Court found that in municipal assessment record monthly rent was earlier mentioned as Rs. 1500/- which came to Rs. 3,000/- in five years assessment of 1987 to 1992. Otherwise facts stated before Income Tax Authorities, it held, would not be relevant for the purposes of deciding actual rent payable by defendant to plaintiffs in respect of let out premises in dispute. It held that rent of disputed premises was Rs. 3,000/- per month. Since defendant was found in default in payment of aforesaid rent, it decreed the suit vide judgment and decree dated 08.08.2002.
13. Sri M.C. Gupta, learned counsel for revisionist at the outset submitted that he has filed two applications requesting for accepting additional evidence before this Court and they should be allowed. First is application No. 9188 of 2014 whereby he has filed following documents A-1 to A-13 requesting that the same should be taken on record as additional evidence:-
(a) A-1 Photocopy of Panchshala Dt. 26.05.2000
(b) A-2 Photocopy of Panchshala Dt. 28.04.1998
(c) A-3 Photocopy of Panchshala Dt. 24.06.2002
(d) A-4 Photocopy of Panchshala Dt. 14.08.2002
(e) A-5 Photocopy of Complaint Letter Dt. 17.10.2002
(f) A-6 Photocopy of Complaint Letter Dt. 10.10.2013
(g) A-7 Photocopy of Letter Dt. 22.07.2013 under RTI
(h) A-8 Photocopy of Letter Dt. 27.07.2013 under RTI
(i) A-9 Photocopy of Reply letter Dt. 07.10.2013 of Nagar Nigam under RTI.
(j) A-10 Certified copy of Panchshala Dt. 23.08.2013
(k) A-11 Photocopy of Panchshala Dt. 28.04.1998
(l) A-12 Photocopy of Letter Dt. 16.11.2013 of Nagar Nigam
(m) A-13 Certified copy of ITAT Order Dt. 30.03.2010
14. In the said application, firstly, I do not find any valid reason so as to admit additional evidence at this stage under Order 41 Rule 27 CPC. Secondly, documents except A-10 filed along with application are only copies i.e. photostat copies or otherwise of certain municipal assessment registers, letters of municipal authorities and order of Income Tax Appellate Tribunal. If documents are considered to be within term ''public documents'', certified copies thereof only could have been admissible in evidence and not their photocopies. Otherwise original documents ought to have been filed. Photocopy of a document as such is not admissible in evidence, hence question of accepting photocopy of a document as additional evidence cannot arise. The mere fact that these photocopies or typed copies of documents have been filed along with affidavit, would not satisfy the requirement of admitting evidence in suit or in a proceeding which is in continuation of suit. Further more, the mere fact that photocopy is that of a certified copy would make no difference. Therefore all documents filed along with Misc. Application No. 9188 of 2014 do not satisfy requirement of law so as to be admitted as evidence, what to say of additional evidence. Therefore, documents filed as Annexures - A-1 to A-9 and A-11 to A-13 are not liable to be taken on record as additional evidence. So far as document No. A-10 is concerned, this Court permits it to be taken on record as additional evidence which would be considered in this revision. Application No. 9188 of 2014 is disposed of accordingly.
15. Next application No. 242545 of 2014 whereby documents Annexures - AE 1 to AE 7 are requested to be taken as additional evidence. Here also, these are only photocopies, not admissible in evidence, hence question of admitting aforesaid documents as additional evidence does not arise. This application is rejected in entirety.
16. There is a third application No. 242572 of 2014 whereby also revisionist has requested to admit twenty nine documents as additional evidence. Except Annexures - B, O, CC, all are photocopies of various documents, hence inadmissible in evidence and are rejected. Annexures - B, O, CC are admitted as additional evidence and would be considered in this revision. This application is disposed of accordingly.
17. Document A-10 is a certified copy of Panchshala for the year 01.04.1987 to 31st March, 1992 of Kanpur Nagar Nigam, showing that on first floor one drawing room, three bed-rooms, one kitchen plus store, two latrines and bathroom were in possession of Shri K.K. Kamani as tenant on the rent of Rs. 750/-per month i.e. annual rent of Rs. 9,000/-. Annexure - B is also a certified copy of the same document having same contents.
18. Annexure - 0 is a certified copy of a judgment of this Court in Civil Revision No. 157 of 2001 (K.K. Kamani Vs. Harish Kumar and others) whereby order dated 06.12.2000 passed by Trial Court in SCC Suit No. 11 of 1998 allowing amendment sought by plaintiff-respondent in replication under Order 6 Rule 7 was challenged by defendant-revisionist. On the statement made by plaintiff that he does not propose to press amendment, this Court passed order accordingly and dismissed the amendment application itself.
19. Annexure - CC is a certified copy of order dated 26th March, 2004 passed by Additional Civil Judge (Senior Division), Court No. 3, Kanpur Nagar in OS No. 523 of 1997. The plaintiff Harish Kumar, who had filed the aforesaid suit against defendant K.K. Kamani, admitted before the Court that aforesaid suit is barred by limitation and he is satisfied with this fact, hence it may be dismissed. The Court has noticed that the suit has proceeded to the stage of hearing after recording evidence of both the parties and in fact, even written arguments were submitted whereafter the judgment was reserved to be delivered, on 25th of March, 2004, hence the Court allowed application for dismissing the suit as not pressed subject to payment of cost to the defendant and also made it clear that on the same cause of action further suit would be barred.
20. The revisional Court while considering the question as to whether monthly rent of disputed premises is Rs. 3,000/- per month or Rs. 750/- per month besides other taxes etc. has relied on Panchshala of 1987-1992. Certified copy thereof was submitted by plaintiff landlord on 11.07.2002 wherein the monthly rent of let out premises to Sri K.K. Kamani was shown as Rs. 3,000/-. It has also referred to copy of Panchshala filed by defendant-revisionist wherein monthly rent was shown as Rs. 1500/-. The revisional Court also disbelieved the defendant-revisionist''s stand that monthly rent was Rs. 750/- and another Rs. 750/- included as composite amount towards electricity charges, water and sewerage taxes by observing that electricity charges are payable as per consumption and it is not possible that a landlord can fix electricity charges in advance. The admission of plaintiff-respondent before the Income Tax Authorities has been discarded by observing that for reducing tax liability a person has natural tendency of mentioning lesser amount of income and therefore, the said admission should not be preferred instead the amount of rent mentioned in five years'' municipal assessment of Kanpur Nagar Mahapalika for 1987-1992 should be accepted. In this regard, revisional Court has further supported its finding from the agreement which was not a registered document but it has been found that in the said agreement also the amount of rent was mentioned as Rs. 3,000/- per month. It has relied on the authorities cited by plaintiff-respondent to the effect that rent agreement is not necessarily to be registered and even an unregistered rent note/agreement can be relied and referred the following decisions;
1.
2.
3. , ARC 1996 (2) 221: Chandra Bali Verma Vs. Moti Lal Dwivedi ; and
4.
21. I propose to consider first the question whether unregistered agreement dated 09.09.1988 could have been relied on for the purposes of determining the rate of rent. Documents requiring compulsory registration are detailed in Section 17 of Registration Act, 1908 (hereinafter referred to ''Act, 1908'') and Section 17(1) reads as under:-
17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate 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) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
PROVIDED that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees."
22. Thus, a document of lease of immovable property from year to year basis or for any term exceeding one year is compulsorily registerable. As per the case set up by plaintiff-respondent, the aforesaid agreement was apparently for a period of more than a year in as much as it commenced from 01.08.1998 and clause - 6 thereof provided that after expiry of two years the rent will enhance by 15%, meaning thereby the period of lease was obviously more than a year. Though defendant revisionist has disputed execution of said agreement but for the purpose of deciding this revision, this Court proceeds to consider the admissibility of aforesaid agreement by assuming that it was executed between the parties. From bare reading of memorandum of agreement dated 09.09.1988, the Court has no manner of doubt that it was a lease beyond one year, hence compulsorily registerable under Section 17(i)(d) of the Act, 1908. Section 49 provides for the effect of non-registration and reads as under:
"Section 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 (4 of 1882) or of any other law for the time being in force, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power or create any right or relationship, or
(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."
23. The aforesaid provision, as it stands today, was not so at the time of initial enactment and, in fact, the proviso thereunder was added in 1929.
24. Before amendment of Section 49 of Act, 1908, provision as it stood bereft of proviso had the interpretation of Privy Council in
"In the present case the document under consideration, in addition to creating an interest in the immovable property concerned, provides as one of the terms, and therefore as an integral part of the transfer, that the vendor should, if the vendee so requires, execute a registered sale-deed, and it is contended for the respondent 1 that, notwithstanding the non-registration, he can sue upon this agreement, putting the document in evidence as proof of it. Their Lordships are clearly of opinion that this is within the prohibition of the section. They think that an agreement for the sale of Immovable property is a transaction ''affecting'' the property within the meaning of the section, inasmuch as, if carried out, it will bring about a change of ownership. The intention of the Act is shown by the provisions of Section 17(2)(v) which exempts from registration, and therefore frees from the restriction of Section 49 , a document which does not itself create an interest in Immovable property, but merely creates a right to obtain another document which will do so. In the face of this provision, to allow a document which does itself create such an interest to be used as the foundation of a suit for specific performance appears to their Lordships to be little more than an evasion of the Act."
25. The Privy Council affirmed the view which was consistent with it''s view taken in earlier decisions in
26. Thereafter by Transfer of Property (Amendment) Supplementary Act No. XXI of 1929, proviso was added to Section 49 of Act, 1908. Despite this amendment, Madras High Court in
"The decisions of this Court which preceded the introduction of the proviso to Section 49 , no longer have application, and we do not agree that an unregistered instrument affecting immovable property is not sufficient to support a suit for specific performance. In such a suit, the production of the document and its proof will be sufficient to support the plaintiff''s case if it embodies the whole agreement between the parties and there are no other factors to be taken into consideration. The proviso in express terms says that it may be received as evidence of a contract in a suit for specific performance."
27. Since then Section 49 of Act, 1908 came to be considered time and again. A Full Bench of Madras High Court in
"When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence can be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. This is S. 91 of that Act. In the instant case, secondary evidence is not admissible as the document itself is before the Court. Exhibit P-5 is compulsorily registrable also under S. 17(1)(d) . Registration Act. Section 49 of that Act provides that no document required by S. 17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property, unless it has been registered. There is, however, a proviso to this section under which a document so required to be registered may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purposes of S. 53A , TP Act, 1832, or as evidence of any collateral transaction not required to be effected by a registered instrument. It is thus manifest that the unregistered lease deed Ex. P-5 is inadmissible in evidence in view of S. 40 Registration Act except for the limited purposes specified therein, and S. 91 Evidence Act forbids other evidence to prove the lease or its terms."
28. In
"It is clear that the first part of the proviso expressly contemplates a situation where a document required to be registered by law but not so registered may still be received as evidence of a contract if specific performance of the contract is sought, so that it is not at all right to say that an unregistered document can never be looked at far any purpose connected with the property mentioned by the unregistered document. It is also clear from the third part of the proviso that as evidence of a collateral transaction an unregistered document is equally admissible in evidence. It is common ground now that an agreement to sell Immovable property is not required by law to be registered and although there may have been some doubt about this matter prior to 1927, no doubt is left in that connection by the Explanation to Section 17 of the Registration Act which was put into the Act in 1927, and that expressly provides that an agreement to sell immovable property is not required to be registered. Mr. Aggarwal''s argument in substance is that an agreement to sell Immovable property is a transaction affecting that property because it refers to and deals with the property. There is, however, no indication in Section 49 of the Registration Act to support the view that every transaction, which may happen to concern immovable property, is a transaction ''affecting'' such property, and it would not in the ordinary sense be so. What is apparently shut out by Section 49 is the proof through an unregistered document of a transaction which has effect, direct and Immediate, on some immovable properly. An agreement to sell Immovable properly has as such and by itself no effect on the immovable property comprised in the agreement. It is only an agreement and like any other agreement capable of being enforced and equally capable of being the basis of a suit for damages in case breach occurs. It is significant to note in this connection that Section 45 , as it is worded, does not make an unregistered document, even it ''affects'' immovable property, wholly inadmissible in evidence put only rules it out for certain specific purposes and the prohibition cannot, of course, be extended by implication. As I read Section 49 in the light of the proviso, there is, I find, nothing in it to prevent a party from showing from an unregistered document that an agreement to sell immovable property had actually been reached between the parties, even if that document be a deed of sale and consequently useless for proving the sale itself."
29. In
30. In
31. It is, thus, evident that an unregistered document can be looked into for collateral purposes, though, otherwise, it is inadmissible in evidence. A collateral purpose is such which is not required to be evidenced or affected by a registered document.
32. In M. Chelamayya Vs. M. Venkataratnam (supra), the Court held that under proviso to Section 49 , the Court can admit any unregistered document as evidence of a collateral transaction.
33. In
34. What a "collateral purpose" is not defined in Act, 1908. In Webster''s Seventh New Collegiate Dictionary, expression ''collateral'', has been given meaning as "accompanying as secondary or subordinate". To the same effect is the meaning given in Black''s Law Dictionary, Ninth Edition. The meaning according to this Dictionary is "supplementary; accompanying, but secondary and subordinate". The Jowitt''s Dictionary of English Law, published by Sweet & Maxwell Limited, 1977, Second Edition defines ''collateral'' as something which is by the side of or distinct from, a certain thing. In brief, it can be said that collateral purpose is only a "secondary purpose".
35. What a "collateral purpose" is explained in
"A partition which requires to be effected by a registered instrument may be inadmissible but the severance of "joint status which is not required to be effected by a registered instrument would be collateral transaction evidence of which would certainly be admissible under the proviso to the section". An antecedent title, the nature and character of possession, an admission or an acknowledgment, relationship of parties and their state of mind may be some of the instances of collateral purpose for which a document requiring registration may be looked into even though it is unregistered."
36. The decision of this Court in
"10. Section 49 of the Registration Act, therefore, puts a complete bar to the admission of a document evidencing the terms of contract for which registration is compulsorily required by Section 17(1)(d) of the Registration Act or Section 107 of the Transfer of Property Act. As to the duration for which a lease is given or about the rate of rent, a document unregistered cannot be taken into evidence inasmuch as relying upon an unregistered document for these purposes would result in nullifying the prohibition or the bar imposed by Section 37 . Section 49 prohibits the reception into evidence of any document affecting any immovable property. Under the Proviso to the said Section 49 , only so long as an unregistered document does not purport or operate to do anything said in Section 107 , the same may be considered by a Court. But, the terms and conditions on which an immovable property is leased out and which is an integral part of the same, the law does not permit such a document to be admitted for those purposes."
38. This Court clearly said that an unregistered lease-deed cannot be admitted to prove the terms and conditions of lease. It cannot be seen either for the purpose of tenure of lease or the rate of rent at which the premises had been let out. A collateral purpose is any purpose other than of creating, assigning or extinguishing a right to the immovable property.
39. This Court has also considered Section 49 recently in Writ Petition No. 12809 of 2003 (Mishri Lal Karak Vs. Sri Dinesh Chandra Agarwal & Ors.) decided on 01.10.2013 and in para 30 of the judgment, it has been said:
"This Court finds that permitting document to be received in evidence for limited purpose as such would not have the effect of influencing the rights of the parties vis-a-vis the immovable property concerned. The general legislative policy under Section 49 of Act, 1908 is contained in three clauses i.e. (a), (b) and (c) and proviso carves out an exception in respect to clause (c) only and not (a) and (b) thereof. The inevitable conclusion vis-a-vis the immovable property concerned is that, an unregistered document shall not result in affecting the right etc. over the immovable property in any manner and also shall not confer any power to adopt it. To the extent the proviso operates, it permits that an unregistered document affecting immovable property may be given in evidence i.e. where a document remains unregistered and title does not pass, the agreement between the parties which preceded the ineffective document shall remains and may be received in evidence to look into the terms thereof. This by itself would not confer any right since no such right has been conferred under the substantive law. Receiving in evidence does not mean conferment of substantive right. The rule of evidence cannot enlarge or alter the provisions of substantive law. It cannot confer rights, if there are none under the substantive law. In other words, such a document could be used only for the purpose permissible under proviso to Section 49 of Act, 1908 so as to establish part-performance under Section 53A of Act, 1882 but cannot be admitted in evidence to show nature of possession, if the possession was continuing from some date prior to the execution of unregistered deed. Here I find support from Apex Court decision in
40. In
"But the only purpose for which the appellant wants to use it here is to prove her agreement. She sues for possession on the ground that the lease has terminated, and so wants to show the period for which the lease was granted. She also sues for the rent payable under it. Therefore, the document is not receivable in evidence for these purposes."
41. In
42. Recently, Section 49 proviso has come for consideration before Apex Court in
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
43. A similar question was considered by this Court in Civil Revision No. 214 of 2005: Sushil Kumar Soni (Sarraf) Vs. Smt. Sheela and decided on 30.10.2015. Therein the Court in para 31 has said as under:
"In the present case, the Court below has found that the unregistered agreement is not admissible in evidence being unregistered document but having said so, for the purpose of tenure of lease, it has relied thereon. As already said, an unregistered lease cannot be relied for the purpose of rent or the terms of lease mentioned therein since it amounts to taking unregistered document in evidence for extinguishing right to immovable property, which is not permissible."
(emphasis added)
44. Having gone through the authorities relied upon by the Court below cited at the instance of plaintiff to support his case, this Court finds that none of the aforesaid authorities, in fact, helps the plaintiff-respondent so as to rely on unregistered rent agreement dated 09.09.1988. In Rai Chand Jain Vs. Miss Chandra Kanta Khosla (supra), the Court has only reiterated what has been said in Section 49 of the Act, 1908 that an unregistered document can be considered for collateral purposes. What collateral purpose is and whether amount of rent mentioned in such a document would come within category of collateral purposes is not discussed or considered in aforesaid decision. Therefore, it does not help plaintiff-respondent so as to justify reliance on unregistered agreement dated 09.09.1988 to prove amount of rent agreed thereunder.
45. In Mst. Shimla Devi Vs. Deputy Director of Consolidation, Saharanpur and others (supra), the question was whether document in question was a family settlement or a memorandum of family settlement. It is well established law that a family settlement can be arrived at orally also and it does not require any written agreement. However, if parties execute a document placing reliance on family settlement, then, the Courts have held that if a document itself comes into effect a family settlement is compulsorily registerable. But if family settlement has already taken place orally and subsequently, it is written on a document to be utilized in future, it is memorandum of family settlement and does not require registration. This view has been taken by Apex Court also in AIR 1976 SC 803.
46. In this backdrop this Court considered whether document therein was a family settlement which was registerable or a memorandum of family settlement which does not require registration. The relevant observation made by Court in this regard reads as under:
"I am of the view that the sole question involved in this case is that as to whether there was a family settlement and if it was so, when it was arrived at between the parties, and what was given in that family settlement and second question is as to whether the document which has been filed by the petitioner is a document of memorandum of family settlement or family settlement itself. There is no doubt that a family settlement requires registration but a memorandum of the same does not require any registration. The document in question has been filed as Annexure-10 to the writ petition. It is dated 28.12.1998. From a perusal of this document, it is apparent that it is said to have been written by Kabja Singh. There is no other person party to this document and a list of plots which are given to the petitioner as well as other persons named therein. It is mentioned in the document that the parties are in possession according to their lots but they have not been entered into the revenue records rather the name of Kabja Singh is entered, therefore, a necessity arose with a view to avoid any family dispute with the property mentioned in the schedule should be mutated in the name of the persons mentioned in the document. It is significant to note that it is mentioned that this should be done through this document and the family settlement is being written which may be used and utilised in future when any occasion arises. So from a perusal of the document, it is clear that a family settlement was written and it was not a memorandum of family settlement though it is mentioned that parties are in possession according to their respective shares. This aspect of the case has not been considered by the Deputy Director of Consolidation. He has not given proper consideration to the document, therefore, unless this document is read as a whole and a finding is given by the authority concerned that this is a family settlement or memorandum of family settlement, it cannot be decided as to whether it requires registration or not. The Settlement Officer. Consolidation has held that it is a family settlement and it is written by Kabja Singh and the petitioner has accepted this judgment, therefore, if the petitioner has not challenged this finding, then the document is proved to be family settlement and if it is family settlement, it requires registration and unless it is done, a document is not admissible in evidence but the Deputy Director of Consolidation has not considered this aspect of the case."
(emphasis added)
47. The judgment, therefore, does not help the plaintiff-respondent and has been misread by Court below for the purposes of holding that unregistered lease agreement could have been relied upon for considering agreed rent therein.
48. The third decision is Hamir Ram and Ors. Vs. Varisng Raimal and Ors. (supra). Here also I find that document in question related to easementary right. The right to easement could have been claimed on the basis of enjoying such right for the past twenty years uninterruptedly without having any written document. The easementary right is not a lease. In the present case, easementary right was recognized by oral agreement between the parties and subsequently, it was reproduced on a document. Court noticed that oral agreement regarding right of way was already agreed upon and it was placed in writing subsequently. Court held that easement by way of passage does not create any interest in property or title, hence it is only a licence and such a document, therefore, was not compulsorily registerable. In para 19 of judgment, the Court said as under:
"The question is whether the document creates, declares, assigns or extinguishes the right of easement or not. From the recital in the Agreement, itself it is clear that the easement was created orally three days before this document was brought in existence. Consequently this document by itself does not create or declare any easement. As such it hardly requires registration."
(emphasis added)
49. The aforesaid decision, therefore, relates to an easementary right and not a lease, hence lends no support to the case of plaintiff-respondent.
50. The last decision relied on is Chandra Bali Verma (Dead) by Lrs. Vs. Moti Lal Dwivedi (supra), wherein the Court did not consider question whether a document recognizing a grant of licence need be registered compulsorily or not and it decided the question that even if a document is unregistered, there was enough evidence to prove possession of defendant-revisionist as tenant. This judgment, therefore, also has been misconstrued to support the contention that an unregistered lease agreement could have been relied upon for the purpose of accepting agreed rent therein.
51. The discussion made above makes it very clear that for the purposes of considering rate of rent unregistered lease agreement could not have been relied on at all, hence Court below erred in law by looking into an inadmissible document. For the purposes of determining question of rate of rent, the judgment is not in accordance with law.
52. Now, coming to second aspect regarding five years municipal assessment record, this Court finds that a copy of certified municipal assessment record of the same period shows monthly rent as Rs. 3,000/- while another certified copy placed before Court below shows monthly rent of Rs. 1500/-.
53. Annexure A-10 is a certified copy of five years municipal assessment record of period 01.04.1987 to 31.03.1992. Therein monthly rent of disputed premises has been mentioned as Rs. 750/-. There is another certified copy of same document issued on 26.08.2002 i.e. Annexure-B to application No. 242572 of 2014 which this Court has allowed to be taken as additional evidence and therein also monthly rent is mentioned as Rs. 750/-. It is really difficult to understand as to how certified copies could have been issued by same municipal authority mentioning different rate of monthly rent for the same period in respect of disputed premises. It requires a detailed investigation by directing aforesaid authority to produce original assessment record before Court below.
54. Thirdly, Court below has also ignored the statement of plaintiff-respondent made before Income Tax Authorities regarding rate of rent. There is nothing on record to show that plaintiff-respondent at any point of time disputed the fact about rate of rent as it has stated before Income Tax Authorities. It was, therefore, admission of a relevant fact on the part of plaintiff-respondent before a statutory authority. In order to contradict such admission strong substantial evidence ought to have been produced by plaintiff-respondent else admission being the best evidence was worth credence. The mere fact that said admission was made before Income Tax Authorities does not decrease its genuinely, reliability and credibility. Court below on mere conjectures that people try to disclose lesser income before Income Tax Authorities has attempted to dilute admission of plaintiff-respondent which otherwise was not denied by him. Here also, in my view, approach of Court below was not justified and it cannot be said that it has considered question of determination of monthly rent agreed between parties in regard to disputed premises in accordance with law.
55. Once question of rate of rent is found not to have been decided in accordance with law, by Court below, the ultimate conclusion drawn by it that there was default in payment of rent and therefore, defendant-revisionist must vacate disputed premises, cannot be sustained.
56. In my view, the matter requires reconsideration by Court below. The revision is accordingly allowed. The impugned judgment and decree dated 08.08.2002 passed by Additional District Judge, Court No. 8, Kanpur Nagar is hereby set aside and matter is remanded to Court below to consider afresh and decide the suit in accordance with law and in the light of observations made above, expeditiously, and in any case within six months from the date of production of a certified copy of this judgment.
