-:1:- S.B.CIVIL WRIT PETITION NO.3838/2007. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B.CIVIL WRIT PETITION NO.3838/2007. GIRDHARI LAL. VERSUS ANANDI LAL (SINCE DECEASED) THROUGH LRS & OTHERS. UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA. AND AGAINST THE ORDER DATED 13.4.2007 PASSED BY THE A.D.J. (FAST TRACK) NO.4, JAIPUR CITY, JAIPUR IN C.S.NO.368/2003. Date of Judgment. : February 2, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE DALIP SINGH Mr.B.L.Mandhana, for the petitioner. Mr.R.K.Agarwal ] Mr.Alok Chaturvedi ] for the respondents. Mr.Deepak Saraswat ] BY THE COURT : This writ petition has been filed by the plaintiff-petitioner against the order passed by the learned trial court dated 13.04.2007 by which he has decided the issue No.17 against the plaintiff and held that the document (Exhibit-2), the rent note, to be inadmissible in evidence. The rent note, a copy of which has been filed before this court as Annexure-1, is a printed form with the blanks having been filled in by hand and -:2:- S.B.CIVIL WRIT PETITION NO.3838/2007. on which there is an endorsement under the column of “note” to the effect that Kirayanama (Rent Note) is accompanied by one stamp paper bearing No.7947 of four annas. There were two fold objections to the admissibility of the said rent note by the defendant apart from the fact that its execution was denied, namely that it is unstamped and also that it is unregistered. Based upon the above, the issue No.17 was framed. Earlier vide order dated 29.08.2005 the application submitted by the plaintiff under Section 35 of the Stamp Act was rejected. Against the order dated 29.08.2005, the plaintiff- petitioner preferred a writ petition being S.B.Civil Writ Petition No.7376/2005 (Girdhari Lal Vs. Shri Anandi Lal) which came to be decided by this court vide order dated 30.11.2005. This court while deciding the above writ petition filed against the order dated 29.08.2005 by which the application under Section 35 of the Stamp Act had been dismissed, observed as follows:- “Heard learned counsel for the petitioner. By this writ petition, the petitioner has challenged the order dated 29.8.2005 whereby his application under Section 35 of the Stamps Act read with Section 151 C.P.C. has been rejected at that stage on the ground that the Court on earlier occasion vide order dated 23.3.2001 while exhibiting the said rent note has held regarding admissibility of the document the same would be decided while deciding the Issue No.17 which has been framed in this regard. On asking, the counsel for the petitioner has -:3:- S.B.CIVIL WRIT PETITION NO.3838/2007. submitted that the case is going in final arguments. In the above mentioned facts and circumstances, I deem it proper to direct the trial court to decide the said issues on filing the fresh application before the arguments. With these observations, the writ petition stands disposed of.” It is submitted that in accordance with the aforesaid order passed by this court, the learned trial court proceeded to hear and decide the issue No.17 as a preliminary issue. The learned trial court came to the conclusion that since the rent note contained a recital that the period of lease would be three years and the same is unregistered, it would fall within the purview of the term “a leases of immovable property from year to year, or for any term exceeding one year” as provided in clause (d) of Section 17(1) of the Registration Act, 1908 and hence, the same was liable to be compulsorily registered. In view of the above, it was held that the document (Exhibit-2) is inadmissible in accordance with the provisions of Section 49 of the Registration Act thereby upholding the objection of the defendant. Before this court, learned counsel for the plaintiff- petitioner submitted that even though there is a recital in the rent note (Exhibit-1) that the duration of the lease is for more -:4:- S.B.CIVIL WRIT PETITION NO.3838/2007. than one year i.e. for three years but the same contains a stipulation that the tenant would vacate the premises as and when required at the instance of the landlord on being given a notice of one month. Likewise, in case the tenant wishes to vacate the premises, the tenant would also give one month's notice. Based upon the aforesaid averments in the rent note (Exhibit-1), it was submitted that the document in question does not fall within the definition of “lease” as defined under Section 17(1)(d) of the Jaipur State Registration Act which was applicable to the document at the time of its execution in the year 1948. With a view to understand the aforesaid submission, the relevant provision is extracted as follows:- “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 (XX of 1866), or the Registration Act, 1871 (VIII of 1871), or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely: (a) XXX XXX XXX (b) XXX XXX XXX (c) XXX XXX XXX (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and (e) XXX XXX XXX” -:5:- S.B.CIVIL WRIT PETITION NO.3838/2007. At the same time, the relevant portion of the Rent Note (Exhibit-1), in this regard is also be extracted, as follows:- "...अगर आपको जमीन खाली कराने की जरूरत होवे तो एक मिहने पिहले नोिटस देने से िबना उळ खाली कर दंगा । अगर ू मैं खाली करूंगा तो आपको एक मिहना पिहले इत् तला दंगा । ू .." Learned counsel for the plaintiff-petitioner, therefore urged that a similar term came to be considered earlier by this court and it was held with reference to a similar provision in the rent note that such a tenancy, where the tenant had agreed to vacate the premises as and when the landlord would require the tenant to do so, it would be a tenancy at will as opposed to a tenancy from year to year. In this regard, learned counsel for the petitioner relied upon the decision of this court in the case of Uda Ram Vs. Tej Karan reported in 1975 RLW 77. The relevant facts in the Uda Ram's case were that a premises came to be rented out by the father of the plaintiff on 24.07.1952 on an yearly rent of Rs.4/-. Since the Section 17(1) (d) takes within its ambit leases of property reserving an yearly rent, the objection was taken that rent note was inadmissible on account of want of registration and was also on account of being insufficiently stamped. Dealing with the aforesaid objection, this court in para 6 in Uda Ram's case, held as -:6:- S.B.CIVIL WRIT PETITION NO.3838/2007. follows:- “As regards admissibility of the rent note Ex.1 it may be noted that the rent has been mentioned therein as Rs.4/- per year. There is no duration of lease fixed in the rent note, but there is a condition that the defendant will have to vacate the premises whenever called upon to do so by the landlord. Such a tenancy need not be in writing and registered. In this connection reference may be made to Kushal Raj Vs. Mst.Mooli Bai, wherein it was held that a tenancy like the present where the tenant had agreed to vacate the premises whenever the landlord should desire him to do so, is a tenant at will and the mere fact that the rent note provided for payment of rent per annum does not and cannot make any material difference. It was further observed that, a recital of annual rate of rent in a lease deed did not constitute it as one reserving a yearly rent. I respectfully agree with the observations made in the case referred to above and hold that no registered lease deed was required in the present case and the rent note Ex.1 is admissible in evidence.” (Emphasis supplied.) It may also be useful to extract the dictum of the judgment in Kushal Raj Vs. Mst.Mooli Bai and Others reported in I.L.R. (1963) 13 Raj. 980. In Kushal Raj's case, the facts which have come on record are that the defendant having executed a rent note obtained the premises on rent having executed Exhibit-1, the rent note on 06.07.1953. The stipulation in the said rent note was that the defendant agreed to pay an annual rent of Rs.348/- or at the rate of Rs.29/- per mensem. It was also agreed by the defendant that he would vacate the suit -:7:- S.B.CIVIL WRIT PETITION NO.3838/2007. premises whenever the landlord so desire. It may be mentioned here that the defendant Kushal Raj did not get the said rent note registered though other defendants had got the same registered and the objection was taken at the behest of Kushal Raj that the rent note was inadmissible. On page 982 of the said report, the said question has been dealt with as follows:- “The next question is about the admissibility of the rent note against Kushalraj on the ground that it was not registered by him. This at once raises the question whether the rent note was compulsorily registrable. The contention of learned counsel is that this rent note reserved a yearly rent and was, therefore, compulsorily registrable under cl.(d) of sub-s.(1) of s.17 of the Registration Act. I have carefully considered this contention and have come to the conclusion that there is no force in it. The reason is that a perusal of the terms of this rent note clearly shows that it was tenancy-at-will inasmuch as the defendants had agreed to vacate the premises in suit whenever the landlords should desire them to do so, and that being so, a tenancy like this cannot be said to be one for a period from year to year or reserving a yearly rent. I should also like to point out that the mere fact that the document provided for payment of rent per annum does not and cannot make any material difference to the conclusion at which I have arrived. Thus in Chander Sen Vs. Emperor (AIR 1929 All. 382) the facts were that the document which was the basis of the suit purported to be one for thirty years and reserved a yearly rent of Rs.4/8/-; but it was further stipulated between the parties that the defendant would vacate the land in case he failed to pay the rent reserved or whenever the lessor required him to do so. One of the questions raised was whether this document was compulsorily registrable, and it was held that as the lessor could terminate the tenancy on the very day succeeding the grant of the lease, it was not a lease for a term exceeding one year, and, therefore, the lease did not require registration. -:8:- S.B.CIVIL WRIT PETITION NO.3838/2007. XXX XXX XXX The position, therefore, at which we arrive is that the rent note in suit, inasmuch as it created a mere tenancy-at-will even though it fixed an annual rent was not compulsorily registrable. There could be no bar, therefore, to the admissibility of this document against the defendant appellant once it is held to have been executed by him.” (Emphasis supplied.) This court, therefore, relying upon the judgments of Allahabad High Court and Lahore High Court held that the determining test was whether the lessee could terminate the lease at will and not as to what was the duration of the lease or the fact that the rent was liable to be paid annually and determined as such. Considering the aforesaid, this court came to the conclusion that in such cases the lease could not be said to fall within the scope of Section 17(1)(d) requiring the compulsory registration. The matter could have rested here but for the fact that the learned counsel for the respondent pointed out and submitted that Section 49 of the Jaipur State Registration Act, 1944 provide the effect of non-registration of document in the case of the document not confirming to the requirement of Section 17 of the Registration Act and any provision of the Jaipur Transfer of Property Act, 1944. It has been submitted that in the judgments cited above the provisions of Section 49 of the -:9:- S.B.CIVIL WRIT PETITION NO.3838/2007. Registration Act read with Section 107 of the Transfer of Property Act have not been considered. Section 49 of the Jaipur State Registration Act, 1944, to which learned counsel for the respondent has drawn the attention of the court reads as follows:- “49. No document executed after the passing of this Act and required by Section 17 or by any provision of the Jaipur Transfer of Property Act, 1944 to be registered shall- (a) XXX XXX XXX (b) XXX XXX XXX (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Jaipur Transfer of Property Act, 1944 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Jaipur Specific Relief Act, 1943, or as evidence of part performance of a contract for the purposes of section 53-A of the Jaipur Transfer of Property Act, 1944, or as evidence of any collateral transaction not required to be effected by registered instrument.” On the basis of the above, it is submitted that even assuming that the document Exhibit-1 was exempted under Section 17(1)(d) as not falling within the scope of the said provision, nonetheless on account of the provisions contained in the Jaipur Transfer of Property Act, 1944, under Section 107 to be precise the document was required to be compulsorily registered. Section 107 of the Jaipur Transfer of Property Act, -:10:- S.B.CIVIL WRIT PETITION NO.3838/2007. 1944 reads as follows:- 107. 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 Government may, from time to time, by notification in the Jaipur 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.” On the basis of the above more particularly para 2 of Section 107 of the Jaipur State Transfer of Property Act, it is submitted that the document in question was required to be compulsorily registered under the provisions of Section 107 of the Jaipur Transfer of Property Act and, therefore, the bar imposed by Section 49 shall prevail. I have considered the aforesaid submissions and I find that in the above mentioned two judgments of this court in Uda Ram Vs. Tej Karan (supra) and Kushal Raj Vs. Mst.Mooli Bai -:11:- S.B.CIVIL WRIT PETITION NO.3838/2007. and Others (supra), the learned Judges while deciding these cases have not discussed the provisions of Section 49 of the Jaipur Registration Act and Section 107 of the Jaipur Transfer of Property Act and have confined the matter to the Section 17 (1)(d) of the Jaipur Registration Act. Nonetheless, it is not in dispute that the document in question if not held to be a lease would fall within the purview of a 'Kabuliat' as it does not confirm to the requirement of para 3 of Section 107 of the Jaipur Transfer of Property Act as it is not a bilateral agreement and it is executed and signed by the lessee only. In view of the above, on the basis of the proviso to Section 49 of the Jaipur Transfer of Property Act, the document in question can be looked into and admitted in evidence for the purposes of a collateral transaction as the proviso to Section 49 of the Jaipur Registration Act clearly provides that an unregistered document affecting immoveable property and required by the Jaipur Registration Act or the Jaipur Transfer of Property Act to be registered may be received as evidence of any collateral transaction not required to be affected by the registered instrument. It is probably on account of the aforesaid that the learned Single Judges while deciding Uda Ram's case (supra) and Kushal Raj's case (supra) held the documents to be admissible and there are ample of judgments which have laid down that the 'Kabuliat' may be admitted in evidence for -:12:- S.B.CIVIL WRIT PETITION NO.3838/2007. collateral purposes i.e. for determining the nature of possession of the defendant. Reference may also be made in this behalf to the judgment of the Hon'ble Supreme Court in the case of Bondar Singh and Others Vs. Nihal Singh and Others reported in (2003) 4 SCC 161 wherein in respect of the unregistered and unstamped documents, their Lordships of the Hon'ble Supreme Court laid down as follows:- “... The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convery title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible is evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land...” In view of the above, the document in question even though the said may be inadmissible as contended and alleged by the respondents, it can safely be looked into for collateral purposes to see the nature of possession of the defendants- respondents, as held by the Hon'ble Supreme Court in Bondar Singh's case. In view of the above, I am inclined to allow this writ -:13:- S.B.CIVIL WRIT PETITION NO.3838/2007. petition. However, I may also refer to the judgment relied upon by the learned counsel for the respondent in Pabitra Kumar Roy and Another Vs. Alita D'Souza reported in (2006) 8 SCC 344. On the basis of the above judgment, learned counsel for the respondent sought to submit that the mere fact that a lease-deed or the 'Kabuliat' contained a stipulation that the same could be terminated at Will by giving a notice by either of the parties, the same would still fall within the scope of Section 17(1)(d) and it would constitute a lease for a period specified therein. I have perused the aforesaid judgment and I find that in the aforesaid judgment, the question before their Lordships was with regard to the scope of Section 3(2) of the West Bengal Premises Tenancy Act, 1956 which came up for consideration on account of the fact that certain landlords with a view to over reach the provisions of law had incorporated certain terms in the agreement as a camouflage for being exempted from the purview of the Act of 1956. It is in this context that their Lordships in para No.15 held as follows:- “15.On a construction of the provisions of sub- section (2) of Section 3 of the 1956 Act,we are unable to subscribe to the view expressed by the High Court. The intention of the legislature in amending Section 3 appears to have been to prevent landlords from using long term leases as a camouflage for excluding them from the protection of the 1956 Actr and yet retaining the right of prior -:14:- S.B.CIVIL WRIT PETITION NO.3838/2007. determination. Sub-section (2) appears to have been enacted to prevent such abuse, inasmuch as, once the lease was determined before the fixed period, it attracted the proviso thereto.” I am, therefore, of the view that the observations of the Hon'ble Supreme Court made in the aforesaid judgment have no application to the present case so far as the interpretation of Section 17(1)(d) of the Jaipur Registration Act, 1944 is concerned regarding admissibility of the document on the ground that it is unstamped and unregistered. As held by the Hon'ble Supreme Court in Bondar Singh's case the same may looked into for determining the nature of possession i.e. the document may be admitted in evidence for collateral purpose. So far as the insufficiency of the stamp is concerned, the plaintiff-petitioner has already moved an application under Section 35 of the Stamp Act which enables the court that in case of the document being insufficiently stamped or unstamped to impose a penalty as provided in the statute and permit the same to be taken in evidence. In the instant case, therefore, since the plaintiff has applied under Section 35 of the Stamp Act, the application shall be dealt with in accordance with the provisions of the said Act. Having decided that the document could be looked into for collateral purposes particularly in view of the judgment of -:15:- S.B.CIVIL WRIT PETITION NO.3838/2007. Hon'ble the Supreme Court in Bondar Singh's case (supra), I am of the view that the application submitted by the plaintiff- petitioner deserves to be allowed. More particularly, since the present case raises two questions; firstly, where the document was unstamped or as per the plaintiff's case the document was accompanied by a four anna stamp, as it is the contention of the learned counsel for the plaintiff-petitioner that at the relevant time the stamp duty on a rent note was only four annas but the stamp, the details of which are given in Annexure-1 being No.7947, of four anna denomination had been attached with the rent note which is a printed proforma but the same is not available then on that basis the learned trial court would be required to decide the application while determining the fact whether the document was accompanied by four anna stamp and whether the same was sufficiently stamped at the time of its execution, if not, whether the document was unstamped and what should be the penalty to be imposed in that event. Subject to the above, the writ petition stands allowed, as aforesaid. (DALIP SINGH),J. Solanki DS, Jr.P.A.