SARDAR AMAR SINGH Vs. SURINDER KAUR

JUDGEMENT

(1.) THE questions which are referred to the Full Bench for opinion are as under : (i) Whether an unregistered lease-deed can be used to show the nature and character of possession of the defendant that is whether he is a tenant in the premises or not and (ii) Whether assuming the demise of the premises to be under unregistered lease deed Ex. P. 2, then whether a monthly tenancy can be presumed on the facts and circumstances of this case.

(2.) THE facts- giving rise to this reference may be briefly stated. The plaintiff filed a suit for ejectment and arrears of rent against the defendants on the basis of an unregistered lease deed dated 13-7-1972 vide Ex. P. 2. It was alleged that the plaintiff had purchased the suit house from the defendant No. 1 on 13-7-1972 under a registered sale-deed and he later became her monthly tenant on a rent of Rs. 170/- per month. The tenancy was for a period of one year commencing from 13-7-1972 and it was for non-residential purposes. It was also alleged that the defendant No. 1 illegally sub-let the suit premises to the defendant No. 2. The plaintiff, therefore, served a notice on defendant No, 1 on 6-12-1972, terminating the tenancy by the end of the tenancy month on 12-2-1973. The defendants resisted the suit on the ground that in the money-lending transactions which took place between defendant No. 1 and plaintiff's father-in-law, a bogus sale-deed was executed by the defendant No. 1 by way of security for the loans but the parties never intended to act upon that document. It was further averred that the defendant No. 1 continued to be in posse-ssion as owner and the suit premises was not let out to him. According to the defendant No. 1, the lease deed was a bogus document. The allegations of sub-letting were also denied. It was further averred that the lease deed was under-stamped and not registered and it could not be admitted in evidence.

(3.) THE plaintiff made an amendment in the plaint to the effect that at the time of finalisation of the sale transaction, an oral lease accompanied by delivery of possession was created and the lease deed was only a memorandum of the oral lease already entered into, between the parties. At the stage of evidence, the plaintiff sought to admit the lease deed Ex. P. 2 in evidence. He also desired to lead evidence with respect to the alleged oral lease. The defendants raised objections to the admissibility of the said document in evidence on the ground that it was not registered. They also objected to the recording of evidence to prove oral lease. The trial Court overruled the objections and allowed the lease deed to be admitted in evidence. It also permitted the plaintiff to lead evidence with respect to the alleged oral tenancy. Against that order, the defendants had come to this Court in revision. Our learned brother C. P. Sen, J. , who heard the revision, felt the necessity to place the record before Honourable the Chief Justice for orders to constitute a larger bench, as according to him there was apparent conflict between the division Bench decision of the Nagpur High Court in Dammulal v. Mohd. Bhai, AIR 1955 Nag 306 and the division Bench decision of this Court in Smt. Dhana Bai v. Smt. Kewara Bai, 1972 MPLJ 227 = (AIR 1972 Madh Pra 100), on the question whether an unregistered lease deed is admissible in evidence for the collateral purpose of proving the nature of possession. The learned Judge pointed out that according to the view taken in Dammulal v. Mohd. Bhai (supra) an unregistered lease deed can be used to show the nature and character of possession of the defendant, but in the later decision of this Court in Smt. Dhana Bai v. Smt. Kewara Bai (supra), the question which was dealt with as "point No. 2", that is, whether the rent note even if it required registration was admissible under the proviso to Section 49 of the Indian Registration Act for the collateral purpose of proving the nature of possession of the defendants, was decided in the negative.