JABBOR MAHI ALIAS JABBORULLAH Vs. RAMANI MOHAN CHOWDHURY

JUDGEMENT

(1.) This is an appeal by defendant 3 who alone contested the suit in the Courts below. The suit was for arrears of rent, and a two-fold defence was taken: first, a denial of the relationship of landlord and tenant, and secondly, that the rate of rent was not as the plaintiffs had claimed. Both the pleas were negatived, and a decree was passed at the rate claimed, which was Re. 1 per keor per year. The only question raised in this appeal is as to the rate of rent. It appears that the tenancy was originally created by a kabuliyat for a term of one year in which the rent stipulated was at the rate of 8 annas per keor. The defendants held over on the expiry of the term, and the plaintiffs thereafter sued them for rent. This suit was disposed of in terms of a compromise. By the solenama the rent was fixed at Re. 1 per keor, and it was further provided that there was to be no enhancement for 15 years. It is on this solenama which was made a part of the decree that the plaintiffs base their claim in the present suit. The solenama was not registered, and so defendant 3 contended it was not admissible in evidence. His case was that it was either a new lease for a term exceeding one year, or a document varying the rent payable under the previous lease which was a registered instrument, and in either view, it was said, the document required registration.

(2.) The learned Additional District Judge seemed to think that the solenama was not a new lease, but a variation of the old lease. On this footing, he was of opinion that as the old lease was a registered document, the case might be held to come within the Full Bench ruling in Lalit Mohan Ghosh V/s. Gopali Chauck Coal Co., Ltd. ( 11) 39 Cal. 284, which laid down that a document embodying an agreement for variation of rent under a pre-existing lease, registered, as required by Section 17, Sub-section (1), Clause (d), Registration Act, also required registration. The Pull Bench approved the earlier judgment of this Court in Durga Prasad Singh V/s. Rajendra Narain Bagehi ( 10) 37 Cal. 293, which was subsequently affirmed on appeal on this point by the Judicial Committee in Durga Prasad V/s. Rajendra. Narayan.40 I. A. 223, at p. 230. The learned Judge however did not give effect to this view, and sought, on the other hand, to avoid the effect of the Full Bench decision by treating the solenama as a document under Clause (b) of Sub-section (1), that is to say, as a document creating or limiting an interest in immovable property of the value of upwards of Rs. 100, and thus bringing it within the exception enacted in Clause (vi) of Sub-section (2), which exempts such a document from compulsory registration, if incorporated in a decree or Order of a Court.

(3.) I am not sure that the Full Bench decision would at all apply to this case. The Full Bench judgment as well as that in the earlier ease which it approves proceeds on the footing that the previous lease must not only be registered in point of fact, but be also compulsorily registrable under Section 17, Registration Act. That is not the case here. The old lease had no doubt been registered, but as it was only for a term of one year and did not reserve a yearly rent, it could not be said that the document required registration. This explains why Mr. Sen appearing on behalf of the appellant did not press this aspect of the matter before me. Mr. Sen's contention was that the solenama was a lease under Clause (d) of Sub-section (1) of Sec. 17, and that therefore it could not come within the exception in Clause (vi) of Sub-section (2). It was pointed out, and rightly so, that sub. Section (2) by its opening words was expressly limited to documents falling within the categories mentioned in Clause (b) and (c), and not any other Clause of Sub-section (1), and in support of this construction, he referred to a number of cases, such as Rajani Kanta V/s. Raj Kumari Dassi Nazar Ali V/s. Indra Kumar , and Atul Krishna v. Zahed Mondal , Mr. Das on behalf of the respondents did not contest the proposition that if the solenama was a lease under Clause (d) of Sub-section. (1), it could not attract the operation of Clause (vi) of Sub-section (2), so as to be exempt from registration on the ground that it was embodied in a decree, but relying on Jogesh Chandra V/s. Behari Lal Mitra , he stoutly maintained that it was merely a recognition of a pre-existing tenancy, and did not amount to a lease at all. It was in every sense a document of the class referred to in Clause (b) of Sub- section (1), a non-testamentary instrument purporting to create or limit an interest in immovable property, and as such, it clearly came within the exception contained in Clause (vi) of Sub-section (2).