SRI MAHABIRJI Vs. RAMNATH KASANVANI

JUDGEMENT

(1.) This is an application by the plaintiff who sued to recover house rent in respect of premises admittedly held by the defendant under the plaintiff. The defence was that the rate of rent was lower than that stated by the plaintiff, also that on the 8 July, 1933, four years rent had been paid in advance to the plaintiff's agent Ramkumar Lal, in evidence of which payment the defendant produced a receipt, Exhibit C. The plaintiff did not admit this receipt to be genuine, and at the hearing he cross-examined the defendant and elicited from him that the payment was made on receipt granted on the 8 July 1933, the date which the receipt bears, in Arrah. The plaintiff then asked the permission of the Court to rebut this evidence of the defendant by calling for the attendance register of the criminal Court at Sasaram which it was said would show that on the date of the alleged payment and receipt Ramkumar Lal was not in Arrah at all but was in Sasaram working as a typist in the criminal Court. The Small Cause Court Judge refused this application on the ground that it was made at a late stage. The plaintiff contends that the application should not have been refused for that reason in the circumstance of this case, explaining that if the application had been made earlier the defendant would have become aware that it was not safe for him to allege a payment made in Arrah on that date and he might have framed his evidence to agree with the entries in the attendance register. That may be so; but I cannot say that the Small Cause Court Judge committed any error of procedure in refusing to allow the plaintiff an opportunity of adducing rebutting evidence at a late stage of the case.

(2.) The other point taken is that the receipt, Exhibit C, was inadmissible in evidence being a document requiring registration under Section 17, Registration Act, and also coming within the definition of a lease under the Transfer of Property Act and purporting to create title in immoveable property. The opposite party urged as a preliminary objection that the document had been admitted as evidence in the Court below and an objection to its admissibility should not be allowed to be taken in revision. I do not think the preliminary objection can be sustained in face of the decision in Mt. Sumitra Koer V/s. Ram Kair Chobey 1921 Pat 61. There is a clear distinction between waiving the necessity for formal proof of a document, an objection which, if raised in the trial Court, might have been made good by the opposite party and objecting to the admission of evidence which the law forbids to be received. In the latter case acquiescence in the Court below is no bar to raising the objection in a superior Court. The document itself recites letting of the house by the plaintiff to the defendant on a monthly rent of Rs. 10 as well as the fact of payment of Rs. 480 on account of rent. Had this been a suit in which the existence of the tenancy was in question, I should have no hesitation in holding that this paper was inadmissible to prove the existence of the tenancy. It is equally inadmissible to prove the existence of the tenancy. It is equally inadmissible to prove the rate of rent, because four years rent being acknowledged it must be taken to be a document creating a tenancy for more than one year. The rate of rent, however, was established by other evidence to have been Rs. 10 at an earlier date, and there was no satisfactory evidence of letting at any higher rate.

(3.) Then the question arises whether the defendant is debarred from using this document not to prove any right of his in immoveable property but to prove a cash payment. The respondent relies on the proviso to Section 49, Registration Act, as amended in 1929. An unregistered document affecting immoveable property may be received as evidence of a collateral transaction not required to be effected by registered instrument. This amendment appears to have been made with a view to settle the conflict of decisions as to the cases in which documents prima facie requiring to be registered could or could not be used. Under the law, as it stood before the amendment, it had been held by the majority of the High Courts that an unregistered document could be used for certain collateral purposes. In particular, in Sambhu V/s. Nama (1911) 35 Bom 438, it was held that an unregistered sale-deed, though it could not be relied on as passing any title to the property, could be used as proving a cash payment made at the time of its execution in a suit to recover the money. Prima facie it would seem that the new proviso in Section 49 recognizes and authenticates this interpretation of the law. But for the petitioner it is contended that the proviso refers only to proving a collateral transaction not required to be effected by registered instrument; and in the present case the receipt being for Rs. 480 does require registration under Section 17(1)(c) as a non-testamentary instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest. This might be applicable if the payment shown in the receipt was a premium for a lease; but I do not think that it is intended to apply to a mere payment of rent.