BAIJ NATH Vs. KUNDAN LAL

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought to recover Rs. 672 on account of rent of a shop which had been let to the defendant by the plaintiff on 1 May 1924. No lease was executed but on 7 May 1924, a document styled a sarkhat was executed by the defendant. It provided that the defendant had taken the shop on rent for a period of two years and that, if the defendant vacated the shop before the expiry of the two years, he would be liable to pay the rent, water rate and house-tax in respect of the unexpired portion of the term for which the shop had been let. The defendant vacated the shop on 7 July 1925, and the plaintiff's claim was for rent, water rate and house tax for the unexpired period, viz., period beginning from 7 July 1925 to 30 April 1926.

(2.) The defendant resisted the plaintiff's suit inter alia on the ground that the sarkhat in question is in fact a kabuliat and comes within the definition of "lease" given in the Registration Act and the kabuliat for a term exceeding one year was compulsorily registrable under Section 17, Regrn. Act, and, not being registered, was inadmissible in evidence and he was not liable to pay rent for the period during which he did not occupy the shop. The trial Court overruled the pleas urged in defence and decreed the plaintiff's suit. On appeal by the defendant the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiff's suit. The lower appellate Court held that the document dated 7 May 1924, is a "lease" as defined by the Registration Act, and as the lease was for more than one year its registration was compulsory and, not being registered, could not be received in evidence of any transaction affecting the immovable property to which it related, in view of the provisions of Section 49(c), Regrn. Act. He accordingly came to the conclusion that the sarkhat was inadmissible in evidence, and apart from the sarkhat the plaintiff had no right to claim rent for the period during which the shop was not in the occupation of the defendant respondent.

(3.) In appeal before us it is argued on behalf of the plaintiff appellant that there is a difference between the nullity incurred so far as interest in immovable property is concerned, and the liability to pay damages, and that though the sarkhat is inadmissible in evidence to prove the transaction of lease, it could be admitted in evidence for the collateral purpose of proving the rate of rent agreed upon by the defendant, and for determining the amount of damages to which the plaintiff is entitled. We are unable to agree with this contention. If the plaintiff's claim had been for compensation for the use and occupation by the defendant of the plaintiff's shop the sarkhat would have been admissible in evidence for determining the amount at which the shop could be let. The reason would be that the defendant by remaining in possession was bound to pay rent for the period of occupation independently of the written agreement, and the unregistered agreement would be admissible to establish the rent agreed upon between the parties. But in the present case no question of the rate of rent agreed arises. The plaintiff's case is based essentially on the terms of the contract embodied in the sarkhat in question. Apart from that contract the plaintiff is not entitled to claim any amount from the defendant for the period during which the shop was not in occupation of the defendant. Our attention has been drawn by the learned advocate for plaintiff- appellant to the case of Jogendra Kishna Roy V/s. Kurpal Harshi & Co. A.I.R. 1923 Cal. 63. At p. 350 (of 49 Cal.) the learned Judges are reported to have observed; it is now well established by a long series of decisions in this Court from the case of Bibi Jawahir V/s. Chaterput [1905] 2 C.L.J. 343 to that of Haripada V/s. Nirod (3) A.I.R. 1921 Cal. 383 that when in pursuance of an agreement to transfer property, the intended transferee has taken possession, though the requisite legal documents have not been executed and registered the position is the same as if the documents had been executed, provided that specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined. We must then take it that there was in law as in fact a tenancy for a term of three years....