# Kshetriya Sri Gandhi Ashrma & Anr. Revisionists v. Ajay Kumar & Ors

- **Citation:** (2019) 3 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Civil Revision No. 561 of 2014
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kshetriya-sri-gandhi-ashrma-anr-revisionists-v-ajay-kumar-ors-44866
- **Pages:** 15

## Headnote

A. Property Law-Registration Act,1908 -
Sections 17 & 49 - admissibility of -
unregistered document - if a document
compulsorily required to be registered under
section 17 of the Act, 1908, is not registered,
then it is not admissible into evidence under
section 49 of the Act -However, unregistered
document can be used as an evidence of
collateral purpose.

B.
Transfer
of
Property
Act,1882Sections 106 & 116 - effect of - in
absence of registration, the tenancy
shall be deemed to be a month to month
tenancy the termination of which is
governed by section 106 of the Act-if a
tenant continues in possession after
determination of lease, a tenancy by
holding over is created.

Civil Revision dismissed (E-6)

List of cases cited:-

1.S. Kaladev Vs. U.R. Somasundaram and
Ors,(2010) 5 SCC 401

## Text

_Characters 0–39,991 of 47,870. This is a partial read: ask again with offset=39991 for what follows._

3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
289
question as an Assistant Teacher since the
year 1989, it is provided that she be
allowed to continue to work as Assistant
Teacher till she attains the age of
superannuation. The salary from the State
Exchequer, however, is not admissible to
her. She will, accordingly, be entitled for
salary of an untrained teacher to be paid
by the Management of the institution-inquestion for the period of continuance.

37. Lastly, it is provided that all the
petitioners herein who have been paid
salary from the State Exchequer pursuant
to the interim orders passed by this Court
shall be entitled to retain the same; ie,
there shall be no recovery of the salary
already paid to them till the date of
passing of this order.

38. It is clarified that the aforesaid
directions are given in the peculiar facts
and circumstances of the present case and
shall not be treated as precedent in any
other matter.

39. Subject to above observations
and directions, all the five writ petitions
are disposed of.

40. There shall be no order as to costs.
----------
(2019)11ILR A289

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Civil Revision No. 561 of 2014
with
Civil Revision No. 141 of 2007

Kshetriya Sri Gandhi Ashrma & Anr.
 ...Revisionists
Versus

Ajay Kumar & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri Tarun Verma, Sri M.K. Gupta, Sri
Pankaj Agrawal, Ms. Utkarshani Singh

Counsel for the Opposite Parties:
Sri Ajay Kumar Singh, Sri A. Chaturvedi,
Sri Ashish Kumar Singh, Sri Madhur
Prakash, Sri Sah O.P. Agarwal

A. Property Law-Registration Act,1908 -
Sections 17 & 49 - admissibility of -
unregistered document - if a document
compulsorily required to be registered under
section 17 of the Act, 1908, is not registered,
then it is not admissible into evidence under
section 49 of the Act -However, unregistered
document can be used as an evidence of
collateral purpose.

B.
Transfer
of
Property
Act,1882Sections 106 & 116 - effect of - in
absence of registration, the tenancy
shall be deemed to be a month to month
tenancy the termination of which is
governed by section 106 of the Act-if a
tenant continues in possession after
determination of lease, a tenancy by
holding over is created.

Civil Revision dismissed (E-6)

List of cases cited:-

1.S. Kaladev Vs. U.R. Somasundaram and
Ors,(2010) 5 SCC 401

2. Thulasidhara and Anr. Vs. Narayanappa and
Ors,(2019) 6 SCC 409

3. Shiv Ram and Ors Vs. Lakshman and
Ors,2013 (6) ADJ 348 Para 21

4. Rahul Dixit & Anr. Vs. Shri Chandra Kumar
Agarwal 2019 (1) A.R.C. 160 Para 13 to 17

5. Rajesh Kumar Gupta Vs. Shri Satish
Chandra Khera, 2009, A.C.J. 1185, Para 7
290 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Punjab National Bank Vs. Smt. Geeta Devi,
Civil Revision No. 130 of 2012 decided on
30.03.2012

7. Central Bank of India Vs. Manohar Lal &
Ors. 1997 All C.J. 1257, Para 13,14,17

8. Bajrang Shyamsunder Agarwal Vs. Central
Bank of India & Anr. Para 21 &34

9. K.B. Saha and Sons Private Limited Vs.
Development Consultant Limited, (2008) 8
SCC 564 Para 29 to 34

10. Kale & Ors. Vs. Deputy Director of
Consolidation (1976) 3 SCC 119

11. S. Shanmugam Pillai And Ors. Vs. K.
Shanmugam Pillai And Ors (1973) 2 SCC 312

12. Ahmedsaheb Vs. Sayed Ismail(2012) 8
SCC 516 Para 5 to 19

13. Mattapalli Chelamayya And Anr. Vs.
Mattapalli Venkataratnam, 1972 3 SCC 799
Para 10

14. Bajaj Auto Limited Vs. Behari Lal
Kohli,1989 4 SCC 39 Para 7 and 8

15. Rai Chand Jain Vs. Miss Chandra Kanta
Khosla (1991) 1 SCC 422 Para 10

16. M/S Sms Tea Estates P. Ltd Vs. M/S
Chandmari Tea Co. P.Ltd, (2011) 14 SCC 66
Paras 11,22 and 23

17. Samir Mukherjee Vs. Davinder K. Bajaj &
Ors.(2001) 5 SCC 259 Para 6 and 7

18. M/S Park Street Properties Pvt. Ltd. Vs.
Dipak Kumar Singh And Anr, (2016) 9 SCC 268

19. Bhawanji Lakhamhi & Ors. Vs. Himatlal
Jamnadas Dani & Ors. (1972) 1 S CC 388 Para 13

20 Ganga Dutt Murarka Vs. Kartik Chandra
Das

21. Burmah Shell Oil Distributing Vs. Khaja
Midhat Noor And Ors(1988) 3 SCC 44 Para 5
and 6
22. Anthony Vs. K.C. Itloop and sons and Ors
(2000) 6 SCC 394 Para 8 to 16

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

" If on expiry of lease period of a
registered lease deed, a request for further
lease for nine years on fresh terms and
conditions is made by the tenant without
registration of lease under Section 17 read
with Section 49 of the Registration Act, 1908,
then what shall be the status of the tenant,
the tenancy and his eviction? Is the main
controversy
involved
in
the
present
revision."

1. Heard Sri Pankaj Agarwal,
learned
counsel
for
the
defendants/revisionists and Sri Madhur
Prakash, learned counsel for the plaintiffs/
opposite parties in Civil Revision No.561
of 2014, and, Sri Madhur Prakash,
learned
counsel
for
the
plaintiffsrevisionists
and Sri Pankaj Agarwal, learned counsel
for the defendants/respondents in Civil
Revision No.141 of 2007.

2. Both the aforesaid civil revisions
have been filed under Section 25 of
Provincial of Small Causes Courts Act,
1887 (hereinafter referred to as 'the Act
1887') and arise from the impugned
judgment dated 31.01.2007 in S.C.C. Suit
No.04 of 2006 (Ajay Kumar and others.
vs. Kshetriya Sri Gandhi Ashram and
another). Therefore, with the consent of
the learned counsels for the parties, both
the revisions are being heard together.

3. On removal of defect in Civil
Revision Defective No.4 of 2007, it has
been numbered as Civil Revision No.561
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
291
of 2014 which has been filed by the
defendantstenants/
revisionists
challenging the impugned judgment,
whereby the S.C.C. Suit No.04 of 2006
was decreed and and the defendantstenants/revisionists were directed to be
evicted and were held liable to pay
balance amount of rent from 01.01.2006
to 16.01.2006 and, thereafter, damages @
Rs.18,515/- per month from 17.01.2006
till
actually
vacating
the
disputed
accommodation.

4. Civil Revision No.141 of 2007
has
been
filed
by
the
plaintiffslandlords/revisionists
challenging
the
impugned judgment, whereby damages
have been awarded to the tune of monthly
rent of Rs.18,515/- as against the damages
claimed @ 32 per square feet, i.e.
Rs.64,000/- per month.

Facts of the Case:-

5. Briefly stated facts of the present
case are that plaintiff Nos. 2 and 3,
namely Aditya Kumar and Anupam
Kumar are the sons of plaintiff No.1 Ajay
Kumar. They are co-owners and landlords
of
House
No.C-21/4A-1,
Maldahiya
Varanasi. A registered lease deed dated
13.02.1981 of the disputed shop, was
executed by the plaintiff No.1 Ajay
Kumar for himself and on behalf of his
two sons (other co-owners, namely Aditya
Kumar and Anupan Kumar, who were
minor at that point of time) in favour of
the
defendants/revisionists,
namely
Kshetriya Sri Gandhi Ashram (a Society
registered under the Societies Registration
Act having its office at Shalimar,
Ghazipur, through its Secretary), whereby
an area of 2000 square feet being part of
aforesaid
house
No.C-21/4A-1,
Maldahiya Varanasi, was let out by the
plaintiff/respondents
to
the
defendants/revisionists for a period of
nine years at the monthly rent of
Rs.4,000/- for the first three years,
Rs.4,600/- for the second term of three
years and Rs.5,290/- for the third term of
three years. The term of the aforesaid
registered
lease
deed
expired
on
12.02.1990

6. Thereafter, on 06.03.1990 the
defendants/revisionists sent a letter to the
plaintiffs/respondents
requesting
for
tenancy for further nine years on certain
terms and conditions. On this letter,
plaintiff No.1 for himself and on behalf of
two minor sons (plaintiff Nos.2 and 3)
gave their acceptance on 03.02.1990.
Accordingly, the defendants/revisionists
continued as a tenant of the disputed shop
for a further period of 9 years ending in
February, 1999.

7. The defendants/revisionists
again wrote a letter dated 23.02.1999 to
the plaintiff No.1 Sri Ajay Kumar
requesting him to extend the tenancy of
the disputed shop for a period of nine
years on certain terms and conditions.
This letter/ offer was accepted only by
the plaintiff No.1. As per this letter dated
23.02.1999, the defendants/revisionists
offered to pay for first three years
monthly rent @ Rs.4,000/-, monthly
maintenance Rs.6,000/- and monthly
security Rs.4,000/-. In the next three
years, the rent was offered Rs.4,600/- per
month, maintenance expenses Rs.6,900/-
per
month
and
security
expenses
Rs.4,600/- per month. For the last three
years, the rent was offered to be
Rs.5,300/-
per
month,
maintenance
expenses Rs.7,915/- per month and
security expenses Rs.5,300/- per month,
total Rs.18,515/- per month.
292 INDIAN LAW REPORTS ALLAHABAD SERIES

8.

By
a
notice
dated
12.12.2005 sent by registered post, the
plaintiffs
gave
30
days'
notice
determining the tenancy and clearly
indicated that they do not want to keep
the defendants/revisionists as tenant of
the disputed shop. It was further stated
that if the disputed shop is not vacated
and its vacant possession is not handed
over, then after expiry of 30 days the
defendants/revisionists shall be liable to
pay damages @ Rs.32/- per square feet,
i.e. Rs.64,000/- per month.

9. Since the aforesaid notice was not
complied with by the tenants-defendants/
revisionists,
therefore,
the
plaintiffsrespondents filed S.C.C. Suit No.4 of 2006
(Ajay Kumar and two others vs. Kshetriya Sri
Gandhi Ashram and another) praying for a
decree of eviction against the defendants and
decree for arrears of rent and damages. The
pleadings were exchanged and the evidences
were led by the parties. Thereafter, the
aforesaid S.C.C. suit was decreed by the
impugned judgment dated 31.01.2007. Eleven
issues were framed in the said suit. Crucial
issues were with regard to period of tenancy
on the basis of letter/ lease dated 23.02.1999
and default in payment of rent which all
were decided in favour of the plaintiffs and
against the defendants. Aggrieved with the
aforesaid impugned judgment, the tenantsdefendants/ revisionists have filed Civil
Revision No.561 of 2014 for setting aside the
judgment and the plaintiffs have filed Civil
Revision No.141 of 2007 on the quantum of
damages.

10. With the consent of learned
counsels for the parties, the following
questions are framed for determination in
these two revisions:

Questions:

(a) Whether a lease for nine
years by letter dated 23.02.1999 is a valid
lease?

(b) Whether under the facts and
circumstances of the case, the letter/ lease
dated 23.02.1999 (paper No.39ka/ 45ka)
is a document inadmissible in evidence
under Section 17 of the Indian Stamp Act,
1899 and, therefore, it was rightly held by
the court below to be not admissible in
evidence?

(c) Whether under the facts and
circumstances of the case, even if the
lease deed dated 23.02.1999 is found to
be not valid in law, yet the tenancy of the
defendants-revisionists
would
be
governed by the provisions of Section 116
of the Transfer of Property Act, 1882 and
in that event all the terms and conditions
of
the
original
lease
deed
dated
13.02.1981, would apply to the parties
and in that situation, the tenancy could be
determined only on breach of the
conditions of the registered lease deed
dated 13.02.1981 by the defendantstenants?

(d) Whether under the facts and
circumstances of the case, the plaintiffs
were entitled for damages @ Rs.32/- per
square feet per month for an area of 2000
square feet, i.e. Rs.64,000/- per month or
any other amount higher than the rent of
Rs.18,515/-?

Submissions on behalf of the
tenants-defendants/ revisonists:-

11. Sri Pankaj Agarwal, learned
counsel
for
the
defendantstenants/
revisionists submits, as under:-

(i) After filing the original lease
letter dated 23.02.1999 being paper
No.45ka, the plaintiffs are stopped to
deny its execution even though this letter
bears only the signature of plaintiff No.1 -
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
293
Sri Ajay Kumar who has always been
representing his sons, namely the plaintiff
Nos.2 and 3 and all the plaintiffs have
been regularly accepting the rent and
other amounts at the revised rates. The
lease/ letter dated 23.02.1999 was not the
result of any fraud by the tenantsdefendants/ revisionists rather it was
executed/ accepted by the plaintiffs by
their
own
free-will.
Therefore,
the
plaintiffs are stopped from raising any
objection against the lease/ letter dated
23.02.1999.

(ii) In view of own admission of
the plaintiffs regarding execution of the
renewed
lease
deed/
letter
dated
23.02.1999 and filing it as paper No.45ka,
the non-registration of the aforesaid
renewed
lease
deed/
letter
dated
23.02.1999
looses
its
importance.
Therefore, the paper No.45ga was a
document admissible in evidence but the
court below committed a manifest error of
law to hold otherwise. Reliance is placed
upon the judgment of Hon'ble Supreme
Court
in
S.
Kaladev
vs.
U.R.
Somasundaram and others, (2010) 5
SCC
401
(Paras-16
and
17),
Thulasidhara
and
another
vs.
Narayanappa and others, (2019) 6 SCC
409 (Paras 9.3 to 9.4), in which it has
been held that in cases, where execution
of a deed is established by admission then
non-registration is of no consequence.
Reliance is also placed upon a judgment
of this court in Shiv Ram and others vs.
Lakshman and others, 2013 (6) ADJ
348 (Para-21) holding that even an
inadmissible document could be looked
into for collateral purposes.

Alternative
argument
of
the
tenants-defendants/ revisionists

(iii) Even after the term of
original lease deed dated 13.02.1981
expired
on
12.02.1990,
the
tenant
continued in possession and the plaintiffslandlords have always been regularly
accepting the enhanced rent and other
amounts. Therefore, the status of the
tenants-defendants/ revisionists would be
"tenant holding over" under Section 116
of the Transfer of Property Act, 1882 and
not
an unauthorised
occupant. The
tenants-defendants/ revisionists continued
in
possession
of
the
disputed
accommodation with the assent of the
plaintiffs-landlords.
Therefore,
the
tenancy could be determined only as per
provisions of Section 106 of the Transfer
of Property Act, 1882 and not otherwise.
Since there is a contract between the
parties as evident from the lease deed
dated 13.02.1981, therefore, unless any of
its conditions are violated, the tenancy
could not be determined by the plaintiffslandlords.

On Revision No.141 of 2007

(iv) Damages for the period
covered by lease/ letter dated 23.02.1999,
cannot be granted as the occupation of the
disputed accommodation by the tenantsdefendants/
revisionists
was
not
unauthorised occupation. For the period
subsequent to the expiry of the period of
Lease/ letter dated 23.02.1999, damages
can be determined at an appropriate rate
in a separate suit and not in the suit in
question. Therefore, the defendants are
not liable to pay damages @ Rs.32 per
square feet, which has no basis and in any
case, it is highly excessive.

12. Learned counsel for the
plaintiffslandlords/
respondents
submits as under:
294 INDIAN LAW REPORTS ALLAHABAD SERIES

i. The lease has expired on
03.02.1999. Mere acceptance of rent,
thereafter, would not mean that a valid
lease deed came into existence. The terms
of the lease deed, which expired on
12.02.1990, came to an end by expiry of
the period of tenancy under the said lease
deed.

ii. Even if the submission of the
learned counsel for the tenants/petitioners
with reference to the provisions of
Section 116 and Section 106 of the Act
1882 is considered, it would only mean
that after expiry of the lease deed on
12.02.1990, the tenancy was on month to
month basis and the tenancy could be
determined by notice under Section

iii. By notice dated 12.12.2005
the plaintiffs/landlords determined the
tenancy of the defendants-revisionists.
After expiry of the period given in the
notice the tenants-revisionists became an
illegal occupant. Since the disputed shop
was not vacated by the defendantstenants/
revisionists,
therefore,
the
plaintiffs filed S.C.C. Suit No. 04/2006
which has been lawfully decreed by
impugned judgment dated 31.01.2007.

iv. The findings recorded in the
impugned judgment dated 31.01.2007 are
findings of fact based on consideration of
relevant evidences on record which
cannot
be
interfered
in
revisional
jurisdiction. The findings recorded in the
impugned judgment do not suffer from
any perversity.

13. In support of his submissions,
learned
counsel
for
the
plaintifflandlord/respondent relied upon judgment
of this Court dated 07.12.2018 in Civil
Revision No. 126 of 2010 ( Rahul Dixit
& another v. Shri Chandra Kumar
Agarwal) reported in 2019 (1) A.R.C.
160 (paragraph nos. 13 to 17), Rajesh
Kumar Gupta v Shri Satish Chandra
Khera, 2009, A.C.J. 1185 (paragraph
no. 7), Punjab National Bank v. Smt.
Geeta Devi in Civil Revision No. 130 of
2012 decided on 30.03.2012, Central
Bank of India v. Mahohar Lal & Ors.
1997 All C.J. 1257 (paragraph nos. 13,
14, and 17) and a judgment of Hon'ble
Supreme Court in Criminal Appeal No.
1371 of 2019 (Bajrang Shyamsunder
Agarwal v. Central Bank of India &
Anr.),
judgment
dated
11.09.2019
(paragraph nos. 21 and 34).

Discussion and findings

14. I have carefully considered the
submissions of the learned counsel for the
parties.

15. Before I proceed to examine the
questions framed above, it would be
appropriate to reproduce the relevant
provisions of Section 17 and Section 49
of the Registration Act, 1908 (hereinafter
referred to as the Act, 1908) (as amended
by U.P. Act 57 of 1976) and Section 106
and 116 of the Transfer of Property Act
1882 (hereinafter referred to as the Act
1882), as under :-

Registration Act 1908

Sec.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, or the Indian Registration Act,
1871, or the Indian Registration Act, 1877
or this Act came or comes into force,
namely:-
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
295

(a) ..............

(b) .............

(c) ............

(d)
leases
of
immovable
property from year to year, or for any
term exceeding one year, or reserving a
yearly rent;

(e) PROVIDED that the State
Government may, by order published in
the Official Gazette, exempt from the
operation of this sub-section any leases
executed in any district, or part of a
district, the terms granted by which do not
exceed five years and the annual rent
reserved by which do not exceed fifty
rupees.

Sec. 49. Effect of non-registration
of documents required to be registered
(As made applicable in Uttar Pradesh, by
U.P. Act 57 of 1976)

No
document
required
by
section 17 [or by any provision of the
Transfer of Property Act, 1882 (4 of
1882)], or of any law for the time being in
force to be registered shall-

(a)
affect
any
immovable
property comprised therein, or

(b) confer any power or create
any right or relationship, or

(c) be received as evidence of
any transaction affecting such property or
conferring such power or creating such
right or relationship, unless it has been
registered:

Provided that an unregistered
document affecting immovable property
and required by this Act or the Transfer of
Property Act, 1882 (4 of 1982), to be
registered may be received as evidence of
any collateral transaction not required to
be effected by registered instrument.

Transfer of Property Act,1882

Sec. 106:- Duration of certain
leases in absence of written contract or
local usage.--

(1) In the absence of a contract
or local law or usage to the contrary, a
lease
of
immovable
property
for
agricultural or manufacturing purposes
shall be deemed to be a lease from year to
year, terminable, on the part of either
lessor or lessee, by six months' notice;
and a lease of immovable property for
any other purpose shall be deemed to be a
lease from month to month, terminable,
on the part of either lessor or lessee, by
fifteen days' notice.

(2) Notwithstanding anything
contained in any other law for the time
being in force, the period mentioned in
subsection (1) shall commence from the
date of receipt of notice.

(3) A notice under sub-section
(1) shall not be deemed to be invalid
merely because the period mentioned
therein falls short of the period specified
under that sub-section, where a suit or
proceeding is filed after the expiry of the
period mentioned in that sub-section.

(4) Every notice under subsection (1) must be in writing, signed by
or on behalf of the person giving it, and
either be sent by post to the party who is
intended to be bound by it or be tendered
or delivered personally to such party, or to
one of his family or servants at his
residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous
part of the property.]

Sec. 116. Effect of holding over.--If
a lessee or under-lessee of property
remains in possession thereof after the
determination of the lease granted to the
296 INDIAN LAW REPORTS ALLAHABAD SERIES
lessee, and the lessor or his legal
representative accepts rent from the lessee
or under-lessee, or otherwise assents to
his continuing in possession, the lease is,
in the absence of an agreement to the
contrary, renewed from year to year, or
from month to month, according to the
purpose for which the property is leased,
as specified in section 106. Illustrations

(a) A lets a house to B for five
years. B underlets the house to C at a
monthly rent of Rs. 100. The five years
expire, but C continues in possession of
the house and pays the rent to A. C's lease
is renewed from month to month.

(b) A lets a farm to B for the life
of C. C dies, but B continues in
possession with A's assent. B's lease is
renewed from year to year.

COMMENTS

Holding Over: The holding
over, if inferred by the conduct of parties,
will bring out a new tenancy even though
many of the terms thereof the expired
lease deed exist. Therefore, to constitute a
valid assent under section 116 of the Act,
bilateral contract must exist between the
lessor and the lessee: R.S. Iron Industries
Pvt. Ltd. v. Calcutta Pinkjarapole Society,
AIR 2013 Cal 94.

Tenant at sufferance: A person
who is a tenant at sufferance has no estate
or interest in the leasehold property. A
tenant holding after the expiry of his term
is a tenant at sufferance, which is a term
useful to distinguish a possession rightful
in its inception but wrongful in its
continuance from a trespass which is
wrongful both in its inception and in its
continuance. A co-owner can maintain a
suit by himself in ejectment of a
trespasser or a tenant at sufferance; B.
Valsala v. Sundram Nadar Bhaskaran,
AIR 1994 Ker 164.

Questions (a) and (b)

16. Questions (a) and (b) are
interlinked and therefore, both are being
considered together.

Principles of admissibility of an
unregistered
document
and
consequence of non registration:

17. In K.B. Saha and Sons Private
Limited v. Development Consultant
Limited, (2008) 8 SCC 564 (para 34) the
Hon'ble Supreme Court considered its
various judgments as well as judgments
of various High Courts and laid down the
law as under:

I. A document required to be
registered is not admissible into evidence
under Section 49 of the Registration Act.

II. Such unregistered document
can however be used as an evidence of
collateral purpose as provided in the
Proviso to Section 49 of the Registration
Act.

III. A collateral transaction must
be independent of, or divisible from, the
transaction to effect which the law
required registration.

IV. A collateral transaction must
be a transaction not itself required to be
effected by a registered document, that is,
a transaction creating, etc. any right, title
or interest in immoveable property of the
value of one hundred rupees and upwards.

V. If a document is inadmissible
in evidence for want of registration, none
of its terms can be admitted in evidence
and that to use a document for the
purpose of proving an important clause
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
297
would not be using it as a collateral
purpose.

18. The principles laid down in the
case of K.B. Saha & Sons (P.) Ltd.
(supra) as reproduced above, have been
reiterated by Hon'ble Supreme Court in
S.Kaladevi vs V.R.Somasundaram &
Ors. (2010) 5 SCC 401 (para 13).

19. Thus, in view of the provisions
of Sections 17 and 49 of the Act, 1908
and the law laid down by the Hon'ble
Supreme Court in K.B. Saha & Sons (P.)
Ltd. (supra) and S.Kaladevi (supra) it can
be safely concluded that if a document
compulsorily required to be registered
under Section 17 of the Act, 1908, is not
registered, then it is not admissible into
evidence under Section 49 of the Act,
1908.
However,
such
unregistered
document can be used as an evidence of
collateral purpose in terms of the proviso
to Section 49. A collateral transaction
must be independent, or divisible from,
the transaction to effect which the law
required
registration.
A
collateral
transaction must be a transaction not itself
required to be effected by a registered
document, i.e., the transaction creating
etc. any right, title or interest in
immovable property of the value of 100/-
Rupees and upwards. If a document
compulsorily required to be registered
under Section 17 of the Act, is not
registered, then it is not admissible into
evidence, for want of registration, and
none of its terms can be admitted in
evidence and that to use a document for
the purpose of proving an important
clause would not be using it as a collateral
purpose. As per exceptions provided in
the proviso to Section 49 of the Act 1908,
an
unregistered
document
affecting
immovable property and required under
the Act 1908 or the Act 1882 to be
registered, may be received as evidence
of any collateral transaction not required
to be affected by a registered instrument.

20.

Exceptions
of
non
admissibility
of
an
unregistered
document can be summarised as under:

I. Those as provided in the
proviso to Section 49 of the Act, 1908.

II. Certain family arrangements
with regard to properties and family
settlement resulting in complete estoppal.
Reference in this regard may be had to the
judgment of Hon'ble Supreme Court in
Kale & Others v. Deputy Director Of
Consolidation(1976) 3 SCC 119, S.
Shanmugam Pillai And Ors v. K.
Shanmugam Pillai And Ors (1973) 2
SCC
312
and
Thulasidhara
v.
Narayanappa, (2019) 6 SCC 409 (paras
9.3 and 9.4).

III. An unregistered sale deed
can be received in evidence in suit for
specific performance as proof of oral
agreement to sale, vide para 34 of the
judgment in case of K.B. Saha & Sons
(P.) Ltd. (supra) and para nos. 12 to 15 of
the judgment in S.Kaladevi (supra).

IV.
A
lease
deed
of
an
immovable
property
for
any
term
exceeding one year can be made only by
an registered instrument in view of the
provisions of Section 105 readwith
Section 107 of the Act, 1882, subject to
the proviso to Section 107 but claim
arising from an unregistered lease deed
of a period exceeding one year can be
granted
on
the
basis
of
other
uncontroverted evidence available on
record supporting the claim of rent and
determination of the question whether
there was in fact lease other wise than
through such lease deed. Reference in this
298 INDIAN LAW REPORTS ALLAHABAD SERIES
regard may be had to the judgment of
Hon'ble Supreme Court in Ahmedsaheb
v. Sayed Ismail (2012) 8 SCC 516 (paras
5 to 19).

V. If under the evidence Act a
document is receivable in evidence for a
collateral purpose, then Section 49 of the Act
1908, shall not bar it, vide Mattapalli
Chelamayya And Anr. v. Mattapalli
Venkataratnam, 1972 3 SCC 799 (para 10).

Admissibility of an unregistered
lease deed/ rent deed for a period of
one year or more and claim of right
there under by the tenant.

21. Section 105 of Act 1882 defines
the word "lease". It provides that lease of
immoveable property is a transfer of a
right to enjoy such property, made for a
certain time, express or implied, or in
perpetuity, in consideration of a price paid
or promised, or of money, a share of
crops, service or any other thing of value,
to be rendered periodically or on specified
occasions to the transferor by the
transferee, who accepts the transfer on
such terms. Section 107 provides that a
lease of immovable property, from year to
year, or for any term exceeding one year,
or reserving yearly rent can be made only
by a registered instrument.

22. Section 49 of the Act 1908
provides for the consequence of non
registration of documents required to be
registered under Section 17. It provides (
as amended by U.P. Act 57 of 1976) that
no document required by Section 17 or by
any provision of the Transfer of Property
Act 1882 to be registered shall, affect any
immovable property comprised therein, or
confer any power or create any right or
relationship, or 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
under the Act 1908 or the Act 1882 to
be registered may be received as
evidence of any collateral transaction
not
required
to
be
effected
by
registered instrument. Thus, as an
exception
an
unregistered
document
affecting immovable property as aforesaid
may only be received as evidence of any
collateral transaction not required to be
effected by registered instrument.

23. Therefore, the alleged letter
dated 23.02.1999 allegedly creating a
lease of the disputed shop for nine years
is not admissible into evidence under
Section 49 of the Act, 1908. None of its
terms can be admitted in evidence.
Therefore, all its terms i.e. the terms of
the letter/ lease dated 23.02.1999 were
inadmissible. There can be no estoppal
against the statute. An unregistered lease
deed can be relied upon for limited
purpose for showing that the possession
of the lessee is lawful possession or for
some collateral transaction.

24. The conclusions as reached in just
preceding paragraphs are also fortified by the
law laid down by Hon'ble Supreme Court in
Bajaj Auto Limited vs Behari Lal Kohli,
1989 4 SCC 39 ( paras 7 and 8), Rai Chand
Jain vs Miss Chandra Kanta Khosla
(1991) 1 SCC 422 (para 10),K.B. Saha and
Sons Private Limited v. Development
Consultant Limited, (2008) 8 SCC 564
(paras 29 to 34), M/S Sms Tea Estates
P.Ltd vs M/S Chandmari Tea Co.P.Ltd ,
2011 14 SCC 66 (paras 11, 22 and 23).

25. In Samir Mukherjee vs
Davinder K. Bajaj & Ors, (2001) 5 SCC
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
299
259 (para 6 and 7) Hon'ble Supreme
Court held as under:

"6. Section 106 prescribes the
procedure for execution of a lease
between the parties. Under the first
paragraph of this section a lease of
immovable property from year to year or
for any term exceeding one year or
reserving yearly rent can be made only by
registered
instrument
and
remaining
classes of leases are governed by the
second paragraph that is to say all other
leases of immovable property can be
made either by registered instrument or
by oral agreement accompanied by
delivery of possession."

7. In the case in hand we are
concerned with an oral lease which is hit
by the first paragraph of Section 107 of
the Transfer of Property Act. Under
Section 107 parties have an option to
enter into a lease in respect of an
immovable property either for a term less
than a year or from year to year, for any
term exceeding one year or reserving a
yearly rent. If they decide upon having a
lease in respect of any immovable
property from year to year or for any term
exceeding one year, or reserving yearly
rent, such a lease has to be only by a
registered instrument. In absence of a
registered instrument no valid lease
from year to year or for a term
exceeding one year or reserving a
yearly rent can be created. If the lease
is not a valid lease within the meaning
of the opening words of Section 106 the
rule of construction embodied therein
would not be attracted. The above is the
legal position on a harmonious reading of
both the sections."

26. In M/S Park Street Properties
(Pvt) Ltd. vs Dipak Kumar Singh And
Anr , 2016 9 SCC 268 Hon'ble Supreme
Court
held
that
in
absence
of
registration of a document, what is
deemed to be created is a month to
month tenancy, the termination of
which is governed by Section 106 of the
Act. Since the alleged unregistered
letter dated 23.02.1999 providing for
lease of the disputed shop for a period
of 9 years is an unregistered document,
therefore, the tenancy can be deemed to
be a month to month tenancy and the
termination of tenancy is governed by
Section 106 of the Act, 1882. Paragraph
17 and 19 of the judgment of Hon'ble
Supreme Court in the case of M/S Park
Street (supra) are reproduced below:

"17. A perusal of Section 106 of
the Act makes it clear that it creates a
deemed monthly tenancy in those cases
where there is no express contract to the
contrary, which is terminable at a notice
period of 15 days. The section also lays
down the requirements of a valid notice to
terminate the tenancy, such as that it must
be in writing, signed by the person
sending it and be duly delivered.
Admittedly, the validity of the notice
itself is not under challenge. The main
contention advanced on behalf of the
respondents
is
that
the
impugned
judgment and order is valid in light of the
second part of Section 107of the Act,
which requires that lease for a term
exceeding one year can only be made by
way of a registered instrument.

19. It is also a well settled
position of law that in the absence of a
registered instrument, the courts are not
precluded from determining the factum of
tenancy from the other evidence on record
as well as the conduct of the parties. A
three Judge bench of this Court in the
300 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Anthony v. KC Ittoop & sons (4),
held as under:

"A lease of immovable property
is defined in Section 105 of the TP Act. A
transfer of a right to enjoy a property in
consideration of a price paid or promised
to be rendered periodically or on specified
occasions is the basic fabric for a valid
lease. The provision says that such a
transfer can be made expressly or by
implication. Once there is such a transfer
of right to enjoy the property a lease
stands created. What is mentioned in the
three paragraphs of the first part of
Section 107 of the TP Act are only the
different modes of how leases are created.
The first paragraph has been extracted
above and it deals with the mode of
creating the particular kinds of leases
mentioned therein. The third paragraph
can be read along with the above as it
contains a condition to be complied with
if the parties choose to create a lease as
per a registered instrument mentioned
therein. All other leases, if created,
necessarily fall within the ambit of the
second paragraph. Thus, dehors the
instrument parties can create a lease as
envisaged in the second paragraph of
Section which reads thus......... When
lease is a transfer of a right to enjoy the
property and such transfer can be made
expressly or by implication, the mere fact
that an unregistered instrument came into
existence would not stand in the way of
the court to determine whether there was
in fact a lease otherwise than through
such deed.

.................. Taking a different
view would be contrary to the reality
when parties clearly intended to create a
lease though the document which they
executed had not gone into the processes
of registration. That lacuna had affected
the validity of the document, but what had
happened between the parties in respect
of the property became a reality. Non
registration of the document had caused
only two consequences. One is that no
lease exceeding one year was created.
Second is that the instrument became
useless so far as creation of the lease is
concerned. Nonetheless the presumption
that a lease not exceeding one year stood
created by conduct of parties remains unrebutted." (emphasis laid by this Court)
Thus, in the absence of registration of a
document, what is deemed to be
created is a month to month tenancy,
the termination of which is governed by
Section
106
of
the
Act."
(emphasis supplied by me)

27. For all the reasons, aforestated I
hold that the alleged lease of the
disputed
shop
by
letter
dated
23.02.1999 for a period of 9 years is not
admissible in evidence in view of the
provisions of Section 107 of the Act
1882 and Sections 17 and 49 of the Act,
1908. Therefore, the Court below has
not committed any error of law to hold
that the aforesaid alleged lease deed/
letter dated 23.02.1999 is not admissible
in evidence. Question nos. a and b are
answered accordingly.

Question no. c.

28. The contractual tenancy created
by the plaintiffs-landlords in favour of the
tenant-defendant/
revisionist
by
a
registered lease deed dated 13.02.1981
came to end on expiry of its period of 9
years
i.e.
on
12.02.1990.
Further,
continuance
of
the
defendanttenant/
revisionist under letter dated 06.03.1990
and thereafter, by letter dated 23.02.1999
accepted only by the plaintiff no. 1,
resulted in month to month tenancy. In
3 All. Kshetriya Sri Gandhi Ashrma & Anr. Vs. Ajay Kumar & Ors.
301
absence of any valid registered lease deed
it become a month to month tenancy
under Section 106 of the Act 1882.
Similar view has been taken by Hon'ble
Supreme Court in the case of M/S Park
Street (supra) wherein, Hon'ble Supreme
Court clearly held ( para 19) that in
absence of registration of a document,
what is deemed to be created is a month
to month tenancy, the termination of
which is governed by section 106 of the
Act, 1882. In view of the settled law as
discussed above, the condition of the
registered lease deed dated 13.02.1981
shall also not be admissible in evidence
and none of its terms and conditions can
be pressed or any right there under can be
claimed
by
the
defendanttenant/revisionist since the said registered
lease deed expired by efflux of time on
12.02.1990.

Effect of holding over

29. Section 116 of the Act 1882
provides that if a lessee or under lessee of
an
immovable
property
remains
in
possession thereof after the determination
of the lease granted to lessee, and the
lessor or his legal representative accepts
rent from the lessee or under lessee, or
other wise assents for continuing in
possession, the lease is, in the absence of
an agreement to the contrary, renewed
from year to year, or from month to
month, according to the purpose for
which the property is leased, as specified
under Section 106 of the Act 1882. Thus,
applying Section 116 of the Act, 1882 on
the fats of the present case, the best
case of the defendant-tenant/ revisionist
may be that he is a tenant from month
to month. Undisputedly, the letter dated
23.02.1999 issued by the defendanttenant/ revisionist and accepted by the
plaintiff no. 1 for lease of the disputed
shop for 9 years, is an unregistered
document. Therefore, in absence of
registration, the tenancy shall be
deemed to be a month to month
tenancy and its termination is governed
by Section 106 of the Act 1882 as also
held by Hon'ble Supreme Court in the
case of M/s Park Street (supra). If a
tenant
remains
in
possession
after
determination of the lease, he is called a
tenant on sufferance. If a tenant
continues
in
possession
after
determination of the term with the
consent of the landlord then he is a tenant
at will or a tenant holding over.