# MIS. K.B.SAHA & SONS PVT. LTD v. MIS. DEVELOPMENT CONSULTANT LTD

- **Citation:** [2008] 8 S.C.R. 290
- **Court:** Supreme Court of India
- **Decided:** 2008-05-12
- **Case number:** Civil Appeal Nos. 5659-5660 Of 2002
- **Bench:** A.K. Mathur, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-k-b-saha-sons-pvt-ltd-v-mis-development-consultant-ltd-24723
- **Pages:** 25

## Headnote

'J.
West Bengal Premises!Tenancy Act, 1956:
c
s. 13(1b) - Protection to tenant- Change of user- Premises let out to a company for residence of its named officer
- Company intending to allot the premises to some other
employee - Suit by landlord for ejectment on the ground of
violation of s.108(0) of Transfer of Property Act- HELD. Lease
agreement having not been registered, the same is inadmis-
+~
D sible in evidence -Proviso to s. 49 of Registration Act is not
applicable as use o1 the document to prov violation of s. 108( 0)
of Transfer of Property Act is not a 'collateral purpose' - Even
otherwise, if company allotted the premises for residence of
any employee other than the named one, it would not be
E 'change of user'- For a decree of eviction under the Act. landlord has to plead and prove one of the grounds mentioned in
s. 13 of the Act - On facts, appellant is not entitled to a decree
of eviction under the Act - Transfer of Property Act. 1882 - ss
•
107 and 108 - Registration Act. 1908 - s.49, proviso.
.....
F
Transfer of Property Act, 1882.
ss. 107 - Lease agreement letting out the premises for
residence on monthly rental - Not registered - Admissibility
of in evidence - 'Change of user' - Connotation of - RegistraG tion Act, 1908 - s.49, proviso - Deeds and documents.
Words and Phrases.·
.__.
Expressions 'collateral purpose· and change of user' -
....
Connotation of in the context of s 108 of Transfer of Property
H
290
,.
_..(
~
-~
~
•
1
MIS. K.B. & SONS PVT LTD. v. M/S. DEVELOPMENT291
CONSULTANT LTD.
Act and s. 49 of Registration Act.
A
The suit premises were let out by the appellant-plaintiff to the respondent-company for residence of its particular officer, namely, 'KD' on a monthly rent. According
to the plaintiff the agreement dated 30.3.1976 provided that
B
if the respondent intended to use the premises for any
purpose other than providing residential accommodation
to 'KD', it would have to seek a written permission therefor from the appellant. By a letter dated 6.3.1992, the respondent informed the appellant that 'KD' had vacated
the suit premises and that it wanted to make repairs and c
to allot the same to another employee. The appellant replied asking the respondent to surrender the premises,
but to no avail. Therefore, the appellant filed Title Suit No.
19/92 for declaration and permanent injunction that in
terms of the agreement dated 30.3.1976 the respondent D
had no right to allot the suit premises to any other employee after the same was vacated by 'KD'. The trial court
passed an interim injunction. On 18.3.1995 a notice was
served upon the respondent to vacate the suit premises
and on its non-compliance, Title Suit No. 39/95 was filed
E
for ejectment of the respondent. The case of the respondent was that the suit premises were let out to it and not
to its officer and even after the said officer vacating the
same, tenancy of the respondent continued and the same
was protected by the provisions of the West Bengal PreF
mises Tenancy Act, 1956. The suits were dismissed by
the trial court and so also the appeals by the High Court.
In the instant appeals filed by the plaintiff-landlord, it
was contended for the appellant that the lease agreement
creating tenancy from month to month was not compulG
sorily registrable u/s 107 of the Transfer of Property Act,
1882 and, as such, the prohibition contained in s.49 of
the Registration Act, 1908 was not applicable; therefore,
trial court erred in holding that the lease agreement being
an unregistered document could not be used to estabH
292
SUPREME COURT REPORTS
(2008] 8 S.C.R.
~ ..
A lish the provisions made therein that the premises were
let out for occupation of the named officer of the respondent and for no other purposes. In the alternative it was
contended that the purpose of letting as specified in the
lease agreement was a 'collateral purpose' and, therefore,
B the document could be looked into under the proviso to
s.49 of the Registration Act. It was submit

## Text

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[2008] 8 S.C.R. 290
~ ~
A
MIS. K.B.SAHA & SONS PVT. LTD.
V.
MIS. DEVELOPMENT CONSULTANT LTD.
(Civil Appeal Nos. 5659-5660 Of 2002)
B
MAY 12, 2008
[A.K. MATHUR AND TARUN CHATTERJEE, JJ.]
'J.
West Bengal Premises!Tenancy Act, 1956:
c
s. 13(1b) - Protection to tenant- Change of user- Premises let out to a company for residence of its named officer
- Company intending to allot the premises to some other
employee - Suit by landlord for ejectment on the ground of
violation of s.108(0) of Transfer of Property Act- HELD. Lease
agreement having not been registered, the same is inadmis-
+~
D sible in evidence -Proviso to s. 49 of Registration Act is not
applicable as use o1 the document to prov violation of s. 108( 0)
of Transfer of Property Act is not a 'collateral purpose' - Even
otherwise, if company allotted the premises for residence of
any employee other than the named one, it would not be
E 'change of user'- For a decree of eviction under the Act. landlord has to plead and prove one of the grounds mentioned in
s. 13 of the Act - On facts, appellant is not entitled to a decree
of eviction under the Act - Transfer of Property Act. 1882 - ss
•
107 and 108 - Registration Act. 1908 - s.49, proviso.
.....
F
Transfer of Property Act, 1882.
ss. 107 - Lease agreement letting out the premises for
residence on monthly rental - Not registered - Admissibility
of in evidence - 'Change of user' - Connotation of - RegistraG tion Act, 1908 - s.49, proviso - Deeds and documents.
Words and Phrases.·
.__.
Expressions 'collateral purpose· and change of user' -
....
Connotation of in the context of s 108 of Transfer of Property
H
290
,.
_..(
~
-~
~
•
1
MIS. K.B. & SONS PVT LTD. v. M/S. DEVELOPMENT291
CONSULTANT LTD.
Act and s. 49 of Registration Act.
A
The suit premises were let out by the appellant-plaintiff to the respondent-company for residence of its particular officer, namely, 'KD' on a monthly rent. According
to the plaintiff the agreement dated 30.3.1976 provided that
B
if the respondent intended to use the premises for any
purpose other than providing residential accommodation
to 'KD', it would have to seek a written permission therefor from the appellant. By a letter dated 6.3.1992, the respondent informed the appellant that 'KD' had vacated
the suit premises and that it wanted to make repairs and c
to allot the same to another employee. The appellant replied asking the respondent to surrender the premises,
but to no avail. Therefore, the appellant filed Title Suit No.
19/92 for declaration and permanent injunction that in
terms of the agreement dated 30.3.1976 the respondent D
had no right to allot the suit premises to any other employee after the same was vacated by 'KD'. The trial court
passed an interim injunction. On 18.3.1995 a notice was
served upon the respondent to vacate the suit premises
and on its non-compliance, Title Suit No. 39/95 was filed
E
for ejectment of the respondent. The case of the respondent was that the suit premises were let out to it and not
to its officer and even after the said officer vacating the
same, tenancy of the respondent continued and the same
was protected by the provisions of the West Bengal PreF
mises Tenancy Act, 1956. The suits were dismissed by
the trial court and so also the appeals by the High Court.
In the instant appeals filed by the plaintiff-landlord, it
was contended for the appellant that the lease agreement
creating tenancy from month to month was not compulG
sorily registrable u/s 107 of the Transfer of Property Act,
1882 and, as such, the prohibition contained in s.49 of
the Registration Act, 1908 was not applicable; therefore,
trial court erred in holding that the lease agreement being
an unregistered document could not be used to estabH
292
SUPREME COURT REPORTS
(2008] 8 S.C.R.
~ ..
A lish the provisions made therein that the premises were
let out for occupation of the named officer of the respondent and for no other purposes. In the alternative it was
contended that the purpose of letting as specified in the
lease agreement was a 'collateral purpose' and, therefore,
B the document could be looked into under the proviso to
s.49 of the Registration Act. It was submitted that the respondent had violated s.108(0) of the Transfer of Prop-
-;.. -
erty Act and, accordingly was liable to be evicted u/s 13(1 b)
of the Act.
c
None appeared for the respondent despite best efforts of the Court. However, the Court was informed that
pursuant to interim order of the courts below, respondent
kept the suit premises vacant under its lock and key.
D
Dismissing the appeals, the Court
~-
HELD: 1.1 There is no gro•md to interfere with the
judgment of the High Court. The case of the respopdent
before the High Court was that it was protected by the
provisions of the West Bengal Premises Tenancy Act,
E 1956 and that it could not be evicted only because as per
the agreement, the tenancy was to be occupied by one of
its officers. [para 14] [305-B,C]
•
1.2 The case of the appellant in both the suits was
based on the memorandum of lease agreement dated 301h
•
F of March, 1976. Section 49 of the Registration Act, 1908
"(
clearly provides that a document purporting to be a lease
and required to be registered under Section 107 will not
be admissible in evidence if the same is not registered.
Proviso to this section, however, provides that an unregG istered lease deed may be looked into as evidence of collateral facts. In the instant case, there was no registered
':-•
deed of lease nor was there any covenant giving the parties freedom to contract out of the provisions of the West
•
Bengal Premises Tenancy Act, 1956. [para 6, 15 and 16]
H [298-D, 306-D,E, 308-A]
MIS. K.B. & SONS PVT. LTD. v. MIS. DEV
293
.
CONSULTANT LTD.
1.3 From the principles laid down in the various deA
cisions of this Court and the High Courts, it is evident that
(1) a document required to be registered is not admissible
into evidence under Section 49 of the Registration Act;
(2) such unregistered document can however be used as
an evidence of collateral purpose as provided in the Pro- s
viso to Section 49 of the Registration Act; (3) a collateral
transaction must be independent of, or divisible from the
transaction, to effect which the law required registration;
(4) a collateral transaction must be a transaction not itself
required to be effected by a registered document, that is, c
a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees
and upwards; (5) 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 D
of proving an important clause would not be using it as
for a collateral purpose. [para 21] [310-D-H, 311-A]
Bajaj Auto Limited vs. Behan Lal Kohli AIR 1989 SC
1806; Rai Chand Jain Vs. Chandra Kanta Khosla AIR 1991
SC 747 - relied on.
E
Haran Chandra Chakrvarti Vs. Ka/iprasanna Sarkar AIR
1932 Cal 83(2); Ratan Lal & ors. Vs. Harisankar & Ors. AIR
1980 Allahabad 180; and Rana Vidya Bhushan Singh Vs.
Ratiram 1969 (1) UJ 86 (SC) - referred to
2. In the instant case, clause 9 in the lease agreement
stipulating that the premises were let out only for the particular named officer of the respondent and after the same
being vacated by the said officer the respondent would not
F
be entitled to allot it to any other employee, was an imporG
tant term forming part of the lease agreement. This clause
cannot be called a 'collateral purpose' and cannot be looked
into even for collateral purposes to come to a conclusion that
the respondent was liable to be evicted because of violation
of Clause 9 of the Lease Agreement. [para 22] [311-B,C]
H
294
SUPREME COURT REPORTS
[2008] 8 SC R.
A
Smt. Juthika Mu lick & Anr vs Dr Mahendra Yashwant
Bal & Ors AIR 1995 SC 1142 - distinguished.
3.1 It is true that under Section 108 (o) of the Transfer
of Property Act, 1882 use of the property for the purpose
8
other than that for which it was leased i.e. 'change of user'
is not permitted. But, in the instant case, the High Court
was justified in coming to the conclusion that since this
was not a case of 'change of user' within the meaning of
Section 108 (o) of the said Act, it could not be held that
the appellant had violated the said provisions. [para 24]
C [312-C,DJ
3.2 Assuming that Clause 9 of the lease agreement
can be looked into for collateral purposes to ascertain the
'change of user', it is to be borne in mind that leasing out
0
the property for a particular named officer cannot be the
'purpose' of letting. The purpose of letting out would be
residential or non-residential or for a particular business
etc. In the instant case, although the premises was leased
out exclusively for the named officer of the respondent,
E the fact that it was subsequently intended to be used for
the residence of some other officer of the respondent
would not constitute 'change of user' so as to be hit by
Section 108(0) of the Transfer of Property Act, and, therefore, the respondent cannot be evicted for violation of the
provisions of Section 108(0) of the Transfer of Property
F Act. [para 24,26 and 29] (312-E-G, 313-E,F, 314-D]
Dashrath Baburao Sangale and others Vs. Kashimath
Bhaskar Data AIR 1993 SC 2646 and M Arul Jothi and another Vs. Laj;a Bal (deceased) and another AIR 2000 SC 1122
G - held inapplicable.
4. For a decree to be passed under the West Bengal
Premises/Tenancy Act, the landlord has to plead and prove
one of the grounds mentioned in Section 13 of the Act. In
this view of the matter, the appellant is not entitled to a deH cree of eviction under the Act. [para 27] [313-G, 314-A]
•
M/S. K.B. & SONS PVT LTD. v. MIS. DEV
295
....
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
,,
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
A
5659-5660 of 2002
From the final Judgment and Order dated 18.5.2001 of
the Calcutta High Court, Calcutta in F.A. Nos. 39-40 of 1999
N.R. Choudhary and Somnath Mukherjee for the Appellant. B
~
The Judgment of the Court was delivered by.
TARUN CHATTERJEE, J. 1. These two appeals are direeled against the common final judgment and order dated 181h
of May, 2001 of the High Court of Calcutta passed in F.A. Nos. c
39-40of1999 affirming the judgment and decree dated 11 1h of
November, 1998 passed by the Asstt. District Judge, 91h Court
at Alipore, South 24 Parganas whereby the two suits namely,
Title Suit No 19/92 and 39/92 filed at the instance of the appel_,.."':/.. Ian! were dismissed.
D
2. The facts leading to the filing of these two appeals are
narrated in a nutshell as follows:
Mis. K.B. Saha & Sons Pvt Ltd. (in short "the appellant")
brought Title Suit No. 19/92 before the 91h Court of 1.:1e Asstt.
E
DistrictJudge, Alipore, South 24 Parganas against lvl/s. Development Consultants Ltd. (in short "the respondent") alleging, inter
alia, that the appellant was the owner of Premises No. 2818,
#.
Gariahat Road, within Police Station Lake in the district of South
)' 24 Parganas (hereinafter called "the suit property"). By a memorandum dated 30th of March, 1976, the respondent became a
F
tenant in respect of a flat, as fully described in Schedule-A of
the plaint, in the suit property (hereinafter called "the suit premises") for the residential accommodation of a particular officer Mr. Keshab Das and members of his family and for no
other purpose. The monthly rent was fixed at Rs. 1100/-, which G
·~ included the rent of fixtures, fittings and parking place payable
in advance by 5th of the current month for which the rent became
due. The monthly rent and other charges were increased to Rs.
1210/- from September. 1985. The appellant alleged that the
memorandum dated 301h of March, 1976 specifically provided H
296
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
that if the respondent intended to use the suit premises for any
purpose other than providing residential accommodation to its
named officer Mr. Keshab Das and members of his family, the
respondent would have to seek a written consent from the appellant bringing the change of purpose by a notice.
B
3. By a letter dated 5th of March, 1992, the respondent
informed the appellant that Mr. Keshab Das had vacated the
suit premises and that it wanted to make repairs and to allot the
same to another employee to which the appellant objected and
replied by a letter dated 12'h of March, 1992 that the responC dent had no right to allot the suit premises to another employee
and, therefore, must surrender the same once vacated by Mr.
Keshab Das. However. the appellant was informed by the respondent that they would not surrender the suit premises and
shall carry out the repair work in it. In this backdrop, the aforeD said Title Suit No. 19/92 was filed by the appellant for declaration and perl'Ylanent injunction that as per the terms of th~ Memorandum of Agreement dated 30th of March, 1976, the respondent had no right to allot the suit premises to any other employee after the same was vacated by Mr. Keshab Das and
E members of his family. By an interim order passed on 13th of
March. 1992 in the aforesaid suit, the Assistant District Judge.
9th Court at Alipore had passed an order of injunction restraining the respondent from allowing any other person except Mr.
Das to occupy the suit premises. This interim order was made
F
final on 2nd of September. 1992. On 18th of March, 1995, a notice under Section 13(6) of the West Bengal Premises Tenancy
Act. 1956 (in short "the Act") was served on the respondent asking them to vacate the suit premises and on failure of the respondent to vacate the suit premises as desired in the notice,
G another suit was filed by the appellant being Title Suit No. 39/95
praying for ejectment of the respondent from the suit premises.
The aforesaid suit was brought by the appellant with similar allegations as contained in Title Suit No. 19/92 and it was alleged.
inter alia, that although the respondent was bound to vacate the
suit premises after Mr. Das had vacated the same, yet the reH
..
M/S. K.B. & SONS PVT. LTD. v. M/S. DEV.
297
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
spondent had not vacated the suit premises and, therefore, the A
appellant was constrained to file the aforesaid suit for eviction
of the respondent and damages and consequential relief. The
respondent entered appearance and contested both the suits
by filing written statements. In the written statements, it was the
defence of the respondent that the respondent was in urgent s
need of rented accommodation for its officer and, therefore,
they hurriedly put their signatures on the agreement dated 3Qth
of March, 1976. The respondent further alleged that the tenancy
was taken by them for providing residential accommodation 'to
its officer Mr. Keshab Das who was only an officer of the re- c
spondent and it was the respondent who was the tenant of the
suit premises and not the named officer Mr. Keshab Das. Therefore, according to the respondent, even after the suit premises
was vacated by Mr. Das, the tenancy of the respondent continued and it was still continuing. The allegation of the appellant 0
that the respondent had no right to allow another officer to occupy the suit premises was misconceived and baseless. It was
further alleged in the written statements that the respondent had
duly informed the appellant that the employee of the respondent i.e. Mr. Das had left the suit premises and that they were
going to allot the suit premises to another officer. It was also E
asserted that since it was the respondent who was the tenant
under the appellant and paid the rent to the appellant, such tenancy was protected by the provisions of the Act. It was further the
case of the respondent that the tenancy agreement entered into
by the parties'Was illegal and invalid and such an agreement was
F
against the Statute. Accordingly, in both the written statements,
the respondent asserted that neither any order of injunction could
be passed against them nor could the suit be decreed in favour
of the appellant directing eviction of the respondent from the suit
premises. By a common judgment dated 111h of November, 1998,
<:
the suits of the appellant were dismissed.
4. Feeling aggrieved by the aforesaid common judgment
of the trial Court, two appeals were filed in the High Court at
Calcutta, which came to be registered as FA Nos. 39-40 of 1998.
~
298
SUPREME COURT REPORTS
[2008] 8 S.C.R.
,.._
""""
A By the impugned common judgment of the High Court, the aforesaid two appeals being FA Nos. 39-40 of 1998 were dismissed
and two Special Leave Petitions were filed against them in re-
•
spect of which leave has already been granted.
8
5. We have heard the learned counsel for the appellant
and examined the judgment of the High Court as well as of the
trial court and other materials on record. We keep it on record
that none had appeared for the respondent despite our best
efforts to bring the respondent to appear before us and contest
the appeals. We also keep it on record that in view of the inc terim order granted by the High Court as well as by the trial
Court to the extent that the respondent cannot be allowed to
bring any officer other than Mr. Keshab Das to occupy the suit
premises, the respondent has kept the suit premises under lock
and key without any occupation of any officer in the same.
D
~ -
6. On a perusal of the pleadings of the parties, it is pellucid that the case of the appellant ;n both the suits was based on
the memorandum of lease agreement dated 301h of March, 1976.
In this view of the matter, it is expedient to reproduce some of
E the relevant Clauses in the Tenancy Agreement between the
parties before we proceed further with this appeal. Accordingly,
the relevant portion of the memorandum dated 301h of March,
1976 is reproduced as under: -
"THIS MEMORANDUM OF AGREEMENT made this the 30th day of
' .,
F
March, one thousand nine hundred and seventy six
BETWEEN Mis. K. B. Saha & Sons (Biri Merchants) Limited,
a body corporate registered under the Companies Act,
1956 having its registered office at 2818, Gariahat Road
within PS. Tollygunge, Calcutta-700 029 within the local
G
limits of Corporation of Calcutta hereinafter called the
landlords (which expression unless repugnant to the
...
context shall include its successors and assigns) of the
First Part AND DEVELOPMENT CONSULTANTS PRIVATE LTD, a body
corporate registered under the Companies Act, 1956
H
having its registered office at present at premises No.24-
_,
~
M/S. K.8. & SONS PVT. LTD. v. M/S. DEV.
299
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
B, Park street, Calcutta, within PS. Park Street, CalcuttaA
16 hereinafter called the tenant (which expression unless
repugnant to the context shall include its successors
and assigns.) of the Second Part;
WHEREAS the party of the FIRST PART, the Landlord hereof
B
is the sole owner and proprietor of multistoreyed
buildings being Premises No. 2818, Gariahat Road, within
PS. Tollygunge, Calcutta-29 within the local limits of
corporation of Calcutta AND WHEREAS the said Landlord,
party of the first part hereof offered to let out flat No. 3 on
the 2nd floor of the said premises along with fittings, fixtures c
and installations therein at a total monthly rental of
Rs.11001- (Rupees One Thousand One Hundred) only
inclusive of rent of fittings and fixtures and service charges
.,..
..;<._
and parking space for one car AND WHEREAS the party of the
second part hereof approached the party of the first part D
hereof and offered to it the said flat No.3 of the 2nd floor
of the said premises No,2818, Gariahat Road, Calcutta29 for the use and occupation of its present Chief Engineer
(Cement) of the aforesaid party Mr Keshab Das and the
members of his family only agreeing and accepting to the
E
aforesaid offer by the party of the first part at a total rental
of Rs.1, 1001 - (Rupees One thousand one hundred only)
,;.
inclusive of the rent of fittings and fixtures, service charges
)r
and parking space for one car AND WHEREAS the party of the
first part hereof has agreed to let out the said flat to the
F
party hereto of the second part for the use and occupation
of its present said Chief Engineer (Cement) and his family
members only AND WHEREAS the party of the first part agrees
to give vacant possession of the said tenancy and the
' . "
party of the second part hereto agrees to take possession G
of the said tenancy for the use and occupation of the said
Chief Engineer (Cement)and his family members on First
day of April, 1976"
Clause-9 of the Agreement runs as follows :-
H
300
SUPREME COURT REPORTS
[2008] 8 S.C.R.
,).-
"
A
"That the party of the second part hereof agrees and
undertakes that the tenancy will be used and occupied by
its present officer Mr. Keshab Das and members of his
family for residential purpose only and for no other
purposes. If the tenant intends to use the tenancy for
B
occupation of any other officer or employees, it will seek
for written consent of the landlord and the landlord shall
+
have the option to agree or disagree to give such consent".
Clause 20 of the said agreement is as follows :-
c
"That the tenant shall vacate and deliver vacant Khas
possession of the demised premises unto the landlord
on termination or determination of the tenancy with whole
of the fittings and effects in as sound, perfect and clear
condition as they were at the commencement of the
D
tenancy excepting natural wear and tear".
.,. ""'
7. In view of the pleadings of the parties, the follo'!\/ing issues were framed by the trial court in Title Suit No.19 of 1992: -
1. Has the plaintiff any cause of action for the suit ?
E
2. Is the suit maintainable in its present form and in law?
3. Was the suit premises let out by the plaintiff to the
defendant for providing accommodation to its particular
officer viz. Mr.Keshab Das ?
•
"'/
F
4. Is the plaintiff entitled to get the decree as prayed for?
5. To what relief, if any, is the plaintiff entitled ?
8. In Title Suit No.39/95, the following issues were framed:
1. Is the suit maintainable?
G
2. Whether the notice of ejectment is valid, legal and
...
sufficient ? If so, was it duly served upon the defendant?
3. Whether the defendant is a defaulter in payment of
rent as alleged ?
H
MIS. K.B. & SONS PVT. LTD. v. MIS. DEV.
301
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
4. Whether the defendant has caused damage to the . A
suit premises ?
5. Whether the defendant has violated the terms of the
memorandum of agreement by' not vacating the premises
after the same having been vacated by MrKeshab Oas?
6. To what relief, if any, is the plaintiff entitled ?.
9. Considering the different clauses of the lease agreement and on consideration of the evidence on record and the
contentions of the learned counsel for the parties, the trial court
B
finally came to the following findings : -
C
I) The suit premises was let out by the appellant to the
respondent initially for providing accommodation to its
particular officer namely Mr Keshab Oas and members
of his family, which could not mean that the tenancy was D
created exclusively for the accommodation and
residence of Mr Keshab Oas and his family only.
II) The tenancy was created in respect of the suit premises
in favour of the respondent.
Ill) Since the tenancy was determinable and terminable E
by a legal sufficient valid notice under the Act to the
respondent, the respondent could be directed to vacate
the suit premises only on proof of the grounds mentioned
in Section 13( 1) of the Act.
IV) Since the respondent was depositing rent in the office
/
of the Rent Controller, Calcutta, the respondent was not
a defaulter in payment of rent as a tenant and therefore,
not liable to be evicted on the ground of default.
F
VJ The respondent was a tenant in respect of the suit premises G
although it was taken exclusively for the benefit of the named
officer and therefore, the named officer Mr. Oas was only
occupying the suit premises on behalf of the respondent.
VI) Since, admittedly, the lease agreement was not H
302
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
registered, which document under Section 49 of the
Registration Act was required to be registered, the said
agreement was not admissible in evidence.
B
c
D
VII) The lease agreement. being an unregistered
document, could not be used to establish that the suit
premises was let out to the respondent only for the
purpose of occupation of its employee Mr Keshab Das
and the members of his family for their residential
purpose and for no other purpose.
VIII) From the agreement, which could be seen as a
collateral evidence, the purpose of the tenancy was·
clearly for residence and, therefore, the question of
violation of Clause (o) of Section 108 of the Transfer of
Property Act by the respondent in the facts and
circumstances of the case could not arise at all.
10. On the 1foresaid findings arrived at by the Trial Cl'.'urt,
both the suits were dismissed and the High Court on the same
lines had affirmed the findings of the trial court and held that no
ground was made out by the appellant to evict the respondent
E from the suit premises.
11. Mr. Somnath Mukherjee, the learned counsel appearing on behalf of the appellant submitted that the lease agreement (Ext.4) creating tenancy from month to month in respect of
the suit premises was not compulsorily registerable under SecF
tion 107 of the Transfer of Property Act. He also contended that
the High Court as well as the trial court were wrong in holding
that the lease agreement being an unregistered document cannot be used to establish the provisions made in that agreement
that the suit premises was let out to the respondent only for the
G purpose of occupation of the respondent's named officer Mr.
Keshab Das and members of his family and for no other purpose. He further contended that since the lease agreement in
question was not required to be registered, the prohibition contained in Section 49 of the Registration Act was not applicable.
H He also contended in the alternative that even if it was held that
+
MIS. K.B. & SONS PVT. LTD. v. MIS. DEV.
303
,,
.._
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
the lease agreement in question was compulsorily registrable, A
even then the purpose of letting specified in the lease agreement
was a 'collateral purpose' and accordingly, the lease agreement
could be looked into under the proviso to Section 49 of the Registration Act and also that the said term did not extinguish the
tenant's right under the Act. Lastly, he contended that the responB
dent had violated section 108(o) of the Transfer of Property Act
and, accordingly, was liable to be evicted under Section 13(1 b)
of the Act. Mr. Mukherjee contended that the lease agreement
between the parties was not illegal and against the statute. In
support of this contention, Mr.Mukherjee relied on a decision of c
this Court in the case of Smt. Juthika Mulick & Anr. vs.
DrMahendra Yashwant Bal & Ors. [AIR 1995 SC 1142] and he
strongly relied on paragraph 42 of the said decision which says:
"As general proposition of law, there can be no demur
- ....-
that there is no estoppel against a statute. The language D
of Section 13 of the Act makes it clear that only if anything
is found contrary in any other law an order or decree for
the recovery of possession of any premises shall be
made by any court in favour of the landlord against a
tenant. This wording is peculiar unlike most of the Rent E
Control Legislations where contract to the contrary is also
enveloped in affording protection to the tenants against
eviction. In view of the language of Section 13(1) of the
'
J.
Act, the parties have freedom to contract out of Section.
>-
In this case clause (1) of the lease-deed extracted above F
stipulates that the heirs of lessee will have no right to
hold after the death of lessee and they have to deliver
quiet, peaceful and vacant possession within three
months after the demise of the original lessee. In other
words, the right has been made specifically not heritable." G
.
""
12. In order to appreciate the submissions made by Mr .
...
Mukherjee, the learned counsel appearing on behalf of the appelI ant, it would be necessary for us to look into Section 107 of the
Transfer of Property Act which would be, in our view, material for
rendering proper decision in this appeal. Accordingly, Section 107 H
~ "
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SUPREME COURT REPORTS
[2008] 8 S. C.R.
A of the Transfer of Property Act may be quoted which runs as under:
"Lease how made - A /ease of immoveable property
from year to year, or for any term exceeding one year or
reserving a yearly rent, can be made only by a registered
B
instrument.
All other /eases of immoveable property may be made
either by a registered instrument or by oral agreement
accompanied by delivery of possession.
c
Where a /ease of immoveable property is made by a
registered instrument, such instrument or, where there
are more instruments than one, each such instrument
shall be executed by both the lessor and the lessee.
Provided that the State Government may from time to
D
time, by notification in the Official Gazette, direct that
/eases of immoveable property, other than leases from
year to year, or for any term exceeding one year, or
reserving a yearly rent, or any class of such leases, may
be made by unregistered instrument or by oral
E
agreement without delivery of possession.
13. Another section which would also be material for us to
decide this appeal is - Section 49 of the Registration Act which
'
runs as under:
"'f
F
"Effect of non-registration of documents required to be
registered - No document required by Sec. 17 [or by any
provision of the Transfer of Property Act, 1882 ( 4 of 1882)
to be registered shall -
(a) affect any immoveable property comprised therein, or
)oO • ,_
G
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power, unless it has
been registered :
J
-~'$,,..,,..f1'1"'1-
~
4M/S. K.8. & SONS PVT. LTD. v. M/S. DEV.
305
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
immoveable property and required by this Act or the A
Transfer of Property Act, 1882 ( 4 of 1882), to be registered
may be received as evidence of a contract in a suit for
specific performance under Chapter II of the Specific
Relief Act, 1877 (3 of 1877), or as evidence of any
collateral transaction not required to be effected by B
registered instrument."
14. Having heard the learned counsel for the appellant and
after going through the judgment of the High Court as well as of
the trial court, we do not find any ground for which interference
can be made with the judgment of the High Court. We may note c
that it was the case of the respondent before the High Court
that it was protected by the provisions of the Act and that it could
..,:
not be evicted only because as per the agreement, the tenancy
was to be occupied by one of its officers. The appellant, on the
other hand, as noted hereinabove, placed reliance on the deciD
sion of this court in Smt. Juthika Mullick's case [supr?], to put
forth the point that the respondent was bound to vacate the premises after the said officer had left the premises and relying on
Smt.Juthika Mulick's case [supra] submitted that the lease agreement was not at all contrary to the provisions of the Act and that E
the parties were at liberty to contract out of the Section delin-
~
eating the various grounds for eviction. We may note at this
~
stage that in that decision, this court had held that although the
tenant was protected under the provisions of Section 13 of the
Act and such tenant could be evicted only for one or more F
grounds as provided in that Act, the parties had the freedom to
enter into an agreement to take their case out of the provisions
of that Section i.e. the parties were at liberty to contract out of
.::,, J\
that section. Before we deal with the submission of Mr .
Mukherjee, learned counsel appearing on behalf of the appelG
lant, on this question, we may look into the findings arrived at by
the High Court on this question. The High Court in the impugned
judgment has come to a conclusion that the decision in the case
of Smt. Juthika Mulick's case (Supra) cannot be of any benefit
to the appellant on the ground that in Smt.Juthika Mulick's case, H
306
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
the respondent had leased out the premises in question in favour
of the lessee under a registered deed of sale whereas in the
instant case, the lease deed was not registered. The High Court
has observed that the lease agreement between the parties was
in effect an agreement for lease of the suit premises and was
B
unregistered. Relying on Section 49 of the Registration Act, the
High Court observed that a document purporting to be a lease
and required to be registered under Section 107 of the Transfer
of Property Act is not admissible in evidence if it is not registered. Proviso to Section 49, however, provides that although a
c lease deed falling under the provision of Section 107 of the Transfer
of Property Act will not be admissible in evidence if the same is
not registered but that deed may be used as evidence of any
collateral transaction not required to be effected by a registered
instrument. Therefore, the High Court observed that the question
0
to be decided in this appeal is whether the conditions noted in
the lease deed could be looked into fordetermining the question
that the tenancy ,n question would be used only for the purpcse of
occupation of the named officer of the respondent.
15. Section 49 clearly provides that a document purportE
ing to be a lease and required to be registered under Section
107 will not be admissible in evidence if the same is not registered. Proviso to this section, however, as noted hereinabove,
provides that an unregistered lease deed may be looked into
as evidence of collateral facts. Mr. Mukherjee, learned counsel
F
for the appellant argued before us that the tenancy in question
was exclusively granted for the benefit of the named officer and
his family and unless the landlord gave his consent, no other
person could use it and such condition in the lease agreement
is admissible for ascertaining the purpose of allotting the suit
G premises which according to the appellant is a collateral fact
16. Having heard the learned counsel for the appellant,
we are of the view that the decision of this Court in Smt. Juthika
Mullick's case [supra], on which strong reliance was placed by
the learned counsel for the appellant is of no help to the appelH lant because as rightly pointed out by the High Court. the sa:d
)l :::.
M/S. K.B. & SONS PVT. LTD. v. MIS. DEV.
307
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
.-
+
decision was based on a registered deed of lease. In Smt.
A
Juthika Mulick's case [supra], as noted herein earlier, it has been
held that the language of Section 13 of the Act makes it clear
that notwithstanding anything to the contrary contained in any
other law, an order or decree for the recovery of possession of
any premises shall be made by the court in favour of the landB
lord against a tenant on the grounds mentioned in that section.
"'
It was further observed that in view of the language of Section
13(1) of the Act, the parties have freedom to contract out of the
Section. In the aforesaid judgment of this Court, on which strong
reliance was placed by the appellant, the fact was that the pre- c
decessor-in-interest of the respondents in that appeal leased
out the premises in question in favour of one Lal Bihari Mulick
in a registered deed of lease at a monthly rental of Rs. 160/-
and the lease deed contained a covenant that the lease was for
the lifetime of the lessee and his heirs, executors, administraD
tors, representatives and the heirs must yield up and deliver
quiet, peac,3ful and vacant possession of the demised premises
within three months from the date of death of the lessee unconditionally and without any objection whatsoever. It was further
stipulated that they shall have no right to handover the demised
E
premises after the said period under any circumstances. The
lessee died on 16:h of December, 1970 and his heirs did not
deliver vacant possession in favour of the lessors or their suecessors in interest and this necessitated filing of the suit for
•
eviction of the defendants. In that decision, the main defence
..
raised in the written statement was that the original lessee Lal
F
Bihari Mulick, having died on 161h of December, 1970, the registered lease dated 11 1h of July, 1966 shall fall under the category of the West Bengal Premises Tenancy Act and the tenants were residing in the demised premises with the said lessee namely Lal Bihari Mullick during his lifetime became monthly G
-
.'4
tenants under the plaintiffs of that case by operation of law. In
view of the aforesaid facts and considering the fact that the
aforesaid decision of this Court was rendered on the basis of a
registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because
H
308
SUPREME COURT REPORTS
(2008] 8 S.C.R.
....
~
A of the fact that in the present case, there was no registered deed
of lease nor was there any such covenant as mentioned hereinabove. Therefore, we do not find any ground to place any reliance on the aforesaid decision of this court.
B
17. As we have already noted that under the proviso to
Section 49 of the Registration Act. an unregistered document
can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose. In Haran
c Chandra Chakrvarti Vs. Kaliprasanna Sarkar [AIR 1932 Cal
83(2)], it was held that the terms of a compulsorily registrable
instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using
D it for a collateral purpose and that the question as to who is the
tenant and on "''hat terms he has been created a tenant are not
collateral facts but they are important terms of the contract of
tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence.
E
18. The High Court in the impugned Judgment relied on a
decision of the Allahabad High Court in the case of Ratan Lal &
ors. Vs. Harisankar & Ors. [AIR 19807\llahabad 180] to hold
that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same
-4
F was not a collateral purpose. In Ratan lal's case (supra], while
discussing the meaning of the term "Collateral Purpose", the
High Court had observed as follows :-
"The second contention was that the partition deed, even
G
if it was not registered could certainly be looked into for
a collateral purpose, but the collateral purpose has a
). -
limited scope and meaning. It cannot be used for the
purpose of saying that the deed created or declared or
assigned or limited or extinguish the right to immovable
H
property .......... term collateral purpose would not permit
•
MIS. K.B. & SONS PVT. LTD. v. MIS. DEV.
309
,.,_
CONSULTANT LTD. [TARUN CHATTERJEE, J.]
the party to establish any of these acts from the deed." A
19. In the case of Bajaj Auto Limited vs. Behari Lal Kohli
[AIR 1989 SC 1806], this Court observed that if a document is
inadmissible for non-registration, all its terms are inadmissible
including the one dealing with landlord's permission to his tenc
ant to sub-let.