HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- CIVIL REVISION No. - 420 of 2000 Revisionist :- M/S Shiv Shambhu Pictures Pvt. Ltd. Opposite Party :- Lokeshwar Prasad & Others Counsel for Revisionist :- Vinod Swarup, A,K,Srivastava, R.N.Bhalla, Santosh Kumar Mishra Counsel for Opposite Party :- Manish Goyal, Sumit Daga Hon'ble Sudhir Agarwal, J.
1. Heard Sri Vinod Swarup, Advocate, for revisionist and Sri Manish Goyal, Advocate, for respondents.
2. This is defendant's revision filed under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ("Act, 1887"). It has arisen against the judgment dated 7.9.2000 passed by Sri V.R. Mishra, 18th Additional District Judge, Meerut decreeing S.C.C. Suit No. 13 of 1995. The plaintiffs-respondents instituted the aforesaid suit for possession and ejectment of defendant from disputed property.
3. The suit was filed by Lokeshwar Prasad (now deceased and substituted by legal heirs) and his two sons, Anil Kumar Agarwal and Amit Kumar Agarwal. The plaint case set was that plaintiffs are owner of Jagat Cinema, Begum Pul, Meerut. Lokeshwar Prasad, plaintiff no. 1, let out the aforesaid Cinema on a monthly rent of Rs. 3500/-. The plaintiffs instituted S.C.C. Suit No. 25 of 1976 for arrears of rent and ejectment in the Court of District Judge, Meerut exercising jurisdiction as Judge, Small Causes Court. The suit was transferred to the Court of 4th Additional District Judge, Meerut who dismissed the suit so far as the relief of ejectment was prayed for but decreed the suit with regard to arrears of rent vide judgment dated 26.10.1983. Therein a finding was given by Court below that tenancy of defendant was month to month. The judgment has become final. Again the defendant committed default in payment of rent since 1.1.1983 inasmuch he has paid only Rs. 1,12,000/- as rent which tantamount to rent of 32 months and commencing from 1.1.1983, he fell in arrears from 1.9.1985. The provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") are not applicable to the premises in dispute since rent is more than Rs. 2000/- per month. Defendant is in the habit of committing default. Plaintiffs decided not to continue him in tenancy and served a notice dated 31.3.1995 by registered post terminating his tenancy under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882"). The defendant refused to accept notice on 6.4.1995, and, therefore, it tantamount to service in the eyes of law. The tenancy has come to an end on 5.5.1995. Since the rent upto 15.5.1992 is barred by limitation, therefore, prayer for arrears of rent is being confined only for the preceding three years, i.e., with effect from 16.5.1992 till 5.5.1995.
4. During the pendency of suit, plaintiff no. 1 died and his legal heirs were substituted.
5. The suit was contested by defendant by filing written statement denying all the allegations contained in the plaint and it was pleaded that defendant has paid the rent and there is no default. However, in fact, the defendant disputed the very right of ownership of plaintiffs and claimed that plaintiffs are not owner of disputed property known as Jagat Cinema. It is admitted that Late Lokeshwar Prasad and Late Jagdishwar Prasad Agarwal let out a building known as Jagat Cinema as detailed at the bottom of plaint. However, it is said that plaintiffs no more remain owner and landlord of building, hence, the question of making payment of rent after execution of agreement dated 16.3.1988 does not arise. The filing of Suit No. 25 1976 is denied. It is, however, admitted that Sri Jagdishwar Prasad died on 1.6.1992. The contention that defendant is in arrears of rent is also denied. Service of notice is also denied. In the additional pleas, it was contended that after dismissal of Suit No. 25 of 1976, Lokeshwar Prasad and Jagdishwar Prasad filed Revision before this Court. During its pendency, defendant-company was depositing rent and the last deposition of rent was made on 2.3.1998. Thereafter, the two plaintiffs Jagadishwar Prasad and Lokeshwar Prasad in Suit No. 25 of 1976 agreed to transfer the property for a consideration of Rs. 14,50,000/-. An agreement was reduced in writing between defendant-company and the said two owners. The company being in possession of disputed property continued in possession in part performance of contract and stopped payment of rent in furtherance of contract as per terms of contract. As per the terms of agreement, Sri Lokeshwar Prasad and Sri Jagdishwar Prasad ceased to have any relationship of landlord and tenant with the defendant-Company, and, thus, Company was not liable to pay rent thereafter. Consequently, no rent was paid as the relationship of landlord and tenant was ceased pursuant to agreement dated 16.3.1988. The plaintiffs in the present suit have concealed the factum of existence of aforesaid agreement and, therefore, have come up with ulterior motive. A copy of the aforesaid agreement to sell is also on record as Annexure-2 to the stay application.
6. In replication filed by plaintiffs, agreement dated 16.3.1988 was claimed to be forged and fictitious document and it is said that no such agreement was executed. It is further stated that alleged agreement, being unregistered, is not admissible in evidence since its registration was compulsory after amendment in Section 17 and 49 of Registration Act, 1908 (hereinafter referred to as "Act, 1908") read with provisions of Act, 1882.
7. On behalf of plaintiffs, two witnesses, namely Amit Agarwal and Y.S. Chaudhary were examined as PW-1 and PW-2 respectively while on behalf of defendant-revisionist, six witnesses, namely DW-1, Parmeshwar Khanna; DW-2, Mohan Mishra; DW-3, Vinod; DW-4, Radheyshyam; DW-5, Surveer; and, DW-6, Sajeem Tomar were examined.
8. Trial Court formulated following 11 issues:
^^1- D;k txg fookfnr ij ;w0ih0,DV ua0 13 lu~ 1972 ds izkfo/kku ykxw gksrs gSaA^^ "1. Whether the provisions of the UP Act No. 13 of 1972 are applicable to the disputed place?"
^^2- D;k fookfnr txg izfroknh us f'kdeh fdjk;snkj crk;k\ ;fn gkWa rks izHkko\^^ "2. Whether the defendant stated the disputed place to be of a sub-tenant? If so, its effect?"
^^3- D;k yksds'oj izlkn ,oa txnh'oj izlkn us izfroknh ds gd esa fnukad 16-3-88 dks bdjkjukek fu"ikfnr fd;k\ ;fn gkWa rks izHkko\^^ "3. Whether Lokeshwar Prasad and Jagdishwar Prasad had on 16.03.1988 executed an agreement in favour of the defendant? If so, its effect?"
^^4- D;k bdjkjukek fnukad 16-3-88 ds vk/kkj ij ikVZijQksjesUl esa fookfnr izsfellst dk izfroknh dk dCtk fn;k x;k\^^ "4. Whether, on the basis of agreement dated 16.03.1988, the possession of the disputed premises was by way of part performance given to the defendant?"
^^5- D;k oknhx.k izfroknh esa edku ekfyd o fdjk;snkj dk laca/k ugha gS vkSj bl U;k;ky; dks okn dh lquokbZ dk {ks=kf/kdkj ugha gS\^^ "5. Whether the relation between the plaintiffs and the defendant is not that of landlord and tenant and whether this court has no jurisdiction over the suit?"
^^6- D;k izfroknh }kjk oknh dk LokfeRo bUdkj fd;s tkus ij izfroknh dh csn[kyh bl vk/kkj ij fd;s tkus ;ksX; gS\^^ "6. Whether, as a result of the defendant's denial to the plaintiff's title, the defendant is liable to be evicted on this basis?"
^^7- D;k /kkjk 106 Vh-ih- ,DV vUrxZr fn;k x;k uksfVl dh rkehy izfroknh ij gqbZ vkSj blls fookfnr txg ls izfroknh dh fdjk;snkjh lekIr gks xbZ\^^ "7. Whether the notice issued u/s 106 of the TP Act was served on the defendant and whether it caused termination of the tenancy of the defendant from the disputed site?"
^^8- D;k fnukad 1-7-85 rFkk ds dfFkr fdjk;k dc ls cdk;k gS vkSj fdruh jkf'k oknh ikus dk vf/kdkjh gS\^^ "8. How much rent is pending before the date 01.07.85 and how much amount the plaintiff is entitled to get?"
^^9- D;k gtkZ bLrseky oknh ikus dk vf/kdkjh gSA^^ "9. Whether the plaintiff is entitled to get compensation in lieu of use?"
^^10- D;k oknh csn[kyh dk vuqrks"k ikus dk vf/kdkjh gS\^^ "10. Whether the plaintiff is entitled to get relief for eviction?"
11- vuqrks"kA** "11. Relief?"
(English Translation by the Court)
9. Issue No. 1 was decided in favour of plaintiffs holding that Act, 1972 has no application to the property in dispute. Issue No. 2 was answered against the plaintiffs holding that sub-tenancy was not proved. Issues no. 3 and 4 were taken together wherein the Court found that earlier SCC Suit No. 25 of 1976 was partly decreed with respect to arrears of rent whereagainst Civil Revision No. 638 of 1993 was filed by plaintiffs insofar as the relief of ejectment was not granted. With respect to agreement dated 16.3.1988 it was claimed by defendant-revisionist that it had paid Rs. 12,50,000/- but the most interesting fact is that aforesaid document itself was not produced before the Court below. Defendant-revisionist moved an Application No. 52C before the Court below that the agreement dated 16.3.1988 was with Ravindra Kumar, Accountant who has ran away with various documents of the firm and the said documents be summoned from Ravindra Kumar. This application was rejected by Trial Court vide order dated 31.7.1999 and thereagainst defendant-revisionist's Civil Revision No. 298 of 1999 was also dismissed by this Court vide judgment dated 19.8.1999. Thereafter, the agreement dated 16.3.1988 was filed by defendant-revisionist itself on 6.11.1999 before Court below stating that he has obtained the said document after paying Rs. 5,000/- to Accountant Ravindra Kumar. But this explanation and the further explanation that Accountant had ran away with various documents was not accepted by Court below. It also found that with regard to payment of Rs. 10,000/- per month towards part performance of alleged agreement, no document was produced before it. The Court also found that payment of Rs. 2.5 lacs at the time of execution of agreement also could not be proved by defendant. Moreover, it held that the alleged agreement was liable to be registered and unregistered document was not admissible in evidence. In view thereof, the Court held that revisionist was not entitled for benefit of Section 53A of Act, 1882 and answered Issues No. 3 and 4 in favour of plaintiffs and against the defendants. Issue No. 5 was answered in favour of plaintiffs. Answering Issue No. 6, Court held that defendant has failed to prove that it became owner of property in dispute and since it had denied the ownership, therefore under Section 111(g) of Act, 1882, and on this ground alone, he was liable for ejectment. It answered Issue No. 6 accordingly. Issue No. 7 was decided against defendant. In respect to Issue No. 8, it held that plaintiffs were entitled for arrears of rent with effect from 16.5.1992 to 5.5.1995 at the rate of Rs. 3500/- per month. Issue No. 9 was also answered in favour of plaintiffs. In respect to Issue No. 10, it held that tenancy has come to an end on 5.5.1995 and thereafter possession of defendant-revisionist was unauthorized and illegal, and, consequently, it has decreed the suit.
10. Sri Vinod Swarup, learned counsel appearing for revisionist, tried to argue that it had made payment pursuant to agreement dated 16.3.1988 and the receipts could not be filed before the Court below but are being filed before this Court through additional evidence which application has been rejected vide order of date but he submitted that since the receipts are there, therefore, the matter requires to be remanded.
11. For the purpose of this Court, I find that the alleged agreement dated 16.3.1988, admittedly, was an unregistered document.
12. However, Sri Vinod Swarup, learned counsel for revisionists, contended that even if the agreement for sale was unregistered, it was admissible in evidence for the purpose of proving an agreement of sale and an unregistered document could have been received in evidence to prove an oral agreement/contract for sale and relied on Apex Court's decision in S. Kaladevi Vs. V.R. Somasundaram and others 2010 Law Suit (SC) 182.
13. The aforesaid decision of Apex Court considered a case arising from the State of Tamilnadu where there is no provision requiring even a contract for sale to be compulsorily registered. Therein, an oral agreement for sale of an immovable property was pleaded and to prove it an unregistered sale-deed was sought to be relied and to fortify that there was an oral agreement between parties which ought to have been enforced. The Court held that an unregistered sale-deed in view of proviso to Section 49 of Act, 1908 could have been admitted in evidence as an evidence of a contract in a suit for specific performance of contract. It also held that such an unregistered sale-deed can also be admitted in evidence of proving any collateral transaction which is not required to be effected by registered document. The Court said:
"When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section49 of 1908 Act." (emphasis added)
14. In the present case, however, the aforesaid decision has no application for the reason that there is a U.P. Amendment in Section 54 of Act, 1882, vide Section 30 of U.P. Act No. 57 of 1976 which came into force on 1.1.1977, which makes registration of a "contract of sale" obligatory. Section 54 of Act, 1882, as applicable in State of U.P., in view of aforesaid amendment reads as under:
"54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.
Such transfer, in the case of tangible immovable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Contract for sale.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Such contract can be made only by a registered instrument."
(emphasis added)
15. Since in the State of U.P. even a contract for sale is required to be registered, unless it is registered, it cannot be held to be a contract in law, enforceable, and such unregistered document as such would not be admissible for the purpose of relying its own stipulations, as discussed above.
16. Moreover, in the present case we are not dealing with the document of completed contract of sale, i.e., sale-deed but a document which is claimed to be a promise to sell certain immovable property on consideration. If this kind of agreement for sale could have been executed even by unregistered document, the position may have been different, but in the State of U.P. even such a contract has to be compulsorily registered. Therefore, the general principle of Section 49 Proviso would apply that an unregistered document would not be admissible in evidence except for "collateral purposes".
17. The argument with regard to admissibility of unregistered document and what does it means by the term "collateral purposes" has to be considered in the light of Section 49 of Act, 1908, which reads as under:
"Section 49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) or of any other 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 1882), to be registered may be received as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."
18. The aforesaid provision, as it stands today, was not so at the time of initial enactment and, in fact, the proviso thereunder was added in 1929.
19. Before amendment of Section 49 of Act, 1908, provision as it stood bereft of proviso had the interpretation of Privy Council in James R.R.Skinner Vs. R.H. Skinner, AIR 1929 PC 269. The plaintiff therein brought a suit for specific performance of a contract to sell an immovable of the value of more than Rs.100/-. The document, which incorporated the terms of this transaction was construed by Court to amount a deed of sale and not a mere agreement to sell property. Founded on this construction placed upon the deed, the Court was called upon to answer the question whether document could be availed of for supporting a suit for specific performance. It was examined in view of the terms of Section 49 of Act, 1908 particularly the terms 'affect' and 'affecting' used in Section. The Court said, if an instrument, which comes within Section 17 as purporting to create by transfer an interest in immovable property is not registered, it cannot be used in any legal proceedings to bring about indirectly the effect which it would have had if registered. It is not to 'affect' the property and it is not to be received as evidence of any transaction 'affecting' the property. The Court further said:
"In the present case the document under consideration, in addition to creating an interest in the immovable property concerned, provides as one of the terms, and therefore as an integral part of the transfer, that the vendor should, if the vendee so requires, execute a registered sale-deed, and it is contended for the respondent 1 that, notwithstanding the non-registration, he can sue upon this agreement, putting the document in evidence as proof of it. Their Lordships are clearly of opinion that this is within the prohibition of the section. They think that an agreement for the sale of Immovable property is a transaction 'affecting' the property within the meaning of the section, inasmuch as, if carried out, it will bring about a change of ownership. The intention of the Act is shown by the provisions of Section 17(2)(v) which exempts from registration, and therefore frees from the restriction of Section 49, a document which does not itself create an interest in Immovable property, but merely creates a right to obtain another document which will do so. In the face of this provision, to allow a document which does itself create such an interest to be used as the foundation of a suit for specific performance appears to their Lordships to be little more than an evasion of the Act."
20. The Privy Council affirmed the view which was consistent with it's view taken in earlier decisions in Sanjib Chandra Sanyal Vs. Santosh Kumar, AIR 1922 Cal. 436, Komiresetti Satyanarayana Vs. Komiresetti Satyanarayana, AIR 1926 Madras 530, and Ramlinga Parvataya Samble Vs. Bhagvant Shambhuappa, AIR 1926 Bom 375.
21. Thereafter by Transfer of Property (Amendment) Supplementary Act No.XXI of 1929, proviso was added to Section 49 of Act, 1908. Despite this amendment, Madras High Court in Venkadari Somappa Vs. Venkadari Somappa, AIR 1938 Madras 801, took the view that proviso would be applicable where there is separate contract found in an unregistered document purporting to affect the transfer or is otherwise proved and not to cases where there is no such contract. This decision was doubted subsequently in Venkata Seshayya Vs. District Board, East Godavari, AIR 1939 Madras 391 and the matter was considered by a Full Bench in N.M.S.S. Subramanian Chettiar v. S.M.A.M. Arunachalam Chettiar and Ors., AIR 1943 Madras 761 who did not agree with the view taken in Venkadari Somappa Vs. Venkadari Somappa (supra). The Court said as under:
"The decisions of this Court which preceded the introduction of the proviso to Section 49, no longer have application, and we do not agree that an unregistered instrument affecting immovable property is not sufficient to support a suit for specific performance. In such a suit, the production of the document and its proof will be sufficient to support the plaintiff's case if it embodies the whole agreement between the parties and there are no other factors to be taken into consideration. The proviso in express terms says that it may be received as evidence of a contract in a suit for specific performance."(emphasis added)
22. Since then Section 49 of Act, 1908 came to be considered time and again. A Full Bench of Madras High Court in AIR 1951 Madras 12 (Muruga Mudaliar (Deceased) and Ors. Vs. Subba Reddiar) held by a majority that an unregistered agreement of lease which is required by law to be registered is admissible as evidence of the agreement in a suit for damage for its breach. A Division Bench of Nagpur High Court in Dammulal Babulal Jain Vs. Mohammad Bhai Haji Suleman Kacchi, AIR 1955 Nagpur 306, said :
"When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence can be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. This is S. 91 of that Act. In the instant case, secondary evidence is not admissible as the document itself is before the Court. Exhibit P-5 is compulsorily registrable also under S. 17(1)(d). Registration Act. Section 49 of that Act provides that no document required by S. 17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property, unless it has been registered. There is, however, a proviso to this section under which a document so required to be registered may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purposes of S. 53A, T.P Act, 1832, or as evidence of any collateral transaction not required to be effected by a registered instrument. It is thus manifest that the unregistered lease deed Ex. P-5 is inadmissible in evidence in view of S. 40 Registration Act except for the limited purposes specified therein, and S. 91 Evidence Act forbids other evidence to prove the lease or its terms."
23. In Rattan Chand deceased represented by his widow & Ors. Vs. L.Bhagirath Ram deceased represented by his widow & Ors., AIR 1963 P & H 182, a Division Bench of Punjab High Court, in para 7 of the judgment, said:
"It is clear that the first part of the proviso expressly contemplates a situation where a document required to be registered by law but not so registered may still be received as evidence of a contract if specific performance of the contract is sought, so that it is not at all right to say that an unregistered document can never be looked at far any purpose connected with the property mentioned by the unregistered document. It is also clear from the third part of the proviso that as evidence of a collateral transaction an unregistered document Is equally admissible in evidence. It is common ground now that an agreement to sell Immovable property is not required by law to be registered and although there may have been some doubt about this matter prior to 1927, no doubt is left in that connection by the Explanation to Section 17 of the Registration Act which was put into the Act in 1927, and that expressly provides that an agreement to sell immovable property is not required to be registered. Mr. Aggarwal's argument in substance is that an agreement to sell Immovable property is a transaction affecting that property because it refers to and deals with the property. There is, however, no indication in Section 49 of the Registration Act to support the view that every transaction, which may happen to concern immovable property, is a transaction 'affecting' such property, and it would not in the ordinary sense be so. What is apparently shut out by Section 49 is the proof through an unregistered document of a transaction which has effect, direct and immediate, on some immovable properly. An agreement to sell immovable properly has as such and by itself no effect on the immovable property comprised in the agreement. It is only an agreement and like any other agreement capable of being enforced and equally capable of being the basis of a suit for damages in case breach occurs. It is significant to note in this connection that Section 45, as it is worded, does not make an unregistered document, even it it 'affects' immovable property, wholly inadmissible in evidence put only rules it out for certain specific purposes and the prohibition cannot, of course, be extended by implication. As I read Section 49 in the light of the proviso, there is, I find, nothing In it to prevent a party from showing from an unregistered document that an agreement to sell immovable property had actually been reached between the parties, even if that document be a deed of sale and consequently useless for proving the sale itself."
24. In Mst. Kirpal Kaur Vs. Bachan Singh and Ors., AIR 1958 SC 199, the Apex Court referred with approval Varatha Pillai Vs. Jeevarathnammai (1918) 46 I.A. 285, in so far as it held that a document, which should have been registered but not, was admissible to explain the nature of possession of a person, but this would apply only when such person got possession subsequent to the execution of date of document and not otherwise.
25. In Hari Lal Vs. Amrik Singh & Anr., AIR 1978 All.292, this Court reiterated that an unregistered document can be admissible for a collateral purpose even if not registered though it is compulsorily registerable. This Court followed Apex Court authorities on this aspect in M. Chelamayya Vs. M. Venkataratnam, AIR 1972 SC 1121, Kale Vs. Deputy Director of Consolidation, (1976) 3 SCR 202, and decisions of this Court in Shyam Sunder Vs. Siya Ram, AIR 1973 All. 382, Arshad Ali Khan Vs. State of U.P., AIR 1978 All 59 and Mangal Singh Vs. Tek Ram, AIR 1975 Delhi 267.
26. It is, thus, evident that an unregistered document can be looked into for collateral purposes, though, otherwise, it is inadmissible in evidence. A "collateral purpose" is such which is not required to be evidenced or affected by a registered document.
27. In M. Chelamayya Vs. M. Venkataratnam (supra), the Court held that under proviso to Section 49, the Court can admit any unregistered document as evidence of a "collateral transaction".
28. In Padma Vithoba Chakkayya Vs. Mohd. Multani AIR 1963 SC 70, the Court said that if the document was not registered, it is not admissible in evidence except to show the character of possession of vendee. The unregistered document, thus, can be taken into consideration for a limited purpose and not otherwise.
29. What a "collateral purpose" is not defined in Act, 1908. In Webster's Seventh New Collegiate Dictionary, expression 'collateral', has been given meaning as "accompanying as secondary or subordinate". To the same effect is the meaning given in Black's Law Dictionary, Ninth Edition. The meaning according to this Dictionary is "supplementary; accompanying, but secondary and subordinate". The Jowitt's Dictionary of English Law, published by Sweet & Maxwell Limited, 1977, Second Edition defines 'collateral' as something which is by the side of or distinct from, a certain thing. In brief, it can be said that collateral purpose is only a "secondary purpose".
30. What a "collateral purpose" is explained in Rani Laxmi Ranchhodlal Vs. Bank of Baroda Ltd., AIR 1953 Bom.50 and the Court held that expression 'collateral transaction' in Section 49 is used not in the sense of an ancillary transaction to the principal transaction or a subsidiary transaction to a main transaction. The transaction recorded would be a particular or specific transaction but it would be possible to read in that transaction what may be called the purpose of transaction and what may be called a collateral purpose; the fulfillment of collateral purpose would bring into existence a collateral transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same. In the context of a partition dispute, the Court in para 14 of the judgment further said:
"A partition which requires to be effected by a registered instrument may be inadmissible but the severance of "joint status which is not required to be effected by a registered instrument would be collateral transaction evidence of which would certainly be admissible under the proviso to the section". An antecedent title, the nature and character of possession, an admission or an acknowledgment, relationship of parties and their state of mind may be some of the instances of collateral purpose for which a document requiring registration may be looked into even though it is unregistered."
31. The decision of this Court in Ram Kishore Vs. Ambika Prasad, AIR 1966 Allahabad 515, which has relied on an earlier decision in Fateh Chand Vs. Mst. Radha Rani, 1956 All.L.J. 625, has been cited in this regard, but I find that the decision in Fateh Chand Vs. Mst. Radha Rani (supra) was overruled by a Division Bench in Zarif Ahmad and another Vs. Satish Kumar and another (supra). This Court approved its earlier decisions in Arshad Ali Vs. State of U.P. AIR 1978 All 59, Sullo Mal Vs. Smt. Nayanbai AIR 1979 All 32, Ram Swarup Jain Vs. Janki Devi Bhagat AIR 1974 All 424, Jai Narain Das v. Zubeda Khatoon AIR 1972 All 494 and in para 10 of the judgment in Zarif Ahmad and another Vs. Satish Kumar and another (supra) the Court held as under:
"10. Section 49 of the Registration Act, therefore, puts a complete bar to the admission of a document evidencing the terms of contract for which registration is compulsorily required by Section 17(1)(d) of the Registration Act or Section 107 of the Transfer of Property Act. As to the duration for which a lease is given or about the rate of rent, a document unregistered cannot be taken into evidence inasmuch as relying upon an unregistered document for these purposes would result in nullifying the prohibition or the bar imposed by Section 49. Section 49 prohibits the reception into evidence of any document affecting any immovable property. Under the Proviso to the said Section 49, only so long as an unregistered document does not purport or operate to do anything said in Section 107, the same may be considered by a Court. But, the terms and conditions on which an immovable property is leased out and which is an integral part of the same, the law does not permit such a document to be admitted for those purposes."
(emphasis added)
32. This Court clearly said that an unregistered lease-deed cannot be admitted to prove the terms and conditions of lease. It cannot be seen either for the purpose of tenure of lease or the rate of rent at which the premises had been let out. A collateral purpose is any purpose other than of creating, assigning or extinguishing a right to the immovable property.
33. This Court has also considered Section 49 recently in Writ Petition No.12809 of 2003 (Mishri Lal Karak Vs. Sri Dinesh Chandra Agarwal & Ors.) decided on 01.10.2013 and in para 30 of the judgment, it has been said:
"This Court finds that permitting document to be received in evidence for limited purpose as such would not have the effect of influencing the rights of the parties vis a vis the immovable property concerned. The general legislative policy under Section 49 of Act, 1908 is contained in three clauses i.e. (a), (b) and (c) and proviso carves out an exception in respect to clause (c) only and not (a) and (b) thereof. The inevitable conclusion vis a vis the immovable property concerned is that, an unregistered document shall not result in affecting the right etc. over the immovable property in any manner and also shall not confer any power to adopt it. To the extent the proviso operates, it permits that an unregistered document affecting immovable property may be given in evidence i.e. where a document remains unregistered and title does not pass, the agreement between the parties which preceded the ineffective document shall remains and may be received in evidence to look into the terms thereof. This by itself would not confer any right since no such right has been conferred under the substantive law. Receiving in evidence does not mean conferment of substantive right. The rule of evidence cannot enlarge or alter the provisions of substantive law. It cannot confer rights, if there are none under the substantive law. In other words, such a document could be used only for the purpose permissible under proviso to Section 49 of Act, 1908 so as to establish part-performance under Section 53A of Act, 1882 but cannot be admitted in evidence to show nature of possession, if the possession was continuing from some date prior to the execution of unregistered deed. Here I find support from Apex Court decision in Kripal Kaur Vs. Bachan Singh, AIR 1958 SC 199."
(emphasis added)
34. In Mst. Nasiban Vs. Mohammad Sayed AIR 1936 Nag. 174, the Court held that an unregistered deed or lease cannot be used for the purpose of proving period of lease. Vivian Bose, J., said:
"But the only purpose for which the appellant wants to use it here is to prove her agreement. She sues for possession on the ground that the lease has terminated, and so wants to show the period for which the lease was granted. She also sues for the rent payable under it. Therefore, the document is not receivable in evidence for these purposes."
35. In Sardar Amar Singh v. Surendar Kaur AIR 1975 MP 230, a Full Bench said that the period of lease and terms of lease cannot be proved by admitting a lease-deed which is unregistered.
36. Recently, Section 49 proviso has come for consideration before Apex Court in K.B. Saha and sons Private Limited Vs. Development Consultant Limited (2008) 8 SCC 564 and the Court said:
"1. A document required to be registered, if unregistered 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 proviso 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, a transaction creating, etc. any right, title or interest in immovable 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 of proving an important clause would not be using it as a collateral purpose." (emphasis added)
37. As already said, the creation of right do not come within the term "collateral purpose". I have no hesitation in holding that the said agreement was not admissible whatsoever to create any right over property in dispute in favour of defendant-revisionist. It leads to the conclusion that since the document in question was unregistered, therefore, it was not admissible in evidence and this by itself is sufficient to non suit the revisionist for the reason that once the agreement dated 16.3.1988 disappear, the rest of the case of revisionist immediately falls down inasmuch non payment of rent after 16.3.1988 is admitted, and, therefore, the default is there. Notice has been proved by plaintiffs-respondents in respect whereto no argument has been advanced before this Court. Hence the suit has rightly been decreed. The revision has no merit at all.
38. Dismissed with cost.
39. Interim order, if any, stands vacated.
40. Certify this order to the Lower Court immediately.
Dt. 11.09.2015 PS