Bhat, J.:— An important question of law of general importance has been referred to this bench by a learned single Judge of this court for determination. The question formulated by the learned single Judge is as under:—
“What is the true scope and meaning of second part of S. 107 of the Transfer of Property Act; and in particular, whether a lease for any term below one year and reserving a monthly rent of Rs. 50/- is compulsorily registerable under the Act.”
2. In fact this question has arisen because in S. Mohinder Singh v. Sh. Mohinder Singh reported in 1980 Srinagar LJ 158, Kotwal, J. has held that a document of lease of immoveable property which is for a period of less than a year and does not reserve yearly rent is inadmissible in evidence for want of registration. Therefore, validity of this authority also is called in question by the referring Judge.
3. Section 107 of the T.P Act is in two parts and there is a proviso added to it. For proper appreciation of the question involved in this reference, it will be profitable to reproduce S. 107 of the T.P Act:
“107. A lease of immoveable property for any term exceeding one year, and reserving a yearly rent, exceeding rupees fifty can be made only by a registered instrument.
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession:
Provided that Government may, from time to time, by notification in the Jammu and Kashmir Government Gazette, direct that leases of immoveable property, other than leases for any term exceeding one year, and reserving a yearly rent, exceeding rupees fifty or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.”
4. So far as 1st part of the section is concerned, it makes document of lease of immoveable property for any term exceeding one year and reserving yearly rent exceeding rupees fifty compulsorily registerable. Lease of the nature mentioned in the 1st part can only be made by registered instrument. In Mohinder Singh's case (1980 Srinagar LJ 158) (supra) learned single Judge has not disputed this proposition, but he has interpreted second part also on the same analogy on which 1st part of S. 107 of the T.P Act is to be construed. Part second of S. 107 of the Transfer of Property Act makes it possible to make all other leases either by a registered instrument or by oral agreements accompanied by delivery of possession. All other leases occurring in part second of the said section would undoubtedly mean those leases which do not fall within the ambit of 1st part of the said section. Within part 1st of the said section leases for a period exceeding one year and for which yearly rent reserved exceeds rupees fifty will only be included and part second will take care of other leases which are for less than a year and where the yearly rent is less than rupees fifty.
5. Section 4 of the T.P Act makes all those sections and chapters which relate to the contract in the T.P Act as part of Contract Act and S. 54 paras 2 & 3, Ss. 59107 and 123 as supplemental to the Registration Act of 1977. The aforesaid sections are, therefore, to be read as part of the Registration Act for purposes of registration and not as part of a particular section of the Registration Act.
6. Section 17 of the Registration Act relates to those documents which are compulsory registerable. Section 17(1)(g) reads as under:—
“Leases of immoveable property for any term exceeding one year, and reserving a yearly rent exceeding fifty rupees.”
7. Therefore, under the Registration Act also only those leases which are for a term exceeding one year and for which yearly rent reserved exceeds rupees fifth are compulsorily registrable. However S. 18 of the Registration Act makes it optional to get certain documents registered or what may be called optionally registerable. Section 18(a) reads as under:—
“Leases of immovable property from year to year of for any term below one year, and reserving a yearly rent of rupees fifty or less and leases exempted under section 17”. Section 18(d) reads as under:—
“All other documents not required by section 17; to be registered.”
8. So among the documents which are optionally registerable and which are not compulsorily registerable, leases of immoveable property for any term below one year and reserving a yearly rent of rupees fifty or below rupees fifty and other documents not falling within S. 17 are included. Section 17 does not make registration of a lease deed of immoveable property for a term of one year or below one year, yearly rent where of is rupees fifty or below rupees fifty registerable. Reading these two sections i.e Ss. 17 and 18 together, it necessarily would follow that there are some leases which are necessarily to be registered and there are other leases registration whereof is only optional, which would mean that if a lease deed required to be registered is not registered, it will not be received in evidence nor will it be acted upon on terms of S. 49 of the Registration Act. But the lease deeds whose registration is only optional and which are not compulsorily required to be registered cannot be hit by the rigour of S. 49 of the Registration Act.
9. By drafting S. 107 of the T.P Act, the framers have intended to make distinction between part 1st and part second of the said section. That is indicated by the language used in the two parts. By the 1st part leases of immoveable property exceeding one year with an yearly rent exceeding rupees fifty are to be made only by a registered instrument. The word ‘only’ has a significance and is used with some purpose. The other part is drafted in some different language which on the face of it appears to be framed with a view to make it possible to make all other leases which are for less than a year or where yearly rent is rupees fifty or below rupees fifty optionally registerable. There is no compulsion in the said leases for being registered. Such leases may be made either by registered instrument or even orally provided there is delivery of possession also. Non-registration of leases for immoveable property for a period less than a year and with an yearly rent of rupees fifty or below rupees fifty may not be hit by S. 49 of the Registration Act.
10. Mohinder Singh's authority (supra) probably has taken into consideration S. 107 of the Central Transfer of Property Act. Sub-cl. (1) of the said section is materially different from the sub-cl. (1) of the said S. 107 of our Act. Section 107 of the Central Act para 1 reads as under:—
“A lease 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 instrument.”
11. Under the Central Act all those lease deeds for immoveable property which are from year to year or for any term exceeding one year are required to be registered irrespective of the amount of yearly rent. The difference between our Act and the Central Act is therefore marked. In our Act amount of yearly rent must also exceed rupees fifty and two things must co-exist; one, that term of lease is year to year or for any term exceeding one year, two, that yearly rent reserved exceeds rupees fifty. In the Central Act only the first condition given above makes a lease of immoveable property compulsorily registerable. Part second of our Act as also of the Central Act are identical. Other leases not falling within cl. 1 of S. 107 of the Transfer of Property Act may be made in two ways, either by a registered instrument which presupposes that instrument must be in writing, or by an oral agreement which must be accompanied by delivery of possession.
12. If a lease can be created orally in respect of immoveable property which is for a term not exceeding one year and not reserving yearly rent exceeding rupees fifty, why can't such a lease be created by a written instrument which is not to be registered. The answer to this is provided by S. 107 T.P Act itself because the two clauses of S. 107 T.P Act convey the meaning which is intended to be conveyed by these clauses by the Legislature. The two clauses cannot be given any other meaning nor are they capable of assigning any other meaning than what is intended to be conveyed by these two clauses.
13. Section 4 of the Transfer of Property Act makes certain provisions of the T.P Act as supplementary to Registration Act only for the purposes of requirement of registration. Consequently part 1st of S. 107 of the T.P Act is to be read with S. 17 of the Registration Act and Part second of the section 107 T.P Act is to be read with S. 18 of the Registration Act. It is incorrect to say that section 107 T.P Act is supplemental to S. 17 alone of the Registration Act or to any particular section of that Act. This section, on the other hand is supplemental to both the sections i.e Ss. 17 and 18 of the Registration Act, 1st part of S. 107 T.P Act, on its plain reading is supplementary to S. 17 of the Registration Act and second part of the section is supplementary to S. 18 of the Registration Act.
14. Mischief clause embodied in S. 49 of the Registration Act will be attracted only where the deeds are compulsorily registerable. In other words it would mean if an instrument is compulsorily registerable under S. 17 of the Registration Act, it will not be received in evidence or acted upon by virtue of S. 49 of the Registration Act. But provisions of S. 49 will be wholly inapplicable if a deed or instrument is covered by S. 18 of the Registration Act. Therefore the analogies drawn by the learned single Judge on the basis of S. 49 of the Registration Act, with respect to him, do not appear to be correct.
15. Under part second of S. 107 if a lease is created by an oral agreement accompanied by delivery of possession, terms of lease can be proved orally. Obviously S. 90 of the Evidence Act will have no application to such leases. If a lease is in writing or is required to be in writing, its contents cannot be proved except by the document itself. That would also mean that terms of lease if in writing or required to be in writing, cannot be altered or amended by addicting oral evidence. However, this point is not directly involved in this case. Since the learned single Judge has referred to S. 91 of the Evidence Act, therefore we casually made a mention of that section also.
16. Learned counsel for the respondents has relied on Banwarilal Sharma v. Ram Swaroop, AIR 1974 Raj 178 for the proposition which is enunciated by the learned single Judge of this Court in Mohinder Singh's case, (1980 Srinagar LJ 158) (supra). However, we are unable to agree with this proposition because their Lordships of the Rajasthan High Court also seem to have omitted to consider the effect of S. 18(a) and (d) of the Registration Act. Leases of immoveable property from year to year or for any term below one year and reserving a yearly rent of Rs. 50/- or less are expressly excluded from the purview of S. 17 of the Registration Act. Section 18 makes mention of documents which must be in writing. Therefore a written document of lease which would not fall within the ambit of S. 17 of the Registration Act, is not compulsorily registerable but its registration is optional. Therefore the law laid down in Rajasthan authority does not appear to be correct law in view of the provisions of S. 18(a) and (d) of the Registration Act.
17. We have discussed the relevant provisions of the Transfer of Property Act as also of the Registration Act. Therefore, in view of the findings given by us, we are not persuaded by the Rajasthan authority (supra) which, in our opinion, as indicated above is not correctly decided.
18. If a document is required to be registered, it may not be received in evidence or acted upon to prove the contents of the document or the terms of the documents, but nevertheless it can be received in evidence for collateral purpose. That proposition is not disputed and collateral purpose in a lease deed would be nature of tenant's possession and duration of his occupation. Conditions of tenancy would not be collateral purpose. This difficulty is only in respect of those instruments or deeds which are compulsorily required to be registered. In respect of deeds or instruments registration whereof is optional, this difficulty is non-existent.
19. With respects, the learned single Judge of this Court has not decided Mohinder Singh's case, (1980 Srinagar LJ 158) (supra) correctly and the said case is required to be overruled. We overrule the same and lay down that a deed of lease under Cl. (1) of S. 107 of the Transfer of Property Act is compulsorily registerable and if it falls under Cl. (2) of S. 108 T.P Act it will not be compulsorily registerable. Its registration will be only optional. We say so because S. 17 of the Registration Act and Section 18 of the Registration Act are to be read supplementary to S. 107 of the T.P Act and S. 18 of the Registration Act excludes all those deeds from compulsory registration which are not mentioned in S. 17 and in view of Cls. (a) and (d) of S. 18 lease deeds falling within the ambit of part second of S. 107 will not be compulsorily registerable. However, there is no difficulty so far as part 1st of Section 107, T.P Act is concerned.
20. The reference is answered accordingly, and we direct that the two revision petitions be placed before any available single Bench for disposal.
Gupta, J.:— 21. I agree.
Rizvi, J.:— 22. I agree.
Order accordingly.