Nading Neelakanda Rao v. State Of Mysore And Ors.

JUDGMENT S.R. Das Gupta, C.J.

(1) The Petitioner before us is the landlord of Survey Nos. 148 and 151 of Kuppagadde village, Sorab Taluk in the district of Shimoga. The Mysore Tenancy Act was introduced in that Taluk for the first time on 1-1-1954. It is not disputed that prior to the date hereinafter mentioned the Respondent was the tenant of the Petitioner in respect of the said lands. The Petitioner's in respect of the said lands. The Petitioner's case is that on 5-12-1953 the Respondent, by executing a surrender deed, surrendered the lands to the Petitioner. His case also is that on that date of Respondent delivered possession of the said lands to the Petitioner.

After the Tenancy Act came to be in force in the Taluk in question, the tenant made an application on 20-4-1954 under Section 28-A of the Tenancy Act to the Tahsildar. In the said application the tenant alleged that the landlord had interfered with his possession. The Tahsildar dismissed the application on the ground that the tenant had already surrendered his tenancy and delivered possession of the said lands to the landlord. The Tahsildar have been practised upon him by the landlord in procuring the said deed of surrender cannot be gone into by the Tenancy Court. Against the said decision of the Tahsildar the tenant filed an appeal to the Assistant Commissioner.

The Assistant Commissioner also dismissed the appeal, he having held that possession had already been delivered to the landlord by virtue of the surrender deed. A second appeal was thereafter filed to the Deputy Commissioner. The Deputy Commissioner allowed the said appeal and ordered restoration of possession to the tenant. Against that order of the Deputy Commissioner a revision petition was filed to the Board of Revenue.

The Board on 15-11-57 dismissed the said revision petition. Thereafter the petitioner on 14-12-57 filed a revision petition to the Government of Mysore. But the said application was refused by the Government on the ground that the Government had no longer any power to interfere with the order of the Board of Revenue. It is under these circumstances that the present petition has been filed to this Court.

(2) The learned Advocate for Petitioner, in the first place, urged before us that the Deputy Commissioner was wrong in holding that the surrender deed was inadmissible in evidence on the ground that the same was not registered. He urged that a surrender deed executed by the tenant in favour of the landlord need not registered. He urged that a surrender deed executed by the tenant in favour of the landlord need not be registered whatever may be the value of the tenancy so surrendered.

In support of the contention he relied on a decision of the Calcutta High Court in Abdul Majid v. Haricharan Halder, 53 Ind Cas 17 : (AIR 1919 Cal 840 (1)). He also relied on a decision of the Patna High Court reported in Singheshwarjha v. Ajab Lal AIR 1941 Pat 142 and on a decision of the Privy Council reported in Imambandi Begum v. Kamleshwari Pershad ILR 14 Cal. 109 (PC). In my opinion this contention of the learned Advocate for the Petitioner cannot be accepted as sound.

(3) I am of the opinion that the view taken by the Deputy Commissioner, viz.. that the dead of surrender which was not registered and the value of the subject-matter of which exceeds Rs.100/- was not admissible in evidence, is correct. Sec 17(1)(b) of the Registration Act provides that non-testamentary instruments other than instruments of gift of immovable property which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be registered.

In this case, as I have mentioned, there is no dispute that the value of the tenancy in question that the value of the tenancy in question was over Rs. 100/-. The learned Advocate for the petitioner contended that the said document does not come within the purview of cl.(b) of sub-section (1) of Section 17. As I have said before, I am unable to accept that contention. It is clearly an instrument which purports to extinguish the right of the tenant, the value of which is over Rs. 100/-, and as such comes within Cl.(b) of Sec 17(1). The Deputy Commissioner was in my opinion, right in his view that the plain words of Section 17(1)(b) make this document compulsorily registrable.

(4) Next I have to turn to S. 49 of the Registration Act. The said section provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. There is a proviso to the said section, but the present case does not fall within the said proviso. It would appear, therefore, on a consideration of Section 17(1)(b) and Section 49 of the Registration Act that the document in question could not be received in evidence of the transaction of surrender affecting the property in suit as the same was not registered.

(5) Coming to the decisions on which the learned Advocate for the petitioner relies, it seems to me that the decision of the Patna High Court reported in AIR 1941 Pat 142 and the decision of the privy Council reported in ILR 14 Cal. 109 (PC) are beside the point. The question which was before their Lordships in the said cases. In the said Patna case the first Court held that the document was not admissible in evidence as the same was not registered. But it found on other evidence in the case that the land had in fact been surrendered to the plaintiffs.

In the appeal filed against the said order it was contended that Section 91 of the Evidence Act was a bar to the plaintiff's proving surrender otherwise than by production of the document and that the document being inadmissible as it was not registered, the plaintiffs cannot be permitted to prove the surrender at all. It is this contention with which his Lordship was concerned in the Patna Case.

In fact from the operative part of his Lordship's order in the said case it would appear that his Lordship was dealing with the effect of Section 91 of the Evidence Act and was considering whether, or not that section bars proof of the terms of a document otherwise than by production of the document. Incidentally in the course of his judgment his Lordship referred to the Privy Council decision reported in ILR 14 Cal 109 and observed that an unregistered ikrarnama effecting a surrender may be taken in evidence in proof of the surrender.

But from the said Privy Council decision (reported in ILR Cal. 109 (PC) I could not find that any such proposition was laid down by their Lordships of the Judicial Committee in the said case. From the judgment delivered by their Lordships of the Privy Council in the said case it appears that lkrarnamas were executed but through some neglect they were not registered within the time required by law to give them validity. The High Court, on the ground that there was n valid reconveyance of the one anna share either to the plaintiff or her lessors, deducted it from the one-fourth share.

This, in their Lordship's opinion, ought not to have been done. The reason for it, as stated in the judgment was, that a formal reconveyance of the one anna share was not necessary. The receipt of Rs. 7,000/- and relinquishment of possession by Raja of Imambandi or lessors was sufficient for that purpose. It would, therefore, appear that the question as to whether or not lkrarnamas were admissible in evidence; not being registered was not gone into by their Lordships of the Judicial Committee. These two decisions are, therefore, no authority for the proposition urged before us by the learned Advocate for the petitioner.

(6) As for the decision of the Calcutta High Court reported in 53 Ind Cas 17 : (AIR 1919 Cal 840(1) it appears that before the said Court it was contended on behalf of the plaintiff-appellant that the surrender was not really a surrender but a sale, because there was consideration; the consideration being the rent for which a decree had been obtained and accrued since the date of the suit. In dealing with that contention Mr. Justice Walmsley, one of the learned Judges who decided the said case, stated that there is no reason for saying that it was not a surrender to the landlord.

His Lordship further observed that no authority has been shown for holding that the surrender must be by an instrument registered. Mr. Justice Shamsul Huda, the other learned Judge held that under Section 111 of the Transfer of Property Act a lease of immovable property determines, by express surrender, that is to say, by the lessee yielding up his interest under the lease to the lessor, by mutual agreement between them. His Lordship further held that it makes no difference that the mutual agreement was by reason of a consideration that was received from the tenant by the landlord.

Having said all this, his Lordship concluded by saying that the Transfer of Property Act does not require a registered document in such cases and no authority has been shown in support of this contention. It appears from the judgment of their Lordships that what their Lordships meant to lay down was that it is necessary that a surrender must always be by registered document. In other words, their Lordships held that a surrender may be effected without a registered document.

If that is so then I am in agreement with the view which was taken by their Lordships on this point. The Transfer of Property Act does not require that in every case where there is to be a surrender, there must be a registered document. A surrender can be effected without a registered document. It seems to me that is also what their Lordships held in that case. I do not think that their Lordships meant to say that a document of surrender need not be registered. In other words, their Lordships did not hold that if a surrender is effected by a document the same need not be registered.

In my opinion, as I have already indicated, it is quite clear from the terms of Section 17(1)(b) and Section 49 of the Registration Act that the document of surrender, if not registered, is inadmissible in evidence. The view which I am taking on this point, is supported by a decision of the Bombay High Court reported in Narottamdas v. Bai Dhanalaxmi AIR 1926 Bom. 573. That was a decision of Chief Justice Macleod and Mr. Justice Crump.

In that case two documents had passed between the parties and their Lordships came to the conclusion that the said two documents read together amounted to a surrender. Their Lordships then considered the other question, as to whether or not they were admissible in evidence as they were not registered. It should be mentioned that the lower Court took the view that they were admissible in evidence. Their Lordships negatived that view and held as follows:

"It is difficult to follow the argument that they were merely agreements to surrender on certain terms that were still in dispute. The documents, as they stand read together, extinguish the rights created by the original lease of August 27, 1919. There can be no doubt with regard to the meaning of the words "The rent note which has been newly passed is to be considered null and void.' So that from that date the rights and liabilities arising under the document of 1919 ceased. The position of parties as lessor and lessee no longer continued, while Narottamdas could only be considered as a licensee entitled to keep his timber on the premises for removal within four months. Those documents come under S. 17(1)(b) of the Indian Registration Act and required to be registered. Under S. 49, if they are not registered, they cannot be received in evidence of any transaction affecting the property".

The view expressed by their Lordships in the said case, if I may say so with respect, is correct and accords with the view which I have taken in the present case. That being so, I am clearly of the opinion that the Deputy Commissioner was right in rejecting the document in question on the ground that it is inadmissible in view of the provisions of Section 17(1)(b) and Section 49 of the Registration Act.

(7) The learned Advocate for the petitioner then contended before us that even if the document be held to be not admissible in evidence, the fact of surrender can be established, by evidence de hors the said document, that is by other evidence. As a proposition of law I do not dispute it. But then it has to be seen whether or not in fact his client has been able to establish that there was surrender by evidence other than the document itself. On this point the Deputy Commissioner in his order clearly stated, after referring to the evidence on record, that the tenant did not surrender physical possession of the land on 5-12-1959 but that he continued to be in possession till May 1954 when the respondent deprived him of the land by force.

This conclusion, as I have said just now, was reached after considering the evidence adduced in the case. The Deputy Commissioner relied on the evidence of the owners of the adjacent fields and of the respondent (appellant before him) in arriving at the said conclusions. It is a conclusion of fact which cannot be disturbed by supported and it cannot be said that that conclusion is based on no evidence. That being so, the contention of the learned Advocate for the petitioner, viz. that there is other evidence on which the fact of surrender has been established cannot be accepted.

(8) The next contention of the learned advocate for the petitioner before us that the Government of Mysore in refusing to entertain an application for revision against the order of the Board of Revenue failed to exercise a jurisdiction which was vested in the Government. In order to understand this contention it would be necessary to mention certain facts. On 15-11-57 the Board of Revenue passed its order on the application for revision. On 1st December 1957 the Mysore Revenue Appellate Tribunal Act (Act 24 of 1957) came into force.

By section 12 of the said Act, Section 6 of the Mysore Board of Revenue Act was repealed. It should be mentioned that Section 6 of the Mysore Board of Revenue Act conferred upon the Government jurisdiction to entertain an application for revision against the order of the Board of Revenue. The application before the Government for revision of the Board's order was made on 14-12-57, that is, after the Mysore Revenue Appellate Tribunal Act had come into force.

As already mentioned, by the said Act Section 6 of the Board of Revenue Act, by which the State Government was empowered to entertain application for revision against the order of the Board, had been deleted. That being the position, the petitioner cannot contend that the State Government failed to exercise a jurisdiction which was vested in it by law in not entertaining the application for revision. On the date when the application to the Government was made, the Government had no such jurisdiction, Section 6 having been already repealed.

(9) The learned Advocate for the petitioner tried to support his contention that the Government had such jurisdiction by my decision in S. A. No. 78/52-53 wherein I held, following a Supreme Court decision on this point, that the right of appeal not only on questions of law but also on questions of fact as allowed by the Mysore Civil Procedure Code was a vested right and was preserved to the parties to the suit, till the rest of the career of the suit notwithstanding the fact that the Mysore Civil Procedure Code had ceased to exist and was substituted by the Central Civil Procedure Code at the date when the appeal came to be filed.

It was urged on the analogy of this decision that the right to file a revision petition to the State Government, which was in existence at the time when these proceedings, started, was preserved to 'the parties to the proceedings till the rest of the career of the proceedings. The obvious answer to this contention is that no right has been conferred in favour of the petitioner under Section 6 of the Mysore Board of Revenue Act. The said section enabled the Government to call for the records of any case or proceeding of the Board and to make an order thereon.

It was not a question of right of the petitioner but it is a question of discretion on the part of the State Government to interfere with the order of the Board of Revenue. It cannot, therefore, be said that the petitioner had a right which would continue upto the end of the proceedings. I am unable to accept the end of the proceedings. I am unable to accept this contention of the learned Advocate for the petitioner.

(10) The last contention urged before us by the learned Advocate for the petitioner was that the objection as to admissibility not having been taken at the earlier stage of the proceedings, the same should not have been allowed to be taken before the Deputy Commissioner in appeal. In support of that contention he relied on a decision of the Privy Council in Bhagat Ram v. Khetu Ram AIR 1929 P. C. 110. I should have dealt with this contention along with the other contention of the learned Advocate for the petitioner on the question of admissibility of the deed of surrender.

However, it seems to me that their Lordships of the Privy Council in the said case thought that it was not necessary for their Lordships to consider this question of admissibility in evidence, inasmuch as in their Lordships' opinion even if the evidence in question was admissible it was far from being a satisfactory document, "and even if it were admissible and satisfactory it would not go a very long way towards proving the appellant's case."

In other words, their Lordships thought it unnecessary in the circumstances of the case, which was before them, to decide this question of admissibility in evidence. It also appears that the precise question which is now before us, viz., whether an unregistered document can be admitted in evidence even though no question as to admissibility was taken at the initial stage, was not before their Lordships.

(11) The result, therefore, is that all the contentions of the petitioner fail and this petition is dismissed with costs (Advocate's fee Rs. 100/- ).

Hombe Gowda, J.

(12) I agree.

(13) Petition dismissed.