Gian Singh (Dr.) v. Mohan Lal

Inder Dev Dua, J.:— This is an appeal on behalf of Dr. Gian Singh defendant No. 2 in the court below from a judgment and decree of the Subordinate Judge 1st Class, Phul decreeing the suit of Mohan Lal and Om Parkash plaintiffs and passing a preliminary decree for Possession of the suit property in their favour. The facts giving rise to the controversy may briefly be stated.

2. The property in question described as residential shop by the was owned by Shri Siri Ram son of L. Bihari Lal Aggarwal and was mortgaged by him with possession with L. Chanan Ram defendant No. 1, in the suit for Rs. 11,500/-. I need hardly state that this amount was made up of two transactions, the first one a mortgage for Rs. 10,000/- of December, 1958 and the second one a mortgage for Rs. 1500/- of March, 1959. Dr. Gian Singh, appellant in this Court and defendant No. 2 in the Court below, was a tenant of the premises since 1956 paying a sum of Rs. 1,300/- per annum by way of rent, Siri Ram later sold the property to the plaintiffs in September, 1960 authorizing the vendees to redeem it from the mortgagee-defendant Page: 348on payment of the mortgage money. The Vendees instituted the suit;out of which the present appeal has arisen in January, 1961. Dr. Gian Singh defendant No. 2 raised a number of preliminary pleas and resisted the claim of possession by the plaintiffs. Defendant No. 1 also filed his written statement and prayed for the dismissal of the suit, but on appeal in this Court we are only concerned with Dr. Gian Singh's case. As a matter of fact, the issues tried in the Court below are also concerned with the right of the plaintiffs to obtain possession of the suit property from Dr. Gian Singh. Issues settled are in the following terms:

1. Whether the disputed shop was originally taken on lease by Dr. Gian Singh from Siri Ram and if so its effect? and

2. Whether the plaintiffs are entitled to a decree for possession of the suit property?

3. The Court below came to the conclusion that on the extinction of the mortgage by redemption the tenancy rights of Dr. Gian Singh were extinguished and he was liable to deliver possession to the owner of the property. This conclusion is preceded by the observation of the Court below that Dr. Gian Singh was proved to be the tenant of Siri Ram, the original owner, before he mortgaged the property in favour of Chanan Ram and others but after the execution of the mortgage-deed he became a tenant under the mortgagees. On appeal Shri Ganga Parshad Jain who claimed to be a counsel in another case in which the same point has arisen and is being heard by another Bench also expressed a desire to be heard as amicus curiae and we had the advantage of hearing the arguments both of Shri Sachar and Shri Ganga Parshad Jain. Our attention has been drawn to two unreported decisions of this Court which are said to cover the point which arises for consideration in the jcase itinand. One is a Letters Patent Appeal No. 221 of 1961 Sardari Lal v. Ram Lal decided by the learned Chief Justice and my learned brother Grover, J. on 26-12-1961 (Punj) and the other is Mam Raj c. Basheshar Parshad, Civil Revn No. 332 of 1961, decided by Mehar Singh, J. on 2-3-1962(Punj).

4. In the Letters Patent Appeal Sardari Lal (appellant in this Court) was occupying a shop in Fazilka town as the tenant of one Uttam Chand. The latter executed a mortgage of the said shop in favour of the appellant himself for Rs. 3,500/-. The mortgage was to subsist for one yeari after which Uttam Chand was entitled to redeem it and on his failure to do so the mortgagee was entitled to recover the mortgage-amount in the usual manner. Sardari Lal was to retain possession of the shop; and Uttam Chand had no right to recover rent and Sardari Lal had no right to recover interest on the mortgage-amount. On Uttam Chand's death in December, 1959, his heirs sold the equity of redemption to Ram Lal who instituted a suit for redemption in February, 1960. The question which arose in the litigation related to the position of Sardari Lal on the redemption of the shop. The trial Court granted a decree for redemption but only symbolical possession was ordered to be delivered to the plaintiff. On appeal the learned District Judge accepted the plaintiff's contention holding that by entering into the mortgage and coming into possession as mortgagee Sardari Lal had allowed tenancy in his favour to terminate and that he could not be restored back to his position as a tenant on the redemption of the mortgage. Shamsher Bahadur, J. on second appeal affirmed the conclusion of the District Judge. On Letters Patent Appeal it was observed by the Court that the question whether a given mortgage by a landlord in favour of his tenant implies a complete surrender of the tenant's rights in the tenancy on the redemption of the mortgage is a question of fact to be decided according to the terms of the contract between the parties. In the cited case there was complete silence on the point and the Bench felt that if the parties to the mortgage had intended the tenancy to terminate finally on account of the creation of the mortgage this would certainly have been specified in the mortgage agreement. In the absence of any such specific provision in the contract of mortgage, the Bench took the view that the tenant had not surrendered his rights and, therefore, the intention of the parties must be interpreted to be that on redemption the tenant would still retain his rights as a tenant. Motilal Govindram v. Gopi Krishna Shadilalji, 1961 MPLJ 66, was relied upon in support of the view taken, though the following decisions cited for the contrary view were also noticed in the judgment:

5. Godasankara Valia Raja…Plaintiff v. Tharappan Vareed…Defendant ., AIR 1961 Kerala 293 and Meenakshi Amma v. Kizhakke Valath Narayani, AIR 1957 Mad 212. In Mam Raj's case Civil Revn. No. 332 of 1961, D/r 2-3-1962 (Punj) the learned Single Judge of this Court allowed the revision ex parte because nobody had appeared for the respondents. The facts in that case are that Rameshwar Dass was the owner of the shop in dispute and Mam Raj (petitioner in this Court) was a tenant since about 1948 or 1949. The shop was situated at and. The Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 Bk gave certain protection to the tenant. On 12-12-1949 Rameshwar Dass mortgaged the shop with possession with Munshi Ram. On that very day the tenant executed a rent note in favour of the mortgagee. On 2-1-1959 Basheshar Parshad (respondent in this Court) purchased the equity of redemption from Rameshwar Dass and redeemed the shop some time before 12-11-1959. On 17-7-1959 the tenant Mam Raj applied to the Rent Controller under section 12 of the East Punjab Urban Rent Restriction Act for an order for repairs of a wall and also for permission to deduct its costs from the rent payable to Basheshar Parshad. From this, this Court inferred that perhaps the shop had been redeemed before July 1959. On June 18, 1960 the Rent Controller found Mam Raj to be a tenant of Basheshar Parshad and entitled to take steps to repair the wall. On appeal the appellate authority dismissed the tenant's application holding that there was no relationship of landlord and tenant between the parties inasmuch as that in December, 1949 on the date when the mortgage was created Mam Raj became a tenant of the mortgagee by virtue of the execution of a new rent-note and that the said tenancy must obviously coma to an end with the redemption of the mortgage. After the redemption of the shop, therefore, Mam Raj ceased to be a tenant under Basheshar Parshad.

6. The learned Single Judge after a reference to Asa Ram v. Mt. Rajn Kali, AIR 1958 SC 183, proceeded to observe that if it were a case of the mortgagee introducing a tenant after the mortgage there would be some support for the view taken by the appellate authority, but since in the case before the learned Judge the tenant was a tenant of the shop under the owner prior to the mortgage and continued Page: 349to be a tenant even under the mortgagee it made no difference. Here, it may be pointed out that under section 2(c) of the Pepsu Ordinance, the tenant there, according to the view of the learned Single Judge, had become a tenant of Munshi Ram mortgagee. The learned Judge,- however, proceeded to observe that since the word “land—lord” included every person deriving title under as landlord, when Munshi Ram took mortgage of the shop from Rameshwar Dass, the mortgagee became landlord of the tenant and had, therefore, protection against eviction subject to the tenancy law. The execution of a fresh note by the tenant in favour of the mortgagee on the date of the mortgage-deed, according to the view of the learned Single Judge, made no difference in substance, for, as he put it “it practically amounts to no more than by him to Munshi Ram as landlord”. It was, therefore, considered to be incorrect that mortgagee Munshi Ram had created a tenancy in favour of Mam Raj. On this basis the revision was allowed and the order of the Rent Controller restored after setting aside that of the appellate authority.

7. Our attention has also been drawn to Asa Ram's case, AIR 1958 SC 183 to which reference was made by the learned Single Judge in Mam Raj's case, Civil Revn. No. 332 of 1961, D/- 2-3-1962 (Punj) and it has been emphasised that it is only if the mortgagee had himself created a tenancy that one could hold the tenancy not to enure beyond the period of the mortgage. Whether the observations in the judgment in Mam Raj's case, Civil Revn. No. 332 of 1961, D/- 2.3.1962 (Punj) that execution of a fresh rent-note made no difference on the facts and circumstances of that case is right or wrong does not directly concern us, for, we are not sitting on appeal against that judgment. The ratio of the Supreme Court decision however, which was also binding on the learned Judge deciding Mam Raj's case, Civil Revn. No. 332 of 1961, D/- 2-3-1962 (Punj) is clear and if a mortgagee creates a fresh lease even though its terms are same or similar to those of the lease in favour of the mortgagor it might well attract the ratio of the Supreme Court decision.

8. It has also been argued that during the period of the mortgage Dr. Gian Singh can be considered to be a tenant of the mortgagee but as soon as the mortgagee disappears from the scene his rights under the original tenancy revive and the mortgagor or his successor-in-interest cannot deprive the appellant of his rights as a tenant because he never surrendered them either voluntarily or under any legal compulsion.

9. At this stage it is necessary to pause to refer to another point. Exhibit P. 2 is a copy of an entry from the Khata Bahi in which Dr. Gian Singh is stated to have appended his signatures beneath the following writing:—

“A shop of Siri Ram son of Behari Lal of Bhatinda has been leased to Dr. Gian Singh son of Karam Singh by Chanan Ram for 2 years (24 months) at an annual rental of Rs. 1,300/-. Rs. 650/- have been received in advance today and Rs. 650/- will be received after every 6 months in advance. Two rooms, a tin shed and two chabaras have been leased out with effect from the 10th December, 1959.

“Rent Rs. 1300/- per annum.”

10. On left hand side there are entries of the receipt of rent up to 30.6.1960 in five instalments of Rs. 650/- each. On behalf of the appellant it has been argued that this document being unregistered is inadmissible in evidence for showing the creation of a lease. On this basis it has been argued that even if the view of the learned Single Judge in Mam Raj's case, Civil Revn. No. 332 of 1961 D/- 2.3.1962 (Punj) that execution of a fresh rent-note by the tenant in favour of the mortgagee makes no difference in substance is held to be wrong and not to represent the correct view of law, in the case in hand there is no evidence of the execution of a fresh rent note and, therefore, this is a stronger case than that of Mam Raj Civil Revn. No. 332 of 1961, DJ- 2.3.1962 (Punj). Our attention has been drawn by the learned counsel to section 17(1)(d) of the Indian Registration Act according to which lease of immovable property for any term exceeding one year is compulsorily registrable and to section 49 according to which no document required by section 17 to be registered is to affect any immovable property comprised therein or to be received as evidence of any transaction affecting such property unless it is registered.

11. On behalf of the respondents reliance has been placed on the proviso to section 49 which lays down that an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act to be registered may be received as evidence of contract in a suit for specific performance under Chapter II of the Specific Relief Act or as evidence of part performance of a contract for the purposes of Section 53(a) of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument. The counsel has emphasised that for the purpose of considering the nature of possession of Dr. Gian Singh it is permissible to look at Exhibit P. 2.

12. Reliance has been placed for this submission on Tikait Bishambhar Narain v. Ajodhya Ram, AIR 1946 Pat 407, according to which it being open to a landlord to create a tenancy by giving possession and accepting rent it can certainly be proved by evidence other than the production of the unregistered hukumnama by which the tenant takes settlement of an agricultural land from the landlord. This decision obviously does not seem to touch the point sought to be supported. The decision of Wassoodew, J., against whose judgment a Letters Patent Appeal was dismissed and which is actually reproduced in V.H Deshpande v. R.D Deshpande, AIR 1942 Bom 268 does seem to suggest that an unregistered document can be referred to for ascertaining the nature and character of the possession. In Ata Mahomed v. Shankar Das, AIR 1925 Lah. 491, a Bench of the Lahore Court after referring to an earlier decision of that Court held that an unregistered Page: 350lease could be looked at for the purpose of finding that the defendant's possession was that of a tenant under the plaintiff. Ram Lall, J. in Mengh Raj v. Nand Lal, AIR 1939 Lah 558 observed that a document though compulsorily registrable could be used for determining the nature of the possession of the executants. This observation, however, was obiter because the document there was held to be not compulsorily registrable.

13. Paimeshwarlal Agarwalla v. Daul Ram, AIR 1957 Assam 188 deals with Section 116 of the Evidence Act and has nothing to do with an unregistered document being used for determining the nature of possession. Khodaijatul Kubra v. Krishna Pershad, AIR 1930 Pat 530 also supports the view that an unregistered instrument though inadmissible for proving the concluded transaction yet it is admissible for collateral purpose of proving the nature of possession.

14. The appellant has on the other hand referred us to Sobharam Mahato v. Raja Mah-ton, (S) AIR 1957 Pat 278 where it was observed that an amalnama creating raiyati settlement requires registration and if it is not registered it is inadmissible, and no evidence could be given as to its terms, and its contents could not be used for that purpose. At p. 285 the following observations were referred to.—

“In the present case, although the learned District Judge says in his judgment that the amalnama (Exhibit 4) was admissible for explaining the nature of possession, but I find that he has based his finding about plaintiff's title on the amalnama itself. He could not indirectly do that which the law prohibited him from doing. The plaintiffs therefore, were not entitled to prove their title and their right to recover possession on the strength of the unregistered amalnama (Exhibit 4). The use made of this document, which, the learned District Judge, describes as a collateral purpose, was not in reality so, because he used it as evidence of the transaction itself, which in law he could not do”.

15. It may be mentioned that Tikait's case, AIR 1946 Pat 407 was considered by this authority to have been correctly decided.

16. As I look at the position, it is undoubtedly true that under section 49 no document requiring registration under section 17 or by any provision of the Transfer of Property Act is to affect any immovable property comprised therein or to be received as evidence of any transaction affecting such property. According to the proviso, however, such a document may inter alia be received as evidence of any collateral transaction not required to be effected by registered instrument. It is, however, obvious that such a document can only be used as evidence of a collateral transaction not required to be effected by registered instrument. I am unable to see which collateral transaction in the case in hand is to be proved by this document for the only transaction which is relevant and is sought to be proved is that Chanan Ram had leased out the shop to Dr. Gian Singh for two years at an annual rental of Rs. 1300/-. No other transaction has been asserted to be proved and, therefore, it is difficult to visualise any other relevant transaction in support of which this document can be legally tendered as evidence.

17. The contention of the respondents, however, is that the document in question can be looked at for finding out whether Dr. Gian Singh's possession as a tenant under the mortgagee began on 10.12.1958 Tenancy under the mortgagee would, in my opinion, obviously begin from the said date in that this is the date of the mortgage and the substitution of the mortgagee in place of the mortgagor as a landlord of Dr. Gian Singh would in any case begin only from that date. Creation of fresh tenancy without which, as conceded by Shri Kaushal, the respondents cannot succeed cam scarcely be proved by merely proving the nature of possession on 10.12.1958 On the facts and circumstances of this case, therefore, it is unnecessary to go into this point in greater detail. Suffice it to say that the mere use of Exhibit P-2 for the purpose of showing Dr. Gian Singh's possession as that of a tenant of the mortgagee on 10.12.1958 can by no means benefit the respondents, for, it cannot necessarily establish a fresh lease. To use it as evidence of a fresh lease would obviously be hit by section 49. Reference to Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 is of little avail to the respondents though the rule of law laid down there has not been, as indeed it cannot be, disputed by the appellant's counsel and it has been conceded that a mortgagee cannot, as a general rule, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee and further that the mortgagee taking possession of the mortgaged property must manage it as a person of ordinary prudence would do if it were his own. Indeed, even the statute speaks of the legal position in the same terms: Section 76 of the Transfer of Property Act. Whether this provision merely embodies a liability or creates a right need not detain us, for, the question is not material in the case in hand. In Asa Ram's case, AIR 1958 SC 183 the Supreme Court came to the conclusion that the lease created by the mortgagees there on the eve of redemption was neither prudent nor bona fide and, therefore, not binding on the mortgagors.

18. Reference may also be made to an unreported Bench decision of this Court in the All India Films Corporation Ltd. v. Sh. Satya Pal Katyal, F.A 28 of 1960, D/- 19.3.1963 (Punj) in which the rule mentioned above was followed. In that case, however, as found by this Court the mortgage contract did not expressly authorise the mortgagee to lease out the premises, though reading the endorsement Exhibit D Y along with the mortgage the power to lease out was considered supportable but even so this power, in the Court's view, could not be exercised beyond the currency of the mortgage. The matter was accordingly dealt with on the basis of the right to lease out the premises during the subsistence of the mortgage and the question considered was whether or not this right came to an end on redemption.

19. The judgment alter quoting extensively from Dinkar B. Salekar v. Rau Babaji, 59 Bom LR 101 and from Harihar Prasad Singh v. Deonarain Prasad, (S) AIR 1956 SC 305 and also after referring to some other reported decisions including Hardei v. Wahid Khan, AIR 1954 All 16, Som Nath v. L.D Desai, AIR 1951 Punj 404 and Balkishafl v. Baldeo Kumar, AIR 1953 Punj 297 repelled the contention that the mortgagee's tenant had become the mortgagor's tenant. The Bench decision in Sardari Lal's case, L.P.A No. 221 of 1961, D/- 26.12.1961 (Punj) was apparently not brought to the notice of the Bench. It must also be observed that similarly the attention of the Letters Patent Bench deciding Sardari Lal's case, L.P.A No. 221 of 1961, DJ- 26.12.1961 (Punj) had not been drawn to the earlier reported Bench decisions of this Court. Whether the true ratio decided of the various Bench decisions of this Court, both reported and unreported, can be reconciled is a question which does not concern us directly in the present case, but which will have to be encountered on a more appropriate occasion when the question directly arises for settlement. I would, however, a little later revert in passing to the desirability of more liberal reporting of cases disposing of legal points in the interest of certainty of law, which is indisputably vital to the sustenance of the rule of law.

20. Now applying the test laid down by the Supreme Court in the decisions mentioned above to the present case, if Dr. Gian Singh had already been on the premises as a tenant of the mortgagor and he continued to pay rent to the mortgagee, without showing that he continued to be the mortgagee's tenant under a fresh agreement of lease which is improvident or is shown not to be bona fide or is otherwise likely to damage the property and, therefore, violative of section 76(a) or (e) of the Transfer of Property Act, I do not see how the ratio of the Supreme Court decisions can advance the respondent's contention. In Har-dei's case, AIR 1954 All 16 a mortgagee in possession had let out a shop and a room appurtaining thereto on a monthly tenancy and on the redemption of the mortgage the tenant was held to continue to be a tenant and not to have become a trespasser. On mere redemption of the mortgage the tenancy was held not to have lapsed automatically and ipso facto on the date of redemption. Support for this view was sought from the ratio of the Supreme Court decision in Mahabir Gope's case, AIR 1952 SC 205. The Bench decision in the case of All India Films Corporation F.A No. 281 of 1960, D/- 19-3-1963 (Punj), however, seems, as the trend of the judgment shows, to dissent from the view taken by the Allahabad High Court. This Bench decision of our Court is entitled to respect and unless we entertain doubt about its correctness and refer the matter to a larger Bench, should be followed. But the ratio decidendi of this decision necessary for determining the actual controversy so far as I have been able to discern it does not coyer the case before as. I am in the circumstances basing myself only on the ratio of the Supreme Court decisions as I understand it, there being no binding precedent brought to our notice which construes these decisions differently. The appeal before us must, therefore, prevail.

21. Before finally closing the judgment I consider it not inappropriate to observe that decisions of this Court dealing with questions of law deserve due publicity and should be liberally reported in the Law Reports. If someone were to produce certified copies of the unreported Bench decisions of this Court to which our attention has been drawn before a subordinate Court and the reported Bench decisions were also to be cited, 1 in my opinion, the subordinate Court might well find itself in somewhat embarrassing position, for it may not be an easy task to deduce agreed ratio from the observations contained in these decisions. It is true that sometimes even the reported decisions may not be cited, as appears to have happened in Sardari Lal's case, L.P.A No. 221 of 1961, Dr 26-12-1961 (Punj) but then such lapses cannot be helped. One must remember that this Republic is under the rule of law which has certain fundamental requisites. Two of such requisites are (i) that law must be certain so that people can act safely on it; and (ii) that law is readily ascertainable so that people may know what their rights and duties are. These requisites may well be considered to constitute the basic structure — or at least a substantial part of it — on which the rule of law depends. Liberal reporting of judgments helps to bring them to the notice of the bar, the Courts and the people whereas unduly; restricted reporting tends to keep the law concealed; in the Court record rooms, thereby weakening the very structure of the rule of law which permeates the entire fabric of our administration. I A Court decision rightly decided deserves publicity on its own merit; a decision which may be considered by some to be wrong must also be open I to easy access and scrutiny so that it may be reconsidered and the correct principle of law finally laid down by the superior tribunal.

22. For the foregoing reasons this appeal succeeds and allowing the same I modify the judgment and decree of the Court below by disallowing the prayer for actual possession against the appellant, Dr. Gian Singh, who would be entitled to remain in possession as a tenant of the plaintiffs and who would not be dispossessed in execution of the decree for redemption. To this extent the decree appealed against is modified. In the-circumstances, however, the parties are directed to bear their own costs in this Court.

23. Grover, J.:— I agree.

EH/R.G.D

24. Appeal allowed.