ORDER OF REFERENCE TO A FULL BENCH

Spencer, J.:— The question raised in Second Appeal is whether Exhibit B, which is an unregistered lease for six months of a house at a rent of eight annas a month, was admissible in evidence to prove that defendants Nos. 1 to 3 occupied the house as fourth defendant's tenants.

To be effective as a lease of immoveable property this document required registration under section 107 of the Transfer of Property Act, although, being a lease for a period less than one year, it was not compulsorily registrable under section 17(d) of the Indian Registration Act (XVI of 1908).

section 107 of the Transfer of Property Act provides that leases of immoveable property from year to year or for any term exceeding one year must be made only by a registered instrument, and that all other leases may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.

No place is provided by this section for written but unregistered leases even for periods of less than one year, whether accompanied by delivery of possession or not. Similarly, section 54 of this Act makes no provision for written but unregistered sale-deeds of immoveable property, even in cases where the value is less than rupees one hundred. In fact lessee or a purchaser in possession who can prove an oral agreement is better off than one who holds an unregistered instrument, when his title is in question.

Section 4 provides that section 107 and the material portions of section 54 are to be read as supplemental to the Indian Registration Act. Does this signify that section 107 is to be understood as supplementing particular sections of the Registration Act? If, for instance, all instruments referred to in section 107 are to be added to the list of instruments compulsorily registrable under section 17 of the Registration Act, the effect will be to enlarge clause (d) of that section by including leases of immoveable property for terms of less than one year. In that case the Legislature would have to be accused of a very clumsy device for avoiding an alteration in the wording of the section which of itself does not provide for all leases of immoveable property without exception being registered. Again, if section 107 is to be read as supplementing particular sections of the Registration Act, it may equally well be taken as supplementing section 18 and thereby making the registration of leases for more than a year optional. Thus there would be a contradiction in terms between section 17 and section 18.

In my opinion, it was only intended that section 107 of the Transfer of Property Act should be taken as a whole and read as supplemental to the Registration Act as a whole.

In Kaki Subbanadri v. Muthu Rangayya(1), there are words which imply that the learned Judges who decided that case accepted the argument that section 107 of the Transfer of Property Act was to be read as supplemental to section 17 of the Registration Act (XVI of 1908). In Muthukaruppan v. Muthu(2), there are similar observations as to the effect of section 4 to those met in Kaki Subbanadri v. Muthu Rangayya, but with due respect I cannot appreciate them. The learned Judges in the former case avoided the difficulty, which that argument led to, by saying that an undertaking to occupy certain premises was not an instrument referred to in section 107 of the Transfer of Property Act. For that matter, unregistered leases are not specifically mentioned in section 107, except in the proviso which relates to exemption by the Local Government of unregistered leases for a term of less than one year. In this Presidency there has been no such exemption by notification of Government. The result is that by the amendment of this Act by Act VI of 1904 all leases except agricultural leases, which fall under section 117, must be registered. Otherwise they do not have the effect of passing the right to enjoy the property. But section 49 of the Registration Act deals only with documents required by section 17 to be registered when it declares that such documents shall not be received in evidence of any transaction affecting immoveable property until they have been registered. As I have endeavoured to show, the document which has been exhibited in this case as Exhibit B is not a document falling under section 17. That is a sufficient reason for supporting the Subordinate Judge's reference to Exhibit B as a piece of evidence in the case, and as there is no other point of law, for dismissing the appeal with costs. I only wish to add my regret that the sections of these two Acts which deal with short leases have been left in a state of obscurity which renders the value of unregistered documents a matter of considerable ambiguity. I cannot believe that if it was the intention of the Legislature; to make unregistered leases for periods of less than one year of no practical value, they would have limited the compulsory registration of leases under section 17(d) of the Registration Act to leases for a term exceeding one year. When Act III of 1877 was superseded in 1908 by Act XVI of that year, sections 17 and 49 remained practically unaltered. Nor can I believe that it was intended that a tenant who receives a letter from a house-owner living, say in Madras, allowing him to occupy his house, say in Ootacamund, for six months on a fixed rent should be in a, worse position after lie commences His occupation than one who has only got verbal permission for such occupation.

I therefore think that this appeal should be dismissed with costs, but as there has admittedly been considerable difference of opinion in the view taken by several Benches of this Court, as to the effect of sections 4, 54 and 107 of the Transfer, of Property Act read with section 49 of the Registration Act, I agree to refer the question as to the admissibility of Exhibit B as evidence of the tenancy of defendants Nos. 1 to 3, to a Full Bench.

Krishnan, J.:— The question for decision in this Second Appeal is, as stated by my learned brother, whether Exhibit B is admissible in evidence to prove that defendants Nos. 1 to 3 occupied the suit house during the period mentioned in it as tenants of the fourth defendant and not in their own right.

Exhibit B is an unregistered muchilika or written undertaking executed by the first defendant in favour of the fourth by which he agreed to occupy the suit house as the latter's tenant for six months' at a rent of eight annas a month. That a lease can be made by such a document when accepted by the lessor even though it is not one signed by the lessor was settled by the Full Bench in Syed Ajam Sahib v. Ananthanarayana Aiyar, overruling the contrary opinion expressed in Turof Sahib v. Esuf Sahib and Kaki Subbanadri v. Muthu Bangayya(3).

The argument of the appellant against the admissibility of the document in evidence may be briefly stated as follows: Exhibit B is an instrument falling under the second clause of section 107, Transfer of Property Act; by virtue of section 4, clause (2) of the same Act, section 107 should be read as supplemental to section 17(d) of the Registration Act (XVI of 1808), and section 49(c) of the same Act therefore makes it inadmissible in evidence in proof of any transaction affecting, the property, as it is unregistered. It cannot therefore be used to prove the tenancy of the defendants Nos. 1 to 3.

On the points that arise on the above contention there seems to be some difference of judicial opinion in this High Court. In Muthukaruppan v. Muthu it was held by a bench of this Court that in the analogous case of a sale for less than Rs. 100 dealt with by section 54, clause (3), of the Transfer of Property Act the unregistered instrument evidencing it was not admissible in evidence even for the purpose of showing the nature of the occupier's possession (see page 1181). The subsequent discussion shows that the learned Judges were basing their view on section 49(c) of the Registration Act, though they do not expressly refer to it. This view involves the position that the effect of section 4, clause (2), of the Transfer of Property Act, is to make sections 54, clauses 2 and 3, 59, 107 and 123, parts of section 17 of the Registration Act; otherwise, section 49 which in terms refers only to documents mentioned in section 17 will not apply. The rulings in Kommachi Kalher v. Pakker, and Kaki Sub-banadri v. Muthu Rangdyya (which has not been dissented from on this point), and the observation of the learned Chief Justice in the Full Bench case of Syed Ajam Sahib v. Ananthanarayana Aiyar(4), are in favour of the view that the effect of section 4 is to make section 107 and other sections referred to in it integral parts of section 17.

On the other hand, Sadasiva Ayyar and Napier, JJ., in their judgments in Kathari Narasimha Raju v. Bhupati Raju(5), have dissented from the view expressed in Muthukaruppan v. Muthu. Napier, J., in particular observes:

“I am however unable to agree with it [that is, the view expressed in Muthukaruppan v. Muthu]. The document is not compulsorily registrable under section 17 of the Registration Act, and therefore we have not to consider whether the proposed use to prove the agreement would not be permissible, because it would affect immoveable property within the meaning of section 49 of the Registration Act. I am unable to accept the construction put on section 54 in the above case that it requires all sale-deeds, if in writing, to be registered. In my opinion it only requires that if the sale-deed is to be relied on to establish the transfer it must be registered. There being no law requiring the document to be registered, I see no reason why it should not be proved and used as required by the Evidence Act, section 91,”

and it was admitted in evidence to prove an oral sale. On, the above reasoning, it will be equally correct to hold that an unregistered lease-deed, which is not relied on for the purpose of proving the creation of a lease by its own force or for the enforcement of the terms of it, is not required to be registered by section 107, Transfer of Property Act, and is admissible in evidence for the collateral purpose of proving either an oral lease or for explaining the nature of the possession of the person in occupation.

Again, in Poomalai v. Karuppa, another Bench took the same view. The learned Judges held that under section 54(3), Transfer of Property Act, an unregistered instrument of sale, where the property sold was less than Rs. 100 in value, was admissible in evidence to prove the antecedent oral contract to sell and if coupled with delivery of possession was sufficient to transfer title. The learned Judges point out that section 49 of the Registration Act deals only with documents required by section 17 to be registered.

My learned brother also takes the view that section 49 (c) cannot be applied to Exhibit B.

In view of this conflict of judicial opinion, I think it is desirabe to have the question settled by a Full Bench. I would therefore refer to a Full Bench the following question:—

“Is Exhibit B admissible in evidence to prove that defendants Nos. 1 to 3 were in occupation of the plaint house as fourth defendant's tenants during the period covered, by it?”

On this Reference—

M.S Ramanuja Ayyangar for appellant.— Exhibit B ought to have been registered. Under section 107, Transfer of Property Act, if an instrument of lease is in writing if must be registered. Here there is no proof of any oral lease. See Varada Pillai v. Jeevarathnammai, Tilak Dhari Lal v. Khedan Lal, Yuruva Venkata Reddy v. Maddi Yeeranna, and Muthukaruppan v. Muthu. The Registration Act shows the general intention of the legislature, the Transfer of Property Act the particular, and the provisions of the latter override the provisions of the former. See Vairananda Nadar v. Miyakan Rowter(6), Kaki Subbanadri v. Muthu Rangayya, and Syed Ajam Sahib v. Ananthanarayana Aiyar. Dawal Piranshah v. Dharma Rajaram similar to the present case. Reference was also made to Kathari Narasimha Raju v. Bhupati Raju, Hemanta Kumari Debi v. Midnapur Zamindari Co., Poomalai v. Karuppa and Venkatasami v. Kristayya(7).

B. Jagannadha Doss for respondent.— The effect of section 4, Transfer of Property Act, is not to make section 107 part of I section 17, Registration Act; nor does section 49 of the Registration Act prevent an unregistered document being admissible I in evidence. See the judgment of Beaman, J., in Kathari Narasimha Raju v. Bhupati Raju. If a lease is sought to be admitted in evidence it need not be registered and is admissible. It is only when it is sought to prove a transfer of property that such a lease would be inadmissible under sections 17 and 49. Section 107 does not make registration of a written document compulsory: see Gunga Narain Gope v. Kali Churn Goala(8) and Juman v. Mohammad Nabineoaz(9). Section 4 contemplates the harmonious reading of the two acts together. If it had been the intention of the legislature to make the sections mentioned therein part of section 17 it would have expressed itself differently: see Cox v. Andrews(10).

The OPINION of the Court was delivered by

Sir John Wallis, Kt., C.J:— The question raised in the Order of Reference in this case is whether leases for less than a year, which require registration to make them operative by virtue of section 107 of the Transfer of Property Act, must be considered, by virtue of section 4 of that Act which provides that and other sections shall be read as “supplemental to the Indian Registration Act” to be documents “required by section 17 of the Registration Act to be registered” so as to bring them within the operation of section 49 of the 1 Registration Act which provides that

“no document required by section 17 to be registered shall affect any immoveable property… 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.”

The question what precise effect is to be given to the provisions of section 4 of the Transfer of Property Act as to section 107 and the other sections specified being read as supplemental to the Registration Act is a very nice question upon which considerable difference of opinion has prevailed in this Court and elsewhere. The earliest case in this Court is the case of Vairananaa Nadar v. Miyakan Rowther. That case, in our opinion, is not an authority for the proposition that this and other sections are to be considered as read into, section 17. What the learned Judges say is that they are to be read with section 17, and in that case they held that the provisions of section 107 of the Transfer of Property Act, that a lease for more than a year must be registered, must take full effect and could not be read as subject to the proviso in section 17 enabling the Local Government to grant exemption in cases where the term of the lease does not exceed five years and the annual rent: reserved does not exceed fifty rupees. That case was, however, treated in Kaki Sabbanadri v. Muthu Rangayya, as an authority for the proposition that the provisions of section 107 were to be treated as inserted in section 17 of the Registration Act. There are dicta to the same effect in the opinions of Sir Arnold White, C.J, and of Krishnaswami Ayyar, J., in the Full Bench decision in Syed Ajam Sahib v. Ananthanarayana Aiyar; but the question there was whether a registered rental agreement executed by tenants could be held to be a registered lease granted by the landlord and the question here in no way arose in that case. This particular question was really not considered at all in Muthukaruppan v. Muthu, but it was apparently assumed that section 107 must be taken to be inserted in section 17.

From that time the current of authority in this Court has set the other way. We have a decision of Sadasiva Ayyar and Napier, JJ., in Kathari Narasimha Raju v. Bhupati Raju, and the decision of Phillips and Bakewell, JJ., in Poomalai v. Karuppa, and the referring judgment of Spencer, J., in the present case.

Turning to the other Courts, we have the two respective views of section 4 forcibly presented by Mr. Justice Beaman on the one side and by Mr. Justice Macleod (as he then was) on the other in Dawal Piranshah v. Dharma Rajaram. As I have said the point is a nice one and either view is a possible view, but after carefully considering the question we are inclined to agree with the view of Mr. Justice Macleod for the reasons stated by him rather than with the view taken by Mr. Justice Beaman. All that section 4 says is that section 107 and other sections are to be read “as supplemental to” the Registration Act. “Supplemental” has been defined as meaning “added to.” We think that if the legislature intended that these provisions should be treated for all purposes as inserted in particular sections of the Registration Act it was for the legislature to say so. We are not prepared, as a matter of construction, to say that the provisions of section 107, which says that a written instrument in order to have the effect of a lease for less than a year must be registered, must be taken to have been inserted in section 17; if not, such a lease is not a document required by section 17 to be registered and section 49 can have no application to the case. Spencer, J., in his Referring Order, has pointed out that anomalous results follow from the other view. That, however, is not the ground of our decision. We are not satisfied that the legislature has sufficiently indicated its intention that these sections should be considered as inserted in section 17. Our answer must, therefore, be that the document is admissible. The question, however, loses much of its importance if, as has been contended before us, the Privy Council in Varada Pillai v. Jeevarathnammal are to be understood as ruling that documents which are compulsorily registrable under section 17, and so governed by section 49 of the Registration Act may nevertheless be admissible in evidence to prove the character of the possession.

M.H.H