TaxTMI 
TaxTMI 
2008 (5) TMI 708
X X X X Extracts X X X X
X X X X Extracts X X X X
....inter alia, that the appellant was the owner of Premises No. 28/8, Gariahat Road, within Police Station Lake in the district of South 24 Parganas (hereinafter called "the suit property"). By a memorandum dated 30th of March, 1976, the respondent became a tenant in respect of a flat, as fully described in Schedule-A of the plaint, in the suit property (hereinafter called "the suit premises") for the residential accommodation of a particular officer Mr. Keshab Das and members of his family and for no other purpose. The monthly rent was fixed at Rs. 1100/-, which included the rent of fixtures, fittings and parking place payable in advance by 5th of the current month for which the rent became due. The monthly rent and other charges were increased to Rs. 1210/- from September, 1985. The appellant alleged that the memorandum dated 30th of March, 1976 specifically provided that if the respondent intended to use the suit premises for any purpose other than providing residential accommodation to its named officer Mr. Keshab Das and members of his family, the respondent would have to seek a written consent from the appellant bringing the change of purpose by a notice. 3. By a letter dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h of March, 1976. The respondent further alleged that the tenancy was taken by them for providing residential accommodation to its officer Mr. Keshab Das who was only an officer of the respondent and it was the respondent who was the tenant of the suit premises and not the named officer Mr. Keshab Das. Therefore, according to the respondent, even after the suit premises was vacated by Mr. Das, the tenancy of the respondent continued and it was still continuing. The allegation of the appellant that the respondent had no right to allow another officer to occupy the suit premises was misconceived and baseless. It was further alleged in the written statements that the respondent had duly informed the appellant that the employee of the respondent i.e. Mr. Das had left the suit premises and that they were going to allot the suit premises to another officer. It was also asserted that since it was the respondent who was the tenant under the appellant and paid the rent to the appellant, such tenancy was protected by the provisions of the Act. It was further the case of the respondent that the tenancy agreement entered into by the parties was illegal and invalid and such an agreement was aga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....successors and assigns) of the First Part AND DEVELOPMENT CONSULTANTS PRIVATE LTD, a body corporate registered under the Companies Act,1956 having its registered office at present at premises No.24-B, Park street, Calcutta, within P.S. Park Street, Calcutta- 16 hereinafter called the tenant (which expression unless repugnant to the context shall include its successors and assigns.) of the Second Part; WHEREAS the party of the F IRST PART , the Landlord hereof is the sole owner and proprietor of multistoreyed buildings being Premises No. 28/8, Gariahat Road, within P.S. Tollygunge, Calcutta-29 within the local limits of corporation of Calcutta AND WHEREAS the said Landlord, party of the first part hereof offered to let out flat No. 3 on the 2nd floor of the said premises along with fittings, fixtures and installations therein at a total monthly rental of Rs. 1100/- (Rupees One Thousand One Hundred) only inclusive of rent of fittings and fixtures and service charges and parking space for one car AND WHEREAS the party of the second part hereof approached the party of the first part hereof and offered to it the said flat No.3 of the 2nd floor of the said premises No,28/8, Gariaha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....were framed: - 1.Is the suit maintainable? 2.Whether the notice of ejectment is valid, legal and sufficient ? If so, was it duly served upon the defendant ? 3.Whether the defendant is a defaulter in payment of rent as alleged ? 4.Whether the defendant has caused damage to the suit premises ? 5.Whether the defendant has violated the terms of the memorandum of agreement by not vacating the premises after the same having been vacated by Mr.Keshab Das ? 6. To what relief, if any, is the plaintiff entitled ?. 9. Considering the different clauses of the lease agreement and on consideration of the evidence on record and the contentions of the learned counsel for the parties, the trial court finally came to the following findings : - I) The suit premises was let out by the appellant to the respondent initially for providing accommodation to its particular officer namely Mr. Keshab Das and members of his family, which could not mean that the tenancy was created exclusively for the accommodation and residence of Mr. Keshab Das and his family only. II) The tenancy was created in respect of the suit premises in fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent only for the purpose of occupation of the respondent's named officer Mr. Keshab Das and members of his family and for no other purpose. He further contended that since the lease agreement in question was not required to be registered, the prohibition contained in Section 49 of the Registration Act was not applicable. He also contended in the alternative that even if it was held that the lease agreement in question was compulsorily registrable, even then the purpose of letting specified in the lease agreement was a `collateral purpose' and accordingly, the lease agreement could be looked into under the proviso to Section 49 of the Registration Act and also that the said term did not extinguish the tenant's right under the Act. Lastly, he contended that the respondent had violated section 108(o) of the Transfer of Property Act and, accordingly, was liable to be evicted under Section 13(1b) of the Act. Mr. Mukherjee contended that the lease agreement between the parties was not illegal and against the statute. In support of this contention, Mr.Mukherjee relied on a decision of this Court in the case of Smt. Juthika Mulick & Anr. vs. Dr.Mahendra Yashwant Bal & Ors....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction which would also be material for us to decide this appeal is - Section 49 of the Registration Act which runs as under : "Effect of non-registration of documents required to be registered - No document required by Sec.17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall - (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered : Provided that an unregistered document affecting immoveable 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 a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." 14. Having heard the learned counsel for the appellant and after going through the judgment of the High Court as well as of the trial court, we do not find any ground for which interference can be made wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in evidence if the same is not registered but that deed may be used as evidence of any collateral transaction not required to be effected by a registered instrument. Therefore, the High Court observed that the question to be decided in this appeal is whether the conditions noted in the lease deed could be looked into for determining the question that the tenancy in question would be used only for the purpose of occupation of the named officer of the respondent. 15. Section 49 clearly provides that a document purporting to be a lease and required to be registered under Section 107 will not be admissible in evidence if the same is not registered. Proviso to this section, however, as noted hereinabove, provides that an unregistered lease deed may be looked into as evidence of collateral facts. Mr. Mukherjee, learned counsel for the appellant argued before us that the tenancy in question was exclusively granted for the benefit of the named officer and his family and unless the landlord gave his consent, no other person could use it and such condition in the lease agreement is admissible for ascertaining the purpose of allotting the suit premises which according to the appellant is a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....operation of law. In view of the aforesaid facts and considering the fact that the aforesaid decision of this Court was rendered on the basis of a registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because of the fact that in the present case, there was no registered deed of lease nor was there any such covenant as mentioned hereinabove. Therefore, we do not find any ground to place any reliance on the aforesaid decision of this court. 17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose. In Haran Chandra Chakrvarti Vs. Kaliprasanna Sarkar [AIR 1932 Cal 83(2)], it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows: "The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to lessee for residential purposes only". This clearly evinces that the property in question was let out to the tenant for his residence only...." 20. In the case of Rana Vidya Bhushan Singh Vs. Ratiram [1969 (1) UJ 86 (SC)], the following has been laid down: "A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 : "The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same. 23. Before we part with this Judgment, let us deal with another ground, which the High Court had also taken into consideration. This is with regard to the violation of provisions of Section 108(o) of the Transfer of Property Act. Section 108(o) clearly provides that the Lessee must not use or permit another to use the property for a purpose other than that for which it was let out or leased. Relying on this provision, the learned counsel for the appellant argued that since the purpose of the lease was for the use and occupation of one of the officers of the respondent, after the said officer had vacated the suit premises, the respondent, by refusing to handover the possession of the suit premises to the appellant and by giving the same to another officer, had violated the provisions of Section 108(o) of the Transfer of Property Act. Before we decide this question, it is necessary for us to reproduce the finding of the High Court on this aspect, which is as follows: - "....Clause (O) of Section 108 of the T.P. Act touches the que....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he decisions of this court in Dashrath Baburao Sangale and others Vs. Kashimath Bhaskar Data [AIR 1993 SC 2646] and M. Arul Jothi and another Vs. Lajja Bal (deceased) and another [AIR 2000 SC 1122] to suggest that the respondent had violated Section 108(o) of the Transfer of Property Act. After carefully examining the aforesaid decisions of this Court, we do not find any support from the said decisions for the purpose of holding that the present case is covered by the expression `Change of User' as used in Section 108(o) of the Transfer of Property Act. In Dashrath Baburao Sangale's case [supra], the premises was let out to the tenant for sugarcane juice business whereas the tenant was using the premises for selling cloth and readymade clothes and on this ground, it was held that he was liable to be evicted on account of `change of user'. Similarly, in M. Arul Jothi's case [supra], the tenant was held liable for eviction when the shop rented to him for carrying on the business of radios, cycles, fans, clocks and steel furniture was converted into a grocery store despite a specific clause in the rent agreement forbidding the same. 26. Therefore, in the present cas....