Narayan Chandra Sil, J.
1. This appeal is directed against the Judgment and decree dated 5.7.2003 passed by Sri B. Mondal, the learned Additional District Judge, Alipore, South 24-Parganas in Title Appeal No. 183 of 2002 affirming the Judgment and decree dated 7.5.2002 passed by Sri S.K. Manna, the learned civil Judge, Junior Division, 1st Court, Alipore in connection with Title Suit No. 4 of 2002.
2. The suit filed by the plaintiff is for eviction of the tenant and for mesne profit. The plaintiffs case in brief is that he is the owner of the suit property. The defendant was inducted as a monthly tenant by virtue of tenancy agreement dated 28.10.1985 together with another agreement dated 29.10.1986. The said tenancy was in existence from 28.10.1985 and had expired on 31.10.1997. The tenant did not vacate the suit premises despite the expiry of the term of agreement. Besides the plaintiff has brought the ground of damage of the suit property at the instance of the defendant. And so the suit is for eviction and mesne profit.
3. The defendant contested the suit by filing a written statement in which all the material allegations are denied and it is inter alia stated that the shop was constructed at his own cost as the plaintiff did not liquidate a sum of Rs. 10,000/- in favour of the defendant. It is claimed that the plaintiff took the said sum of Rs. 10,000/- as a loan from the defendant.
4. The learned trial Judge passed the order of the decree in favour of the plaintiff which was affirmed by the Appellate Court.
5. In the present appeal the appellant/tenant/defendant has raised a number of substantial questions of law. However, after hearing both the parties and materials on records the following substantial questions of law including the additional one have been formulated :
1. Whether an unregistered lease in respect of immovable property exceeding one year duration can be admitted in evidence as that of a lease of immovable property when the same has not been registered in accordance with law.
2. Whether the purported notice issued under Section 106 of the Transfer of Property Act is a valid notice and whether it satisfies the requirement of law and the same can be construed to be valid notice issued to tenant to quit and vacate the suit premises.
3. Whether the burden of presenting a document compulsorily registrable under the Registration Act and the Transfer of Property Act before the Registration Authority lies upon the lessor or upon the lessee and whether the finding of the learned Courts below that the responsibility of registration lies upon the appellant/tenant in view of Section 17(i)(d) of the Indian Registration Act and the executant/landlord had no responsibility for presentation and register the same.
4. Whether the Appellate Court was justified in coming to the conclusion that the terms of lease was only upto 31.10.1997 which had expired by efflux of time and whether the appellant/ tenant was not entitled to any statutory notice as provided under Section 106 of the Transfer of Property Act.
Additional substantial question of Law :
5. Whether the Courts below erred in law in not holding that the agreements (Extrs. 1 & 2) are forbidden by law and it would defeat the provisions of Section 106 of the Transfer of Property Act.
6. Mr. Ajoy Krishna Chatterjee, the learned senior counsel appearing with Mr. Anil Kumar Rakshit, the learned counsel for the appellant/tenant/defendant has drawn my attention to Exhibits 6 and 6 Ka. According to him those are actually the reminders issued by the plaintiff for expiry of the lease, although those were taken by the first Appellate Court as notice under Section 106 of the Transfer of Property Act (hereinafter referred to as T.P. Act). It is argued that if any letter is given before the expiry of the period of lease the same cannot be treated as notice in terms of Section 106 of the T.P. Act. Mr. Chatterjee has pointed out that in the circumstances of this instant case actually the provisions of Section 107 of the T.P. Act attract as the last deed was not registered one. It is pointed out that one can take shelter under the statute only when the deed of lease for a period of one year is a registered one. It is also argued that there cannot be any estoppel against the statute.
7. Following the language of Section 106 of the T.P. Act "expiring with the end of a month of the tenancy" the exhibit 7 may be taken as a notice under Section 106 of the T.P. Act. In order to avail of the provisions of notice under Section 106 of the Act the period to quit must be a clear month which had not occurred in case of exhibit 7. Mr. Chatterjee has also challenged the cause of action which is claimed to have arisen on 1.11.1997. From the Judgment and order of the trial Court my attention was drawn to the operative portion and the learned advocate for the appellant tries to impress upon me that virtually the prayer (b) of the plaintiff was allowed.
8. Mr. Chatterjee has also drawn my attention to the averment in the agreement that the lease is to vacate the said premises without notice and without any objection (Bina Notiche bina ozor aapottite) and argues that those terms are absolutely contrary to the provisions of Section 106 of the Act and as such those agreements are void in law and under Section 23 of the Contract Act.
9. Mr. Chatterjee further argues that the lessor secured the date of eviction in the agreements with the commencement of the same, but in the absence of registration of the deed of lease, the tenancy in question is nothing but one month by month. In this connection he has drawn my attention to Section 3 of the T.P. Act.
10. Mr. Barun Kumar Roychowdhury, the learned senior counsel along with Mr. Sabyasachi Bhattacharjee, the learned counsel and Mr. Dipankar Haider, the learned counsel appearing for the respondent/ landlord/plaintiff has taken me through the definition of "tenancy" and "lease". From Section 105 of the Act he says that every tenancy is a lease. My attention was drawn to exhibits 1 and 2 which are the agreements in question. It is pointed out that exhibit 1 was executed during the continuation of exhibit 2. The exhibits show that those terms were offered by the lessee himself and not secured, as claimed by the learned advocate for the other side, by the lessor.
11. According to Mr. Roychowdhury the lease deed relating to tenancy month by month and continuation upto a certain period is not compulsorily registrable. He says that Section 17(d) of the Registration Act only deals with the lease and not with the agreement for tenancy.
12. Mr. Roychowdhury submits that in the instant case there is no requirement to serve any notice upon the lessee to quit and vacate the suit property in terms of exhibit 1 wherein the undertaking to that effect was taken by the tenant himself. It is also pointed out to me that both the exhibits 1 and 2 were taken into evidence and exhibited without any objection from the tenant/defendant. According to Mr. Roychowdhury, in fact, exhibit 6 is the notice whereas exhbit 6Ka is the reminder. It is submitted again that provision of Section 106 of the T.P. Act was amended in 2002 by Act 3 of 2003 whereby the provisions "with the expiry of the tenancy month" has been abolished. It is also argued that by Section 8 of that Amendment Act such amendment was given retrospective effect. Then Mr. Roychowdhury submits that the date of expiry of the lease or in other words the date of vacating the suit premises is incorporated in exhibit 1 even from its very inception and as such the said agreement may be taken itself as a notice in view of the undertaking given by the tenant there.
13. On considering the arguments put forward by the learned advocates for both the parties it appears that the learned advocate for the appellant has raised mainly three questions before this Court namely (1) as the agreements were not registered deeds of lease, the learned is not entitled to the provisions of Section 106 of the T.P. Act and the lessee is nothing but a month by month tenant, (2) the notice was not legal and so it is defective also and (3) the obligation of registration, rather the onus in this regard, was wrongly placed by the Courts below upon the lessee.
14. Let us take up the matter of the position of deed of lease. Thus, the learned advocate for the appellant has referred to the ratio decided in the case of Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors. AIR 1984 SC 143. It was decided in that case where a suit for ejectment and mesne profits was filed without a notice to quit under Section 106 of the T.P. Act against a tenant in occupation of the rented property after expiry of lease the suit would not be maintainable. Such person is a tenant holding over and notice to quit under Section 106 of the T.P. Act was necessary. In this connection, it may be stated that in the instant case before us notice was issued by the landlord upon the tenant. However, it was further held in that case that it cannot be said that on expiry of the specified term under the unregistered lease deed executed before filing of the suit the defendant became tenant at sufferance under Transfer of Property Act and the suit was maintainable without notice under Section 106 of the Act. The Apex Court further held,
The unregistered lease deed cannot also be taken into consideration on the ground that such deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of the Registration Act, as terms of lease are not a collateral purpose within its meaning. There being no change in the circumstances by virtue of such unregistered lease deed Order 7, Rule 7 of the Civil Procedure Code is also not attracted.
15. In order to counter that position Mr. Roychowdhury has referred to the ratio decided in the case of M/s. Deenar Builders Pvt. Ltd. v. Khoday Distilleries Ltd. . In the said case the lease deed was not a registered one but the learned single Judge was pleased to hold that the effect of non-registration only would be that the tenancy should be treated as monthly and was terminable by service of notice to quit.
16. Thus, from both the case laws cited by the learned advocates for both the parties the necessary implication that emerges is that in case of the unregistered deed of lease of an immovable property the tenancy must be taken as month by month and in that case the service of notice under Section 106 of the T.P Act is necessary. I may recall once again that in the instant case notice was served. This prompts me to take up the second point raised by the learned advocate for the appellant as regards the service of notice.
17. According to the learned advocate for the respondent exhibit 6 is actually the notice under Section 106 of the T.P. Act and exhibit 6Ka is the reminder of the same whereas Mr. Chatterjee, the learned advocate for the appellant thinks that previous notices have been waived and thus actually the exhibit 7 is the notice under Section 106 of the T.P. Act.
18. Let us see what are those exhibits. Admittedly exhibits 6 and 6Ka were all properly served upon the appellant. Exhibit 6 reads as follows :
Registered with a/d
Sri Rabindra Nath Pal
Son of Late Kanailal Pal
C/o. Rani Cycle Stores
(In front of UBI Bank)
South 24 Parganas.
Ref: The agreement dated 28.10.85 made in between Dr. Subodh Ch. Haldar (Land-lord) and Sri Robindra Nath Pal (Tenant) on dag No.61 of Kalikapur Mouza.
You are hereby informed that the agreement dated 28.10.85 will terminate on 31.10.97. As such, you are requested to vacate and handover your portion you are holding at present on or before 31.10.97 positively. I am in very urgent need of the portion of my building, you have at present. This is for your information and necessary action.
Please treat this as very urgent.
Dr. Subodh Ch. Haldar
Dated : Bhangar
3rd January, 1997 South 24 Parganas.
It appears from that exhibit that the same was issued long before the expiry of the lease period. According to the respondent exhibit 6 is actually notice under Section 106 of the T.P. Act whereas exhibit 6Ka is the reminder dated 11.07.97. Exhibit 6Ka that is the reminder was also issued long before the expiry of the lease period. On my scrutiny it appears that exhibit 7 is actually postal acknowledgement card. However we shall concentrate on the case of the plaintiff i.e. on exhibit 6 which has been taken as notice by the plaintiff. Now, the question remains whether the exhibit 6 is a notice according to Section 106 of the T.P. Act.
19. Section 106 of the T.P. Act reads as below :
In the absence of a contract or local law of usage to the contrary. a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months, notice expiring with the end of a year of the tenancy and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice expiring with the end of a month of the tenancy.
Every notice under this Section must be in writing, signed by or on behalf of the person giving it and (either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party), or to one of his family or servants, at his residence or (if such tender or delivery is not practible) affixed to a conspicuous part of the property." (underlined for emphasis).
We have already seen that in the instant case as the agreements for lease of immovable property was not registered so the same must be a lease from month to month. Section 106 of the Act, as quoted above says that such lease is terminable, on the part of either lessor or lessee by fifteen days' notice expiring with the end of a month of the tenancy. Now if exhibit 6 along with exhibit 1 is placed on the touchstone of Section 106 of the Act it will appear that although the period of lease was to expire on 31.10.1997, the notice was served before about 10 months from the date of the termination of the period of lease. Thus, appropros mathematical precision so far the period is taken into consideration for issuance of notice under Section 106 of the Act, it is abundantly clear that the same has not been followed by exhibit 6.
20. The learned Advocate for the respondent has, however, referred to the ratio decided in the case of Bhagabandas Agarwala v. Bhagwandas Kanu and Ors. wherein it was held that a notice to quit must be construed not with a desire to find faults in it which would render it defective, but it must be construed ut res magis valeat quam pereat. In the said case it was stated in the notice to quit that the tenant was to vacate the premises "within the month of October 1962 otherwise he would be treated as trespasser from 1st November, 1962". The Apex Court in considering the said statement in the notice came to the conclusion that the intention of the landlord was very much clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month, the Apex Court thus was of the view that the tenancy was, therefore, sought to be terminated on the expiration of the month of October 1962 and not earlier and notice to quit expired with the end of the month of tenancy as required by Section 106 of the Act. But the situation is not the same here in the instant case as we have already discussed. Accordingly, the ratio decided in the case of Bhagbandas (supra) has got no application in the instant case.
21. The learned advocate for the respondent has referred to another decision in the case of Akash Ganga Builders & Engineers Pvt. Ltd. v. G.P. Seth, HUF and Anr. AIR 1999 Delhi 362. In that case notice of termination was issued by the landlord calling upon the tenant to handover the possession of premises on 8th day of month and not on the date of end of tenancy month. The Division Bench of that High Court decided that the notice cannot be held invalid on that ground when previous letter by the landlord to the tenant of which there was mention in the notice and its receipt was admitted by the tenant, showed the intention of the landlord to terminate the tenancy on the end of tenancy month. The High Court thus found that the combined ruling of the notice which it was in continuation the letter showed that the tenancy stood terminated with effect from 30th June. Their Lordships held that it was only for the handing over possession that time was granted till 8th July, 1996. In the instant case before us the situation is also not like that as was before the High Court at Delhi. There is no letter of notice showing the termination of the tenancy with the end of the tenancy month. Accordingly, the decision in that case also does not come to any help to the respondent/landlord. Similarly, in the other case laws cited by Mr. Roychowdhury, learned counsel appearing for the respondent the facts are miles apart from the facts of the instant case before us. Thus, in the case of A.P. Handloom Weavers Co-operative Society Ltd. v. Venkateswar Rao AIR 2000 Orissa 153 it was held by the learned single Judge that in case of an unregistered lease of five years the same was treated as a monthly tenancy. In that case fifteen days clear notice was given calling upon the tenant to give vacant possession by the end of the month and the notice was treated as valid.
22. The learned advocate for the respondent has referred to another decision in the case of Basheshar Nath v. Delhi Improvement Trust AIR 1953 Punjab 243. In the said case the effect of second notice was discussed. Thus, it was held-that where a notice to quit was given, a subsequent notice to quit is of no effect unless it can be inferred from other circumstances that a new tenancy has been created after the expiry of the notice, nor does it amount to a waiver of the first notice in the absence of any proof thereof. The facts and circumstances of the case before us as stated above have no bearing with the ratio decided in that case of Punjab High Court.
23. Thus, in view of what has been discussed in the foregoing lines it is absolutely clear that neither exhibit 6 nor exhibit 6Ka has fulfilled the requirement of Section 106 of the Act and from that point of view the notice is totally invalid. In fact, in this connection we may hark back to the submission of the learned advocate for the respondent that he tried to establish that the agreement in question itself is a notice. In this connection he has also referred to a case law decided in the case of Amal Dutta v. Ismail Ghulam Hussain Ariff ILR 1967 438. In that case a deed was executed by the tenant and signed by both the landlord and tenant, whereby the tenant agreed to vacate and deliver to the landlord vacant possession of the premises he had been occupying on the expiry of the last date of August. 1963 and formal notice to quit was, further, waived by both the parties. It was contended on behalf of the tenant that upon execution of the deed a fresh tenancy came into existence - the original tenancy having been determined by the landlord upon notice to quit in June, 1962 and thus the agreement to quit forming part of the said agreement creating the tenancy cannot be the subsequent agreement under Clause (k) of Section 13(1) of the West Bengal Premises Tenancy Act and, therefore, not valid and effective and, secondly, this statement to vacate in the agreement would not serve the purpose of requisite notice to quit under Section 106 of the T.P. Act. In such circumstances, it was held as below :
By the agreement the original tenancy was accepted by the tenant as subsisting on the date of the execution of the document and continued and, therefore, there was no creation of a fresh tenancy. The above agreement again, contained, within it, a notice to quit by the tenant in compliance with the provisions of Section 106 of the Transfer of Property Act and the said notice was accepted by the landlord, thus bringing the case, inter alia, within Section 13(1)(k) of the West Bengal Premises Tenancy Act. Moreover, the terms of the agreement shows that it is an agreement to the contrary, which will exluce Section 106 of the Transfer of Property Act. Therefore, in no view was any further notice under Section 106 of the Transfer of Property Act necessary for termination of the tenancy.
24. This is a very interesting case keeping almost all the parities and similarities with the instant case before us but there is also a marked difference between the two and the same will be evident from the recitals of the .subsequent agreement between the parties. In order to better appraisal, I may quote the material terms and recitals of the said agreement which are as follows :
Whereas since the appointment of the said Ismail Ghulam Hussain Ariff as Receiver of the said wakf estates, the said Amal Dutta has been a monthly tenant of the said premises No. 13, Amartolla Lane, Calcutta, under the said Receiver .... And whereas by mutual agreement the rent has been fixed at Rs.200 per month with effect from August 1, 1960, payable according to English calendar month and whereas the said Amal Dutta recently expressed his desire to quit and vacate and deliver up the vacant possession of the said premises No. 13, Amartolla Lane, Calcutta, to the said Receiver on the expiry of the last day of August, 1963. Now this Deed witnesseth as follows :
(1) The said Amal Dutta ... hereby agree to quit, vacate and deliver up peaceful vacant possession of the entire premises No. 13, Amartolla Lane, Calcutta to the said Receiver on the expiry of the last day of August, 1963. No further formal notice to quit shall be required from either side.
25. The above indenture or agreement was signed by both the parties and the plaintiffs, claim for ejectment under Section 13(1)(k) of the West Bengal Premises Tenancy Act is founded on that document. In dealing with the second question raised in that case. Their Lordships observed as follows in paragraph 9 of their Judgment :
On the second question too, it is clear that the agreement contains within it a notice to quit by the tenant in full compliance with the provisions of Section 106 of the Transfer of Property Act, in particular, expiring with the month of the said tenancy, which notice was accepted by the landlord or, in other words, there was termination of the tenancy in question with or on the expiry of the period, mentioned in the said agreement, namely, the expiry of the lat day of August, 1963, from either side. It is significant also to note that the said agreement expressly mentioned that "no further formal notice to quit shall be required from either side", which, in effect, treats the said agreement as such formal notice from either party. Moreover, the terms of this agreement show that it is an agreement to the contrary which will exclude Section 106 of the Transfer of Property Act. Viewed from all the above points of view, no question of any fresh or separate notice under Section 106 of the Transfer of Property Act would be necessary for terminating the tenancy in suit. We would, accordingly, reject the second submission too of Mr. Bhattacharyya.
26. It clearly shows from the above-quoted observation of Their Lordships that the said subsequent agreement rather the admission of the tenant to quit the premises in question is in conformity with the terms of Section 106 of the Transfer of Property Act particularly keeping the requirement of that Section for termination of tenancy with the expiry of the tenancy month. That apart the said agreement in that case was the admission of the tenant to vacate the suit premises in respect of which he became tenant by the previous agreement on a particular day but with the expiry of the tenancy month. In the instant case also there are two agreements (Exts. 1 and 2). The first agreement was made on 28.10.1985 (Ext. 1) whereas the second one on 29.10.1985 (Ext. 2). On perusal of both the exhibits it appears that only after one day of the execution of exhibit 1, the exhibit 2 was executed and in the document (ext. 2) having mentioned the tenancy created by exhibit 1 there are mentions of some money transactions between the parties. In the second agreement also (ext. 2) the lessee had confirmed his earlier assertion in exhibit 1 that he will vacate the expiry of the period mentioned in (ext. 1). This is, in my view, not something similar with the facts of the case of Amal Dutta (supra).
27. In this connection, the ratio decided by the Division Bench of our High Court in the case of Union of India v. The General Beopar Co. Pvt. Ltd. 1999 2 CHN 4 as referred to by the learned advocate for the appellant deserves mention. In the said case the appeal before the High Court arose out of an exparte decree passed in favour of the respondent evicting the defendant/appellant on the ground of having given notice to the landlord to vacate the premises being incorporated in a lease agreement executed after the expiry of the first one. The learned Judge held that by virtue of clause in the lease fixing the period of tenancy, the appellant had agreed to vacate the premises after the agreed date and that was sufficient ground for eviction under Section 13(1)(k) of the West Bengal Premises Tenancy Act. The learned Judge, however, did not accept that there was a continuation of the old tenancy and further held that a lease for five years cannot be equated with tenancy from month to month rather be construed under that Section and held that requirement of that Section stands proved and hence decreed the suit exparte. In the said background it was held that the agreement to vacate must be subsequently arrived at by the lessee and the document whereby the tenancy was treated cannot itself be construed to be an agreement to vacate under the meaning of Section 13(1)(k) of the West Bengal Premises Tenancy Act. Their Lordships further held that it requires the agreement to be arrived at subsequent to the creation of tenancy. Thus, having followed this decision also the argument put forward by the learned advocate for the respondent that the exhibit 1 itself may be treated as a notice and there may not be any requirement of further notice does not stand at all.
28. The learned advocate for the respondent has drawn my attention to the fact that after the amendment of the provisions of Section 106 of the Transfer of Property Act the clauses 2, 3 and 4 of Section 106 of the Act have been added. On perusal of those clauses, Clauses (2) and (3) of that Section appears to me relevant for the purpose of our discussion. Those Sub-sections read as follows :
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under Sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under the Sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that Sub-section.
29. In order to appraise the above-quoted two Sub-sections we can have a look back to exhibits 6 & 6Ka once again. On perusal of those two exhibits definitely the question of falling of short of the period of notice as contemplated in clause (1) of Section 106 of the Act does not arise. In fact, as we have discussed earlier, those are not at all notice in terms of provisions of Section 106 of the Act. Thus, incorporation of Sub-sections (2) and (3) to Section 106 of T.P Act by way of amendment does not also come to any help of the respondent.
30. The only question left for consideration is the responsibility of registration. In this connection we may once again refer to the ratio decided in the case of M/s. Deeners Builders Pvt. Ltd. (supra) wherein it was held that non-registration of a deed of lease of immovable property for a period of more than one year makes the period of lease as a monthly tenancy. Now, according to the merits of each case particularly as to who does not want to derive the benefit of monthly tenancy the responsibility of registration is to be determined accordingly. Or in other words it can be said that out of the two parties, the party who does not want to derive the benefit of monthly tenancy it is his responsibility rather the onus to get such a deed of lease registered.
In view of what has been discussed in the foregoing lines the Judgment and decree passed by the Trial Court and thereafter affirmed by the first Appellate Court are liable to be set aside.
The appeal is, therefore, allowed. The Judgment and decree passed by both the Courts below are hereby set aside. The suit is dismissed.