Whether the court can look into unregistered lease deed to ascertain the nature and character of possession if it constitutes the main dispute for adjudication by it?

 In the case of Rai Chand Jain v. Miss Chandra Kanta Khosla [MANU/SC/0185/1991 : (1991) 1 SCC 422], dispute arose as to whether certain premises were let out for residential purpose or as to whether there was an oral agreement of letting out the premises to the tenant, for running a press. It was in that perspective, it was held in the said case that a lease deed though unregistered, could be considered for collateral purposes to show the purpose for which the premises was leased out. Thus, the lease deed was referred to for the sole purpose to defeat the claim of subsistence of an oral agreement. The ratio of this authority has been considered in the case of K.B. Saha and Sons Private Limited (supra) and we follow that ratio. In the case of Satish Chand Makhan (supra), another coordinate Bench of this Court declined to accept admissibility of an unregistered lease agreement for determining duration of the lease (9 years in that case) on the reasoning that terms of lease would not constitute collateral purpose. It was observed in this judgment that "nature and character of possession" could constitute collateral purpose but that was not the point which was directly in lis before this Court. In our opinion, nature and character of possession contained in a flawed document (being unregistered) in terms Section 107 of the 1882 Act and Sections 17 and 49 of the Registration Act can form collateral purpose when the "nature and character of possession" is not the main term of the lease and does not constitute the main dispute for adjudication by the Court. In this case, the nature and character of possession constitutes the primary dispute and hence the Court is excluded by law from examining the unregistered deed for that purpose. In respect of the suit out of which this appeal arises, purpose of lease is the main lis, not a collateral incident. {Para 13}

15. In this case, factum of creation of tenancy has been established. But the purpose of tenancy, so as to attract the six months' notice period Under Section 106 of the 1882 Act cannot be established by such evidence as in such a situation, registration of the deed would have been mandatory. The onus would be on the Defendant to establish the fact that manufacturing activity was being carried on from the demised premises. A mere statement by the DW-1 to which we have referred earlier or the purpose of lease as specified in the lease agreement would not be sufficient to demonstrate the purpose of lease to be for manufacturing. This could be proved by explaining what kind of work was being carried on in the factory shed. In such a situation also, the registration of the deed would have been necessary. In absence of such registration, tenancy would have been of "month to month" character. For these reasons, we do not think the High Court erred in law in dismissing the Defendant's appeal. The present appeal shall stand dismissed on the same rationale.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6149 of 2023.

Decided On: 25.09.2023

Paul Rubber Industries Private Limited Vs. Amit Chand Mitra and Ors.

Hon'ble Judges/Coram:

Aniruddha Bose and Vikram Nath, JJ.

Author: Aniruddha Bose, J.

Citation: 2023/INSC/854, MANU/SC/1051/2023.

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Whether the lease is treated as month-to-month tenancy if the lease deed is unregistered?

 (a) Unregistered Lease Deed:

17. As Section 107 of Transfer of Property Act mandates, “a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.” Section 17 (1) (d) of the Registration Act, the leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent must be registered. Then, Section 49 of the same Act clearly provides

that a document purporting to be a lease and required to be registered under Section 17 will not be admissible in evidence if the same is unregistered. True, the proviso to this section allows that unregistered lease deed to be looked into for collateral

purposes. But neither the duration of the lease nor its renewal is a collateral purpose; it is one of its core purposes. So, cumulative effect of Section 107 of the Transfer of Property Act, Section 35 of Stamp Act, Sections 17 and 49 of the Registration Act is that an unregistered lease deed as relied on by the Corporation cannot be looked into. The Corporation’s possession admitted,

the very lease must be treated as month-to-month tenancy. Thus, the Corporation has no basis for the renewal of the lease.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 359 OF 2014

IN

REGULAR CIVIL APPEAL NO. 257 OF 2005

IN

REGULAR CIVIL SUIT NO. 1461 OF 1995

Bharat Petroleum Corporation Ltd. Vs Shri Champalal Vithuram Jajoo

CORAM : DAMA SESHADRI NAIDU, J.

Dated : 27th April 2020.

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Supreme Court: Purported lessee can not claim any right based on unregistered lease deed

We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the Respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the Appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2070 of 2020 

Decided On: 06.03.2020

 Food Corporation of India  Vs.  V.K. Traders and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, C.J.I., B.R. Gavai and Surya Kant, JJ.

Citation:(2020) 4 SCC 60,MANU/SC/0298/2020

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Whether tenant can rely on terms of lease deed if it is unregistered?

The contention of the learned Counsel for the respondent that the aforesaid clause cannot be looked into for want of registration of the lease deed appears to be correct. Reliance has been placed on the observations of Fazal Ali, J. in Sachindra Mohan Ghose v. Ramjash Agarwalla MANU/BH/0077/1931 : AIR1932Pat97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.

8. The learned Counsel for the appellant attempted to meet the point by saying that so far the consent of the landlord permitting sub-letting is concerned, it does not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence. We do not see any force in this argument. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No.2443 of 1980

Decided On: 08.08.1989

Bajaj Auto Limited vs. Behari Lal Kohli

Hon'ble Judges/Coram:

L.M. Sharma and N.D. Ojha, JJ.

Citation: AIR 1989 SC 1806,(1989) 4 SCC 39.

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Whether terms of lease can be proved on basis of unregistered lease agreement?

The defendants have nowhere admitted that the lease was for a specific term of nine years. On the contrary, they have pleaded that they were tenants holding over under Section 116 of the Transfer of Property Act. The unregistered draft lease agreement Ex. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the collateral purpose of proving the nature and character of possession of the defendants. The documents Ex. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Ex. B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act.
IN THE SUPREME COURT OF INDIA

C.A. No. 10041 of 1983

Decided On: 27.10.1998

Satish Chand Makhan  Vs.  Govardhan Das Byas 

Hon'ble Judges/Coram:
A.P. Sen and E.S. Venkataramiah, JJ.
Citation: AIR 1984 SC 143

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Whether lease agreement will become void if it is not registered?

 The learned Counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of Section 55 of the Act. He contends that since the agreement is not registered the tenancy is void. The argument has no force. If the tenancy is created after coming into force of the Act, it will require registration. The Section does not say that tenancy shall become void. Non registration may at the most invite penalty and lease cannot become void.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 4027, 4028 and 4029 of 2008

Decided On: 17.07.2009

 Janabai Govindrao Korche  Vs. Women's Education Society and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: 2009(5) ALLMR 926

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What will be consequences of non registration of lease deed?

 It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop and Sons MANU/SC/0443/2000 : (2000) 6 SCC 394, held as under:

A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus.........

When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.

(Emphasis laid by this Court)

Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8361 of 2016 

Decided On: 29.08.2016

 Park Street Properties (Pvt.) Ltd. Vs.  Dipak Kumar Singh and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and A.K. Goel, JJ.

Citation: (2016) 9 SCC 268

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When sub tenant has failed to prove that he has become direct tenant of original landlord?

The very stand taken by the defendant in the written statement shows that he admits to have taken the suit premises on sublease from the plaintiff. And his specific plea is that he became a direct tenant under the original owners. In the light of the pleading of the defendant, the issue should have been framed in such a way as requiring proof by the defendant regarding surrender of lease by plaintiff and his becoming a direct tenant of the original owners. Section 103 of the Indian Evidence Act is applicable here. The defendant wishes the court to believe that he became direct tenant of the original owner and therefore he must prove it. If he fails to prove, obviously plaintiff succeeds. The trial court has missed to notice this aspect.

 Now what needs to be further examined is whether the defendant has been able to prove his specific plea. Defendant who has adduced evidence as DW-1 has produced the lease deed dated 07.05.2002 as per Ex. D.1. Firstly this lease deed cannot be looked into as it is an unregistered instrument; since the duration of lease is three years, it should have been registered. Secondly, even if it can be looked into for collateral purpose of surrender of lease by the plaintiff, that aspect does not get established. In Ex. D1, there is a clear reference to suit premises being leased to plaintiff and the defendant being inducted as subtenant by the plaintiff. There is a recital that the erstwhile lessee requested the lessor i.e., the original owners to execute the lease agreement in favour of defendant. If this were to be the agreement reached among the original owners, the plaintiff and the defendant, the plaintiff should have been a party to Ex. D.1. She is not a party to the said document. Therefore the defendant cannot say that by virtue of Ex. D.1 he became a direct tenant under the original owners.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Regular First Appeal No. 121 of 2015

Decided On: 09.04.2018

 Fahima Irfan Patel  Vs. Troop Basheer Ahmed

Hon'ble Judges/Coram:

Sreenivas Harish Kumar, J.

Citation: AIR 2018 Karnataka 167

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Whether court can rely on date given in unregistered lease deed?

This argument seems attractive on first blush. However, when we carefully peruse the original document, we notice that by this document [Annexure P-2] Phoolchand states that he has received Rs. 2000/- from Yashchandra and that he has permitted Yashchandra to enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate the same and only Rs. 500/- would be deducted. Even after payment of the full amount of Rs. 2000/-, Yashchandra would be entitled to cultivate the land for a period of 10 years. This document is signed only by Phoolchand and it is neither witnessed by anybody nor registered. This document transfers an interest in immovable property of more than rupees hundred. It may be true that under the provisions of the Code oral leases of agricultural holdings are permissible, but once the lease is created by a document then the same has to be registered under the Registration Act. This document is an unregistered document. The courts below have come to the conclusion that this document is an ante-dated document. Therefore, this document cannot be looked into for deciding whether this document creates any right, title or interest in the Appellants. In our view, in the absence of any registration or any attesting witness, the document could have easily been manipulated by Phoolchand and the Plaintiff by ante-dating it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5040 of 2009

Decided On: 20.09.2017

Yashchandra (D) by L.Rs. Vs. The State of Madhya Pradesh and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation:(2017) 16 SCC 414

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Whether unregistered lease deed can be used for collateral purpose?

 Section 55 of the Rent Control Act deals with the tenancy agreement to be compulsorily registered. Sub section 2 of Section 55 of the Act is relevant here. It reads thus :

"The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise."

10. From sub-section 2 of Section 55 of the Rent Control Act, it can be seen that registration of agreement is required to be at the behest of landlord and otherwise burden to prove tenancy or licence is on the tenant. Section 55(2) of the Rent Control Act cannot be read in isolation and has to be read in conformity with the provisions of Section 17 of the Registration Act. Section 17 of the Registration Act refers to the documents of which registration is compulsory. Sub-section (1)(d) relates to leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.

11. Under Section 107 of the Transfer of Property Act such as lease is to be made only by a registered instrument. So far as the effect of non-registration of lease-deed is concerned, Section 49 in clear and unambiguous words speaks that it can be used only for collateral purpose. It means, the factum of tenancy and possession if disputed between landlords and tenant can be considered even on the basis of unregistered lease-deed, but when it touches the terms and conditions of lease-deed the same cannot be admitted and read in evidence.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 3270 and 3271 of 2016

Decided On: 24.07.2017

Prasram Vs. Deepak and Ors.

Hon'ble Judges/Coram:

Indira Jain, J.

Citation: 2017(6) MHLJ 883

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Whether it can be presumed that tenancy was monthly if lease agreement was not registered?

It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop & Sons[4], held as under:

“A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus……… When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

……………… Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.” (emphasis laid by this Court) Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act.

Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary’ in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable.

            NON-REPORTABLE

Supreme Court of India

M/S Park Street Properties (Pvt) ... vs Dipak Kumar Singh And Anr on 29 August, 2016

Bench: V. Gopala Gowda, Adarsh Kumar Goel

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Whether unregistered lease deed can be used for collateral purposes?

 So   far   as   the   substantial   question   of   law   at   Serial   No.2
regarding   admissibility   of   document   at   Exhibit   50   in   evidence   is
concerned, though such document is an unregistered document, it can
be used for collateral purposes and the decision of the Apex Court in
the case of  Anthony  v.  K.C. Ittoop  & Sons and others, reported in
(2000) 6 SCC 394, throws light in para 16 thereof on such issue,
which is reproduced below :
“16. Taking   a   different   view   would   be   contrary   to   the
reality when parties clearly intended to create a lease though
the document which they executed had not gone into processes
of registration.   That lacuna had affected the validity of the
document,   but   what   had   happened   between   the   parties   in
respect of the property became a reality.   Non­registration of
the document had caused only two consequences.  One is that
no lease exceeding one year was created.   Second is that the
instrument became useless so far as creation of the lease is
concerned.   Nonetheless   the   presumption   that   a   lease   not
exceeding one year stood created by conduct of parties remains
unrebutted.”    

In view of above, the non­registration of document would not come in
the way of the Court to hold that the relationship of “Landlord and
Tenant” between the plaintiff and the defendant No.1 in the present
case has been established, coupled with the other evidence available
on record.  The substantial questions of law at Serial No.2 is answered
accordingly.
There is no substance in this second appeal, and the same is
dismissed.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.24 of 2002
Ganesh s/o Ramkisan Bairagi,

V
 Parwatabai wd/o Tukaram Appa Landge,

Coram : R.K. Deshpande, J.
Dated  : 16th June, 2016
Citation: AIR 2017 (NOC) 61 Bom

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Whether tenants are entitled to get protection from eviction under SARFAESI Act on basis of unregistered lease deed?

On the other hand, learned counsel for the bank laid
emphasis on paragraph No.36 in the same decision [Harshad  
Govardhan Sondagars Case (Supra 1)] to substantiate the stand of
the bank that the tenants are entitled to possession of the secured asset
for any term exceeding one year from the date of lease made in their
favour, in case, they are able to prove that the leases are through
registered instruments.  The Honble Supreme Court while adverting
to the purport of Section 107 of TP Act in the context of the claim of
the appellants therein that they were entitled to possession of a
secured asset for any term exceeding one year from the date of lease
made in their favour, they will have to produce proof of execution of
registered instrument in their favour by the lessor, holding, thus:

   36. We may now consider the contention of the
respondents that some of the appellants have not
produced any document to prove that they are bona 
fide lessees of the secured assets.  We find that in the
cases before us, the appellants have relied on the
written instruments or rent receipts issued by the
landlord to the tenant.  Section 107 of the Transfer of
Property Act provides that a lease of immoveable
property from year to year, or for any term exceeding
one year or reserving a yearly rent, can be made
only by a registered instrument and all other leases
of immoveable property may be made either by a 
registered instrument or by oral agreement
accompanied by delivery of possession.  Hence, if
any of the appellants claim that they are entitled to
possession of a secured asset for any term exceeding
one year from the date of the lease made in his
favour, he has to produce proof of execution of a
registered instrument in his favour by the lessor.
Where he does not produce proof of execution of a
registered instrument in his favour and instead relies
on an unregistered instrument or oral agreement
accompanied by delivery of possession, the Chief
Metropolitan Magistrate or the District Magistrate, as
the case may be, will have to come to the conclusion
that he is not entitled to the possession of the secured
asset for more than a year from the date of the
instrument or from the date of delivery of possession
in his favour by the landlord.


     27.  Turning to the leases filed by the tenants in W.P. No.29825
of 2015, none of them could produce registered lease deeds in their
favour executed by the guarantor, and, therefore, the said leases have
to be construed as invalid instruments and no rights would flow to
resist the order passed by the learned Chief Metropolitan Magistrate
under Section 14 of the Act and the consequential notices issued by
the Advocate-commissioners dated 10.10.2015 requiring them to 
vacate secured asset No.1.  The tenant in W.P. (S.R.) No.215389 of
2015 though filed registered lease deed, dated 05.11.2002, concerning
Shop Nos.11 and 12 respectively, but they got determined by the
expiry of ten years period mentioned therein and the subsequent lease
on renewal is only by way of an agreement and no registered lease
deed is forthcoming as required by condition No.16 mentioned therein
referred to herein before.  Therefore, we have no hesitation in holding
that the tenants have no right to question either the order passed under
Section 14 of the Act or the notice issued by the Advocate-
Commissioner, dated 10.10.2015.  
HYDERABAD HIGH COURT
HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR                 

WRIT PETITION Nos.34750 OF 2015     

Dated:05-01-2016 

Smt. P. Kiranmai.. Vs The Bank of Maharashtra, Bank Street, Koti, Hyderabad & others 
Citation:AIR 2016 hyd 137

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Whether lessee can remain in possession of tenanted premises when lease agreement is unregistered?

(Satish Chand v. Govardhan Das) and in the case of SMS
Tea Estates (cited supra), the Apex Court has discussed
the purpose for which such unregistered lease document
can be used. It is laid down that to ascertain nature of
possession, whether it is lawful, whether it is of lessee, the
document can be used. However, the terms and conditions
of the lease which are not enforceable in view of the
provisions of section 107 of the T.P Act cannot be read in
evidence. Thus, for collateral purpose, to ascertain nature
of possession, the possession as lessee, this document can
be read in evidence. Only to that extent the protection is
available under section 53-A of the T.P Act. The lessee

cannot be allowed to say that he is entitled to keep
possession for the period mentioned in the unregistered
document as that will amount to enforcing the terms of
transaction which is not permissible under section 107 of
the T.P Act and under Section 49 of the Registration Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.1214 of 2003

The Osmanabad Janata Sahakari
Bank Ltd., 

Versus
Pandarinath Gyanba gunale

CORAM: T.V. NALAWADE, J.

Citation; 2014(6) ALLMR 250
Judgment delivered on : 1st August 2014.

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Whether a party can claim specific performance of unregistered lease agreement?

The proviso to Section 49 of the Registration Act shows that such unregistered document can be used for getting specific performance of contract which is possible under Chapter II of the Specific Registration Act. It also shows that the document can also be used for the purpose of Section 53A of the T.P. Act, as amendment deleting this portion was made in the year 2001. The proviso further shows that the document can be used for collateral purpose in evidence.

28. So far as right to get specific performance as mentioned in the proviso is concerned, it can be said that the present transaction of lease does not fall under Chapter II of the Specific Relief Act. By the present transaction, the demise in the property was created and under section 107 of the T.P. Act it was compulsory to register the document. In view of provision of Section 107 of the T.P. Act the transaction itself was invalid. So, in the present case there was no question of specific performance of contract under Chapter II of the Specific Relief Act. In any case, no such relief was claimed by the defendant under the aforesaid document.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.1214 of 2003


The Osmanabad Janata Sahakari Bank Ltd. Vs Chandresena w/o Pandharinath Gunale,

CORAM: T.V. NALAWADE, J.

 Citation: 2014(6)ALLMR250, 2014(5)BomCR9

Judgment delivered on : 1st August 2014.

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For what purpose unregistered lease deed can be used?

  In   the   light   of   the   discussion   of   the   legal   position   as 
mentioned above, the conclusion follows that, in the present 
case,   the   lease   for   any   period   exceeding   one   year   was 
compulsorily registrable document requiring the registration 
charges   and   the   stamp   duty   in   accordance   with   law.   The 
Court was, no doubt,  wrong to admit the document of lease 
in   to   evidence     when     it   was   compulsorily   registrable 
according   to  the  law  (supra)  in   view  of  the  provisions     in 
Section 55 of the Maharashtra Rent Control Act read along 
with   Section   17(1)  (d)  of  the   Registration  Act   and  further 
read along with Section 107 of the Transfer of Property Act. 
But then, the document can be taken into consideration for 

collateral purposes,   as stated above for proving the nature 
and character of possession of the tenant and   ascertaining 
whether the purpose of lease was residential or not and  for 
ascertaining   the   commencement   of   possession,   rate   of   rent 
etc.   as held by the first Appellate Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.201 OF 2013

Mohd. Shakil Mohd. Yunus,  Vs Chandrabali Ramai Gupta

      DATE         : 12.06.2014.

Citation; 2014(5) MHLJ 206
      CORAM     :  A.P.BHANGALE,  J.

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Whether unregistered lease deed can be looked into for ascertaining commencement of possession, rate of rent?

The same view has been expressed by the Supreme Court in the case of Satish Chand Makhan v. Govardhan Das Vyas, in the following terms, "The unregistered deed of lease cannot also be taken into consideration on the ground that such deed can be admitted for collateral purpose, invoking proviso to S. 49 of the Registration Act, as terms of lease are not for collateral purpose within its meaning". We may also refer to an earlier decision of this Court in the case of Indramoni Dasi v. Snehalata Dutta, reported in (1955) 59 Cal WN 1150, wherein it was held that an unregistered lease being inoperative, the express contractual lease did not take effect in law. It therefore follows from the observations quoted above that the plaintiff-respondents cannot ask for ejectment of the defendant-appellant solely on the basis of the duration clause in the unregistered deed. The unregistered deed can at best be looked into for ascertaining the commencement of possession, rate of rent or simitar other provisions which are collateral to the principal transaction. This should be the true import of the proviso to Section 49, Indian Registration Act, 1908. It could never have been the intention of the Legislature that under the first part of the section we should discard an unregistered document for want of registration and at the same time under the camouflage of the proviso we should be permitted to look into and rely upon all the terms of the inoperative document which do form the integral parts of the principal transaction.

Calcutta High Court

Pieco Electronics And ... vs Smt. Tribeni Devi on 27 July, 1989

Equivalent citations: AIR 1990 Cal 135

Bench: S Ahmed, P K Banerjee

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Whether the court can use an unregistered lease deed for collateral purpose, and what are its illustrations?

In Dina Ji and Others vs. Daddi & others reported 

in  AIR 1990 SC 1153, the Supreme Court had considered the 

effect   of   an   unregistered   document   which   is   required   to   be 

registered under Section 17 of the Registration Act, 1908 or 

under any of the provision under the Transfer of Property Act. 

It was observed that such a document will not avail to create, 

declare, assign, limit or extinguish any right, title or interest in 

or   to   the   immovable   property   made   mention   of   in   the 

document. In other words, an unregistered document cannot 

be   used   for   the   purpose   of   establishing   that   the   document 

created or declared or assigned or limited or extinguished a 

right   to   immovable   property.   However,  trend   of   the   judicial 

decisions   or   trend   of   judicial   opinion   is   to   the   effect   that 

unregistered   documents   which   are   compulsorily   registrable 

under Section  17 of the Registration  Act can be looked into 

only for collateral purposes. Collateral purpose has a limited 

scope and meaning. It is possible to lay down some haphazard 

illustrations   on   the   point   in   the   light   of   judicial 

pronouncements. 

Purposes which are collateral in nature:

a) For proving the nature and character of possession of the 
tenant   (Per   Satish   Chand   Mukhan   and   Others   v. 
Goverdhandas Byas and Others (AIR 1984 SC 143).   
b)   For   ascertaining   whether   the   purpose   of   lease   was 
residential or not. (Per Rai Chand Jain v. Miss Chandra Kanta 
Khosla (AIR 1991 SC 744). 
ig
c) For ascertaining the commencement of possession, rate of 
rent   etc.   (Per   Pieco   Electronics   and   Electricals   Ltd.   v.   Smt. 
Tribeni Deve (AIR 1990 Cal. 135).
Purposes which are not collateral: 
a) For ascertaining whether the lessee is entitled to create a 
sub­lease or not. (Per M/s.Bajaj Auto Ltd. v. Bahari Lal Kolhi 
(AIR 1989 SC 1806). 
b) For ascertaining the term of lease. (Per Ishwar Dutt v. 
Sunder Singh (AIR 1961 J&K 45).
c) For ascertaining the term in a lease regarding notice of 
eviction. (Per M/s.Jagajit Industries Ltd. v. Rajiv Gupta (AIR 
1981 Delhi 359). 
d) For ascertaining the date on which the tenancy began. (Per 
Zarif Ahmad and Another v. Satish Kumar and Another (AIR 
1983 All. 164). 
e) For ascertaining as to who is the tenant and on what terms 
he has been created a tenant (Per Haran Chandra Chakravarti 
v. Kaliprasanna Sarkar (AIR 1932 Cal. 83).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.201 OF 2013

Mohd. Shakil Mohd. Yunus, Vs Chandrabali Ramai Gupta 

      DATE         : 12.06.2014.

Citation; 2014(4) ALLMR 524Bom

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