Dave, J. - (1.) THIS is a second appeal by the defendant in a suit for the arrears of rent and ejectment. Both the parties are residents of Didwana and the property relating to the suit, which is a Nohra is also situated in the same town.
(2.) THE plaintiff respondent Shri Bhagwan's case in the trial court was that the said nohra was leased out by his father Ram Narayan to the appellant Banarsilal on First Ashadh Vadi 1 Svt. 2007 (corresponding to 1st June 1950) for one year on a rent of Rs. 60/- THE appellant executed a rent-note in favour of Ram Narayan Ram Bilas which was a firm name of respondent's father. THEreafter the said property came to the exclusive share of the respondent on account of a partition in their family. THE respondents father gave a notice to the appellant on 9th May 1951 informing him that the nohra had gone to the share to the respondent. It was further averred by the respondent that since he needed that property for his own personal use, he gave a notice to the appellant on 28th May, 1951 that he should give vacant possession of the property on First Ashadh Vadi 1, Svt. 2008 that on his failure to vacate the property the respondent would take legal action against him and he will have to pay an enhanced rate of Rs. 10/- p. m. till the date of his eviction. It was stated that the appellant gave no reply to that notice. It was therefore prayed that a decree of Rs. 102/8 for the arrears of rent (Rs. 60/-being for the first year and Rs. 42/8 the remaining period up) to the date of the suit) and ejectment be given against the appellant. In his written statement it was admitted by the appellant that he had executed the rent-note referred to by the plaintiff-respondent but it was pleaded that it was inadmissible in evidence for want of registration. It was further averred that the nohra belonged to Sukhawats, that Rambilas Ram Narayan had a decree against Sukhawats and in execution thereof they got that property, that the appellant was already in possession of the nohra and therefore he obtained constructive possession and executed a lease deed in favour of Ram Narayan Rambilas. According to him, the suit could be brought only by Ramnarayan Rambilas and the respondent was not competent to bring it. He admitted receipt of both the notices but regarding the first it was contended that it was given by one Sayed Ali who was an unauthorised person and that the second notice was invalid since an enhanced rate of rent was demanded thereby. The plaintiff's plea about his personal need of the house was not contested. The trail court thereupon framed the following five issues : - (1) Whether the lease deed dated 1st June 1930 was compulsorily registrable and hence no suit is maintainable on the basis of such a lease ? (2) Whether the notice dated 9. 5. 51 given by Sayed Ali on behalf of the firm Ram Narayan Rambilas was by unauthorised person and hence the defendant was not bound by it ? (3) Whether the defendant is under an obligation to pay enhanced rent ? (4) Whether the notice dated 25. 5. 52 was invalid owing to the clause regarding enhanced rent and the plaintiff is not entitled to get the house vacated after giving this notice ? and (5) Relief? All the issues were decided against the defen-dant and the suit was decreed as prayed for. The defendant went in appeal. The first appellate court upheld the trial court's decree regarding the defendant's ejectment but it amended the decree for arrears of rent. It was held that the plaintiff was not entitled to receive the rent at the enhanced rate and that he would get the rent only at the rate of Rs. 5/- p. m. till the date of defendant's ejectment, The defendant is not satisfied with the decree and therefore he has come to this Court. The trial court's finding on issue No. 2 was that Sayed Ali was duly authorised to give notice by the respondent's father Ram Narayan. This finding was not contested in the first appellate court as also in this Court. It is only the findings on the remaining issues which have been contested in this Court though on different grounds. The first contention raised by the appellant's learned advocate is that the present suit could not be based on the document Ex. P-l dated the 1st June, 1950, since it was compulsorily registrable and therefore inadmissible in evidence for want of registration. In the trial court it was urged that this document was compulsorily registrable because it was lease for immovable property from year to year. This contention was replied by the trial court. According to the trial court's interpretation the document purported to lease out the nohra only for one year and there was a clear stipulation between the parties that after the termination of the first year' period continuation of the lease or the restoration of vacant possession of the nohra of the plaintiff would depend upon further agreement between the parties. The appellant's learned advocate at first tried to question the correctness of the trial court's interpretation but later on conceded that such interpretation could be brone out. The actual words occurring in the said document are as follows: - "i keep this nohra on rent for one year after that, I will continue to keep it if both of us agree amicably. If you will ask me to vacate it, I will vacate it. " To my mind, the said language is crystal clear and it clearly shows that the nohra was rented only for one year. It is urged by the appellant's learned advocate that although Ex. P. l may not be compulsorily registrable under sec. 17 (1) (d) of the Indian Registration Act, an instrument creating a lease of immovable property was compulsorily registrable under sec. 107 of the Transfer of Property Act and since this document was not registered, it could not be admitted in evidence to prove the lease. In order to appreciate and discuss the argument raised by the appellant's learned advocate it would be proper to reproduce sec. 107. T. P. Act, and secs. 17 (1) (d) and 18 (c) of the Indian Registration Act: - Sec. 107 - "a lease of immovable 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. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a leases of immovable property is made by a registered instrument, such instruments or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Provided that the Provincial Government may, from time to time, by notification in the Official Gazette direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. " "sec. 17 (1) - The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1854. . . . . . or this Act came or comes into force, namely: - (d) leases of immovable property from year to year, for any term exceeding one year, or reserving a yearly rent". "sec. 18: - Any of the following documents may be registered under this Act, namely: - (c) leases of immovable property for any term not exceeding one year and leases exempted under sec. 17". A comparison of sec. 107 T. P. Act and sec. 17 (i) (d) of Indian Registration Act would show that leases of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent are compulsorily registrable both according to the Transfer of Property Act and the Indian Registration Act Sec. 17 (1) (d) is almost the same as the first part of sec. 10. According to the Indian Registration Act, the Registration of other leases is optional as provided in sec. 18 (c ). According to the second paragraph of sec. 107, T. P. Act however, all other leases of immovable property may be made in two ways: that is, either by a registered instrument, or by an oral agreement accompanied by delivery of possession. The appellant's learned advocate's argument is that the plaintiff respondent in the present suit did not base his suit on an oral agreement accompanied by delivery of possession but on the basis of a lease which he thought was made out by Ex. P-l and since this document was not registered, it was inadmissible in evidence. It may be clarified here that the provisions of sec. 107 T. P. Act are quite plain and there can be no two opinions on the point that those lease of immovable property which are not covered by the first paragraph thereof can be made only in two ways, i. e. , either by a registered instrument or by an oral agreement accompanied by delivery of possession. It is further evident from the third paragraph of the section that where the lease of immovable property is made by a registered instrument, such instrument must be executed both by the lessor and the lessee and if there are more than one such instrument, then each of such instruments should also be similarly executed by both the lessor and lessee. Then the last proviso also lays down that the provincial Government may from time to time by notification in the Official Gazette direct that leases referred above mad be made by unregistered instrument or by oral agreement without delivery of possession. In the present case it is common ground between the parties that the Provincial Government has not made any notification directing that such leases may be made even by unregistered instruments. Ex. P-l is executed only by the lessee and not by the lessor, It is an unregistered document and therefore it is not a lease-deed and as such cannot be admitted in evidence; but the question is that since sec. 107 of the Transfer of property Act premises leases to be made by oral agreement accompanied by delivery of possession, a rent-note like Ex. P-l can be admitted in evidence to prove the fact or oral agreement accompanied by delivery of possession. According to the appellant's learned advocate it cannot be so admitted & in support of the argument he has referred to the case of Mst. Nasiban vs. Mohammad Sayed (1 ). In that case it was held that the binding effect of sec. 17 (d), Registration Act, and sec. 107. T. P. Act, was to exclude from evidence all unregistered lease which are reduced to writing It may be mentioned that in a later case of Tulsiram Rajaram vs. Govinda Ramji (2) the correctness of the opinion expressed in the above case (1) was doubted. In an earlier case of the same High Court, Birdichand vs. Popatlal;3) it was held that a kabuliyat or rent-note was not required to be registered under sec. 107 of the Transfer of Property Act since it was not a lease granted by the lessor. It was observed that "a lease has to be signed both by the lessor, and by the lessee. Consequently, a rent note (kabuliyat) signed only by the intending lesses is not a lease under the Transfer of Property Act and would not kabuliyat in that case was held admissible in evidence. The appellant's learned advocate has next referred to the case of Mst. Malan vs. Dayal Singh (4 ). in that case the plaintiff had brought two suits for recovery of rent in respect of certain property. The lease were for a period less than one year. The plaintiff had not relied on any oral agreement. The suit was based on rent-notes which were not registered and the plaintiff had not sued on the basis of his title for recovery of compensation for use and occupation. The defendants were already in possession of the property before the execution of the leases. Under those circumstances it was held by Bhide J. that the plaintiff could only succeed if he had sued for rent on the basis of registered leases executed by the lessor and the lessee in view of the provisions of secs. 105 and 107. T. P. Act.
(3.) IT may be pointed out that in another case to Taj Din vs. Abdul Rahim (5) a Division Bench of the same High Courts including Bhide J. himself, and held an unregistered rent deed for less than a year admissible in evidence In that case it was held following the case of Ramkrishna Jha vs. Jainandan Jha (5) that sec. 107 of the Transfer of Property Act was not governed by the definition of the term "lessee" in the Registration Act but by the definition in sec. 105 of the Transfer of Property Act. IT was therefore observed as follows: - "it seems to my mind thus clear that the rent deed in question in the present case cannot be considered to be a lease within the meaning of sec. 107, T. P. Act. If it is not a 'lease' under that section, it would not, of course, as a rent-deed for less than a year, require registration under the Registration Act and this was not disputed before us. IT would consequently be admissible in evidence though unregistered. The rent-deed in that case recited that the house had been already taken on rent from the plaintiff. IT was held that: - "this is consistent with the existence of an oral lease prior to the execution of the rent-deed. The possession of the house was already with the defendant. Consequently; there seems to have been in this case an oral lease "accompanied by posses sion and the deed of rent can be therefore used as a corroborative piece of evidence to support the terms of the lease". This case was referred with approval by a Full Bench of the same High Court in the case of Mohanlal vs. Ganga Singh (7 ). Other High Courts have also taken the view in favour of the admissibility of a rent-note in evidence. In the case of Ganga Sahai vs. Badrual Islam (8) a kirayanama executed by the tenant was considered in evidence and it was held that it was perfectly legal and having been executed by the tenant he was bound by the terms thereof unless he was able to prove fraud or coercion, Similarly in the case of Maqbool Ahmad vs. Debi (9) it was held that the person executing the rent-note is bound by its terms as a matter of his undertaking although the other party who has not signed the document would not be bound by them. In the case of Ramanna vs. H. S. Rangaswamy (l0) a rent chit executed by the tenant was held to be admissible in proof of the admission of the lease. A similar view was taken in another case of Hasson vs. Mirchandani (11 ). Thus, it is clear that the two cases on which the appellant's learned advocate has tried to base his arguments have not been followed in later cases of the same High Courts and other High Courts have taken a different view as mentioned above. I also think that an unregistered rent-note like Ex. P-l is not compulsorily registrable under the Indian Registration Act sec. 17 (1 ). It does not create a lease under sec. 107 of the Transfer of Property Act and therefore it would not be admissible as a lease-deed but if there is an oral agreement accompanied by delivery of possession, then I see no reason why such a document should not be admitted in evidence to corroborate the fact of such agreement and the terms thereof. ;