- (1.) THE circumstances that give rise to this appeal may briefly be stated thus - THE respondents applied for issue of a notice for payment of arrears of rent under sec. 79 of the Jaipur Tenancy Act (which now stands repealed by the Rajasthan Tenancy Act of 1955) against the appellant in respect of the land in dispute in the court of the S. D. O. , Kotputli. THE appellant objected to the contents of the notice and thereafter the application was deemed to be a suit for arrears of rent. Issues were framed in accordance With the pleadings of the parties and one of the issues was as to whether the kabuliyat on which the respondent based his suit was inadmissible in evidence for want of registration. THE trial court relying on a decision of the Board in Triloca vs. Nathu (case No. 21/jaipur of Svt. 2009, decided on 10. 9. 53) held that the kabuliyat being not executed by both the parties did not amount to a lease and as such was not compulsory registrable. THE first appellate court upheld the decision and hence this second appeal by the defendant.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. Strictly speaking, it is unnecessary for the purposes of the present appeal to determine as to whether a kabuliyat is compulsory registrable or not under sec. 17 (I) (d) of the Indian Registration Act. To ascertain the nature of the document alleged to be the kabuliyat, we have to examine the allegations in the plaint. The opening paragraphs of the plaint make it perfectly clear that the contract of tenancy in respect of the land in dispute was entered into verbally and that possession of the appellant over the holding originated according to the terms of that contract. After the completion of the contract the appellant made some entry in the account book of the respondent, though on that very date, giving out details as regards the amount of the rent to be paid in respect of the tenancy and the period for which it was to be valid. Under these circumstances, this document is neither a lease nor an agreement to lease, but a mere admission on the part of the lessee of the holding let to him and the amount of rent. For an authority on this proposition, reference may be made to page 9 of the Indian Registration Act by D. F. Mulla, V Edition (1950 ). "where after lands are let under a verbal agreement and the lessee enters into possession under such agreement an entry is made in the lessor's book and signed by the lessee showing the extent of the holding and the amount of rent, the entry is neither a lease nor an agreement to lease, but a mere admission on the part of the lessee of the area let to him and the amount of rent. '' If on the other hand, it had been alleged by the respondents that possession was taken under the writing then the position would have been entirely different and the writing may have amounted to a lease within the terms of sec. 2 (7) of the Registration Act. In the present case as pointed out, the contract of tenancy was made verbally and the origin of possession 3s also traced to that contract. The subsequent execution of the document in the bahi though called a kabuliyat does not in law amount to kabuliyat and as such the question of its registration does not arise. In view of the fact that the lower courts have decided the question of registration and that considerable arguments were advanced before us on the point, we would proceed to examine the legal question as well as regards the requirements of registration of a kabuliyat and the effects of non-registration for their guidance. The term 'lease' has not been defined in the Indian Registration Act and to ascertain the meaning thereof a reference has to be made to the Transfer of Property Act. See. 2 (7) of the Indian Registration Act however lays down that lease includes a counterpast, kabuliyat, an undertaking to cultivate or occupy and an agreement to lease. Sec. 107 of the Transfer of Property Act lays down that a lease of immovable property from year to year, or for any term exceeding one year, or reserving any yearly rent, can be made only by a registered instrument. But sec. 117 of the Transfer of Property Act exempts agricultural leases from perview of Chapter V of the Transfer of Property Act which contains secs. 105 to 117. Sec. 107 of the Act therefore has no application to agricultural leases and hence an agricultural lease can therefore be made orally. If made in writing an agricultural lease would require registration under sec. 17 (1) (d) of the Registration Act, if from year to year or for any term extending one year or reserving an yearly rent. In respect of cases governed by Chapter V of the Transfer of Property Act the requirements of sec. 107 ought to be complied with. The amendment introduced in sec. 107 of the Act in 1929, settles the conflict of decisions as to whether a rent note signed by the lessee alone was or was not a lease. The effect of the amendment is that where a patta is executed by the landlord alone and a kabuliyat is executed by the tenant alone, the two documents read together do not amount to a valid lease. The amendment lays down that where a lease of immovable property is made by a registered instrument such instrument, or where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. An instrument signed by the lessor alone or by the lessee alone now operates merely as an agree ment to lease or a rent note. The effect of non-registration is laid down in sec, 49 of the Indian Registration Act. No document required by see. 17 of the Indian Registration Act or by any provision of the Transfer of Property Act shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered, provided that such a document may be received as evidence of a contract in a suit for specific performance under Chapter 2 of the Specific Relief Act, or as evidence of part performance of a contract for the purposes of sec. 53 (a) of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by a registered instrument. An unregistered agreement of lease though inadmissible as evidence of the lease for want of registration may be received in evidence to prove the date of taking possession, or to prove the date of termination of the possession of the lease or that a person has entered into possession under a contract of sale. Similarly the unregistered lease may be admitted in evidence for the purpose of ascertaining the fair amount to be charged for use and occupation (page 190 of Mulla's Registration Act ). The legal view adopted by the lower courts therefore is not fully correct. An unregistered lease, a kabuliyat being included in a lease for purposes of registration, may be inadmissible as evidence of the lease itself but it would be admissible for collateral purposes, instances of which have been pointed out above. To conclude, therefore, we hold that the document in question does not amount to a kabuliyat for the obvious reason that the contract of tenancy was entered in to verbally and after its completion this entry was made in the account book of the respondent, which clearly is not a lease or a kabuliyat. It is therefore not covered by sec. 17 of the Indian Registration Act and does not require registration. Want of registration therefore would not render it inadmissible. For these reasons the appeal is hereby rejected. .;