Sarimati Shanti Devi and Another vs Jagdish Parshad and Another

D.V. Sehgal, J.—This revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ''the Act'') is directed against the judgment dated 10.3.1978 of the learned Appellate Authority, Ferozepur affirming the order dated 17.11.1976 of the learned Rent Controller, Ferozepore, what by an application riled by the landlord-Petitioners u/s 13 of the Act for the ejectment of Jagdish Parshad and Bal Krishan, Respondents No. 1 and 2 respectively, from shop No. 260 situated in Bazar No. 4, Ferozepore Cantt, was dismissed.

The facts in brief are that the shop in dispute was owned by Smt. Gian Devi, grand-mother of Tula Ram, Ram Gopal, Sant Lal and Basant Lal landlord Petitioners, Jagdish Parshad Respondent No. 1, and mother-in law of Smt. Shanti Devi, widow of Tapeshri Ram, who is Petitioner No. 1 in the present petition. It is not disputed that on the death of Smt. Gian Devi, all the aforesaid persons, including Jagdish Parshad, inherited the shop in dispute. The case of the landlord-Petitioners, however, is that Jagdish Parshad was separated from the family in the year 1965, and a wringing Mark ''A'' in this regard was executed on 23.7.1965, which is signed by Smt. Shanti Devi Petitioner No. 1 and Jagdish Parshad Respondent No 1 and is also attested by two witnesses Parma Nand and Phool Chand, who have appeared in the witness box as A. W. 2 and A W. 1 respectively. It is further alleged by the Petitioners that Jagdish Parshad took the shop in dispute on rent from them and agreed to pay Rs. 60/- per month as rent; that he was in arrears of rent from 1 10 1973 to 31 5 1974 and that he was also liable to pay house-tax and water-charges for the said period It was further alleged that Jagdish Parshad Respondent No 1 had sub let a portion of the shop in dispute to Bal Krishan Respondent No 2 in the year 1968; and that he had sub let the entire shop in question to the said Bal Krishan in April, 1974 and since then this Respondent (Bal Krishan) was in exclusive possession of the shop While Jagdish Parshad Respondent No. 1 admitted that he had been separated from the landlord-Petitioners by a family settlement and that he had no right of owrership qva the shop in dispute and further admitted that he bad taken the shop on rent from the landlord Petitioners, be disputed the rate of rent and asserted that the agreed rent was Rs. 50/- per month As regards the arrears of rent, he tendered Rs. 480/- as arrears of rent for the period from 1.10.1974, Rs. 35/- as costs and Rs. 20/- as interest. As regards the allegation of sub-letting, Jagdish Parshad Respondent No. 1 simply stated in his reply that the allegation of sub-letting was vague. The real defence was, however, preferred by Bal Krishan Respondent No 2, who stated that the property in dispute belonged the joint family of the landlord-Petitioners and Jagdish Parshad Respondent No. 1. There was no partition and that Jagdish Parshad had been mischievously arrayed as a tenant He further asserted that he had taken the disputed shop from all the landlords together on rent at the rate of Rs. 30/- per month is the year 1968, and since the eviction application had not been filed by all the landlords jointly the same was not maintainable As regards arrears of rent, he stated that he had paid rent upto 30.4.1974 to Jagdish Parshad ore of the landlords, and he had offered rent for the months of May, June and July, 1974 to Jagdish Parshad but he refused to accept the same whereupon he remitted the rent by money order which was also refused by Jagdish Parshad. He also alleged that on 26.4.1974 Jagdish Parshad Respondent No. 1 along with the other co-owners, i.e., the landlord-Petitioners, forcibly, and illegally locked the disputed shop and threw out his goods. The matter was reported to the police. Jagdish Par-shad, who was having his business, in the Police Lines, tried to use his influence but the justice-loving Police inspector of Police Station, Ferozepore Cantt, made the landlords to remove the aggression and rent for the month of April, 1974 was paid and a receipt thereof taken in the police station in the presence of the Police Inspector.

The authorities below have concurrently found that the writing marked ''A'' dated 23.7.1963 evidenced portion of the joint property and relinquishment of the right of Jagdish Parshad in the shop in dispute and since the said writing-was neither stamped nor registered and it was a sort of partition deed, the same was inadmissible in evidence. Resultantly, the authorities below held that the landlord-Petitioners and Jagdish Parshad Respondent No. 1 continued to be the joint owners of the disputed shop. It has further been held that Bal Krishan Respondent No. 2 was a direct tenant under all the landlords, including Jagdish Parshad Respondent No. 1, at the rate of Rs. 30/- per month. There was no question of creation of tenancy by the landlord-Petitioners in favour of Jagdish Parshad as all of them were the co-owners of the shop and there was no sub letting by Jagdish Parshad in favour of Bal Krishan. As regards the question of nonpayment of arrears of rent, it has been held firstly that Jagdish Parshad tendered the rent along with the interest and costs on the first date of hearing and at any rate since Jagdish Parshad was not found to be the tenant and it was in fact Bal Krishan who was the tenant, he had already paid rent up to April, 1974, Rent for the month of May, 1974 was, to fall due by 30.6.1974 and since the ejectment application had been filed on 13.6.1974, the ground of non-payment of rent as against Bal Krishan was, not available.

In the instant revision petition before me, it has been canvassed by Mr. Ravinder Chopra, the learned Counsel for the landlord-Petitioners that the Courts below erred in holding that the writing dated, 23.7.1965 marked ''A'' required stamp or registration. The said writing when rendered into English is in the following terms:-

Today, dated 23.7.1965, taking into consideration the activities of Jagdish Parshad, I Shanti Devi and others gave all the articles, received in dowry at the time of his marriage and a sum of Rs. 4,000/- and a house for him to reside and separate hint from today onwards Jagdish Parshad would have no interest in other property etc except house No. 68

Emphasis supplied

Mr. Chopra contended that this writing was in the form of a memorandum or a family settlement and it did not require to be stamped or registered u/s 17(1)(b) of the Indian Registration Act. In support of his submission, he relied on Kale and Ors. v. Deputy Director of Consolidation (1976) 2 H.L.R. 441. I am, however, afraid that this judgment of the Supreme Court does not support the contention of Mr. Chopra It is laid down by their Lordships of the Supreme Court that a family arrangement may even be oral in which case no registration is necessary. Their Lordships have, however, emphasised that it is, well settled that registration would be necessary if the term of the family arrangement are reduced into writing and a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and an agreed memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation.

Mr. P.N. Aggarwal, the learned Counsel appearing for Bal Krishan Respondent No. 2, has submitted that the writing dated 23 7-1965 marked ''A'' purports to create, declare, assign, limit or extinguish in present the right, title and interest of the members of the family, particularly, Jagdish Parshad, and since the value of the immovable property involved is more than Rs. 100/- this writing required compulsory registration u/s 17(1)(5) of the Indian Registration Act, 1908. He also emphasised that this writing being unstamped was inadmissible in evidence in view of the provisions of Section 35 of the Stamp Act I agree with this submission of Mr Aggarwal. As held in Makireddi Nookaraju v. Makireddi Ramamurthi AIR 1962 A.P. 443, a combined reading of Sections 17 and 49 of the Registration Act shows clearly that an unregistered partition deed cannot affect any immovable property comprised therein. Where the terms of a partition arrangement have been reduced to writing in the form of a document, and that writing was inadmissible in evidence due to its being insufficiently stamped u/s 35 of the Stamp Act in addition to its being unregistered under Sections 17 and 49 of the Registration Act, the effect would be as if there was no valid partition at all and other evidence to prove the terms of the partition or the details thereof is inadmissible and barred". The tenor of the writ-ing dated 23-7-1965 marked ''A'' makes it clear that it is by virtue of this writing that Jagdish Parshad Respondent No. 1 was made the exclusive owner of house No. 68 while he was divested of his rights in all the other properties I am supported in my view that such a document requires registration by a judgment of this Court in Chander Shekhar v. Des Raj 1983 Rev. L. R. 103.

Faced with this situatien, Mr. Chopra contended that the writing dated 23.7 1965 marked ''A'' could be read for collateral purposes, and at any rate, according to him, in a dispute between the landlord on the one hand and the sub tenant, who is a complete stranger to the document, on the other hand. The legality and the validity of the document marked ''A'' on the ground of its want of registration or its being unstamped is of no consequence and the document should be read into evidence for determining the controversy. I am unable to accept any of these two contentions As laid down by their Lordships of the Privy Council in AIR 1946 51 (Privy Council) , the words ''for any purpose'' in Section 35, Stamp Act, should be given their natural meaning and effect and would include a collateral purpose An unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. It has been held in Kora Mal Gurdial v. Fazal Ali AIR 1934 Lah. 799, that where the document purports to be a deed of partition effected in present it is compulsorily remittable u/s 17 of the Registration Act and cannot be received in evidence in accordance with the provisions of Section 49 of the said Act This is so even when the contest is mot between the executants of the deed interse but is between them and a person who is not a party to the deed.

In view of the above discussion, since Jagdish Parshad Respondent No 1 continues to be a co owner of the shop in dispute, his having assumed the character of a tenant and then subletting the shop to Bal Krishan Respondent No 2 simply appears to be a camouflage. The assertion of Bal Krishan Respondent No 2 in his reply that an attempt was made by all the landlords to dispossess him from the shop in dispute has been admitted by Smt. Shanti Devi Petitioner No 1 in her cross-examination when she appeared in the witness box. Likewise, the evidence on the record shows that Jagdish Parshad Respondent No. 1 as a co owner of the shop in dispute took its possession from the previous tenant Mela Ram and a writing in this respect was executed on 25 12 1967 A copy of the relevant portion of the deed writer''s register evidencing this writing is Ex. A. 4 The original writing is also on the record at page 107. Had Jagdish Parshad not been one of the co-owners on 2(sic) 12 1967, there was no occasion for him to take possession of the shop from the previous tenant It is also worth mentioning that neither the writing dated 23 7.1965 marked ''A'' nor the rent note executed by Jagdish Parshad in favour of the landlord Petitioners (Ex A 6) is scribed by any deed-writer. Thus, keeping in view the attending circumstances, a reasonable doubt comes to be entertained that both these documents might have been executed at some later date in between the landlords including Jagdish Parshad so as to create the gourd of sub-tenancy to oust Bal Krishan from the shop in dispute The fact that Bal Krishan has been in possession of the shop allergy since 1968 is firstly evidenced by the receipt Ex R 1 whereby Jagdish Parshad received rent from Bal Krishan for 7 months in advance for the period from 1.1.1968 to 31.7.1968 amounting to Rs. 210/- at the rate of Rs. 30/- per month in respect of the shop in dispute. The possession of Bal Krishan as a tenant on the shop in dispute is also evidenced by the house tax assessment register for the years 1971-74 an extract from which is Ex R. 3 on the record It is, thus, clear that the findings of the Courts below that there is no evidence to prove partition or family settlement between the landlord-Petitioners and Jagdish Parshad Respondent No 1, so as to exclude Jagdish Parshad from the ownership of the shop in dispute and that there had been no subletting by Jagdish Parshad in favour of Bal Krishan and in fact Bal Krishan was a direct tenant under all the landlords at the rate of Rs 30/- per month are correct and in spite of the detailed and strenuous aliments the learned Counsel for the Petitioner-landlords has not been able to create any dent in these findings I, therefore, affirm these findings

In view of the above, this revision petition is dismissed with costs the order of the learned Rent Controller dated 17.11.1976 and the judgment of the Appellate Authority dated 10.3.1978 dismissing the eviction application of the landlord-Petitioners are upheld. Bal Krishan Respondent No. 2 shall get the costs, which are assessed at Rs. 500/