w w w . L a w y e r S e r v i c e s . i n



D. Santhanadurai v/s A. Nishanth Joe Raj & Another


Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

    C.R.P(NPD)(MD)No. 1697 of 2012 & M.P.(MD)No. 1 of 2012

    Decided On, 21 July 2020

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE S.S. SUNDAR & THE HONOURABLE MRS. JUSTICE R. THARANI

    For the Petitioner: J. Ashok, Advocate. For the Respondents: G. Prabhurajadurai, Advocate.



Judgment Text

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside fair order and decretal order passed in I.A.No.715 of 2011 in O.S.No.10 of 2011, dated 24.01.2012 on the file of the District Munsif, Sathankulam.)1. This Civil Revision Petition is posted before us by way of reference to answer the following questions:(1) An agricultural lease deed, not drawn in the prescribed form as per Section 4(B) of the Tamil Nadu Cultivating Tenants Protection Act (Act 25 of 1955), whether attracts stamp duty under the Indian Stamp Act and whether the same requires registration under the Indian Registration Act?(2) Whether the document drawn in triplicate as per Section 4(B) (1) of the Tamil Nadu Tenants Protection Act is only an intimation to the authorities for the purpose of updating the record of tenancy rights or does it create lease?2. For the better understanding of the context in which the above questions arise for consideration, the brief facts of the present case are relevant and they are as follows:2.1. The revision petitioner filed a suit in O.S.No.10 of 2011 on the file of the District Munsif Court, Sathankulam, for an injunction restraining the defendants from evicting the petitioner from the suit properties otherwise than by due process of law. The suit properties are described as six items measuring a total extent of 7.34 acres with reference to four boundaries out of an extent of 11.06 acres in Kommadikottai Village within Palayamkottai Registration District.2.2. The case of the petitioner in the plaint is that the suit property originally belonged to second defendant and that the same was purchased by the first defendant. It is the further case of the petitioner that the first defendant after purchasing the properties entered into a lease deed on 30.11.2010 in respect of the suit properties. In short, the petitioner claimed himself as cultivating tenant under the first defendant in the suit based on the lease deed dated 30.11.2010. The second defendant filed a written statement questioning the transfer of properties in favour of the first defendant and the lease deed as a whole.2.3. During the pendency of the suit, the petitioner filed an application in I.A.No.715 of 2011 in O.S.No.10 of 2011 seeking permission to mark the unregistered lease deed dated 30.11.2010 as a document on plaintiff's side. The said application was opposed by the second defendant. The unregistered lease deed is styled as “fl;Lf;Fj;jif ajh];J” and it is an agricultural lease. The document is just executed in a 100 rupees stamp paper and it is unregistered. Since the document is insufficiently stamped and unregistered, the petition filed by the petitioner for marking the document, namely, the unregistered agricultural lease deed is dismissed. Aggrieved by the order of the learned District Munsif, Sathankulam, the above Civil Revision Petition is preferred by the petitioner, the plaintiff in the suit.3. When the revision petition was heard by Hon'ble Mr.Justice N.Anand Venkatesh, the learned Judge after taking note of the conflicting views expressed by this Court earlier on the issues, requested the Hon'ble Administrative Judge of Madurai Bench of Madras High Court to pass appropriate orders to place the matter before a Division Bench to be constituted by the Hon'ble Administrative Judge. The Hon'ble Judge recorded that the issue that requires to be decided in the Civil Revision Petition is as to wether an agricultural lease requires compulsory registration even if it is an annual lease or for a period exceeding one year, under Section 17 (1)(d) of the Indian Registration Act, 1908. Though the Hon'ble Judge referred to the earlier order passed by a learned Single Judge of this Court seeking reference and to place the matter before the Hon'ble Chief Justice for constituting a Division Bench, it was noted that the matter was not referred to the Division Bench till then. The Registry thereafter noticed that the order of reference made in C.R.P.(PD)No.342 of 2012 was mistakenly listed earlier on 05.03.2018 before a Single Bench and it was thereafter directed to be posted before the Division Bench concerned. It is unfortunate to note that the Civil Revision Petition in C.R.P.(PD) No.342 of 2012 is not posted before this Bench but the Civil Revision Petition in C.R.P.(MD)No.1697 of 2012 alone is posted. Considering the position that the facts in both the Civil Revision Petition with reference to questions posed before this Court are similar, we also propose to answer the questions that were referred to by the Hon'ble Judge who heard the Civil Revision Petition in C.R.P.(PD)No.342 of 2012 in the case of Ganapathy v. Maheshkumar and others.4. In C.R.P.(PD)No.342 of 2012, the defendants in a suit for title and for recovery of possession pleaded cultivating tenancy under an unregistered and unstamped agricultural lease document. The plaintiff filed an application to reject the document as the document is inadmissible in evidence. As against the order of trial Court holding that the documents can be admitted in evidence to prove the character of possession, the plaintiff preferred a Civil Revision Petition.5. This Court taking into account the conflicting views, framed the questions for reference which are shown in the first paragraph of this order.6. We need not repeat the whole order of the Hon'ble Judge who has referred the matter in C.R.P.(PD)No.342 of 2012 in entirety. Having regard to the scope of reference in the present Civil Revision Petition, this Court has come across few judgments of this Court taking different views without reference to any precedent. In Arumugham and others v. Kulandaivelu reported in 1984-97-LW 401, a learned Judge of this Court had an occasion to deal with the issue whether no stamp duty is leviable in respect of a document styled as a deed intended to surrender of lease in respect of agricultural land in view of Section 4-B(2) of Tamil Nadu Cultivating Tenants Protection Act (Act 25 of 1955). The learned Judge has held as follows:“3. Though the learned Counsel for the respondent would maintain that the original lease deed was exempted from stamp duty and therefore, the surrender of lease, though it falls under Article 61, also does not require to be stamped, it is not possible to accept such a contention. In order to avail the benefit of the exemption from the payment of the stamp duty, under Section 4-B(2) of the. Tamil Nadu Act 25 of 1955 the lease deed should have been executed in triplicate in the prescribed form in accordance with the provisions of Section 4-B(l) of that Act. Only in such cases, the benefit of the exemption would be available. Here, there is absolutely no material to show that the lease was executed in conformity with Section 4-B(l) of the Tamil Nadu Act 25 of 1955, and there is no question of the benefit of the exemption from stamp duty being available to such a lease deed. Therefore, the claim of exemption from payment of stamp duty cannot be countenanced at all.”7. In another judgment of this Bench in Sikkender Anees v. Vaiyalimuthu Thevar reported in CDJ 2007 MHC 4113, a learned Single Judge of this Court had an occasion to deal with the admissibility of an agricultural lease deed without registration and held as follows:“7. ....As pointed out earlier, the lower Court has held that the document is a lease deed, without expressing any opinion, whether the said finding is correct or not, assuming that the document is only a lease deed, in my considered view, still the order of the lower Court directing the petitioner to pay necessary stamp duty as well as penalty is liable to be set aside on the sole ground that in Section 4-B (2) of the Tamil Nadu Cultivating Tenants Protection Act, it is provided that, no stamp need be affixed to the lease deed, if the lease is an agricultural lease. In this case, there is no dispute that the document was executed in respect of the enjoyment of the usufructs from the Coconut trees. Assuming that the document refers to a lease, it has to be necessarily hold that it is an agricultural lease and if that be so, as per Section 4-B(2) of the said Act, no stamp is required to be affixed. Since, it is a special enactment, it will have overriding effect on the Indian Stamp Act. In view of the same, in my considered opinion, the order of the lower Court directing the petitioner to pay stamp duty as well as penalty is liable to be set aside.”8. The learned Counsel appearing for the petitioner submitted before this Court a few judgments including the judgment of the Hon'ble Supreme Court in Thakur Kishan Singh (Dead) v. Arvind Kumar reported in (1994) 6 SCC 591 for the proposition that Section 117 of Transfer of Property Act exclude agricultural lease from the purview of Transfer of Property Act and that there is no requirement of registration in respect of agricultural lease as Section 107 of Transfer of Property Act does not apply to agricultural lease. Sections 107 and 117 of Transfer of Property Act reads as follows:“107. Leases how made. -- 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 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:Provided that the State 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.117. Exemption of leases for agricultural purposes.—None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable [in the case of all or any of such leases], together with, or subject to, those of the local law, if any, for the time being in force.Such notification shall not take effect until the expiry of six months from the date of its publication.”9. Going by the plain language employed in Section 117, it is true that a lease deed in respect of agricultural lease does not come under the purview of the Transfer of Property Act. However, the provisions of Transfer of Property Act does not restrict applicability of Registration Act or Indian Stamp Act. Section 17 and 49 of Registration Act and Section 35 of Indian Stamp Act are relevant and they are extracted for convenience:“17. Documents of which registration is compulsory.—(l) 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 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—(a) instruments of gift of immovable property;(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;24 [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:...47. Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.“35. Instruments not duly stamped inadmissible in evidence, etc.—No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that—(a) any such instrument 65 [shall], be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of 66 [the 67 [Government]] or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.”10. The term 'lease' has been defined under Section 2(7) of Registration Act to include a counterpart, Kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease. By virtue of Section 17(d) of Registration Act, lease deeds of any immovable property from year to year or for any term exceeding one year or reserving an yearly rent are required to be registered and the consequences of Section 49 will follow, if a document of lease including the lease in respect of agricultural land is not registered.11. Similarly, the provisions of Indian Stamp Act are also applicable and by virtue of Section 35 of the Act a document which is not adequately stamped, is not admissible in evidence. The law is settled that a document which is neither registered nor stamped is not admissible even to look into the document for any collateral purpose.12. The Tamil Nadu Cultivating Tenants Protection Act, 1955 was enacted for the protection from eviction of cultivating tenants in certain areas in the State of Tamil Nadu excluding the areas to which Malabar Tenancy Act was extended. The Act was a beneficient legislation for granting security of tenants' tenure for cultivating tenants of agricultural lands. The Act also gives protection to the cultivating tenants in possession from being evicted except under the provisions of Sub Section 4 of Section 3 of the Act. Section 4-B of the Act reads as follows:“4B. Execution of lease. - (1) In the case of even tenancy agreement entered into after the coming into force of the [Tamil Nadu] Cultivating Tenants Protection (Amendment) Act, 1956 ([Tamil Nadu] Act XIV of 1956) between a cultivating tenant and a landlord, a lease deed shall be executed in triplicate in the prescribed form, within a reasonable time after the commencement of such tenancy, specifying the name and description of the cultivating tenant, the name (if any) survey number, description and extent of the land leased our, and the terms of the tenancy and shall be signed both by the landlord or his agent and by the cultivating tenant. One of the three copies shall be kept by the landlord, one shall be kept by the cultivating tenant and the third shall be caused to be lodged in the Taluk office by the landlord or his agent within a fortnight of the date on which the cultivating tenant signs it:Provided that if the landlord or the cultivating tenant refuses or delays unreasonably to execute the lease deed, it shall be open to the cultivating tenant or the landlord, as the case may be, to lodge the deed in the Taluk Office with a declaration that the other party has refused or delayed unreasonably to execute it.(2) No stamp need be affixed to the lease deed.(3) In the case of any tenancy, if the landlord or his agent or the cultivating tenant refuses to sign or fails to lodge the lease deed in accordance with the provisions of sub-section (1), the Revenue Divisional Officer may impose on the landlord or the cultivating tenant, as the case may be, a penalty which may extend fifty rupees; and any penally so imposed may be recovered as if it were an arrear of land revenue.”13. The above provision requires a procedure to execute a document after the commencement of lease to be lodged in the Taluk Office by the landlord or his agent within a fortnight of the date on which the cultivating tenant signs the document. Section 4-B requires such deed to be executed in triplicate in a prescribed form within a reasonable time after the commencement of such tenancy, specifying the name and description of the cultivating tenant, survey number, description and extent of land leased out and the terms of the tenancy. Proviso to Section 4-B enables either the cultivating tenant or the landlord to lodge the document to the Taluk Office with a declaration that the other party has refused or delayed unreasonably to execute it. As per Section 4B(3), the Revenue Divisional Officer can impose the landlord or the cultivating tenant only a penalty upto Rs.50/- in case, the landlord or the cultivating tenant refuses to sign or fails to lodge the lease deed in accordance with the provisions of Sub Section (1). From the reading of Section 4B, the following aspects can be seen:a) The provisions, namely, Section 4B contemplates a document in a prescribed format to be executed in triplicate after commencement of tenancy for the purpose of submitting the same to the Taluk Office.b) the lease as such is not created under the document and execution of such document is not compulsory to recognise the relationship as between the landlord and tenant; andc) the lease deed need not be stamped.14. From the above, it is evident that the execution of lease or a document in terms of Section 4-B is after the commencement of lease and therefore, no lease or tenancy is created under the document which is executed in terms of Section 4-B. Therefore, neither the judgment in the case of Arumugham v. Kulandaivelu reported in (1984) 97-LW-401 nor the judgment in Sikkender Anees v. Vaiyalimuthu Thevar reported in CDJ 2007 MHC 4113, lays down the correct proposition as it is discernible from the interpretation of the provisions on first principles.15. Secondly, the Tamil Nadu Cultivating Tenants Protection Act (Act 25 of 1955) is a State enactment. The purpose of legislation is not relating to transfer of right in respect of immovable property but to protect cultivating tenants. There is no non-obstante clause to save the provisions of the Act from any other provisions of Central Enactment or to save the provisions of the State Act for repugnancies. Though the provisions of Transfer of Property Act are not applicable to agricultural lease, the applicability of the provisions of Registration Act and Indian Stamp Act cannot be excluded.16. Sections 107 and 117 of Transfer of Property Act and Sections 17 and 49 of Registration Act should be read together to understand the legal requirements of executing a lease agreement or lease deed in respect of agricultural lands. The following legal position can be deduced:a) Though a lease in respect of agricultural property does not come under the purview of Transfer of Property Act, the same is required to be registered if the lease of immovable property is reduced into writing and if such lease is from year to year or for any term exceeding one year or by reserving an yearly rent.b) Non-agricultural lease can be created only by a registered instrument, as per Section 107 of Transfer of Property Act.c) A document of lease whether it is for agricultural purpose or for other purpose, has to be affixed with sufficient stamp duty in terms of Articles of Indian Stamp Act. If a lease deed, even in respect of agricultural property, is neither registered nor stamped, it is not admissible in evidence even for collateral purpose.17. Our conclusions above are supported by settled principles of law. A learned Single Judge of this Court in S.Ramaswamy Iyer v. Sendhil Tiruppani Kattalai attached to Sri Subramaniaswami Koil, Tiruchendur, reported in 1972 II MLJ 15 has held as follows:“4. ... Therefore, the question that arises in this case is whether the lease deed dated 1st July, 1961, and executed prior to the coming into force of the Act, has to be registered under the Registration Act, 1908. Under Section 117 of the Transfer of Property Act 1882, agricultural leases are exempted from the provisions of Chapter V of the Act. But when they are in writing Section 17(1) {d) of the Registration Act, 1908 will be attracted.”18. The Hon'ble Supreme Court in Yashchandra v. State of M.P reported in (2017) 16 SCC 414 has clarified the position in the following lines:“6. 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.”19. In the case of Nanjappa Goundan v. Rang

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aswami Goundan reported in [1940] 0 AIR (Mad) 410, Hon'ble Justice Patanjali Sastri as he then was, has held as follows:“6. The learned Counsel for the respondent argued that the lease in question here being a lease for agricultural purposes, the provisions of Chapter V including Section 108 are not applicable as provided in Section 117. But the reason underlying this exemption of agricultural leases is explained in Krishna Shetti v. Gilbert Pinto (1919) 36 M.L.J. 367 : I.L.R. 42 Mad. 654 (F.B.), where it is pointed out that in the absence of any special usage or custom affecting an agricultural lease, the principle of the sections which merely reproduce the well-established rules of English law are applicable to agricultural leases also as rules of justice, equity and good conscience.”20. In view of the foregoing reasons and the principles reiterated by the precedents above referred to, this Court answers the issues in the following manner:(i) The issue that was raised by the learned Single Judge in the present Civil Revision Petition is answered by holding that a lease deed in respect of an agricultural land requires compulsory registration if it is on an year to year basis or for more than one year in terms of Section 17 (1)(d) of the Indian Registration Act, 1908.(ii) Any document of lease prepared in the format, after the commencement of lease as required under 4(B) of the Tamil Nadu Cultivating Tenants Protection Act, does not attract stamp duty or registration.(iii) If a tenancy is created in respect of an agricultural land under written instrument, the same requires compulsory registration and attracts stamp duty as provided under the Indian Stamp Act.(iv) The document drawn in triplicate as per Section 4(B)(1) of the Tamil Nadu Cultivating Tenants Protection Act is just an intimation to the authorities for the purpose of updating the tenancy records and such document does not create any lease.The issues referred to by learned Single Judge in C.R.P.(PD) No.342 of 2012 are also answered. Hence, this judgment may also be placed before the Hon'ble Chief Justice as no reference is required in the light of this judgment.21. In view of the conclusions reached above, we are of the view that the order of learned District Munsif, dismissing I.A.No.715 of 2011 to mark an unregistered agricultural lease deed dated 30.11.2010 for want of stamp duty and registration is perfectly in order. Hence, this Civil Revision Petition is dismissed as devoid of any merits. No costs. Consequently, the connected miscellaneous petition is closed.
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