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                                        REPORTABLE

        IN THE SUPREME COURT OF INDIA          CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NOS. 5659-5660 OF 2002

M/s. K.B.Saha & Sons Pvt. Ltd.             ...Appellant.

VERSUS

M/s. Development Consultant Ltd. ...Respondent

                 J U D G M E N T

TARUN CHATTERJEE, J.

1. These two appeals are directed against the

 common final judgment and order dated 18th

 of May, 2001 of the High Court of Calcutta

 passed     in     F.A.    Nos.    39-40     of    1999

 affirming       the   judgment   and    decree   dated

 11th of November, 1998 passed by the Asstt.

 District Judge, 9th Court at Alipore, South

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    24 Parganas whereby the two suits namely,

    Title Suit No 19/92 and 39/92 filed at the

    instance of the appellant were dismissed.

2.The facts leading to the filing of these

    two appeals are narrated in a nutshell as

    follows:

      M/s.     K.B.   Saha     &    Sons     Pvt.    Ltd.    (in

short    "the     appellant")         brought       Title    Suit

No. 19/92 before the                     9th Court of the

Asstt.        District        Judge,        Alipore,        South

24      Parganas        against        M/s.         Development

Consultants Ltd. (in short "the respondent")

alleging, inter alia, that the appellant was

the    owner     of    Premises       No.     28/8,    Gariahat

Road,    within        Police       Station    Lake     in    the

district of South 24 Parganas (hereinafter

called "the suit property"). By a memorandum

dated    30th    of    March,       1976,     the    respondent

became a tenant in respect of a flat, as

fully described in Schedule-A of the plaint,

in    the     suit     property       (hereinafter         called

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"the    suit     premises")         for    the    residential

accommodation        of    a    particular       officer        Mr.

Keshab Das and members of his family and for

no other purpose. The monthly rent was fixed

at Rs. 1100/-, which included the rent of

fixtures, fittings and parking place payable

in advance by 5th of the current month for

which the rent became due. The monthly rent

and    other     charges        were      increased      to     Rs.

1210/- from September, 1985.                    The appellant

alleged    that      the    memorandum         dated     30th    of

March,    1976    specifically            provided      that     if

the    respondent         intended        to   use     the    suit

premises       for        any     purpose        other        than

providing      residential        accommodation          to     its

named officer Mr. Keshab Das and members of

his    family,    the      respondent          would    have     to

seek a written            consent      from     the    appellant

bringing the change of purpose by a notice.

3.     By a letter dated 6th of March, 1992, the

respondent informed the appellant that Mr.

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Keshab Das had vacated the suit premises and

that it wanted to make repairs and to allot

the same to another employee to which the

appellant objected and replied by a letter

dated 12th of March, 1992 that the respondent

had no right to allot the suit premises to

another       employee         and,         therefore,            must

surrender        the         same      once       vacated          by

Mr. Keshab Das.          However, the appellant was

informed by the respondent that they would

not surrender          the    suit     premises        and      shall

carry out the repair work in it.                            In this

backdrop, the aforesaid Title Suit No. 19/92

was filed by the appellant for declaration

and    permanent       injunction          that    as    per       the

terms of the Memorandum of Agreement dated

30th of March, 1976, the respondent had no

right    to     allot    the        suit    premises        to     any

other employee after the same was vacated by

Mr. Keshab Das and members of his family. By

an    interim    order       passed        on   13th   of       March,

1992 in the        aforesaid          suit,      the    Assistant

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District       Judge,     9th    Court       at    Alipore         had

passed    an    order     of      injunction        restraining

the     respondent        from        allowing        any        other

person    except     Mr.        Das    to    occupy      the      suit

premises. This interim order was made final

on 2nd of September, 1992. On 18th of March,

1995, a notice under Section 13(6) of the

West Bengal Premises Tenancy Act, 1956 (in

short     "the     Act")          was        served       on       the

respondent asking          them        to    vacate      the      suit

premises and on failure of the respondent to

vacate the suit premises as desired in the

notice,    another         suit        was     filed        by     the

appellant being Title Suit No. 39/95 praying

for    ejectment     of     the       respondent         from      the

suit     premises.        The         aforesaid          suit      was

brought     by     the      appellant             with      similar

allegations as contained in Title Suit No.

19/92 and it was alleged, inter alia, that

although the respondent was bound to vacate

the suit premises after Mr. Das had vacated

the same, yet the respondent had not vacated

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the    suit      premises            and,         therefore,            the

appellant       was       constrained              to      file         the

aforesaid         suit         for         eviction          of         the

respondent        and      damages          and      consequential

relief.    The        respondent           entered         appearance

and    contested          both       the     suits        by       filing

written       statements.                    In      the         written

statements,         it     was       the      defence          of       the

respondent that the respondent was in urgent

need of rented accommodation for its officer

and,   therefore,          they        hurriedly           put        their

signatures       on      the     agreement          dated        30th    of

March, 1976.          The respondent further alleged

that   the      tenancy        was      taken        by      them       for

providing       residential           accommodation              to     its

officer    Mr.        Keshab      Das        who     was       only      an

officer    of     the     respondent          and       it     was      the

respondent who was the tenant of the suit

premises      and        not     the       named        officer         Mr.

Keshab     Das.       Therefore,            according          to       the

respondent, even after the suit premises was

vacated    by     Mr.      Das,        the        tenancy        of     the

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respondent     continued          and        it        was        still

continuing.        The allegation of the appellant

that the respondent had no right to allow

another officer to occupy the suit premises

was    misconceived        and        baseless.              It     was

further     alleged      in     the    written         statements

that the respondent             had     duly      informed          the

appellant      that        the         employee           of       the

respondent i.e. Mr. Das had left the suit

premises and that they were going to allot

the suit premises to another officer. It was

also    asserted         that     since           it      was       the

respondent     who       was    the        tenant      under        the

appellant      and       paid         the     rent        to        the

appellant, such tenancy was protected by the

provisions of the Act. It was further the

case   of    the     respondent            that     the      tenancy

agreement entered          into       by    the     parties         was

illegal and        invalid      and     such      an    agreement

was against        the   Statute.            Accordingly,            in

both the written statements, the respondent

asserted      that        neither           any        order        of

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injunction could be passed against them nor

could the suit be decreed in favour of the

appellant      directing           eviction        of      the

respondent     from    the     suit       premises.       By    a

common judgment dated 11th of November, 1998,

the suits of the appellant were dismissed.

4.   Feeling       aggrieved        by     the    aforesaid

common    judgment     of     the     trial      Court,     two

appeals   were     filed     in     the    High    Court       at

Calcutta, which came to be registered as FA

Nos. 39-40 of 1998. By the impugned common

judgment of      the   High       Court,    the   aforesaid

two appeals being FA Nos. 39-40 of 1998 were

dismissed    and    two     Special       Leave   Petitions

were filed against them in respect of which

leave has already been granted.

5.   We have heard the learned counsel for

the appellant and examined the judgment of

the High Court as well as of the trial court

and other materials on record. We keep it on

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record       that     none          had     appeared       for     the

respondent despite our best efforts to bring

the     respondent         to        appear       before    us     and

contest the appeals.                      We also keep it on

record       that    in    view       of    the    interim       order

granted by the High Court as well as by the

trial        Court        to        the     extent       that      the

respondent cannot               be    allowed       to   bring     any

officer other than Mr. Keshab Das to occupy

the suit premises, the respondent has kept

the suit premises under lock and key without

any occupation of any officer in the same.

6. On    a    perusal          of    the     pleadings      of    the

 parties, it is pellucid that the case of

 the appellant in both the suits was based

 on the memorandum of lease agreement dated

 30th of March, 1976.                     In this view of the

 matter, it is expedient to reproduce some

 of    the     relevant            Clauses    in    the    Tenancy

 Agreement          between         the    parties      before    we

 proceed           further           with        this      appeal.

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Accordingly, the relevant portion of the

memorandum    dated   30th   of   March,   1976   is

reproduced as under: -

 "THIS MEMORANDUM OF AGREEMENT made this the   30th day of March, one thousand nine   hundred and seventy six BETWEEN M/s. K.   B. Saha & Sons (Biri Merchants)   Limited,         a      body      corporate   registered under the Companies Act,   1956 having its registered office   at 28/8, Gariahat Road within   P.S. Tollygunge, Calcutta-700 029   within      the     local       limits    of   Corporation             of         Calcutta   hereinafter called the landlords   (which           expression           unless   repugnant to the context shall   include        its      successors       and   assigns) of the First Part AND   DEVELOPMENT CONSULTANTS PRIVATE LTD, a   body corporate registered under the   Companies       Act,1956       having    its   registered office at present at   premises No.24-B, Park street,   Calcutta,         within       P.S.     Park   Street, Calcutta- 16 hereinafter   called the tenant (which expression   unless repugnant to the context   shall include its successors and   assigns.) of the Second Part;

 W HEREAS the party of the F IRST PART ,   the Landlord hereof is the sole   owner       and    proprietor       of   multistoreyed      buildings    being   Premises No. 28/8, Gariahat Road,   within P.S. Tollygunge, Calcutta-29

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within      the    local    limits     of corporation of Calcutta AND WHEREAS the said Landlord, party of the first part hereof offered to let out flat No. 3 on the 2nd floor of the     said    premises    along    with fittings,           fixtures          and installations therein at a total monthly      rental     of     Rs.1100/- (Rupees One Thousand One Hundred) only inclusive of rent of fittings and fixtures and service charges and parking space for one car AND WHEREAS  the party of the second part hereof approached the party of the first part hereof and offered to it the said flat No.3 of the 2nd floor of the said premises No,28/8, Gariahat Road, Calcutta-29       for   the    use    and occupation of its present Chief Engineer (Cement) of the aforesaid party Mr. Keshab Das            and   the members      of    his    family     only agreeing and accepting to the aforesaid offer by the party of the first part at a total rental of     Rs.1,100/    -   (    Rupees   One thousand       one     hundred      only) inclusive of the rent of fittings and fixtures, service charges and parking space for one car AND WHEREAS the party of the first part hereof has agreed to let out the said flat to the party hereto of the second part for the use and occupation of its present said Chief Engineer (Cement) and his family members only AND WHEREAS the party of the first part agrees to

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   give vacant possession of the     said tenancy and the party of the     second part hereto agrees to take     possession of the said tenancy for     the use and occupation of the said     Chief Engineer (Cement)and his     family members on First day of     April, 1976"

   Clause-9   of   the   Agreement   runs   as

follows :-

   "That the party of the second     part hereof agrees and undertakes     that the tenancy will be used and     occupied by its present officer     Mr. Keshab Das and members of his     family for residential purpose     only and for no other purposes.     If the tenant intends to use the     tenancy for occupation of any     other officer or employees, it     will seek for written consent of     the landlord and the landlord     shall have the option to agree or     disagree to give such consent".

   Clause 20 of the said agreement is as

follows :-

   "That the tenant shall vacate and     deliver vacant Khas possession of     the demised premises unto the     landlord   on    termination   or

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     determination of the tenancy with       whole of the fittings and effects       in as sound, perfect and clear       condition as they were at the       commencement   of   the   tenancy       excepting natural wear and tear".

7.    In view of the pleadings of the parties,

the   following     issues   were     framed     by   the

trial court in Title Suit No.19 of 1992: -

     1.Has the plaintiff any cause of          action for the suit ?       2.Is the suit maintainable in its          present form and in law?       3.Was the suit premises let out          by   the   plaintiff    to   the          defendant     for      providing          accommodation to its particular          officer viz. Mr.Keshab Das ?       4.Is the plaintiff entitled to          get the decree as prayed for ?       5. To what relief, if any, is the          plaintiff entitled ?

8.    In   Title   Suit   No.39/95,    the     following

issues were framed: -

     1.Is the suit maintainable?       2.Whether the notice of ejectment         is     valid,      legal    and         sufficient ? If so, was it duly         served upon the defendant ?

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              3.Whether the      defendant    is a                   defaulter in payment of rent as                   alleged ?                4.Whether     the    defendant    has                   caused   damage    to   the   suit                   premises ?                5.Whether     the    defendant    has                   violated   the    terms   of   the                   memorandum of agreement by not                   vacating the premises after the                   same having been vacated by                   Mr.Keshab Das ?                6. To what relief, if any, is the                   plaintiff entitled ?.

        9.    Considering the different clauses of the

        lease agreement and on consideration of the

        evidence on     record    and    the    contentions    of

        the   learned   counsel    for    the    parties,     the

        trial court     finally    came    to    the   following

        findings : -

I)   The suit premises was let out by the      appellant to the respondent initially for      providing accommodation to its particular      officer namely Mr. Keshab Das and members      of his family, which could not mean that      the tenancy was created exclusively for      the accommodation and residence of Mr.      Keshab Das and his family only.

II) The tenancy was created in respect of the     suit premises in favour of the respondent.

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III) Since the tenancy was determinable and      terminable by a legal sufficient valid      notice under the Act to the respondent,      the respondent could be directed to vacate      the suit premises only on proof of the      grounds mentioned in Section 13(1) of the      Act.

IV) Since the respondent was depositing rent     in the office of the Rent Controller,     Calcutta,   the  respondent   was  not   a     defaulter in payment of rent as a tenant     and therefore, not liable to be evicted on     the ground of default.

V)   The respondent was a tenant in respect of      the suit premises although it was taken      exclusively for the benefit of the named      officer and therefore, the named officer      Mr. Das was only occupying the suit      premises on behalf of the respondent.

VI) Since, admittedly, the lease agreement was      not   registered,  which    document   under      Section 49 of the Registration Act was      required   to   be  registered,   the   said      agreement was not admissible in evidence. VII) The lease agreement, being an unregistered      document, could not be used to establish      that the suit premises was let out to the      respondent    only for    the   purpose   of      occupation of its employee Mr. Keshab Das      and the members of his family for their      residential purpose and for no other      purpose.

VIII) From the agreement, which could be seen as      a collateral evidence, the purpose of the      tenancy was clearly for residence and,      therefore, the question of violation of

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Clause (o) of Section 108 of the Transfer of Property Act by the respondent in the facts and circumstances of the case could not arise at all.

   10. On the aforesaid findings arrived at by

   the     Trial       Court,         both        the     suits       were

   dismissed       and    the       High        Court    on    the    same

   lines had affirmed the findings of the trial

   court and held that no ground was made out

   by    the     appellant          to    evict     the       respondent

   from the suit premises.

   11. Mr.       Somnath        Mukherjee,              the     learned

         counsel       appearing           on     behalf        of     the

         appellant        submitted              that     the        lease

         agreement       (Ext.4)         creating       tenancy       from

         month    to   month        in     respect       of    the    suit

         premises             was           not          compulsorily

         registerable         under        Section       107     of    the

         Transfer        of     Property           Act.        He     also

         contended that the High Court as well as

         the   trial     court           were    wrong    in     holding

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that    the     lease         agreement        being    an

unregistered document cannot be used to

establish      the     provisions       made    in     that

agreement that the suit premises was let

out    to     the     respondent       only     for     the

purpose of occupation of the respondent’s

named officer Mr. Keshab Das and members

of his family and for no other purpose.

He further contended that since the lease

agreement in question was not required to

be registered, the prohibition contained

in Section 49 of the Registration Act was

not applicable. He also contended in the

alternative that even if it was held that

the    lease        agreement     in    question        was

compulsorily        registrable,       even     then   the

purpose of letting specified in the lease

agreement was a ‘collateral purpose’ and

accordingly, the lease agreement could be

looked into under the proviso to Section

49 of the Registration Act and also that

the    said    term     did     not    extinguish       the

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tenant’s right under the Act. Lastly, he

contended         that        the     respondent          had

violated section 108(o) of the Transfer

of    Property     Act        and,    accordingly,         was

liable to be evicted under Section 13(1b)

of the Act. Mr. Mukherjee contended that

the lease agreement between the parties

was not illegal and against the statute.

In      support          of         this         contention,

Mr.Mukherjee relied on a decision of this

Court in the case of Smt. Juthika Mulick

&    Anr.   vs.    Dr.Mahendra            Yashwant      Bal   &

Ors. [AIR 1995 SC 1142] and he strongly

relied      on    paragraph          42     of    the     said

decision which says:

   "As general proposition of law,     there can be no demur that there     is no estoppel against a statute.     The language of Section 13 of the     Act makes it clear that only if     anything is found contrary in any     other law an order or decree for     the recovery of possession of any     premises shall be made by any     court in favour of the landlord     against a tenant. This wording is

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   peculiar unlike most of the Rent     Control       Legislations        where     contract to the contrary is also     enveloped in affording protection     to the tenants against eviction.     In view of the language of Section     13(1) of the Act, the parties have     freedom    to    contract     out    of     Section. In this case clause (1)     of the lease-deed extracted above     stipulates    that    the   heirs    of     lessee will have no right to hold     after the death of lessee and they     have to deliver quiet, peaceful     and vacant possession within three     months after the demise of the     original lessee. In other words,     the    right      has     been     made     specifically not heritable."

12. In order to appreciate the submissions

made by Mr. Mukherjee, the learned counsel

appearing     on   behalf     of    the    appellant,     it

would   be    necessary       for   us     to   look    into

Section 107 of the Transfer of Property Act

which would be, in our view, material for

rendering     proper     decision     in    this   appeal.

Accordingly, Section 107 of the Transfer of

Property     Act   may   be   quoted       which   runs   as

under :

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   "Lease how made - 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.

   All other leases of immoveable     property may be made either by a     registered instrument or by oral     agreement accompanied by delivery     of possession.

   Where   a   lease   of immoveable     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     immoveable 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.

13. Another   section   which   would   also   be

material for us to decide this appeal is -

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Section   49    of   the   Registration   Act    which

runs as under :

       "Effect of non-registration of     documents required to be registered     - No document required by Sec.17     [or   by   any   provision   of   the     Transfer of Property Act, 1882 (4     of 1882) to be registered shall -     (a) affect any immoveable property         comprised therein, or     (b) confer any power to adopt, or     (c) be received as evidence of any         transaction     affecting    such         property or conferring such         power, unless it has been         registered :     Provided    that   an    unregistered     document     affecting     immoveable     property and required by this Act     or the Transfer of Property Act,     1882 (4 of 1882), to be registered     may be received as evidence of a     contract in a suit for specific     performance under Chapter II of the     Specific Relief Act, 1877 (3 of     1877), or as evidence of any     collateral transaction not required     to   be   effected    by   registered     instrument."

14. Having heard the learned counsel for the

appellant      and   after    going   through      the

judgment of the High Court as well as of the

trial court, we do not find any ground for

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which    interference          can    be    made   with     the

judgment of the High Court. We may note that

it was the case of the respondent before the

High    Court    that     it    was    protected       by   the

provisions of the Act and that it could not

be     evicted     only        because       as    per      the

agreement, the tenancy was to be occupied by

one of its officers. The appellant, on the

other    hand,     as    noted       hereinabove,       placed

reliance on the decision of this court in

Smt. Juthika Mullick’s case [supra], to put

forth    the     point    that       the    respondent      was

bound to vacate the premises after the said

officer had left the premises and relying on

Smt.Juthika Mulick’s case [supra] submitted

that    the    lease     agreement         was   not   at   all

contrary to the provisions of the Act and

that the parties were at liberty to contract

out of the Section delineating the various

grounds for eviction. We may note at this

stage that in that decision, this court had

held that although the tenant was protected

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under the provisions of Section 13 of the

Act and such tenant could be evicted only

for one or more grounds as provided in that

Act, the parties had the freedom to enter

into an agreement to take their case out of

the    provisions        of      that       Section          i.e.    the

parties were at liberty to contract out of

that    section.         Before        we        deal     with      the

submission of Mr. Mukherjee, learned counsel

appearing     on    behalf        of    the       appellant,         on

this question, we may look into the findings

arrived      at    by     the      High          Court       on     this

question.     The       High     Court       in    the       impugned

judgment has come to a conclusion that the

decision      in     the        case        of     Smt.        Juthika

Mulick’s     case        (Supra)        cannot          be    of     any

benefit to the appellant on the ground that

in Smt.Juthika Mulick’s case, the respondent

had leased out the premises in question in

favour of the lessee under a registered deed

of    sale   whereas       in    the     instant         case,       the

lease    deed      was     not     registered.               The    High

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Court has observed that the lease agreement

between    the      parties        was    in        effect        an

agreement for lease of the suit premises and

was unregistered. Relying on Section 49 of

the   Registration        Act,          the        High        Court

observed that a document purporting to be a

lease and     required        to   be    registered            under

Section 107 of the Transfer of Property Act

is not admissible in evidence if it is not

registered. Proviso to Section 49, however,

provides that although a lease deed falling

under the provision of Section 107 of the

Transfer     of     Property        Act       will        not     be

admissible in evidence if the same is not

registered    but      that    deed      may       be   used      as

evidence of any collateral transaction not

required    to    be    effected         by    a     registered

instrument.       Therefore,            the     High           Court

observed that the question to be decided in

this appeal is whether the conditions noted

in the lease deed could be looked into for

determining the question that the tenancy in

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question would be used only for the purpose

of occupation of the named officer of the

respondent.

15. Section          49    clearly       provides        that     a

document       purporting          to    be     a     lease     and

required to be registered under Section 107

will not be admissible in evidence if the

same    is     not     registered.        Proviso       to     this

section,       however,         as      noted       hereinabove,

provides that an unregistered lease deed may

be    looked    into       as   evidence        of    collateral

facts.   Mr.     Mukherjee,           learned        counsel    for

the    appellant          argued      before    us     that     the

tenancy in question was exclusively granted

for the benefit of the named officer and his

family    and        unless     the     landlord       gave     his

consent, no other person could use it and

such    condition         in    the     lease    agreement       is

admissible for ascertaining the purpose of

allotting the suit premises which according

to the appellant is a collateral fact.

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16. Having heard the learned counsel for the

appellant,       we    are     of    the        view     that    the

decision       of     this    Court        in    Smt.      Juthika

Mullick’s       case     [supra],         on     which     strong

reliance was placed by the learned counsel

for   the      appellant      is     of    no     help     to    the

appellant because as rightly pointed out by

the High Court, the said decision was based

on    a     registered          deed        of         lease.     In

Smt. Juthika Mulick’s case [supra], as noted

herein earlier, it has been held that the

language of Section 13 of the Act makes it

clear that notwithstanding anything to the

contrary       contained       in    any        other     law,    an

order     or        decree     for        the     recovery        of

possession of any premises shall be made by

the court in favour of the landlord against

a tenant on the grounds mentioned in that

section.        It was further observed that in

view of the language of Section 13(1) of the

Act, the parties             have    freedom       to     contract

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out   of    the    Section.         In     the     aforesaid

judgment    of     this    Court,     on     which    strong

reliance was       placed    by    the     appellant,     the

fact was that the predecessor-in-interest of

the respondents       in    that    appeal       leased   out

the premises in question in favour of one

Lal Bihari Mulick in a registered deed of

lease at a monthly rental of Rs. 160/- and

the lease deed contained a covenant that the

lease was for the lifetime of the lessee and

his      heirs,      executors,            administrators,

representatives and the heirs must yield up

and   deliver      quiet,     peaceful        and     vacant

possession    of    the     demised      premises     within

three months from the date of death of the

lessee     unconditionally          and      without      any

objection     whatsoever.             It     was     further

stipulated that they shall have no right to

handover the demised premises after the said

period under any circumstances. The lessee

died on 16th of December, 1970 and his heirs

did not deliver vacant possession in favour

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of     the     lessors        or      their        successors            in

interest and this necessitated filing of the

suit    for        eviction      of    the       defendants.             In

that decision,             the    main      defence         raised       in

the written statement was that the original

lessee Lal Bihari Mulick, having died on 16th

of     December,          1970,       the    registered            lease

dated 11th of July, 1966 shall fall under the

category of the West Bengal Premises Tenancy

Act    and     the    tenants         were       residing     in        the

demised premises with the said lessee namely

Lal     Bihari        Mullick         during          his    lifetime

became monthly tenants under the plaintiffs

of that case by operation of law.                             In view

of the aforesaid facts and considering the

fact    that        the    aforesaid         decision        of     this

Court     was        rendered         on     the      basis        of     a

registered lease deed, we are of the view

that         the      said         decision            is     clearly

distinguishable              from          the     present          case

because       of     the    fact      that       in    the    present

case, there was no registered deed of lease

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nor was there any such covenant as mentioned

hereinabove.          Therefore, we do not find any

ground     to     place      any      reliance          on     the

aforesaid decision of this court.

17. As we have already noted that under the

proviso to       Section      49    of    the       Registration

Act, an unregistered             document        can    also    be

admitted     into      evidence       for       a    collateral

fact/collateral purpose, let us now look at

the meaning of "collateral purpose" and then

ascertain       whether      Clause       9    of     the    lease

agreement       can     be   looked           into     for   such

collateral       purpose.            In       Haran      Chandra

Chakrvarti Vs. Kaliprasanna Sarkar [AIR 1932

Cal 83(2)], it was held that the terms of a

compulsorily          registrable          instrument          are

nothing    less       than   a     transaction         affecting

the property comprised in it. It was also

held that to use such an instrument for the

purpose of proving such a term would not be

using it for a collateral purpose and that

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the question as to who is the tenant and on

what terms he has been created a tenant are

not collateral facts but they are important

terms    of    the     contract        of   tenancy,     which

cannot    be     proved           by   admission       of   an

unregistered lease-deed into evidence.

18. The High Court in the impugned Judgment

relied on a decision of the Allahabad High

Court in the case of Ratan Lal & ors. Vs.

Harisankar & Ors. [AIR 1980 Allahabad 180]

to hold that since the appellant wanted to

extinguish the right of the respondent with

the help of          the    unregistered      tenancy,      the

same was not a collateral purpose. In Ratan

lal’s    case    [supra],          while    discussing      the

meaning   of    the        term    "Collateral     Purpose",

the High Court had observed as follows :-

   "The second contention was that     the partition deed, even if it was     not registered could certainly be     looked   into   for   a collateral     purpose,    but    the  collateral     purpose has a limited scope and

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   meaning. It cannot be used for the     purpose of saying that the deed     created or declared or assigned or     limited or extinguish the right to     immovable     property    ..........term     collateral   purpose   would         not     permit the party to establish any     of these acts from the deed."

19. In the case of Bajaj Auto Limited vs.

Behari Lal Kohli [AIR 1989 SC 1806] , this

Court     observed      that    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 was also held in that

decision    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.

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Again   this   court    in     Rai    Chand   Jain    Vs.

Chandra   Kanta      Khosla    [AIR    1991   SC     747]

reiterated     the     above     and     observed     in

paragraph 10 as under : -

   ".......the lease deed Ex. P1 dated     19th May, 1978 executed both by     the appellant and the respondent     i.e. the landlady and the tenant,     Rai          Chand     Jain,      though     unregistered can be considered for     collateral purposes and as such     the findings of the Appellate     Authority to the effect that the     said deed cannot be used for     collateral purposes namely to show     that the purpose was to lease out     the         demised     premises     for     residential purposes of the tenant     only       is    not at    all   legally     correct. It is well settled that     unregistered lease executed by     both the parties can be looked     into for collateral purposes. In     the instant case the purpose of     the lease is evident from the deed     itself which is as follows: "The     lessor hereby demises House No.     382, Sector 30-A, Chandigarh, to     lessee for residential purposes     only". This clearly evinces that     the property in question was let     out       to    the  tenant    for   his     residence only...."

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20. In the case of Rana Vidya Bhushan Singh

Vs.     Ratiram   [1969   (1)   UJ   86   (SC)],   the

following has been laid down:

     "A document required by law to be       registered, if unregistered, is       inadmissible as evidence of a       transaction   affecting    immovable       property, but it may be admitted       as evidence of collateral facts,       or for any collateral purpose,       that is for any purpose other than       that   of   creating,    declaring,       assigning,        limiting        or       extinguishing a right to immovable       property. As stated by Mulla in       his Indian Registration Act, 7th       En., at p. 189 :

     "The High Courts of Calcutta,       Bombay, Allahabad, Madras, Patna,       Lahore,   Assam,   Nagpur,   Pepsu,       Rajasthan, Orissa, Rangoon and       Jammu & Kashmir; the former Chief       Court   of   Oudh;   the   Judicial       Commissioner’s Court of Peshawar,       Ajmer and Himachal Pradesh and the       Supreme Court have held that a       document       which       requires       registration under Section 17 and       which is not admissible for want       of registration to prove a gift or       mortgage or sale or lease is       nevertheless admissible to prove       the character of the possession of       the person who holds under it."

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21. From     the    principles         laid    down    in     the

various decisions of this Court and the High

Courts, as     referred        to    hereinabove,       it     is

evident that :-

1. A document required to be registered is

 not admissible into evidence under Section

 49 of the Registration Act.

2. Such unregistered document can however be

 used as an evidence of collateral purpose

 as provided in the Proviso to Section 49

 of the Registration Act.

3. A    collateral            transaction          must        be

 independent        of,      or    divisible      from,      the

 transaction        to       effect     which        the     law

 required registration.

4. A    collateral         transaction         must     be      a

 transaction        not      itself     required       to     be

 effected     by    a     registered     document,          that

 is,    a   transaction            creating,      etc.       any

 right,     title       or   interest        in   immoveable

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 property          of    the       value       of    one           hundred

 rupees and upwards.

5. If a document is inadmissible in evidence

 for    want        of       registration,           none          of    its

 terms can be admitted in evidence and that

 to     use    a     document           for    the       purpose          of

 proving an important clause would not be

 using it as a collateral purpose.

22. In our view, the particular clause in

the lease agreement                 in    question         cannot           be

called     a        collateral           purpose.              As        noted

earlier,       it    is       the   case       of    the       appellant

that the suit premises was let out only for

the     particular             named        officer             of         the

respondent and accordingly, after the same

was     vacated          by     the      said        officer,              the

respondent was not entitled to allot it to

any other employee and was therefore, liable

to be evicted which, in our view, was an

important       term      forming         part       of    the           lease

agreement.               Therefore,            such        a        Clause,

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namely, Clause 9 of the Lease Agreement in

this case, cannot be looked into even for

collateral purposes to come to a conclusion

that the respondent was liable to be evicted

because      of   violation          of    Clause          9    of    the

Lease Agreement.              That being the position,

we are unable to hold that Clause 9 of the

Lease        Agreement,         which           is         admittedly

unregistered,          can    be     looked      into          for    the

purpose of evicting the respondent from the

suit    premises       only     because         the    respondent

was not entitled to induct any other person

other than the named officer in the same.

23. Before we part with this Judgment, let

us deal with another ground, which the High

Court    had      also       taken    into       consideration.

This    is    with     regard        to    the       violation         of

provisions        of     Section          108        (o)        of    the

Transfer of Property Act.                    Section 108 (o)

clearly provides             that    the    Lessee             must   not

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use or permit another to use the property

for a purpose other than that for which it

was   let     out    or    leased.          Relying     on    this

provision,      the        learned        counsel      for    the

appellant argued that since the purpose of

the lease was for the use and occupation of

one of the officers of the respondent, after

the    said     officer          had      vacated      the    suit

premises,      the    respondent,           by   refusing       to

handover the possession of the suit premises

to the appellant and by giving the same to

another officer, had violated the provisions

of    Section       108        (o)   of    the   Transfer       of

Property       Act.             Before     we    decide       this

question,       it        is     necessary       for     us     to

reproduce the finding of the High Court on

this aspect, which is as follows: -

     "....Clause (O) of Section 108 of       the T.P. Act touches the question       of user. This clause requires the       lessee to use the property as a       man of ordinary prudence would use       his property and not to use the       property, for any other purpose,       for which it is leased. In the

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     instant case, from the tenancy       agreement, what can be seen as a       collateral evidence is the purpose       of the tenancy and such purpose       clearly    is    for    residence.       Therefore, there is no question of       violation of Clause (o) of Section       108 of the T.P. Act by the       tenant/company in the facts and       circumstances of the case."

24. We have carefully examined the aforesaid

finding of the High Court on the question of

violation of Section 108 (o) of the Transfer

of Property Act. In our view, the High Court

was justified in coming to a conclusion that

since    this     was   not    a   case    of   ‘Change      of

User’ within the meaning of Section 108 (o)

of the Transfer of Property Act, it could

not be held that the appellant had violated

the   provisions        of   Section      108   (o)    of   the

Transfer     of    Property        Act.    Section      108(o)

requires the lessee to use the property as a

man     of   ordinary        prudence     would       use   his

property and not to use it for a purpose

different to that for which it was leased.

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It is true that under Section 108 (o) of the

Transfer       of     Property            Act,    ‘use       of    the

property for the purpose other than that for

which it was leased i.e. ‘Change of User’ is

not    permitted.               Therefore,         we       have     to

consider       whether      in       the     backdrop         of    the

facts of this case, violation of Clause 9 of

the lease agreement, even if it is held that

it    can      be     looked         into        for    collateral

purposes, would be ‘Change of User’ or not.

In other words, we have to find whether the

expression ‘change              of    user’       would      cover    a

situation wherein           the       property         is    let    out

for a particular named officer and for none

else and despite this condition, the same is

given to some one else, or would it cover

and be limited to the cases where property

is    leased    out       for    a    residential            or    non-

residential          purpose         or    for     a    particular

business            and     despite              such         express

conditions,         the    property         is    used       for    the

purpose other than the specified.                           We are of

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the view that letting out or leasing out the

property       for    a     particular         named      officer

cannot    be    the   ‘purpose’       of       letting.         The

purpose of letting out would be residential

or     non-residential         or    for        a    particular

business etc.

25. The      learned      counsel        for    the       appellant

placed    strong      reliance      on    the       decisions     of

this court in Dashrath Baburao Sangale and

others Vs. Kashimath Bhaskar Data [AIR 1993 SC

2646] and M. Arul Jothi and another Vs. Lajja

Bal (deceased) and another [AIR 2000 SC 1122]

to suggest that the respondent had violated

Section      108(o)    of    the    Transfer         of   Property

Act. After carefully examining the aforesaid

decisions of this Court, we do not find any

support      from     the    said     decisions           for    the

purpose of holding that the present case is

covered by the expression ‘Change of User’ as

used    in   Section      108(o)     of    the      Transfer      of

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Property Act.          In        Dashrath            Baburao

Sangale’s case [supra], the premises was let

out to the tenant for sugarcane juice business

whereas the tenant was using the premises for

selling   cloth   and       readymade   clothes      and    on

this ground, it was held that he was liable to

be evicted on account of ‘change of user’.

Similarly, in M. Arul Jothi’s case [supra],

the tenant was held liable for eviction when

the shop rented to him for carrying on the

business of radios, cycles, fans, clocks and

steel furniture was converted into a grocery

store despite a specific clause in the rent

agreement forbidding the same.

26. Therefore, in the present case, we are of

   the view that although the premises was

   leased      out    exclusively      for    the    named

   officer of the respondent, the fact that

   it    was     subsequently          used    for        the

   residence of some other officer of the

   respondent        would   not   constitute       ‘change

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   of user’ so as to be hit by Section 108

   (o) of the Transfer of Property Act.

27. Before we part with this judgment, we may

   deal     with   a    short       submission       of       Mr.

   Mukherjee that since the lease agreement

   in   question       was   simplicitor        a    tenancy

   agreement,      which       is     not    compulsorily

   registrable, the respondent was liable to

   be evicted even under the provisions of

   the Act. We are unable to agree with this

   contention      of    Mr.        Mukherjee       for       the

   simple    reason     that    for    a    decree       to    be

   passed under the Act, the landlord has to

   plead     and   prove       one     of    the     grounds

   mentioned in Section 13 of the Act. Even

   if we accept that the appellant had made

   out a case under Section 13(1b) of the

   Act to the extent that the respondent was

   liable to be evicted under Section 108(o)

   of the Transfer of Property Act, in view

   of our findings made hereinabove on that

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      aspect, the appellant is not entitled to

      a decree of eviction under the Act.

28. In     view            of     our         discussions             made

hereinabove, we are, therefore, of the view

that     Clause        9     of        the    Agreement,             which

requires    the        respondent             to     use    the       suit

premises     only           for       its     particular             named

officer,    can        not      be     looked       into    even       for

collateral purposes and that the decision of

this court        in       Smt.      Juthika        Mullick’s         case

[supra]    would        not       be    of    any        help    to    the

appellant because               in     that    case,       the       lease

deed was registered.

29.Secondly,           we       are      of        the     view       that

 although the suit premises was leased out

 exclusively for the named officer of the

 respondent, the fact that the respondent

 sought to use it for some other officer

 would     not        constitute             "Change       of       User"

 within the meaning of Section 108(o) of

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 the    Transfer       of   Property    Act        and,

 therefore,     the     respondent     cannot        be

 evicted for violation of the provisions of

 Section 108(o) of the Transfer of Property

 Act.

30.No other point was raised by the learned

 counsel for the appellant and accordingly,

 we do not find any merit in this appeal

 and the appeal is therefore dismissed.

31.Since the suits have been dismissed and

 no argument was advanced in respect of the

 other appeal i.e. the appeal in respect of

 the injunction suit, the said appeal shall

 also stand dismissed.

32. Since the appeals have been dismissed,

all the interlocutory applications, if any,

now pending    before    this   Court   have    become

infructuous    and      accordingly,     they        are

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disposed of as infructuous.            There will be

no order as to costs.

                         .............................................J.                                    [A.K.MATHUR]

New Delhi;                     .............................................J. May 12, 2008                  [TARUN CHATTERJEE]

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