[This Second Appeal came on for hearing on 30th day of September and 1st and 8th days of October 1919, before their Lordships Spencer and Krishnan, JJ.]

Spencer, J. The question raised in Second Appeal is whether Ex. B, which is an unregistered lease for six months of a house at a rent of eight annas a month, was admissible in evidence to prove that defendants 1 to 3 occupied the house as fourth defendants tenants.

To be effective as a lease of immoveable property this document required registration under Sect. 107 of the Transfer of Property Act, although being a lease for a period less than one year, it was not compulsorily registrable under Sect. 17 ( d ) of the Indian Registration Act (XVI of 1908.)

Sect. 107 of the Transfer of Property Act provides that leases of immoveable property from year to year or for any term exceeding one year must be made only by a registered instrument and that all other leases may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.

No place is provided by this section for written but unregistered leases, even for periods of less than one year, whether accompanied by delivery of possession or not. Similarly, Sect. 54 of this Act makes no provision for written but unregistered sale deeds of immoveable property even in cases where the value is less than rupees one hundred. In fact a lessee or a purchaser in possession who can prove an oral agreement is better off than one who holds an unregistered instrument, when his title is in question.

Sect. 4 provides that Sect. 107 and the material portions of Sect. 54 are to be read as supplemental to the Indian Registration Act. Does this signify that Sect. 107 is to be understood as supplementing particular sections of the Registration Act If for instance all instruments referred to in Sect. 107 are to be added to the list of instruments compulsorily registrable under Sect. 17 of the Registration Act, the effect will be to enlarge cl. ( d ) of that section by including leases of immoveable property for terms of less than one year. In that case the Legislature would have to be accused of a very clumsy device for avoiding an alteration in the wording of the section, which of itself does not provide for all leases of immoveable property without exception being registered. Again, if Sect. 107 is to be read as supplementing particular sections of the Registration Act, it may equally well be taken as supplementing Sect. 18 and thereby making the registration of leases for more than a year optional. Thus there would be a contradiction in terms between Sects. 17 and 18.

In my opinion it was only intended that Sect. 107 of the Transfer of Property Act should be taken as a whole and read as supplemental to the Registration Act as a whole.

In Kaki Subbanadri v. Muthu Rangayya (I.L.R., 32 Mad., 532) [LQ/MadHC/1909/103] there are words which imply that the learned Judges who decided that case accepted the argument that Sect. 107 of the Transfer Property Act was to be read as supplemental to Sect. 17 of the Registration Act (XVI of 1908). In Muthukaruppan v. Aluthu (I.L.R., 38 Mad., 1158 [LQ/MadHC/1914/332] ; s.c., 1 L.W., 754) there are similar observations as to the effect of Sect. 4 to those mentioned in Kaki Subbanadri v. Muthu Rangayya (I.L.R., 32 Mad., 532) [LQ/MadHC/1909/103] with due respect I cannot appreciate them. The learned Judges in the former case avoided the difficulty, which that argument led to, by saying that an undertaking to occupy certain premises was not an instrument referred to in Sect. 107 of the Transfer of Property Act. For that matter, unregistered leases are not specifically mentioned in Sect. 107, except in the proviso which relates to exemption by the Local Government of unregistered leases for a term of less than one year. In this Presidency there has been no such exemption by notification of Government. The result is that by the amendment of this Act by Act VI of 1904 all leases except agricultural leases, which fall under Sect. 117, must be registered. Otherwise they do not have the effect of passing the right to enjoy the property. But Sect. 49 of the Registration Act deals only with documents required by Sect. 17 to be registered when it declares that such documents shall not be received in evidence of any transaction affecting immoveable property until they have been registered. As I have endeavoured to show, the document which has been exhibited in this case as Ex. B is not a document falling under Sect. 17. That is a sufficient reason for supporting the Subordinate Judges reference to Exhibit B as a piece of evidence in the case, and as there are no other points of law, for dismissing the appeal with costs, I only wish to add my regret that the sections of these two Acts, which deal with short leases have been left in a state of obscurity which renders the value of unregistered documents a matter of considerable ambiguity. I cannot believe that if it was the intention of the Legislature to make unregistered leases for periods of less than one year of no practical value, they would have limited the compulsory registration of leases under Sect. 17 ( d ) of the Registration Act to leases for a term exceeding one year. When Act III of 1877 was superseded in 1908 by Act XVI of that year, Sects. 17 and 49 remained practically unaltered. Nor can I believe that it was intended that a tenant who receives a letter from a house-owner living say in Madras allowing him to occupy his house say in Ootacamund for six months on a fixed rent should be in a worse position after he commences his occupation than one who has only got Verbal permission for such occupation.

I therefore think that this appeal should be dismissed with costs, but as there has admittedly been considerable difference of opinion in the view taken by several Benches of this Court as to the effect of Sects. 4, 54 and 107 of the Transfer of Property Act read with Sect. 49 of the Registration Act, I agree to refer the question as to the admissibility of Ex. B as evidence of the tenancy of defendants 1 to 3, to a Full Bench.

Krishnan, J. The question for decision in this Second Appeal is, as stated by my learned brother, whether Ex. B is admissible in evidence to prove that defendants 1 to 3 occupied the suit house during the period mentioned in it, as tenants of the fourth defendant and not in their own right.

Ex. B is an unregistered muchilika or written undertaking executed by the 1st defendant in favour of the fourth by which he agreed to occupy the suit house as the latters tenant for six months at a rent of eight annas a month. That a lease can be made by such a document when accepted by the lessor even though it is not one signed by the lessor was settled by the Full Bench in Syed Ajani Sahib v. Ananthanarayana Aiyar , (I.L R., 35 Mad., 95 [LQ/MadHC/1910/384] p. 99) over-ruling the opinion to the contrary expressed in Turof Sahib v. Esuf Sahib(I.L.R., 30 Mad. 322) and Kaki Subbanadri v. Muthu Rangayya (I.L.R., 32 Mad., 532) [LQ/MadHC/1909/103]

The argument of the appellant against the admissibility of the document in evidence may be briefly stated as follows: Ex. B is an instrument falling under the 2nd clause of Sect. 107, Transfer of Property Act; by virtue of Sect. 4, C

1

. (2) of the same Act Sect. 107 should be read as supplemental to Sect. 17 ( d ) of the Registration Act (XVI of 1908) and Sect. 49 ( c ) of the same Act therefore makes it inadmissible in evidence in proof of any transaction affecting the property as it is unregistered. It cannot therefore be used to prove the tenancy of the defendants 1 to 3.

On the points that arise on the above contention there seems to be some difference of judicial opinion in this High Court. In Muthukaruppan v. Muthu (I.L R., 38 Mad., 1158 [LQ/MadHC/1914/332] , s.c., 1 L.W., 754 ) it was held by a bench of this Court that in the analogous case of a sale for less than Rs. 100 dealt with by Sect. 54, Cl. (3) of the Transfer of Property Act, the unregistered instrument evidencing it was not admissible in evidence, even for the purpose of showing the nature of the occupiers possession. See page 116

1. The subsequent discussion shows that the learned Judges were basing their view on Sect. 49 (c) of the Registration Act though they do not expressly refer to it. This view involves the position that the effect of Sect. 4, Cl

. (2) of the Transfer of Property Act is to make Sects. 54, Cls

. (2) and (I.L.R., 32 Mad., 532) [LQ/MadHC/1909/103] , 59, 107 and 123 parts of Sect. 17 of the Registration Act; otherwise, Sect. 49 which in terms refers only to documents mentioned in Sect. 17 will not apply. The rulings in Kommachi Kather v. Pakker (I.L.R., 20 Mad., 109) and Kaki Subbanadri v. Muthu Rangayya (I.L.R., 32 Mad., 532) [LQ/MadHC/1909/103] (which has not been dissented from on this point) and the observation of the learned Chief Justice in the Full Bench case of Syed Ajam Eahib v. Anantanarayana Aiyar (I.L.R., 35 Mad., 95 [LQ/MadHC/1910/384] p. 99), are in favour of the view that the effect of Sect. 4 is to make Sect. 107 and other sections referred to in it integral parts of Sect. 17.

On the other hand, Sadasiva Aiyar and Napier, JJ. have dissented from the view expressed in Muthu Karuppan v. Muthu (I.L.R., 38 Mad 1158 [LQ/MadHC/1914/332] , s.c., 1 L.W., 754) in their judgments reported in Kathari Narasimha Raju v. Bhupati Raju (2 L.W., 964) Napier, J. in particular observes I am however unable to agree with it (that is, the view expressed in Muthu Karuppan v. Muthu (I.L.R., 38 Mad 1158 [LQ/MadHC/1914/332] , s.c., 1 L.W., 754)) The document is not compulsorily registrable under Sect. 17 of the Registration Act and therefore we have not to consider whether the proposed use to prove the agreement would not be permissible, because it would affect immoveable property within the meaning of Sect, 49 of the Registration Act. I am unable to accept the construction put on Sect. 54 in the above case that it requires all sale deeds, if in writing, to be registered. In my opinion it only requires that if the sale deed is to be relied on to establish the transfer, it must be registered. There being no law requiring the document to be registered, I see no reason why it should not be proved and used as required by the Evidence Act Sect. 91 and it was admitted in evidence to prove an oral sale. On the above reasoning, it will be equally correct to hold that an unregistered lease-deed which is not relied on for the purpose of proving the creation of a lease by its own force or for the enforcement of the terms of it is not required to be registered by Sect. 107, Transfer of Property Act, and is admissible in evidence for the collateral purpose of proving either an oral lease or for explaining the nature of the possession of the person in occupation.

Again in Poomalai Udyan v. Karuppa Servai , (34 I.C., 921 s.c., (1916) 2 M.W.N. 136) another Bench took the same view. The learned Judges held that under Sect. 54 (3), Transfer of Property Act, an unregistered instrument of sale, where the property sold was less than Rs. 100 in value, was admissible in evidence to prove the antecedent oral contract to sell and if coupled with delivery of possession was sufficient to transfer title. The learned Judges point out that Sect. 49 of the Registration Act deals only with documents required by Sect. 17 to be registered.

My learned brother also takes the view that Sect. 49 ( c ) cannot be applied to Ex. B.

In view of this conflict of judicial opinion, I think it is desirable to have the question settled by a Full Bench. I would therefore refer to a Full Bench the following question:

Is Exhibit B admissible in evidence to prove that defendants 1 to 3 were in occupation of the plaint house as 4th defendants tenants during the period covered by it