judgement:
ivil Appeal No. 1945 of 1992.
From the Judgment and Order dated 4.1.1991 of th Kerala High Court in C.R.P. No. 1830 of 1990 Mathai M. Paikeday and C.N. Sreekumar for the Appellant.
P.S. Poti and Ms. Malini Poduval for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
Special leave granted.
This appeal filed by the landlord arises out of a petition filed under Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act ') for the eviction of the respondent from the building situate in the city of Cochin.
The building in question was let out to the respondent by the father of the appellant on May 1, 1972 and he has been carrying on hotel business on the same.
The said building stands on a portion of 13 cent of land owned by the appellant.
The appellant was employed with Bharat Gold Mines Ltd. and was due to retire on September 30, 1981.
Prior to his retirement, the appellant filed the eviction petition before the Rent Controller, Ernakulam on January 15, 1981 wherein the appellant pleaded that after his retirement from service, he wanted to settle down in Cochin and except the building in question, he has no other house to reside and that the said building was required by him bona fide for his occupation.
It was also pleaded by the appellant that the respondent was using the property in such a manner as to materially and permanently reduce its value, utility and purpose.
The said petition was contested by the respondent on the ground that the building is not suitable for residential purposes inasmuch as it consists of two adjoining sheds and there is no toilet facility in the same and that it is not possible to reside therein.
It was further pleaded that the appellant has a house and plot in the name of his wife within the municipal limits of Cochin Corporation and the same is suitable for the residence of the appellant and his family members and further there is a lot of vacant land on the back of the building and the same is suitable for constructing a house.
The respondent denied that the property was being used in such a way as to reduce its utility.
By his order dated February 20, 74 1989, the Rent Controller dismissed the said petition of the appellant and found that the appellant had failed in proving his bona fide need of the building and he was not entitled to an order of eviction under S.11(3) of the Act and that he has also failed to adduce adequate evidence to prove that the respondent was indulging in an activity which has destroyed the value and utility of the property materially and permanently and he could not seek eviction under Section 11(4)(ii) of the Act.
The said order of the Rent Controller was reversed in appeal by the Appellate Authority by its judgment dated July 18, 1990.
The Appellate Authority agreed with the finding recorded by the Rent Controller that the appellant could not seek the eviction of the respondent under s.11(4)(ii) of the Act but it disagreed with the finding of the Rent Controller that the respondent was not liable to be evicted under S.11(3) of the Act.
The Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him.
On revision under S.20 of the Act, the High Court, by its judgment dated January 4, 1991, set aside the finding recorded by the Appellate Authority regarding the bona fide need of the building for his occupation and agreed with the view of the Rent Controller that the appellant had failed to establish that he was entitled to evict the respondent on the ground of bona fide need under s.11(3) of the Act.
Feeling aggrieved by the said decision of the High Court, the appellant has filed this appeal.
As indicated earlier, although the appellant had sought eviction of the respondent under s.11(3) as well as s.11(4)(ii), but the Rent Controller and the Appellate Authority have both found against him on s.11(4)(ii).
The scope of the present appeal is confined to the question whether the respondent is liable to be eviction on the ground of bone fide need of the appellant for his personal occupation under s.11(3) of the Act.
Sub section (3) of s.11 of the Act and the second proviso thereto provide as follows: "(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: XXX XXX XXX Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such 75 tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: XXX XXX XXX" At this stage, it may also be mentioned that in exercise of its revisional jurisdiction under s.20 of the Act, the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order of proceeding and may pass such order in reference thereto as it thinks fit".
It is no doubt true that the scope of the revisional jurisdiction conferred under s.20 is wider than that conferred under s.115 CPC.
But at the same time, a revision under s.20 cannot be equated with an appeal.
Moreover, the revision power conferred under s.20 also embraces an order passed by the Appellate Authority.
While considering the provisions conferring revisional power couched in a language similar to that contained in section 20 of the Act, this Court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings.
[See : Dattonpant Gopalvarao Devakate vs Vithabrao Maruthirao Janagaval, [1975 Supp.
SCR 67; M/s Sri Raja Lakshmi Dyeing Works & Ors vs Rangaswamy Chettiar, AIR 1980 SC 1253].
The revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the court below.
[See : Rajbir vs section Chokesiri & Co., ; , at p.37] In the instant case, the Appellate Authority, after considering the evidence on record, has found that the appellant had retired from service and he has no building of his own in the city.
The Appellate Authority has further found that before the building was let out to the respondent the same was being used for residential purposes and the mere fact that it lacks in certain facilities for being used for residential purposes by itself will not indicate that the claim of the appellant is false and from the evidence on record, it would appear that after some modifications and repairs it can be 76 used as a residential building.
In view of the decision of the High Court in Devaky vs Krishnakutty, (1987) 1 Ker.
L.T. 671, the Appellate authority held that the appellant could claim eviction of the building under s.11(3) even if the building in question requires some modifications or alterations provided that he is able to establish the bona fide need set up by him.
The Appellate Authority also held that merely because the appellant was residing comfortably in a building owned by his son would not disentitle him from seeking eviction on the ground that he wants to set up his residence under a roof of his own and that such a desire was quite natural.
The Appellate Authority also observed that the testimony of appellant, as P.W> 1, with regard to his bona fide requirement of the building for his residence could be believed and the mere bald assertion of the respondent, as R.W.1, that there was no bona fide need on the part of the appellant, by itself, was not a sufficient ground to disbelieve the testimony of the appellant.
In the light of the aforesaid finding, the Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him.
The High Court, in exercise of its revisional power, has set aside the aforesaid findings recorded by the Appellate Authority for the following reasons: (1) The appellate Authority had erroneously proceeded on the basis that there is no pleading by the respondent that the bona fide requirement set up by the appellant is false; (2) Instead of examining severally the circumstances relied upon by the Rent Controller and to see whether they were sufficient to support the finding of the Rent Controller, the Appellate Authority should have considered the cumulative effect of all the facts and circumstances established in the case on the question of bona fides of the claim made in the petition; and (3) The Appellate Authority had totally omitted to consider whether the respondent tenant was entitled to the benefit of the second proviso to sub section (3) of s.11 of the Act.
On a consideration of the pleadings and evidence the High Court found that the appellant is the owner of 13 cents of land and only a small portion of the said land in occupied by the buildings and the remaining 77 land is lying vacant behind the building and structures sought to be recovered and the appellant can construct a house over it.
The High Court has also found that the appellant is living in reasonable spacious residential accommodation with modern amenities with his son and it is difficult to believe that the claim as put forward by the appellant in the petition is honest in the circumstances of the case.
The High Court further held that the building sought to be recovered is admittedly used for commercial purposes from 1971 onwards and it is a 'L ' shaped structure consisting of two halls and a temporary shed which is being used as the kitchen of the hotel and there is no latrine or bathroom in the building and that in view of the nature, location and structural peculiarities of the buildings, absence of essential amenities like latrine, bathroom and privacy, the very limited space available for occupation and the status of the respondent as a person who retired after a period of 30 years of service as well placed employee of a wellknown company, the assertion of the appellant that he is ready to live in any condition could not be accepted as true and genuine.
The High Court was of the view that the principle laid down in the decision in Devaky vs Krishnakutty (supra) would not help appellant in this case.
The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate Authority was not supported by the evidence on record.
The said finding was reversed by the High Court on the basis of a reassessment of the said evidence.
We find it difficult to agree with the reasons given the High Court for embarking on this reassessment of evidence.
Although the Appellate Authority has observed that there in no specific pleading by the respondent in the counter that the bona fide requirement set up by the appellant is false but in spite of the said observation the Appellate Authority has examined whether the said claim of the appellant is false and after considering the evidence adduced by both the parties, the Appellate Authority has found that the claim of the appellant is not false.
Similarly, the High Court is not right in holding that in its approach to the question of bona fides of the claim made in the petition the Appellate Authority has not considered the cumulative effect of all the facts and circumstances established in the case.
On a consideration of the various circumstances the Appellate Authority chose 78 of accept the testimony of the appellant, as P.W.1 as against that of the respondent, as R.W.1 and on that basis found that the appellant had succeeded in establishing the bona fide need set up by him.
The consideration which weighed with the High Court in taking a view contrary to that taken by the Appellate Authority do not, in our opinion, justify interference in exercise of revisional jurisdiction.
That the appellant has been living with his son in the house belonging to him (son) cannot lead to the inference that the claim of the appellant that he wants to live in a house of his own is false and not bonafide.
The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes.
The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground that the building require repair and alterations before the landlord can occupy the same.
In Devaky vs Krishnankutty (supra), it has been observed: :. once the landlord establishes that he bona fide required the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations." (p.673) We are in agreement with this view which is in consonance with the decision of this Court in Ramniklal Pitambrardas Mehta vs Indradaman Amratlal Sheth, ; In that case, it has been laid down: ".
The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need for occupying the house.
There is no such prohibition either in the language of cl.(g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it.
There could not be any logical reason for such a prohibition.
"(p.5) Similarly in sub section (3) of section 11 there is no prohibition that 79 a landlord must occupy the house for residence without making any alterations in it.
The finding recorded by the Appellate Authority, after considering the pleadings and evidence on record, that the appellant has succeeded in establishing that he needs the building bona fide for his own occupation must, therefore, be restored.
The High Court was, however, right in taking the view that before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act and that the Appellate Authority has omitted to consider the matter from this angle.
The said proviso precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business.
After adverting to the second proviso to sub section (3) of section 11, the Rent Controller has observed: ".
The respondent has proved that he is depending upon the income from the business conducted in the petition schedule building for his livelihood.
The petitioner attempted to prove that the respondent is having other hotels elsewhere in the city, but without any success.
Though the respondent has not taken any steps to prove the non availability of other suitable buildings in the locality by summoning the Accommodation Controller, I do not thing that was a fatal lapse on the part of the respondent because he has adduced evidence in that regard through his witnesses.
" The learned Rent Controller has, however, not recorded any definite finding on this question because he had come to the conclusion that the appellant had failed to prove the bona fide need of the buildings.
Since the Appellate Authority had reversed the finding recorded by the Rent Controller on bona fide need of the appellant for the building, it was necessary for the Appellate Authority to have considered the matter in the light of the second proviso to sub section (3) of section 11 and it should have recorded a finding on the question whether the respondent could invoke the protection of the said proviso.
In the circumstances, we are of the view 80 that the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act.
In the result, the appeal is allowed.
The judgment and order of the Kerala High Court dated January 4, 1991 is set aside.
The order of the Appellate Authority dated July 18, 1990 to the extent it directs the eviction of the respondent under Section 11(3) of the Act is also set aside and the matter is remanded to the Appellate Authority for considering the matter in the light of the second proviso to section 11(3) of the Act.
It is, however, made clear that we are not upsetting the finding recorded by the Appellate Authority that the building is required bona fide by the appellant for his own occupation.
The parties are left to bear their own costs.
V.P.R. Appeal allowed.

summary/full:
The appellant 's father let out the disputed building wherein the tenant respondent carried out the hotel business.
The appellant landlord filed an eviction petition on 15.1.81 before the Rent Controller stating that after his retirement from service on 30.9.1981, he wanted to settle down in that town and as he had no other house to reside, the disputed building was required by him bona fide for his occupation; that the respondent tenant was using the property in such a manner as to materially and permanently reduce its value, utility and purpose.
The respondent contended that the building was not suitable for residential purposes; that the appellant had a house and plot in his wife 's name within the town; that there was a lot of vacant land on the back side of the tenanted building, which was suitable for house construction and that the property was not being used in such a way as to reduce its utility.
The trial court dismissed the eviction petition of the landlord, holding that as he failed in proving his bona fide need of the building, the landlord was not entitled to an order of eviction under Section 11(3) of the 71 Kerala Buildings (Lease & Rent Control) Act, 1965 and as the landlord failed to prove that the tenant was using the building in such a way to destroy its value and utility, he was not entitled to an order under section 11(4)(ii) of the Act.
On appeal, the Appellate Authority reversed the order of the Rent Controller.
The High Court in revision set aside the order of the Appellate Authority, against which the present appeal by special leave was filed before this Court by the landlord.
On the question, whether the respondent was liable to be evicted on the ground of bona fide need of the appellant for his personal occupation under section 11(3) of the Act, this Court allowing the landlord 's appeal, HELD:1.1.
The scope of the revisional jurisdiction conferred under section 20 is wider than that conferred under section 115 CPC.
But at the same time, a revision under section 20 cannot be equated with an appeal.
[75 C] 1.2.
The revisional power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings.
[75 E] Dattonpant Gopalverao Devakate vs Vithabrao Maruthirao Janagaval, [1975] Supp.
SCR 67; M/s. Sri Raja Lakshmi Dyeing Works & Ors.
vs Rangaswamy Chettiar, AIR 1980 SC 1253, followed.
The revisional court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own,so long as the evidence on record admitted on and supported the one reached by the court below.
[75 F] Rajbir vs section Chokesiri & Co., at p.37, followed.
The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on 72 record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate authority was not supported by the evidence on record.
[77 E] 2.2.
The fact that the appellant has been living with his son in the house belonging to him (son) cannot head to the inference that the claim of the appellant that he want to live in a house of his own is false and not bona fide.
The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes.
[78 B C] 2.3.
The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground the the building requires repairs and alterations before the landlord can occupy the same.
[78 D] 2.4.
There is no prohibition that a landlord must occupy the house for residence without making any alterations in it.
[78 H 79A] Devaky vs Krishnankutty, , approved.
Ramniklal Pitambardas Mehta vs Indradaman Amratlal Sheth, ; , followed.
Before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act which precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business.
[79 C] 3.2.
Since the Appellate Authority has omitted to consider the matter from this angle the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act.
[79 G 80A] 73


judgement:
ivil Appeal No. 2446 of 1991.
From the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No. 649 of 1990.
Mrs. C.M. Chopra for the Appellant.
Respondent in person.
The Judgment of the Court was delivered by KULDIP SINGH, J.
His parents advertised for " homely non medico" bride.
Her parents responded.
Marriage took place on January 24, 1988 at Noida near Delhi.
They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty.
He alleged "she had a habit of smoking" and "it was found that she was in the habit of drinking and even once came drunk to the applicant 's house and abused everybody".
He further alleged " it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi nude clothes in magazines".
She vehemently denied the allegations and claimed that the she was a homely, vegetarian, non smoking, teetotaller and faithful house wife.
The Family Court at Pune proceeded ex parte and granted divorce decree by the order dated November 30, 1989.
Wife 's application for setting aside the ex parte decree was dismissed by the Family Court on June 24, 1990.
The High Court by its judgment dated October 10/11, 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation.
This appeal by way of special leave is by the wife against the judgments of the courts below.
85 During the pendency of the divorce proceedings before Family Court, Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi.
This Court granted ad interim stay of the proceedings before the Family Court, Pune.
The stay remained operative till September 11, 1989 when this Court dismissed the transfer petition and vacated the stay.
Thereafter the husband appeared before the Family Court on September 15, 1989 whereas the appellant wife remained absent.
Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court.
The notice came back with the remarks "not found".
The Family Court ordered substituted service and a notice was published in the "Times of India" New Delhi of dated October 24.1989 asking the wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken ex parte.
On November 16, 1989 the Family Court ordered ex parte proceedings.
The issues were framed on November 21, 1989, the evidence of the husband was recorded on November 25, 1989 and the judgment was pronounced on November 30, 1989.
The appellant filed an application dated December 18, 1989 for setting aside the ex parte divorce decree wherein she stated that after she was forced to leave her matrimonial home at Pune, she was residing with her parents at Noida.
She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi.
According to her she applied to the Army Authorities claiming maintenance out of her husband 's salary.
Respondent husband is an Army officer.
The Army Authorities sent a letter dated December 14, 1989 to her father wherein it was mentioned that his daughter 's application for maintenance allowance could not be entertained because the husband had already obtained a divorce decree from the court.
A copy of the Family Court Judgment granting divorce decree to the husband was also annexed to the letter.
The appellant claims that for the first time, on or about December 14, 1989, She came to know through her father that the respondent had already been granted an ex parte divorce decree by the Family Court.
The appellant in her application inter alia stated as under: "The applicant submits that the applicant did not receive any notice/letter/summons or communication from this Hon 'ble Court 's office.
Even there was no intimation given by postal 86 authorities and the applicant honestly states that till the receipt of the letter from the Army H.Q. New Delhi, she was not aware of the date of proceeding.
The applicant submits, the applicant was under bona fide belief that she will receive a notice from this Hon 'ble Court.
As such and being far from Pune, either in Noida ( U.P.) or at New Delhi, it was not possible for her to approach this Hon 'ble Court for any enquiry since she was also not permitted to appear through the lawyer. .At any rate and in any event, the applicant also did not come across the public notice published in Times of India, New Delhi on 24th October 1989 as stated in the decree.
The applicant submits, the applicant had every intention to resist the marriage petition filed by the opponent since the same was absolutely false, frivolous and out and out false, and has been resisted by the applicant by filing written statement, preliminary objection including to approach the Supreme Court of India.
The intention of the applicant was clear.
The applicant submits, the applicant was also advised by her Advocate that she will receive a fresh notice in due course of time after the stay was vacated by the Hon 'ble Supreme Court of India from this Hon 'ble Court.
The applicant states, she resides at a far long distance from Pune.
She was also refused any assistance of lawyer.
The applicant has no relation or any representative who can look after her in the present proceeding in Pune.
It was in these circumstances, the applicant was prevented by sufficient cause from appearing in the marriage petition proceeding No.561/89 and as such the said decree is required to be set aside . .
The applicant states, the applicant is unable to maintain herself, she has no source of income . .
The applicant submits because of the passing of ex parte decree, she has been refused maintenance allowance.
The applicant also prays for granting of maintenance allowance pending final disposal of this application." The Family Court dismissed the application for setting aside ex parte divorce decree on the following reasoning: "But where the party itself knows that stay obtained by it has been vacated, there appears no warrant for the proposition that again a notice is required to be given to the said party.
I do 87 not think that such advice was really given to the applicant.
The applicant has not produced any evidence to the effect that she received such advice from a lawyer.
It is her own statement.
It is a self serving statement and can hardly be believed.
I think that if the applicant was really keen and desirous to contest matrimonial petition, she would have at once made enquiries to find out as to when the next date for hearing in this court was fixed after her application for transfer of the case was dismissed by the Supreme Court and the stay obtained by her was vacated.
The order of vacating the stay was passed on 11th September 1989 by the Hon 'ble Supreme Court and the applicant knew fully well about it.
The opponent who had also appeared in the Supreme Court in connection of that matter did appear in this Court on 15.9.1989.
The record of P.A. No. 561/89 shows that opponent applied for issuing of notice to the present applicant.
The notice was issued by registered post on two separate addresses.
One of the address was the one shown by applicant herself in Supreme Court petition and the other address was the one which was admitted to be her address in the matrimonial petition (which was address of her father at Delhi).
Both these notices were sent by registered post in due course.
The court waited till return of this notice.
On both these envelops postal authorities have endorsed that the present applicant was not found on these addresses.
The opponent had, therefore, made application that the applicant was avoiding to take notice and hence substituted service by publishing in Times of India be made.
Accordingly, a notice was published as per order of the Court on opponent 's application.
Thus the contention of the respondent that she had no notice of the further proceeding in marriage petition does not appear convincing.
As stated already in the first instance, there was no necessity for her to wait for receipt of the notice in the circumstances of the present case.
The notices sent to her were obviously evaded, otherwise there was no reason why the applicant was found on either of the addresses which she admits to be the correct addresses.
Even if she was not present, there was no reason why other major members of the family did not accept these notices.
And lastly the publication of the notice 88 in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant.
" The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife.
The respondent appeared before us in person and himself argued his case.
The learned counsel for the appellant raised the following points for our consideration: (a) That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex parte proceedings; (b) That the divorce petition was filed hardly seven months after the marriage.
Section 14 of the Hindu Marriage Act provides "it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage".
The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act; (c) that even on merits the divorce decree is based on no evidence.
The allegations in the divorce petition are wholly vague.
In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence; (d) that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation.
The High Court should have dismissed the divorce petition.
We may take up the Fist Point.
The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made against her by the respondent.
She also raised preliminary objections regarding the maintainability of the divorce petition.
She filed a transfer petition before this Court which was dismissed in September, 1989.
She filed another transfer petition which was dismissed by this Court on April 12,1990 with the following observations: 89 "It is open to the petitioner to move the High Court under Section 24, Code of Civil Procedure for consideration of her prayer that the case be transferred to another Judge.
On the merits of this prayer, we decline to make any observation.
It would appear that the case is now listed before the Family Judge at Pune on 13.4.90.
It will be appropriate that having regard to the apprehension expressed by the petitioner the Court should not proceed with the matter until her prayer for transfer is considered by the High Court.
We accordingly direct the Family Court, Pune to stay further proceeding in the case, a period of 60 days from today to enable the petitioner to approach the High Court.
" It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons.
The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant wife should have, on her own, joined the proceeding before the Family Court.
According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated.
It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below.
We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice.
The admitted facts in this case are as under: (i) While dismissing the transfer petition and vacating the stay order this Court did not fix any date for the appearance of the parties before the Family Court, Pune (ii) The Family Court had permitted the assistance of a lawyer to the appellant wife in the following terms: "As applicant is from Delhi and it would cause hardship, permission is granted 90 for engaging an Advocate for pleading her case only for the purpose of presenting applications or serving notices and noting the orders of the Court.
" (iii) The appellant did not engage a lawyer to represent her before the Family Court, Pune.
(iv) The appellant wife was residing with her parents at Noida (Delhi).
Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court, Pune.
We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties.
The applicability of the Rules of natural justice depends upon the facts and circumstances of each case.
We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties.
The applicability of the Rules of natural justice depends upon the facts and circumstances of each case.
We are of the view that in this case fair play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court.
We do not, therefore, agree with the findings of the Courts below to the contrary.
In any case realising the requirements of natural justice the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court.
Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses.
There is no material on the record to reach a conclusion that the appellant refused to receive the notices.
There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant 's relations at the given addresses.
The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.
After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court.
The appellant was no stranger to the respondent.
She was his wife.
It could not have been difficult for him to find out the address where she was staying.
Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.
91 We are, therefore, of the view that there was sufficient cause for the non appearance of the appellant in the matrimonial petition before the Family Court.
The view we have taken on the first point, it is not necessary to deal, with the other points raised by the learned counsel for the appellant.
We, therefore, set aside the order of the Family Court dated June 24, 1990 and allow the appellant 's application dated December 18, 1989 and set aside the ex parte decree passed against the appellant in Marriage petition No. A 561/89.
As a consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside.
The appellant had asked for transfer of her case from the Principal Judge, Family Court, Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose.
We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified.
We ar, however, of the view that the Principal Judge, Family Court Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same.
With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay.
The parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992.
Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result.
We allow the appeal in the above terms with no order as to costs.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The parties to the appeal were married on January 24, 1988 at Noida near Delhi.
They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband Respondent filed a petition under Section 13 of the Hindu Marriage Act, 1956 for dissolution of the marriage on the ground of cruelty.
He alleged that the wife had a habit of smoking and drinking and even once came drunk to the house and abused everybody.
The wife vehemently denied the allegations and claimed that she was a homely, vegetarian, non smoking, teetotaler and faithful house wife.
During the pendency of the aforesaid divorce proceeding before the Family Court,Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi.
This Court granted ad interim stay of the proceedings which remained operative till September 11, 1989 when the Transfer Petition was dismissed 82 and the stay become vacated.
Thereafter, the husband appeared before the Family Court on September 15, 1989 whereas the wife remained absent.
Notice were sent by registered post to the wife on her address at Noida and also at her Delhi address given in the proceedings before this Court.
The notices having come back with the remarks "not found", the Family Court ordered sub stituted service, and a notice was published in a Delhi daily newspaper asking the wife to appear before the Family Court on November 16, 1989.
The wife not having appeared on the said date the Family Court ordered ex parte proceedings.
The issues were framed on November 21, 1989, evidence of the husband was recorded on November 25,1989 and the judgment was pronounced on November 30, 1989, granting the husband a divorce decree.
The wife filed an application dated December 18, 1989 for setting aside the ex parte divorce decree.
She contended that she was forced to leave the matrimonial home at Pune and was residing with her parents at Noida, and that in October/November, 1989 she had gone to reside with her brother at Delhi, that she applied to the Army Authorities claiming maintenance out of her husband 's salary, and that the Army Authorities sent a letter dated December 14, 1989 to her father informing that the application for maintenance could not be entertained as the husband had already obtained a divorce decree from the Court.
She further contended that for the first time on or about December 14, 1989 she came to know from her father that her husband had been granted an ex parte divorce decree by the Family Court.
The Family Court dismissed the application for setting aside ex parte divorce decree, and the High Court upheld the reasoning and conclusions reached by the Family Court and dismissed the appeals filed by the wife.
In the appeal to this Court by the wife it was contended that: (1) The Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex parte proceedings; (2) the divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act as the Statutory period of one year had not lapsed since the date of marriage, (3) even on merits the divorce decree is based on no evidence, the allegations in the divorce petition 83 being wholly vague, and (4) the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation.
Allowing the Appeal, this court, HELD: 1.
The appellant filed written statement before the Family Court,Pune denying the allegations made against her by the respondent.
She also raised preliminary objections regarding the maintainability of the divorce petition.
Though her transfer petitions before this Court were dismissed in September, 1989 and on April 12, 1990 and that she did not approach the High Court for transfer of her case, the fact remains that she has been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately chose to abstain from the Family Court, and was intentionally avoiding the summons.
In the facts and circumstances of this case, the appellant was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties.
The applicability of the Rules of natural justice depends upon the facts and circumstances of each case.
Fair play and the interest of justice in this case required the issuance of a fresh notice to the parties after the stay order was vacated by this Court.
The Family Court, sent two Registered notice to the appellant at her Noida address and also at the address given by her in the proceedings before this Court.
Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses.
On the record there is no material to reach a conclusion that the appellant refused to receive the notices, or to show whether the postal authorities made any efforts to deliver the registered letters to any of the appellants ' relations at the given addresses.
The Courts below are therefore wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.
After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court.
The appellant was not stranger to the respondent.
She was his wife.
It could not have been difficult for him to find out the address where she was staying .
Under the circumstances resort to the 84 substitute service by way of publication in the newspaper was not justified.
There was, therefore,sufficient cause for the non appearance of the appellant in the matrimonial petition before the Family Court.
With a view to do complete justice between the parties it is directed that this case be transferred from the file of the Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay, and the parties are directed to appear before the Principal Judge, Family Court Bombay.


judgement:
Appeal No. 239 of 1955.
Appeal from the Judgment and Decree dated the 30th November, 1953, of the former Nagpur High Court in First Appeal No. 118 of 1947, arising out of the Judgment and Decree dated the 12th August, 109 1947, of the Court of the Additional District Judge, Wardha, in Civil Suit No. 9 A of 1946.
M. C. Setalvad, Attorney General for India, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
M. Adhikari, Advocate General for the State of Madhya Pradesh and 1.
N. Shroff, for the respondent.
January 21.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is an appeal by the widow, and the minor son of Mangilal, defendant 1, and it has been filed with a certificate by the High Court of Judicature at Nagpur.
It arises out of a suit filed by the respondent Shrimati Lilabai w/o Vrijpalji, for the specific performance of a contract to lease or in the alternative for damages and for a declaration against defendant 2, the daughter of defendant 1 that she has no right, title or interest in the property in suit.
The respondent 's case was that defendant I had executed an instrument (exhibit P 1) in favour of the respondent by which he had contracted to lease to her in perpetuity in occupany right his four khudkasht lands admeasuring 95.19 acres situated in Mouza Mohammadpur in consideration of the debt of Rs. 8,700.
According to the respondent the instrument had provided that, if defendant 1 did not repay to her the said debt on June 1, 1944, the said contract of lease would be operative on and from that date.
Defendant 1 did not repay the loan by the stipulated date and so he became liable to perform and give effect to the said contract of lease on June 1, 1944.
The respondent repeatedly called upon defendant 1 to perform the said contract, but defendant I paid no heed to her demands and so she had to file the present suit for specific performance.
The respondent had been and was still ready and willing to specifically perform the agreement and to accept a deed of lease for the lands in question in lieu of the said debt of Rs. 8,700.
Defendant 1, however, had been guilty of gross and unreasonable delay in performing his part of the con tract and that had caused the respondent the loss of 110 the benefit of the lease and consequent damage.
On these allegations the respondent claimed specific performance of the contract and an amount of Rs. 2,340 as compensation or in the alternative damages amounting to Rs. 11,080.
To this suit Mst.
Durgabai, the daughter of defendant I had been impleaded as defendant 2 on the ground that she was setting up her own title in respect of the lands in suit and a declaration was claimed against her that she had no right, title or interest in the said lands.
Defendant 2 filed a written statement contesting the respondent 's claim for a declaration against her but she did not appear at the trial which proceeded exparte against her.
In the result defend ant 1 was the only contesting defendant in the proceedings.
Several pleas were raised by defendant I against the respondent 's claim.
He denied the receipt of the consideration alleged by her and he pleaded that the document (exhibit P 1) was a bogus, sham and collusive document which had been brought into existence for the purpose of shielding his property from.
his creditors and it was not intended to be acted upon.
It was also urged by him that the said document, if held to be genuine, was an agreement to lease under section 2(7) of the Indian , and since it was not registered it was inadmissible in evidence.
The learned trial judge framed appropriate issues on these pleadings and found against defendant I on all of them.
Accordingly a decree was passed ordering defendant 1 to execute a lease deed in respect of the fields mentioned in the plaint on a proper stamp paper in occupancy right in favour of the respondent and to put her in possession of them.
A decree for the payment of Rs. 2,316 by way of compensation was also passed against him.
The declaration claimed by respondent against defendant 2 was likewise granted.
This decree was challenged by defendant 1 by his appeal before the High Court of Judicature at Nagpur.
Pending the appeal defendant I died and his widow and his minor son came on the record as his 111 legal representatives and prosecuted the said appeal.
The High Court held that the document was supported by consideration, that it was not an agreement to lease under section 2(7) of the Indian and therefore it did not require registration and was admissible in evidence.
In the result the decree passed by the trial court was confirmed and defendant 1 's appeal was dismissed.
The present appellants then applied to the High Court for leave to appeal to this Court and the High Court granted leave because it held that the basic question involved in the decision of the appeal was the legal effect of exhibit P 1 and that the construction of a document of title is generally regarded as a substantial question of law.
It is with this certificate that the present appeal has come before this Court, and it raises two questions for our decision: Is the document (exhibit P 1) an agreement to lease under section 2(7): If not, does it require registration under section 17 of the said Act ? All other issues which arose between the parties in the courts below are concluded by concurrent findings and they have not been raised before us.
Before dealing with these points, we must first consider what the expression " an agreement to lease " means under section 2(7) of the Indian , hereinafter referred to as the Act.
Section 2(7) provides that a lease includes a counterpart, kabuliyat, an undertaking to cultivate and occupy and an agreement to lease.
In Hemanta Kumari Debi vs Midnapur Zamindari Co. Ltd. (1) the Privy Council has held that " an agreement to lease, which a lease is by the sta tute declared to include, must be a document which effects an actual demise and operates as a lease ".
In other words, an agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a present and immediate demise in his favour is not included under section 2, sub section
In Hemanta Kumari Debi 's case (1) a petition setting out the terms of an agreement in compromise of a suit stated as one of the (1) (1919) L. R. 46 1. A. 240.
112 terms that the plaintiff agreed that if she succeeded in another suit which she had brought to recover certain land, other than that to which the compromised suit related, she would grant to the defendants a lease of that land upon specified terms.
The petition was recited in full in the decree made in the compromised suit under section 375 of the Code of Civil Procedure, 1882.
A subsequent suit was brou ght for specific performance of the said agreement and it was resisted on the ground that the agreement in question was an agreement to lease under section 2(7) and since it was not registered it was inadmissible in evidence.
This plea was rejected by the Privy Council on the ground that the document did not effect an actual demise and was outside the provisions of section 2(7).
In coming to the conclusion that the agreement to lease under the said section must be a document which effects an actual demise the Privy Council has expressly 'approved the observations made by Jenkins, C. J., in the case of Panchanan Bose vs Chandra Charan Misra (1) in regard to the construction of section 17 of the Act.
The document with which the Privy Council was concerned was construed by it as " an agreement that, upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted "; and it was held that " until the happening of that event, it was impossible to determine whether there would be any lease or not ".
This decision makes it clear that the meaning of the expression " an agreement to lease " " which, in the context where it occurs and in the statute in which it is found, must relate to some document that creates a present and immediate interest in the land ".
Ever since this decision was pronounced by the Privy Council the expression " agreement to lease " has been consistently construed by all the Indian High Courts as an agreement which creates an immediate and a present demise in the property covered by it.
It would be relevant now to refer to the observations (1) Cal.
113 of Jenkins, C. J., in the case of Panchanan Bose (1).
In that case, a solehnama by which no immediate interest in immoveable property was created was held not to amount to a lease within the meaning of cl.
(d) of section 17 of the Act but merely an agreement to create a lease on a future day.
" Such a document ", it was observed, " fell within cl.
(h) of section 17 and as such was admissible in evidence without registration ".
Jenkins, C. J., held that " on a fair reading of the document, no immediate interest was created, there was no present demise, and the document was merely an agreement to create a lease on a future day, the terms of which were to be defined by documents to be thereafter executed ".
" This being so ", said the learned C. J., " I think the appellants I rave rightly contended before us that the document was admissible in evidence as it falls within cl.
(h) of section 17 of the Indian ".
This decision would show that an agreement which creates no immediate or present demise was not deemed to be a lease under section 2(7) and so it was hold to fall within section 17(h) of the Act and this view has been specifically affirmed by the Privy Council in Hemanta Kumari Debi 's case (2).
It is true that in Narayanan Chetty vs Muthiah Servai (3) a Full Beach of the Madras High Court had held that an agreement to execute a sub lease and to get it registered at a future date was a lease within section 3 of the Indian of 1877 (III of 1877) and was compulsorily registrable under el.
(d) of section 17.
Such an agreement to grant a lease which requires registration, it was held, affects immoveable property and cannot be received in evidence in a suit for specific performance of an agreement.
The question which was referred to the Full Bench apparently assumed that the agreement in question required registration and the point on which the decision of the Full Bench was sought for was whether such an agreement can be received in evidence in a suit for specific performance (1) where possession is given in pursuance of an agreement, and (2) where it is not; and the Full Bench (1) Cal. 808.
(2) [1919] L.R. 46 I.A. 240.
(3) Mad.
15 114 answered this question in the negative. " An agreement to lease ", it was observed in the judgment of the Full Bench, " is expressly included in the definition of the lease in the while it cannot be suggested that an agreement to sell falls within any definition of sale ".
It is clear that the question about the construction of the words " agreement to lease " was not specifically argued before the Full Bench, and the main point considered was the effect of the provisions of section 49 of the Act.
In that connection the argument had centred round the effect of the provisions of cl.
(h) of section 17 of the and section 54 of the Transfer of Property Act.
The Full Bench took the view that in enacting section 49 of the Act the Legislature meant to indicate that the instrument should not be received in evidence even where the transaction sought to be proved did not amount to a transfer of interest in immoveable property but only created an.
obligation to transfer the property.
A contract to sell immovable property in writing, though it may affect the property without passing an interest in it, is exempted from registration by clause (h) (now cl. 2 (v)) of section 17 but an agreement in writing to let, falling within cl.
(d) of section 17, is not.
That is why, according to the Full Bench, such an agreement cannot be received in evidence of the transaction which affects the immovable property comprised therein.
Thus this decision does not directly or materially assist us in construing the expression " agreement to lease ".
Besides, the said decision has not been followed by the Madras High Court in Swaminatha Mudaliar vs Ramaswami Mudaliar (1) on the ground that it can no longer be regarded as good law in view of the decision of the Privy Council in Hemanta Kumari Debi 's case(2), and, as we have already pointed out, all the other High Courts in India have consistently followed the said Privy Council decision.
The learned Attorney General has, however, contended before us that the correctness of the decision of the Privy Council in Hemanta Kumari Debi 's case (2) is open to doubt and he has suggested that we (1) Mad. 399.
(2) (1919) L.R. 46 I A. 240.
115 should re examine the point on the merits afresh.
We do not think there is any substance in this contention because, if we may say so with respect, the view taken by the Privy Council in the said case is perfectly right.
Section 17(1) of the Act deals with documents of which registration is compulsory.
It is obvious that the documents falling under cls.
(a), (b), (c) and (e) of sb section
(I ') are all documents which create an immediate and present demise in immovable properties mentioned therein.
The learned Attorney General 's argument is that cl.
(d) which deals with leases does not import any such limitation because it refers to leases of immoveable properties from year to year or any term exceeding one year or reserving a yearly rent; and the Act deliberately gives an inclusive definition of the term 'lease ' in section 2(7).
This argument, however, fails to take into account the relevant provisions of the Transfer ' of Property Act.
Section 4 of the said Act provides that section 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian .
Section 107 is material for our purpose.
Under this section 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 under a registered instrument.
This section also lays down that where a lease of immoveable property is made by a registered instrument, such instrument, or, where there are more instruments than one, each instrument, shall be executed by both the lessor and the lessee.
It would be noticed that if section 107 has to be read as supplemental to the Act, the definition of the word I lease ' prescribed by section 105 would inevitably become relevant and material; and there is no doubt that under section 105 a lease of immoveable property is a transfer of right to enjoy such property made in the manner specified in the said section.
Therefore, it would not be right to assume that leases mentioned in cl.
(d) of section 17, sub section
(1), would cover cases of documents which do not involve a present and immediate transfer of leasehold rights.
It would thus be reasonable to hold that, like the instruments mentioned in cls.
(a), (b) and (c) of section 17(1), leases also are instruments 116 which transfer leasehold rights in the property immediately and in presenti.
We have already referred to the requirement of section 107 of the Transfer of Property Act that a lease must be executed both by the lessor and the lessee.
It may be pertinent to point out that an instrument signed by the lessor alone which may not be a lease under section 107 may operate as an agreement to lease under section 2(7) of the Act.
The legislative history of the provisions of section 17(2)(v) may perhaps be of some assistance in this connection.
Section 17(h) of Act III of 1877 which ,corresponds to the present section 17(2) (v) did not appear in the earlier Registration Acts of 1864,1866 and 1871.
Its introduction in Act III of 1877 became necessary as a result of the decision of the Privy Council in Fati Chand Sahu vs Lilambar Singh Das (1) in which it was held that an agreement to sell immoveable property for Rs. 22,500 coupled with an acknowledgment of the receipt of Rs. 7,500 and a promise to execute a sale deed on the payment of the balance was compulsorily registrable under section 17 of the Act (2).
Section 17(h) was therefore enacted in 1877 to make it clear that a document which does not itself create an interest in the immoveable property does not require registration even if it expressly contemplates and promises the creation of that interest by a subsequent document; in other words, contracts of sale and purchase of which specific performance would be granted under certain circumstances fall within this provision and would no longer be governed by the said decision of the Privy Council in the case of Fati Chand Sahu vs Lilambar Singh Das (1).
Thus the policy of the Legislature clearly is to exclude from the application of cls.
(b) and (c) of section 17(1) agreements of the said character.
On principle, there is no difference between such agreements of sale or purchase and agreements to lease.
Under both classes of documents no present or immediate demise is made though both of them may lead to a successful claim for a specific performance.
That is why the Privy Council observed in the (1) ; 14 M. L. A. 129.
(2) Act XX of 1866.
117 case of Hemanta Kumari Debi (1) that the context and the scheme of the statute justified the view taken by Jenkins, C. J., in the case of Panchanan Bose (2).
It may also be relevant to bear in mind that the other documents which are included within the word I lease ' by section 2(7) of the Act support the same conclusion.
A counterpart, as it is usually understood, is a writing by which a tenant agrees to.
pay a specified rent for the property let to him and signed by him alone.
It is thus in the nature of a counterpart of a lease and as such it is included within the meaning of the word I lease ' under section 2(7).
Same is the position of a kabuliyat and an undertaking to cultivate or occupy.
In other words, it is clear that all the four instruments which, under the inclusive definition of section 2(7), are treated as leases satisfy the test of immediate and present demise in respect of the immoveable property covered by them.
We must, therefore, hold that the expression " an agreement to lease " covers only such agreements as create a present demise.
Let us now proceed to deal with the question as to whether the document (exhibit P 1) constitutes " an agreement to lease "It purports to be a receipt executed in favour of the respondent by defendant I and bear a four anna revenue stamp.
" I have this day giver to you ", says the document, " the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 1944.
1 will have absolutely no right thereto after the said date ".
The the document proceeds to mention the properties and describes them in detail, and it adds " all the above fields are situate at Mouza Mohammadpur, mouz No. 312, tahsil Arvi, district Wardha.
The estat described above has been given to you in lieu of you Rs. 8,700 due to you, subject to the condition that case your amount has not been paid to you on date 1 6 1944, you may fully enjoy the estate describe, (1) (1919) L.R. 46 I.A. 240.
(2) Cal.
118 above in any way you like from generation to generation ".
The question for our decision is: Does this document amount to an agreement to lease under section 2(7) of the Act ? In construing this document it is necessary to remember that it has been executed by laymen without legal assistance, and so it must be liberally construed without recourse to technical considerations.
The heading of the document, though relevant, would not determine its character.
It is true that an agreement would operate as a present demise although its terms may commence at a future date.
Similarly it may amount to a present demise even though parties may contemplate to execute a more formal document in future.
In considering the effect of the document we must enquire whether it contains unqualified and unconditional words of present demise and includes the essential terms of a lease.
Generally if rent is made payable under an agreement from the date of its execution or other specified date, it may be said to create a present demise.
Another relevant test is the intention to deliver possession.
If possession is given under an agreement and other terms of tenancy have been set out, then the agreement can be taken to be an agreement to lease.
As in the construction of other documents, so in the construction of an agreement to lease, regard must be had to all the relevant and material terms; and an attempt must be made to reconcile the relevant terms if possible and not to treat any of them as idle surplusage.
The learned Attorney General contends that this document is not a contingent grant of lease at all.
According to him it evidences a grant of lease subject to a condition and that shows that a present demise is itended by the parties.
He naturally relies upon the opening recitals of the document.
According to him, when the document says that defendant I has given to the respondent the land described below and that the respondent has become occupancy tenant of the same, it amounts to a clear term of present demise.
A similar recital is repeated in the latter part of the document where it is stated that the estate described 119 above has been given to the respondent in lieu of Rs. 8,700 due to her.
In our opinion, it would be unreasonable to construe these recitals by themselves, apart from, the other recitals in the document.
We cannot lose sight of the fact that the document expressly states that the respondent shall become the owner of the land from 1 6 1944 and that defendant I ' would have no title over it after that date.
This recital also is repeated in the latter part of the document; and it makes the intention of the parties clear that it is only if the amount of debt is not rapid by defendant I on the date specified that the agreement was to come into force.
In other words, reading the document as a whole it would be difficult to spell out a present or immediate demise of the occupancy rights in favour of the respondent.
In this connection the fact that the document is described as a receipt may to some extent be relevant.
It is clear that by executing this document the defendant wanted to comply with the respondent 's request for acknowledging the receipt of the amount coupled with the promise that the amount would be repaid on 1 6 1944.
The defendant also wanted to comply with the respondent 's demand that, if the amount was not repaid on the said date, he would convey the occupancy rights in his lands to her.
Besides, it is significant that the document does not refer to the payment of rent and does not contemplate the delivery of possession until 1 6 1944.
If the document had intended to convey immediately the occupancy rights to the respondent it would undoubtedly have referred to the delivery of possession and specified the rate at which, and the date from which. the rent had to be paid to her.
The stamp purchased for the execution of the document also incidentally shows that the document was intended to be a receipt and nothing more.
Under section 2 of the Central Provinces Land Revenue Act, 1917 (C. P. II of 1917) an agricultural year commences on the first day of June and it is from this date that the agreement would have taken effect if defendant I had not repaid the debt by then.
It is clear that the respondent was not intended to be treated as an 120 occupancy tenant between the date of the document and June 1, 1944.
During that period the agreement did not come into operation at all.
In other words, it is on the contingency of defendant 's failure to repay the amount on June 1, 1944, that the agreement was to take effect.
We have carefully considered the material terms of the document and we are satisfied that it was not intended to, and did not, effect an actual or present demise in favour of the respondent.
In our opinion, therefore, the High Court was right in holding that the document was not an agreement to lease under section 2(7) of the Act and so did not require registration.
We would now briefly refer to some of the decisions on which the learned Attorney General relied in support of his construction of the document.
In Purmananddas Jiwandas vs Dharsey Virji (1), the agreement between the parties had expressly provided that the lease in question was to commence from October 1, 1882, though the agreement was executed seven days later, that the rent was to commence from that day and the rent then due was to be paid by the next day.
It is in the light of these specific terms that the Bombay High Court held that the relevant words in the document operated as an actual demise.
None of these conditions is present in the document with which we are concerned.
Similarly in Pool vs Bentley (2), by the instrument in question, Poole had agreed to let unto Bentley, and Bentley had agreed to take, all that piece of land described for the term of 61 years at the yearly rent of pound 120 free and clear of all taxes, the said rent to be paid quarterly, the first quarter 's rent within 15 days after Michaelmas 1807, and that in consideration of the lease, Bentley had agreed within the space of four years to expend and lay out in 5 or more houses of a third rate or class of building 2000 and Poole had agreed to grant a lease or leases of the said land and premises as soon as the said 5 houses were covered in.
In dealing with the construction of this document Lord (1) Bom.
(2) ; ; 121 Ellenborough, C. J., observed that the rule to be collected from the relevant decisions cited before him was that the intention of the parties as described by the words of the instrument must govern the construction and that the intention of the parties to the document before him appeared to be that the tenant, who was to have spent so much capital upon the premises within the first four years of the term, should have a present legal interest in the term which was to be binding upon both parties; though, when certain progress was made in the building, a more formal lease or leases might be executed.
This decision only shows that if the intention is to effect a present demise the fact that a further formal document is contemplated by the parties would not detract from the said intention.
It would, however, be noticed that the document in that case contained a stipulation for the payment of the rent and the tenant was to be let into possession immediately.
This case also does not assist the appellant.
In Satyadhyantirtha Swami vs Raghunath Daji (1) the contract of lease was contained in two documents which showed that the lands were being cultivated by Appaji and Ravji who had signed the first document.
and that they were authorised to continue ' in occupation of the lands on terms mentioned in the first document.
The argument that a part of the agreement would not come into operation till some years later, it was held, did not operate to make the document other than a present demise.
It is difficult to appreciate how this decision can assist us in construing the present document.
In Balram vs Mahadeo (2) the Nagpur High Court was dealing with an instrument which purported to be a receipt and the terms of which seemed to contemplate the execution of a sale deed in respect of the properties covered by it.
Even so, the material clause was that "I it is agreed to give to you both the above fields in occupancy rights ".
It was held that, on a fair and reasonable construction, the document was (1) A.I.R. 1926 Bom.
(2) I.L.R. 16 122 intended to affect a transfer of the occupancy right in presenti and was as such an agreement to lease.
No doubt, as observed by Bose, J., " on a superficial view of the document it would not appear to be an agreement to lease.
But in construing a transaction one has to look beneath the verbiage and ascertain what are the real rights which are being transferred.
When that is done, we consider that this document is an agreement to lease despite the fact that it calls itself a receipt and speaks throughout of a sale ".
It is unnecessary to consider the merits of the conclusion rea ched by the Nagpur High Court in this case.
It would be enough to say that the said decision would not afford any assistance in construing the document before us.
Besides it is obvious that in construing documents, the usefulness of the precedents is usually of a limited character; after all courts have to consider the material and relevant terms of the document with which they are concerned; and it is on a fair and reasonable construction of the said terms that the nature and character of the transaction evidenced by it has to be determined.
In our opinion, the High Court was right in holding that the instrument (exhibit P 1) was not an agreement to lease under section 2(7) of the Act.
The result is the appeal fails and must be dismissed with costs.
Appeal dismissed.

summary/full:
A document purporting to be a receipt and bearing a four anna revenue stamp was executed by M in favour of the respondent and recited, inter alia, as follows: " I have this day given 108 to you the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 44.
I will have absolutely no right thereto after the said date. .
The estate. has been given to you in lieu of your Rs. 8,700 due to you, subject to the condition that in case your amount has not been paid to you on date 1 6 44, You may fully enjoy the estate in any way you like from generation to generation.
" The respondent instituted a suit against M for the specific performance of a contract to lease alleging that under the document he had contracted to lease to her in perpetuity in occupancy right his lands in consideration of the debt of Rs. 8,7oo and as the amount was not paid within the due date, he was liable to perform and give effect to the said contract.
M contended, inter alia, that the document was an agreement to lease under section 2(7) of the Indian , and that as it was not registered it was inadmissible in evidence.
Held, that an agreement to lease under section 2(7) of the Regis tration Act, 1908, must be a document which effects an actual demise and operates as a lease.
An agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a pre sent and immediate demise in his favour is not an agreement to lease within the meaning of section 2(7) of the Act.
Held, further, that on a construction of the document in question, it was not intended to, and did not, effect an actual or present demise in favour of the respondent and consequently it was not an agreement to leaseunders.
2(7) Of the Act.
Accordingly, the document did not require registration and was admissible in evidence.
Hemanta Kumari Devi vs Midnapuy Zamindari Co., Ltd., (1919) L.R. 46 I.A. 240, relied on.
Panchanan Bose vs Chandya Charan Misra, Cal. 808, approved.
Narayanan Chetty vs Muthia Servai, Mad. 63, Purmananddas jiwandas vs Dharsey Kirji, Bom.
101, Balram vs Mahadeo, I.L.R. and Poole vs Bently, ; ; , distinguished.


judgement:
Civil Appeal Nos.
10803 to 10805 of 1983.
From the Judgment and Order dated 17.12.1980 of the Madras High Court in Tax Cases Nos. 261 of 1974 and 9 & 10 of 1977.
K. Parasaran, G. Umapathy, Mrs. Indu Malini Ananthachari for C.S. Vaidyanathan for the Appellant.
Ranbir Chandra for Ms. A Subhashini for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The question for our consideration in these appeals is whether Gangabai Charities, a trust operating in the city of Madras, is entitled to exemption under Section 11(1)(a) of the Income Tax Act, 1961 (the Act).
Gangabai executed a document dated September 13, 1958 which was described as a deed of trust.
The trust was named as "Ganga Bai Charities".
In the trust deed Ganga Bai gave effect to her desire to construct and provide a building for the benefit of the public to be used for religious, charitable, cultural and social purposes.
She contributed Rs.34,000 to the trust fund.
With that fund a plot of land was purchased and the construction begun.
The fund was augmented by her son Seetha Rama Rao from his own contributions as well as from outside donations.
The building was completed at the cost of about Rs. six lakhs.
Ever since the construction of the building it is being let out as a marriage mandapam to be used by 629 the members of the public as such.
the income derived from letting out the Kalyana Mandapam came to Rs.1.06,392.00 in the year ending March 31, 1963.
For the subsequent years also the income was substantial.
The trust was also running a printing press and sizable income was being earned from the press.
The Income tax Officer took the view that the income earned by the trust was taxable.
The contention of the trust that the income derived from the property was being held wholly for religious and charitable purposes and as such was exempt under Section 11 of the Act, was rejected.
On appeal the Appellate Assistant Commissioner reversed the Income tax Officer and held that the Ganga Bai Charities was a charitable trust and its income was entitled to exemption under Section 11 of the Act.
On further appeal by the department, the tribunal upheld the decision of the Commissioner but remitted the assessment to the Income tax Officer to find out as to what extent in each year the trust income or accumulations were expended for charitable purposes.
The Income Tax Appellate Tribunal referred the following question to the High Court under Section 256(1) of the Act: "Whether is has been rightly held that the income of the trust would be entitled to exemption under Section 11 of the Income Tax Act, 1961?" The High Court by its judgment dated December 17, 1980 answered the question in the negative and against the assessee.
These appeals by way of special leave for against the judgment of the High Court.
Section 11(i)(a) of the Act, to the relevant extent, is reproduced hereunder: 11.
Income from property held for charitable or religious purposes (I) Subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income (a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India. .
The above quoted provisions make it clear that a trust has to satisfy 630 the following conditions in order to claim benefit of Section 11(1)(a) of the Act: (1) The income is derived from property held under the trust.
(2) The trust is wholly for charitable or religious purposes.
(3) The exemption is permissible to the extent to which such income is applied to such purposes in India.
The appellant trust has been created under a deed of trust dated May 30, 1978 and as such we have to look into the contents of the trust deed of find out as to whether the conditions precedent for claiming exemption under section 11(1)(a) of the Act are satisfied.
The tribunal and the High Court have also based their conclusions on the interpretation of the trust deed.
It is not disputed that the appellant trust derived the income from the property held under it but the existence of other conditions necessary to claim exemption under Section 11(1)(a) of the Act have been seriously disputed by the Revenue before us.
We have minutely examined the trust deed and have given our thoughtful consideration to its contents.
The relevant paragraphs of the trust deed from where the purposes of the trust can be spelled out are reproduced hereunder: "WHEREAS the Settler, has long cherished a desire to construct and provide a building in Purasawalkam, Madras for the benefit of the Public to be used by them for religious, charitable and/or cultural and social purposes, to secure religious benefit for herself and satisfy a long felt need of the Public in this part of this city.
" "NOW THIS INDENTURE WITHNESSTH that in pursuance of the premises the settlor above named doth hereby declare that the plot of land above mentioned and more particularly described in the schedule below was purchased by her for Rs.24,000 on 9.9.1957 for the express purpose of constructing a building thereon and dedicating the same for use by the public inter alia for Religious, Charitable and Cultural purposes and doth hereby create an irrevocable Trust of the said property for the purposes aforesaid.
" 631 "The settlor further declares that immediately after such purchase she, the settlor relinquished all her rights thereto and dedicated the said plot of land for the use of the public for the purposes above mentioned and put the said plot of land in the possession of her son Shri K. Seetharam Rao, with a direction to construct a building thereon for the use of the public for religious, charitable, social, cultural and other allied purposes." "That the Trust property , more particularly described in the schedule below shall be used for religious, charitable, social, cultural and other allied purposes". "That the Trustee shall have, as the construction proceeds, power to make any suitable alterations in the plan already submitted by him and sanctioned the Corporation of Madras, in such manner as to him may seem necessary and that the Trustee may after the completion of the building let or allow the said building or such portion of portions of the said building for the use of the public for social cultural, religious educational etc., purposes, free or at such rents and such terms and conditions as he thinks proper in the interests of the Trust; for holding and conducting religious discourses, for running schools for the development of Sanskrit learning free or at such rents and on such terms and conditions as the Trustee things reasonable and proper in the interests of the Trust".
On a careful reading of the above quoted paragraphs of the trustdeed it is not possible to cull out in clear terms a specific charitable/religious object to conclude that the trust was set up wholly for charitable or religious purposes.
The "religious, charitable, cultural and social" purposes referred to in the deed are not avowed as the objectives of the trust itself.
What the founder of the trust intended to convey was that the building to be constructed out of the funds provided by her and supplemented from other sources, must be held for the benefit of the public for being used by them for religious, charitable, cultural or social purposes.
We cannot read the contents of above quoted paragraphs as the objects of the trust, these are only the objects of those who wish to put the trust property to use.
On a careful consideration of the language of the trust deed, we are of the view that the intention of the founder was to provide a building for the benefit 632 of the public to be used by them for religious, charitable and/or cultural and social purposes.
It is no where stated in the trust deed that the trust itself has been created for the purpose of carrying out any of such objectives.
The holding and conducting of religious discourses and the running of schools for the development of Sanskrit have also been mentioned from the point of view of the users of the trust property.
These are some of the purposes for which the public can be permitted to use the property.
The crux of the statutory exemption under Section 11(1)(a) of the Act is not the income earned from property held under the trust but the actual application of the said income for religious and charitable purposes.
It is, therefore, necessary to indicate in the trust deed the broad objectives for which the income derived from the property is to be utilised.
There is no mention in the trust deed as to how the income derived from the trust property is to be utilised.
The public uses the building on payment of rent to the trustees.
What is to be done with the money so collected has not been provided in the trust deed.
There is no mandate in the trust deed that the income derived from the trust property is to be spent on religious or charitable purposes.
We are satisfied that on a proper construction of the trust deed it does not meet the requirements of Section 11(1)(a) of the Act.
We find no infirmity in the judgment of the High Court.
We entirely agree with the reasoning and the conclusions reached therein.
Mr. Prasaran invited our attention to paragraphs 5 and 6 of the special leave petition wherein it is stated that Mr. Justice V. Balasubrahmanyan who delivered the judgment in this case on behalf of the two Judge Bench of the High Court had given opinion in this case as special counsel for the Income tax Department and in the said opinion the Department was advised to go to the High Court by seeking a reference.
It was also opined that the trust was ineligible for the exempltion for the reasons which were given therein.
It is further mentioned inthe special leave petition that the petitioner came to know about this aspect only after the judgment was pronounced on December 17, 1980.
None of the parties brought this aspect to the notice of the learned Judge at the hearing or at any time before or after the conclusion of the hearing.
Mr. Prasaran contends that it would be in the interests of justice if the matter be remanded back to High Court for rehearing.
We are not inclined to agree with the learned counsel.
The 633 tribunal pronounced its order on February 28, 1974 and the High Court decided the reference seven years thereafter.
The opinion must have been given immediately after the tribunal 's order and as such due to lapse of time the learned Judge could not have remembered the `routine opinion ' he gave as a busy lawyer several years ago.
The judgment was delivered by the High Court after hearing detailed arguments from both sides.
All the points raised by the assessee have been dealt with and decided on the basis of judicious reasoning.
In any case we have heard mr. K. Prasaran, learned Senior Advocate for the appellant and have examined the trust deed minutely and carefully.
The view taken by the High Court is the only view which can be taken in this case and we affirm the same.
The appeal is, therefore, dismissed with costs.
We quantify the costs as Rs. 10,000.
V.P.R. Appeals dismissed.

summary/full:
A trust namely, "Ganga Bai Charities" was created on 13.9.1958, to construct and provide a building for the benefit of the public to be used for religious, charitable cultural and social purposes.
The founder of the trust contributed Rs. 34,000 to the trust fund.
With that fund a plot of land was purchased and the construction of a building was begun.
The fund was augmented by her son from his own contribution as well as from outside donations.
The building was completed at the cost of about Rs. six lakhs and it was let out as a marriage mandapam to be used by the members of the public.
The income derived from letting out the Kalyana Mandapam came to Rs.1,06,392.00 in the year ending March 31, 1963.
For the subsequent years also the income was substantial.
The trust was also running a printing press and seizable income was being from the press.
Income tax proceedings were initiated against the trust.
The appellant trust contended that the income derived from the property was being held wholly for religious and charitable purposes and as such was exempt under Section 11 of the Income Tax Act.
The Income tax Officer holding that the income earned by the trust was taxable, rejected the contention of the trust.
On appeal the Appellate Assistant Commissioner reversed the Income tax Officer 's order, holding that the trust was a charitable trust and its income was entitled to exemption under Section 11 of Act.
627 On further appeal by the department, the Tribunal upheld that decision of the Commissioner but remitted the assessment to the Income tax Officer to find out as to what extent in each year the trust income or accumulation were expended for charitable purposes.
The Income Tax Appellate Tribunal referred the following question to the High Court under Section 256(1) of the Act: "Whether it had been rightly held that the income of the trust would be entitled to exemption under Section 11 of the Income Tax Act, 1961?" The High Court answered the question in the negative and in favour of the department, against which these appeals were filed by the assessee trust by special leave before this Court.
On the question, whether the Gengabai Charities, a trust was entitled to exemption under Section 11(1)(a) of the Income Tax Act, 1961, this Court dismissing the appeals of the assessee trust, HELD : 1.01.
The crux of the statutory exemption under Section 1(1)(a) of the Income Tax Act, 1961 is not the income earned from property held under the trust but the actual application of the said income for religious and charitable purposes.
It is, therefore, necessary to indicate in the trust deed the broad objectives for which the income derived from the property is to be utilised.
There is no mention in the trust deed as to how the income derived from the trust property is to utilised.
The public uses the building on payment of rent to the trustees.
What is to be done with the money so collected has not been provided in the trust deed.
There is no mandate in the trust deed that the income derived from the trust property is to be spent on religious or charitable purposes.
[632 C D] 1.02.
On a careful reading of the trust deed it is not possible to cull out in clear terms a specific charitable/religious object to conclude that the trust was set up wholly for or religious purposes.
The "religious, charitable, cultural and social" purposes referred to in the deed are not avowed as the objectives of the trust itself.
What the founder of the trust intended to convey was that the building to be constructed out of the funds provided by her and supplemented from other sources, must be heed for the benefit of the public for being used by them for religious, charitable, cultural or social purposes.
[631 F G] 628 1.03.
The intention of the founders was to provide a building for the benefit for the benefit of the public to be used by them for religious, charitable and/or cultural and social purposes.
It is nowhere stated in the trust deed that the trust itself has been created for the purpose of carrying out any of such objectives.
The holding and conducting of religious discourses and the running of schools for the development of Sanskrit have also been mentioned from the point of view of the users of the trust property.
These are some of the purposes for which the public can be permitted to use the property.
[631H 632B] 1.04.
On a proper construction of the trust deed it does not meet the requirements of Section 11(1)(a) of the Act.
[632E]