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1959 DIGILAW 100 (MAD)

Ramayya Manatrayar v. Tholasiayya Sethurayar

1959-07-10

RAMASWAMI GOUNDER

body1959
Judgment:- This appeal is directed against the decree and judgement of the learned Subordinate Judge of Tanjore, in A.S. No. 101 of 1956, reversing the decree and judgment of the learned District Munsif of Tiruvaiyaru in Original Suit No. 87 of 1955. The suit property consists of 3¼ cents situated in the village of Nemam. This property originally belonged to one Venkatachala Iyer. He mortgaged the same with possession to one Vyakulam Pillai on 14th October, 1885, for Rs. 30. Then Venkatachala Iyer sold the property to Gnanaprakasam Pillai, son of the above-named Vyakulam Pillai on 23rd May, 1909, for Rs. 45. It is the case for the plaintiff that ever since Gnanaprakasam Pillai was enjoying the property as full owner till his death in 1944. There was a partition suit in the family of that Gnanaprakasam Pillai, O.S. No. 12 of 1949, District Court, Tiruchirapalli. In that suit, the suit property was allotted to the share of Royar Pillai, one of the sons of Gnanaprakasam Pillai. Vyakulam Pillai, another son of Gnanaprakasam Pillai had obtained a decree for mesne profits in his favour. In pursuance of the decree for mesne profits this property was brought to sale in E.P. No. 184 of 1953 and in the auction sale held by the District Munsif’s Court, Tiruvaiyaru, on 2nd September, 1954, the plaintiff Tholasiayya Sethurayar purchased the property for Rs. 125. The sale was confirmed on 22nd March, 1955. The plaintiff took the delivery, according to himself, of the suit property through Court on 1st April, 1955. The first defendant is said to hav e attested the delivery account. On the other hand, the case for the third defendant who is the contesting defendant is that the sale deed of 1909 in favour of Gnanaprakasam Pillai is a fabricated document and that Gnanaprakasam Pillai was in enjoyment of the property only as a usufructuary mortgagee and that the third defendant was a tenant under Royar Pillai and was enjoying the property for about 15 years and that subsequently he purchased this item under a sale deed, dated 6th May, 1955, from Ramaswami Aiyar, one of the sons of the original mortgagor and he was enjoying it and that the plaintiff is not entitled to the property. The learned District Munsif found that the plaintiff had no title to the suit property. He therefore, dismissed the suit. The learned District Munsif found that the plaintiff had no title to the suit property. He therefore, dismissed the suit. On appeal the learned Subrodinate Judge came to a diametrically opposite conclusion and held that the plaintiff had established the sale of 1909 as a true and valid one, and, therefore, he decreed the suit for the plaintiff as against the third defendant. Hence this Second Appeal by the defeated third defendant. The two points which arise for determination before me are (1) whether the conclusion of the learned Subordinate Judge that the sale deed of 1909 is a true, one is correct and secondly the point of law relating to the unregistered sale deed. In regard to the truth of the sale deed the learned District Munsif has analysed the evidence and has given six reasons for not believing the genuineness of the sale deed. The learned Subordinate Judge has gone into the matter thoroughly and come to the conclusion that singly and cumulatively the reasons put forward by the learned District Munsif make out that the sale deed was not a genuine one. On a review of the entire circumstances of the case, I have come to the conclusion that the learned Subordinate Judge has come to the conclusion he has done on acceptable and relevant evidence. The sale deed itself is engrossed upon very old stamp papers. It is extremely unlikely that after half a century stamp papers would be procurable to write this document. This sale deed has been attested by three persons who died about quarter of a century ago. It is extremely unlikely that this plaintiff would have been able successfully to forge the signatures of those departed people. On the other hand, we have got the evidence of the son of that Gnanaprakasam Pillai, about the sale deed, as to how his father was enjoying the property under the sale deed. It is also extremely unlikely, having regard to the extent and the value of the property, that an elaborate fabrication would have been done, thus exposing these people to severe penalty if the forgery, if any, were to be discovered. In other words, the sale deed had got the hallmark of a true document and I am unable to say that the learned Subordinate Judge was not justified in coming to the conclusion which he had done. In other words, the sale deed had got the hallmark of a true document and I am unable to say that the learned Subordinate Judge was not justified in coming to the conclusion which he had done. On that conclusion, namely, that the sale deed is genuine, it follows that possession of the plaintiff’s predecessor-in-title must be attributed only to this sale. The learned advocate, Mr. Jagadisa Aiyar, rightly stresses that the title and possession of the plaintiff’s predecessor must be under the sale deed and possession should not be merely as qua usufructuary mortgagee. But as pointed out by the learned advocate, Mr. Kuppuswamy Aiyar, in these cases it becomes often a metaphysical argument and it is only from the surrounding circumstances that we can say where one ends and the other begins. Otherwise how can any usufructuary mortgagee prove that his possession which continued was as qua vendee under that document. In this case the sale deed clearly declares that possession had been given by the vendor to the vendee. Then we have got the evidence of P.W. 3, the son of Gnanaprakasam Pillai, that his father got possession of the property under the sale deed and continued to enjoy the same. The sum total of the evidence in this case shows that the possession of the usufructuary mortgagee got converted into that of possession as vendee. Therefore, on the facts there are no grounds to interfere with the decree a. judgment of the learned Subordinate Judge. The point of law urged is that even though there need not be a registered sale deed for the conveyance of property below the value of Rs. 100, if a sale deed is written it must be registered. On this subject there is a considerable amount of case-law as gathered and the settled law on the subject can be stated as below:- If the deed is not registered, there is no transfer and property does not pass. This is so even if the property is tangible immoveable property of value less than Rs. 100. Mere delivery of the deed will not operate as delivery of the property; nor will a recital in the sale deed of delivery of possession suffice, for such a recital might be inserted without any attempt at fulfilment. But if the unregistered deed of value less than Rs. 100. Mere delivery of the deed will not operate as delivery of the property; nor will a recital in the sale deed of delivery of possession suffice, for such a recital might be inserted without any attempt at fulfilment. But if the unregistered deed of value less than Rs. 100 is accompanied by delivery of the property, the sale would be effective by virtue of delivery of possession and would not be rendered nugatory by the unregistered deed. The deed would be evidence of the contract of the sale or of any negotiations concerning the transaction. (See section 49 of the Registration Act as amended by Act XXI of 1929). An unregistered deed may, under the judgment of the Privy Council in VarathaPillai v. Jeevarathnammal1, be used as evidence of the character of possession. These principles will be found embodied in Makanlal v. Bunku Bugari2; ‘Biswanath Prasad v. Chandra3; Nathu v. Sulale Chand4; Kathari v. Bhupathy5; Dayaram v. Sibaram6; Triboran v. Shankar7; Brajaballa v. Akhay8; Umajha v. Chitu9and Nagayya v. Sayamma 10. Thus in the case of tangible immoveable property worth less than Rs. 100 if the transfer is not made by delivery there must be a registered sale deed. An unregistered deed would be invalid and would not operate as constructive delivery. But if there is delivery it is, as already stated, not rendered nugatory by the existence of an unregistered deed. But the delivery need not be contemporaneous with the unregistered deed ; it may take place some time after. In a Madras case, Kuppuswami v. Chinnaswami11, it was said that the execution of an unregistered sale deed invalidated the oral sale by delivery as the deed excluded evidence of the agreement of sale. But this has been dissented from by the Patna High Court, in Keshwar Mahton v. Sheonandan12, and it has been held that a sale deed though not registered is admissable as evidence of the contract of sale (Puchha Lal v. Kunj Behari Lal13). This is now made clear with reference to certain suits by the Proviso inserted in section 49 of the Registration Act by Act XXI of 1929. Justice Curgenven in Mohammed v. Mohammed14, held that where there is a unregistered sale deed followed by possession of land sold for less than Rs. 100 title will pass. This is now made clear with reference to certain suits by the Proviso inserted in section 49 of the Registration Act by Act XXI of 1929. Justice Curgenven in Mohammed v. Mohammed14, held that where there is a unregistered sale deed followed by possession of land sold for less than Rs. 100 title will pass. Bearing these principles in mind if we examine the facts of this case, apart from the unregistered sale deed, there has been delivery of the property and enjoyment of the same. Consequently, the fact that the sale deed has not been registered will not make any difference to the title which passed under the sale deed. The net result of this analysis is that this Second Appeal has got to be dismissed and in the circumstances without costs. K.L.B. ----- Appeal dismissed.