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2005 DIGILAW 1403 (MAD)

Lingiah & Another v. Sathurappakonar & Another

2005-08-23

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 of C.P.C. against the Order and Decree dated 13.03.2002 made in I.A.No.233 of 2003 in O.S.No.175 of 1998 on the file of District Munsif Court, Kovilpatti.) This Revision is directed against the Order of the District Munsif, Kovilpatti made in I.A.No.233 of 2003 in O.S.No.175 of 1998 dated 13.03.2002 dismissing the Application filed by the Defendants under Section 151 C.P.C. and declining to admit an unregistered Sale Deed dated 15.06.1907. The Defendants are the Revision Petitioners. 2. Suit O.S.No.175 of 1998 was filed by the Plaintiffs relating to 1.71 acres in S.No.59/1 and two cents in S.No.59/3. Case of the Plaintiffs is that the Suit Property originally belonged to one Perumal. Plaintiffs claimed right and title through the descendants of the said Perumal (Legal Heirs through Mahalingam) by purchase under the Sale Deed dated 25.08.1993. According to the Plaintiffs, they are in possession and enjoyment of the Suit Property since the date of purchase. To claim false right in the Suit Property, the Second Defendant had created a document in favour of the First Defendant on 11.03.1998. The alleged Sale Deed in favour of D-1 is not valid and not binding upon the Plaintiffs. The Plaintiffs and their Predecessors-in-title is in possession and enjoyment of the Suit Property for more than thirty years. On the above allegations, Plaintiffs have filed the Suit for Declaration and for Permanent Injunction. 3. The First Defendant has filed the Written Statement contending that the Property belonged to Subbaiyan, son of Perumal (a different Perumal other than the one referred to in the Plaint). The Second Defendant- Easwaran, who is the son of the said Subbaiyan became entitled to Suit items of Properties. The First Defendant had purchased the Suit Properties from the Second Defendant – Easwaran by a Sale Deed dated 11.03.1998 for valid consideration. Pursuant to the Sale Deed, the First Defendant is in possession and enjoyment of the Suit Property. Earlier the Plaintiffs' Predecessors-in-title have filed O.S.No.180 of 1993 before the District Munsif Court, Kovilpatti. The Plaintiffs' Predecessors-in-title have reported that the Suit has been settled out of Court and the said Suit was dismissed as settled out of Court. 4. On the above pleading, issues were framed and the parties went on trial. The Plaintiffs' witnesses were examined and cross examined. The Plaintiffs' Predecessors-in-title have reported that the Suit has been settled out of Court and the said Suit was dismissed as settled out of Court. 4. On the above pleading, issues were framed and the parties went on trial. The Plaintiffs' witnesses were examined and cross examined. On the side of the Defendants, D.W.s - 1 and 2 were examined. At that stage, I.A.No.233 of 2003 was filed by the Defendants to recall DW-2 to admit the document - an unregistered Sale Deed dated 15.06.1907. According to the Defendants, under the said document, the Second Defendant's father, Subbaiyan, had purchased the Suit Properties from one Pooludayar and the document is an essential document for proving the defence. 5. The above Application was strongly resisted by the Plaintiffs alleging that the said document though a Sale Deed for consideration of less than Rs.100/-, the document is inadmissible in evidence for want of registration. Since the document is unregistered, the document cannot be admitted in evidence for any purpose and the Application to recall D.W-2 cannot be allowed. 6. The learned District Munsif, Kovilpatti dismissed the Application finding that the document though a Sale Deed for consideration of less than Rs.100/- being reduced into writing, ought to have been registered. Referring to AIR 1928 Madras page 546 (Kuppuswami V. Chinnaswami) the Lower Court found that the document of Sale when reduced into writing being unregistered is inadmissible in evidence. The Lower Court elaborately discussed Sec.49 and Sec.17 of the Registration Act and also Sec.54 of the Transfer of Property Act in arriving at the conclusion that the document being a sale, which is compulsorily registrable, is being unregistered, is inadmissible in evidence. 7. Aggrieved over the dismissal of the Application to recall D.W-2 for the purpose of marking the said Sale Deed, the Revision Petitioners/Defendants have preferred this Revision. 8. The learned counsel for the Revision Petitioners has contended that Sec.17(1)(b) of the Registration Act requires registration only for the property, which is of value more than Rs.100/-. Drawing the attention of the Court to Sec.54 of the Transfer of Property Act, the learned counsel for the Revision Petitioners contended that when the sale consideration is only Rs.25/-, the document does not require registration, which has not been properly appreciated by the Court below. Placing reliance upon AIR 1936 Madras 301 (MD.GOSUKANI V. MD. Drawing the attention of the Court to Sec.54 of the Transfer of Property Act, the learned counsel for the Revision Petitioners contended that when the sale consideration is only Rs.25/-, the document does not require registration, which has not been properly appreciated by the Court below. Placing reliance upon AIR 1936 Madras 301 (MD.GOSUKANI V. MD. SEKKA MARACAYAR) the learned counsel has further submitted that the Division Bench has expressed a different view and dissented from the decision reported in AIR 1928 Madras 546 (Kuppuswami V. Chinnaswami) 10. Though the Respondents have been served, they have not entered appearance. Their names have been printed in the cause list. The points urged by the Respondents/Plaintiffs before the Trial Court has been taken into consideration for disposal of this Revision Petition. 11. The main point that arises for consideration is whether the impugned order declining to admit the unregistered Sale Deed suffers from serious infirmity seeking for interference? 12. The Transfer of Property Act came into force on 17.2.1882. Section 54 of the Transfer of Property Act defines the word "Sale", which reads as under: "Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in case of a reversion or other intangible thing can be made only by a registered instrument. "In the case of intangible immoveable property, of a value of less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. A contract for sale of immoveable property is a contract that a sale of such property shall take place on the terms settled between the parties." 13. Also under Sec.17 of the Registration Act, any right, title or interest in the immovable property could be conveyed or transferred only by the document for which registration is compulsory. Section 17(1) (b) of the Registration Act reads as follows: 17.1. Documents of which registration is compulsory ******* (b) other non-testamentary instruments which purport or operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property" 14. Documents of which registration is compulsory ******* (b) other non-testamentary instruments which purport or operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property" 14. The Transfer of Property Act came into force on 17.02.1882. The present Registration Act came into force on 18.12.1908. The document in question is dated 15.06.1907 prior to coming into force of the present Registration Act. However, the Transfer of Property Act, which came into force on 17.02.1882 itself refers to the registration of the documents. Presumably, at that time the Registration Act 1877 must have been in force. The learned District Munsif, Kovilpatti found that though the Sale Deed was for less than Rs.100/- though not requiring registration, if reduced into writing ought to have been registered and the Sale Deed produced by the Defendants is inadmissible in evidence. For its conclusion, that the sale of immovable properties for value of less than Rs.100/-, if reduced into writing should have been registered. The learned District Munsif referred to the decision reported in AIR 1928 Madras 546 (Kuppuswami V. Chinnaswami). 15. Assailing the impugned order, the learned counsel for the Revision Petitioners/Defendants placed reliance upon AIR 1936 Madras 301 (MD.GOSUKANI V. MD. SEKKA MARACAYAR) wherein the Division Bench has held that lease for one year is not necessarily registrable and is admissible in evidence to prove the transaction of lease. The said decision arises out of the transaction of lease, which was for one year. The observation in the above decision cannot be imported to the case in hand for admitting the Sale Deed. 16. In the above said decision, the Division Bench had an occasion to refer AIR 1928 Madras 546 (Kuppuswami V. Chinnaswami) and the learned Judges observed the view that when the parties had recourse to the execution of the document, there is no reason why the document should not be executed as such. In the said decision, the views of the Division Bench reads: "It is said that a contrary view has been taken by Srinivasa Ayyangar and Anantakrishna Ayyar,JJ., in 1928 Mad. 546. In the said decision, the views of the Division Bench reads: "It is said that a contrary view has been taken by Srinivasa Ayyangar and Anantakrishna Ayyar,JJ., in 1928 Mad. 546. The former learned Judge does indeed say: The Expression 'sale by delivery of property' should properly be construed only as referring to and comprising a case where the parties agree that the transaction of sale should be effected by delivery of property and only in that way and cannot possibly be construed so as to include a case where the parties agree to reduce to the form of a document the terms of the sale. The moment the parties for some reason consider that it is not sufficient to effect the transaction of sale by mere delivery of property, but require that as evidence of such a transaction there should be a deed or document, the transaction can scarcely be correctly described as one effected by mere delivery of property. The expression 'mere delivery of property' does not, of course, find a place in S.54; and with respect I am unable to see why, if the property is such as may be sold by delivery, it is any the less so sold because the parties, upon agreeing to the sale, unnecessarily have recourse to the execution of a document. Nor am I able to understand why the incontestable proof afforded by such a document of an agreement between the parties may not be accepted as such." 17. Also referring to a Bombay decision, the Division Bench expressed the view that being unregistered Sale Deed might be inoperative as a Sale Deed, but it may be used to prove the oral agreement between the parties and to prove the terms of the contract. 18. In the instant case, applying the above decision, the document cannot be admitted in evidence even to prove the terms of the contract. At this juncture we may point out the stage in which the document was produced. As noted earlier, the Plaintiffs' witnesses were examined and cross examined, D.Ws-1 and 2 were also examined. Thereafter, the Application was filed to recall DW-2 for marking the unregistered Sale Deed in favour of Subbaiyan - father of D-2, which is said to be for a consideration of Rs.25/-. It is relevant to note that no reference has been made to the Sale Deed in the Written Statement. Thereafter, the Application was filed to recall DW-2 for marking the unregistered Sale Deed in favour of Subbaiyan - father of D-2, which is said to be for a consideration of Rs.25/-. It is relevant to note that no reference has been made to the Sale Deed in the Written Statement. In the Written Statement filed by the First Defendant, it is only vaguely stated as: @cz;ikapy; gpuhjpd; jgrpy; brhj;Jf;fs; bgUkhs; kfd; Rg;igad; vd;gtUf;F ghj;jpag;gl;lJ/ i bgUkhSk; gpuhjpd; gpu!;jhgpf;Fk; bgUkhSk; btt;ntW egh;fs;/ bgah; xw;Wikia rh!;tjkhdf; bfhz;L thjpfs; ,e;j nkhroahd tpah$;$pak; jhf;fy; bra;Js;shh;/@ There is no specific reference to the unregistered Sale Deed dated 15.06.1907. The Defendants have not traced the title to the document in question. 19. Section 54 of the Transfer of Property Act refers two modes of transfer, i.e., (i) by registered instrument ; and (ii) by delivery of possession. the provisions as to modes of transfer (in Sec.54) are exhaustive. The Sale cannot be effected in any other way under Section 54 of the said Act. The registration of the document is optional in the case of immovable property though of a value less than Rs.100/-. Even if reduced into writing, the sale is inoperative, unless, it is effected by delivery of possession. The unregistered Sale Deed does not by itself effectively become operative. It is to be noted that no where in the impugned document, delivery of possession has been stated. The recitals only state jgrpy; fz;l brhj;ij ehsJ Kjy; fpuak; rh;t Rje;jpu ghj;jpakha; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ jgrpy; brhj;jpy; vt;tpjtpy;y';fKk; ,y;iy/ Absolutely no mention about the handing over of the possession. Likewise in the written statement also it is not averred that pursuant to the sale by the unregistered document, possession was handed over to Subbaiyan – father of the Second Defendant – Easwaran. It is only vaguely alleged that Subbaiyan and his son Easwaran have been in possession and enjoyment of the Suit Properties. The alleged sale though of value less than Rs.100/- is not proved to be a complete one by necessary averments regarding the delivery of possession. 20. The doubt, which arise as to the genuineness of the document may also be pointed out. Subbaiyan (father of D-2) is said to have purchased the Suit Properties in the year 1901. The Court has perused the xerox copy of the Sale Deed. 20. The doubt, which arise as to the genuineness of the document may also be pointed out. Subbaiyan (father of D-2) is said to have purchased the Suit Properties in the year 1901. The Court has perused the xerox copy of the Sale Deed. In the document written in the vernacular form, the words expressed have been written as @,y;iy@. @vy;iyf;Fl;gl;lJ@ and the letter @u;;@ had been written as @h;@. These reforms in the Tamil Vernacular had been brought about only in the recent past, probably in 1970-80's. The use of the alphabetic in the document @iy@. @h;@, (instead of @]y@. @u;;@) which has been reformed only the recent past throws doubt upon the genuineness of the document. Of course this is only a matter of fact and evidence. Since the document is found to be inadmissible in evidence for proving the sale, this Court has not proposed to go into deep about the genuineness of the document. 21. The learned District Munsif, Kovilpatti has elaborately dealt with Sec.17 (1)(b) of the Registration Act and Sec.54 of the Transfer of Property Act and found that the document is inadmissible in evidence. The learned District Munsif found the document inadmissible mainly on the ground that the document being reduced into writing must have been registered. This Court has found that the transaction of sale not proved to be by delivery of possession, the unregistered document is inadmissible in evidence. The dismissal of the Application to recall D.W-2 to admit the unregistered Sale Deed is to be confirmed, however on different footing. This Revision has no merits and is bound to fail. 22. Therefore, this Revision Petition is dismissed confirming the Order of the District Munsif Court, Kovilpatti dated 13.03.2002 made in I.A.No.233 of 2003 in O.S.No.175 of 1998. Consequently, C.M.P.No.9716 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. 23. The learned District Munsif, Kovilpatti is directed to dispose the suit expeditiously in accordance with law.