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2005 DIGILAW 1434 (MAD)

Saroja v. M. Arunachalam

2005-08-25

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of The Constitution of India against the order dated 25.07.2003 made in the course of examination of DW-1 in O.S.No.2028 of 1991 on the file of the learned District Munsif, Tiruchirappalli.) This Revision is directed against the Order of District Munsif, Tiruchirappalli made in the course of examination of DW-1 in O.S.No.2028 of 1991 (dated 25.07.203) declining to admit the unregistered Sale Deed. The Defendant is the Revision Petitioner. 2. Relevant facts for disposal of this Revision Petition could briefly be stated thus: The Respondent/Plaintiff has filed a Suit in O.S.No.2028 of 1991 for Permanent Injunction relating to 'ABCD' Lane restraining the Defendant from in any way putting up sunshade over the windows and fixing new door facing 'ABCD' Lane. Case of the Plaintiff is that the Plaintiff is the absolute owner of Door No.21-A, Pillaiyar Koil Kulathu Sandhu, Keela Vaikolkara Street, Woraiyur by virtue of the Sale Deed dated 07.06.1998 executed by Chinnaiyan. The Defendant is the owner of Northern Side of the Plaintiff's property i.e. Door No.22/1. In between the Plaintiff's property and the Defendant's property, there is 'ABCD' lane. The lane is left for effecting the repairs to the wall and also to have access to the Plaintiff's house. There arose dispute between the Plaintiff's Owner Chinnaiyan and the Defendant in respect of the enjoyment of the property. Panchayat was held and as per the decision of the Panchayatdhars, Defendant has no right to interfere with the Plaintiff's possession and enjoyment of the property. While so, the Defendant has put up two windows on her southern sidewall. The Defendant has also threatened to put up a door way and also sunshade over the windows so as to affect the Plaintiff's right of ownership over the lane. If the Defendant puts up doorway or sunshade over the windows, the Plaintiff's valuable right of ingress and egress to his property would be very much affected. The Defendant has no right over the 'ABCD' lane. While so, the Defendant has been attempting to put up sunshade over the windows and the Plaintiff has objected the action of the Defendant. Since the Defendant has threatened to put up construction, the Plaintiff has filed the Suit. 3. The Defendant has no right over the 'ABCD' lane. While so, the Defendant has been attempting to put up sunshade over the windows and the Plaintiff has objected the action of the Defendant. Since the Defendant has threatened to put up construction, the Plaintiff has filed the Suit. 3. Denying the allegations in the plaint, the Defendant has filed the Written Statement pleading ignorance about the dispute between the Plaintiff's vendor and the alleged Panchayat and the decision of the Panchayatdhars. According to the Defendant, the Plaintiff cannot claim any exclusive right over the lane, which is in enjoyment of the Defendant. The Plaintiff being the latest purchaser from Chinnaiyan, the Plaintiff ought to have verified all the encumbrances over the property. If there is any deficit in measurement or in the extent, the Plaintiff has to file a Suit only against the vendor Chinnaiyan for the shortage of the measurement. The Plaintiff cannot claim right over the lane left by the Defendant on the Southern Side of her wall for the purpose of fixing sunshade on the Southern Side Wall. The Defendant had purchased the house property from one Perumal and the said Perumal had purchased the property from Chinnaiyan, the very same vendor, who sold the property to the Plaintiff. Therefore, the Plaintiff has no legal right to question the fixing of sun shade on the southern side. The Defendant has filed the Written Statement inter alia challenging the measurements and contending that the Sale Deed in favour of the Plaintiff is defective in nature and the measurement. 4. The Trial commenced, parties have adduced evidence. When DW-1/Defendant was in the box, prior title deed in favour of his vendor, Perumal, executed by the said Chinnaiyan was sought to be marked. The said Sale Deed was executed for a consideration of Rs.2,000/-; but engrossed on the Stamp paper at Rs.2.50 and unregistered. The signature of PW-3, who has signed in that document as attester was marked as Ex.B-1 through cross examination of PW-3. The Stamp Duty penalty of Rs.1,575.50 was collected from the Defendant on 24.06.2003. The unregistered Sale Deed sought to be marked through DW-1 (husband of Defendant) as document on the side of the Defendant. 5. The signature of PW-3, who has signed in that document as attester was marked as Ex.B-1 through cross examination of PW-3. The Stamp Duty penalty of Rs.1,575.50 was collected from the Defendant on 24.06.2003. The unregistered Sale Deed sought to be marked through DW-1 (husband of Defendant) as document on the side of the Defendant. 5. Elaborately considering the contentions of the Defendant and the objections raised by the Plaintiff, the learned District Munsif declined to admit the document finding that the document is inadmissible for want of registration. The learned District Munsif was of the view that the Stamp Duty penalty has been collected, the document being unregistered is inadmissible in evidence under Section 49 of the Registration Act. Referring to 2002(1) Law Weekly p.768 (Raju V. Pandithurai), the learned District Munsif found that the document creating/conveying the right to Defendant's vendor – Perumal,, the document is to be registered under Section 17(1)(b) of the Registration Act and for want of registration, the document is inadmissible in evidence. 6. Aggrieved over the impugned order, the Defendant has preferred this Revision Petition. 7. Placing reliance upon the Proviso to Section 49 of the Registration Act, learned counsel for the Revision Petitioner/Defendant has contended that the document though being unregistered can be received in evidence for the collateral purpose to ascertain the nature of possession of the Defendant. Placing reliance upon 2003(4) SCC page 161 (Bondar Singh V. Nihal Singh) it is contended that the un-stamped and unregistered Sale Deed though may not convey title to the vendee, it can be looked into for collateral purpose to ascertain the nature of possession of Defendant's vendor. 8. Assailing the impugned order, the learned counsel for the Defendant has contended that the Court below having collected the Stamp Duty penalty erred in not admitting the document. 9. Countering the arguments, the learned counsel for the Respondent/Plaintiff has drawn the attention of the Court to the Written Statement and contended that the impugned document has not been referred to in the Written Statement. Submitting that the document being unregistered cannot be received in evidence for any purpose and the lower Court has rightly declined to admit the document and the order is to be sustained. 10. Submitting that the document being unregistered cannot be received in evidence for any purpose and the lower Court has rightly declined to admit the document and the order is to be sustained. 10. Upon consideration of the impugned order, the document in question and other materials on record, the following points arise for consideration in this Revision: i) Since the Stamp Duty Penalty on the document has been collected from the Defendant, though the document is unregistered, whether the document is to be admitted in evidence? ii) Whether the lower Court was not right in declining to admit the document for want of registration? 11. The dispute between the parties mainly relates to the 'ABCD' lane. The Plaintiff claims to be the absolute owner of Door No.21-A of Pillaiyar Koil Kulathu Sandhu. The Defendant is said to be the owner on the Northern Side of the Plaintiff's property, i.e., in Door No.22/1. The disputed lane lies in between the houses of the Plaintiff and the Defendant. The Defendant places reliance upon the Sale Deed executed in her favour by Perumal. The said Peumal is said to have purchased the property from Chinnaiyan (Vendor of the Plaintiff) under the document in question (unregistered Sale Deed dated 30.07.1979). The document in question is admitted to be a Sale Deed. That the document in question is a sale transaction, is clear from the following recitals in the document in question: @ehsJ njjpapy; vGjpf; bfhLj;j mDgt fpua rhrdk; vd;dbtd;why; ehd; jw;rkak; Rkhh; 15 tUl';fs; Mf mDgtpj;J tUk; brk;k";brl;;o gps;isahh; nfhtpYf;F brhe;jkhd ,lk; o/v!;/ vz; 267?y; vd;dhy; mDgtpj;J tUk; brhj;jpd; xU gFjpia bjd;tly; $hjpao gjpide;Jf;Fk; fpHnky; $hjpao Kg;gj;ije;J mo cs;s nkw;Tiua[k; fhyp kida[k; cs;s ,lj;ij i ehsJ njjpapy; nkw;go eghplk; buhf;fkhf U:gha; 2000-? (U:gha; ,uz;lhapuk; kl;Lk;) bgw;Wf; bfhz;nld;/ i ,lj;jpw;F ,dpnky; bgUkhs; eha;f;fh; jhd; thp fl;l ntz;oaJ/ i ,lj;ij bghWj;J VjhtJ tpy;y';fk; Vw;gl;lhy; ehnd vdJ brhe;j brytpy; bra;J itf;fpnwhk;/@ The above recitals clearly manifest the intention of the parties in conveying the title and the document being a Sale Deed. 12. The document has been written in the Stamp Paper of Rs.2.50. When the signature of PW-3 was marked as Ex.B-1, the Stamp Duty Penalty of Rs.1,575.50 was collected. By mere collection of Stamp Duty Penalty, can the document be admitted in evidence though the document is unregistered is the main point arising for consideration. 13. 12. The document has been written in the Stamp Paper of Rs.2.50. When the signature of PW-3 was marked as Ex.B-1, the Stamp Duty Penalty of Rs.1,575.50 was collected. By mere collection of Stamp Duty Penalty, can the document be admitted in evidence though the document is unregistered is the main point arising for consideration. 13. Admittedly the recitals of the document shows that the document is a Sale Deed. Under Section 54 of the Transfer of the Property Act, there are two modes of transfer by sale and these are:- i) Registered Instrument; and ii) delivery of possession, in case of the immovable property of value less than Rs.100/-. A sale cannot be effected in any other way. Title of an immovable property cannot be passed by an unregistered document. The document being unregistered is inadmissible in evidence. 14. Under Sec.17 (1)(b) 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" 15. Under Section 49 of the Registration Act, no document required under Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting the immovable property. The proviso to Section 49 added by Act 21 of 1929 makes an exception. The Proviso is to the effect that an unregistered document may be looked into as evidence of any collateral transaction not required to be effected by registered instrument. On the language of the Proviso, it is thus clear that an unregistered document affecting immovable property in respect of want of registration can be received as evidence of a contract. For instance, it can be received in a Suit for Specific Performance. It can also be received for such collateral purposes other than those, which create, declare, assign, limit or extinguish right title or interest in immovable property. 16. For instance, it can be received in a Suit for Specific Performance. It can also be received for such collateral purposes other than those, which create, declare, assign, limit or extinguish right title or interest in immovable property. 16. Placing much reliance upon the Proviso to Section 49, learned counsel for the Revision Petitioner has contended that in view of the Proviso, the document though unregistered is to be received in evidence for the collateral purpose to ascertain the nature of possession of the vendor. In support of his contention that the document can be looked into for collateral purposes, the learned counsel for the Revision Petitioner/Defendant has relied upon 2003(4) SCC Page 161 (Bondar Singh V. Nihal Singh) wherein the Supreme Court has held that "under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case (unstamped and unregistered Sale Deed), even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land." 17. The question arises whether the impugned document produced can be received for the collateral purpose. The collateral purpose means a purpose which excludes of reference to the contract relating to the immovable property. As noted earlier, the collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The document in question is now sought to be produced only for proving the title of the Defendant's vendor, namely, Perumal. The document is not produced merely for the sake of proving possession of the vendor. In other words, the purpose for which the document is produced is not a collateral purpose. The Title and the possession thereon are indivisible for which registration is required. Under Section 49 of the Indian Registration Act, no document required by Section 17 or by any provision of Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. 18. PW-3's signature of attestation was marked as Ex.B-1 at the time when PW-3 was examined. Since the document is insufficiently stamped, Stamp Duty and penalty of Rs.1,575.50 has been collected. 18. PW-3's signature of attestation was marked as Ex.B-1 at the time when PW-3 was examined. Since the document is insufficiently stamped, Stamp Duty and penalty of Rs.1,575.50 has been collected. The learned counsel for the Revision Petitioner/Defendant has submitted that the Court having collected the Stamp Duty and Penalty and that once the Proviso (a) of Section 35 of the Stamp Act is complied with the document ought to have been admitted in evidence. It is further contended that under Proviso (a) to Section 35 of the Stamp Act powers have been given to the concerned Officer/Court to admit an instrument in evidence on payment of Stamp Duty and Penalty. Once the Proviso is complied with by payment of Stamp Duty and Penalty, the unregistered document becomes admissible for collateral purpose. It is further contended that the terms of the Proviso are mandatory and once the payment of requisite Stamp Duty and Penalty has been collected, the Court is bound to admit the document. This contention does not merit acceptance. The document for which Stamp Duty and the Penalty has been collected, can be received only for Collateral Purposes, where the unregistered document has been brought forth by the parties to evade proper Stamp Duty. Even on payment of Stamp Duty and Penalty, the document cannot be admitted in evidence. As noted earlier, the impugned document is sought to be marked for the purpose of proving the title upon the vendor of the First Defendant and not for any other collateral purpose. If such documents are to be received, the very object of Registration Act and the collection of Stamp Duty would be rendered nugatory. The unregistered document, which has been produced to prove the title of the vendor was rightly found to be inadmissible. 19. In view of the mandatory requirement of registration of the document (under Section 17(1)(b) of the Registration Act) and inadmissibility of unregistered document (Section 49 of the Act), the lower Court has rightly declined to admit the document. The impugned order does not suffer from any material irregularity or error apparent on the face of the record warranting interference exercising supervisory power of the High Court. 20. The impugned order does not suffer from any material irregularity or error apparent on the face of the record warranting interference exercising supervisory power of the High Court. 20. For the foregoing reasons, the order of the learned District Munsif, Tiruchirappalli (made in the course of examination of DW-1 in O.S.No.2028 of 1991 holding that the unregistered Sale Deed is inadmissible) is confirmed and this Revision Petition is dismissed. Consequently, C.M.P.No.21501 of 2003 is also dismissed. In the circumstance of the case, there is no order as to costs.