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2005 DIGILAW 1527 (MAD)

Eswari v. Palaniammal & Others

2005-09-13

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 30.07.2003 passed by the Principal District Munsif, Palani in I.A.No.728 of 2003 in O.S.No.870 of 1996, as stated therein.) This Civil Revision Petition is directed against the order dated 30.07.2003 of the Principal District Munsif, Palani in I.A.No.728 of 2003 in O.S.No.870 of 1996, dismissing the Petition refusing to admit the Unregistered document. The Plaintiff is the Revision Petitioner. 2. The dispute between the parties revolves around the document termed as said to be the Lease Agreement of Agricultural lands. The First Defendant is the Wife of Murugesan. Second and Third Defendants are the Children of Murugesan and the First Defendant. The Plaintiff's Husband and Murugesan are Brothers. Case of the Plaintiff is that Murugesan entered into Lease Agreement of Agricultural lands with the Plaintiff on 13.04.1994 and the Plaintiff has paid a sum of Rs.40,000/- to Murugesan and possession is said to have been handed over to the Plaintiff. According to the Plaintiff, she can cultivate the Suit Schedule Property pursuant to the Agreement. The Agreement is for a period of Five years. It is alleged that from 1996, the Defendants have interfered with the possession of the Plaintiff on 17.08.1996 and on 20.08.1996. Hence, the Plaintiff has filed the Suit in O.S.No.870 of 1996 for Permanent Injunction restraining the Defendants from interfering with the possession of the Plaintiff as per the Lease Agreement dated 13.04.1994. 3. The First Defendant – Wife of Murugesan has filed the Written Statement stoutly denying the possession of the Plaintiff. According to the First Defendant, Murugesan and his Brother – Palanisamy Gounder (Husband of the Plaintiff) have partitioned the Family properties under a Partition Deed dated 01.06.1982. The Suit Property survey No.337/1 was allotted to Murugesan. The said Murugesan had executed a Settlement Deed in favour of Third Defendant – Malleswaran, appointing the First Defendant as Guardian. Possession was also delivered to the Defendants. Since in 1987, the said Murugesan had attempted to prevent the Defendants from enjoying the Properties, the First Defendant has filed O.S.No.749 of 1987 for Declaration and Possession. The Suit was decreed in favour of First Defendant, against which her Husband – Murugesan has filed A.S.No.55 of 1996 and the Appeal is pending. Possession was also delivered to the Defendants. Since in 1987, the said Murugesan had attempted to prevent the Defendants from enjoying the Properties, the First Defendant has filed O.S.No.749 of 1987 for Declaration and Possession. The Suit was decreed in favour of First Defendant, against which her Husband – Murugesan has filed A.S.No.55 of 1996 and the Appeal is pending. When the Appeal is pending, the First Defendant's Husband – Murugesan had falsely created a document – alleged Lease Agreement in favour of the Plaintiff only to prevent the First Defendant from enjoying the fruits of the Decree in O.S.No.749 of 1987. The alleged Agreement is collusive between Murugesan and the Plaintiff and the Plaintiff is not entitled to any of the reliefs. 4. I.A.No.728 of 2003:- The Plaintiff has filed this Application to admit the Unregistered Lease Agreement dated 13.04.1994. According to the Plaintif, though the document is an Unregistered Document, for the purpose of ascertaining her nature of possession and for collateral purpose, the document is to be received and marked as evidence on the side of the Plaintiff. 5. The Application was strongly resisted by the Defendants contending that the document being Unregistered is inadmissible in evidence. Further, the document is also appears to be usufructuary Mortgage and hence, the document is inadmissible in evidence. In any event, the genuineness of the document is objected by the Defendants and hence, the document cannot be received in evidence. 6. Pointing out that the document in question is more in the nature of usufructuary Mortgage under Sec.58 (d) of the Transfer of Property Act, which is compulsorily registrable under Sec.17 of the Indian Registration Act, learned District Munsif held that the document is inadmissible in evidence under Sec.49 of the Indian Registration Act. Extracting the recitals in extenso from the document, learned District Munsif found that the document is more in nature of usufructuary Mortgage and the same being unregistered cannot be received in evidence for want of Registration and dismissed the Application. 7. Aggrieved over the order of dismissal of the Application, the Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned Counsel for the Revision Petitioner / Plaintiff has submitted that though the document is unregistered, the same could be received in evidence for collateral purpose. 7. Aggrieved over the order of dismissal of the Application, the Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned Counsel for the Revision Petitioner / Plaintiff has submitted that though the document is unregistered, the same could be received in evidence for collateral purpose. It is further submitted that the genuineness or otherwise of the document in question could be gone into only at the time of Trial and it would be pre-mature to express views on the genuineness of the document. In support of his contention that the Court could receive the unregistered document for collateral purposes, learned counsel has placed reliance upon the decisions reported in 2004 (1) L.W. 706 and 1999 (II) M.L.J. 438 . 8. The Respondents have not entered appearance either in person or through counsel. Their names have been printed in the cause List. The contentious points urged by the Respondents before the lower Court have been taken into consideration for disposal of this Civil Revision Petition. 9. The only points that arise for consideration in this Civil Revision Petition are: - whether the document in question being Unregistered could be admitted in evidence and whether the Impugned Order refusing to receive the document suffers from any irregularity warranting interference. 10. From the recitals of the document in question, it is seen that the Plaintiff is alleged to have paid Rs.40,000/- and she is said to have been put in possession for a period of five years in lieu of the Interest payable for Rs.40,000/-. After the period of five years, the amount of Rs.40,000/- is repayable to the said Murugesan. Extracting the recitals in the document in question, learned District Munsif has found that the document is more in the nature of usufructuary Mortgage, which is compulsorily registrable under Sec.17 of the Indian Registration Act. Even if the document is to be treated as Lease Agreement of Agricultural Lands, the lease period being Five years, under Sec.17(1)(d) of the Registration Act, the lease for any term exceeding one year is compulsorily registrable. Under Sec.107 of the Transfer of Property Act, a lease of immoveable property for any term exceeding one year can be made only by a registered instrument. The Unregistered Lease Deed or Agreement for Lease is inadmissible under Sec.49 of the Registration Act. Under Sec.107 of the Transfer of Property Act, a lease of immoveable property for any term exceeding one year can be made only by a registered instrument. The Unregistered Lease Deed or Agreement for Lease is inadmissible under Sec.49 of the Registration Act. The document in question clearly falls within the bar of Sec.49 r/w. Sec.17(1)(d) of the Registration Act. It cannot therefore be a valid document of Lease and no leasehold right could be claimed under it. In a Suit for Permanent Injunction, such Unregistered Lease Deed cannot be received in evidence for the purpose of proving the parties character of possession. 11. The documents which are inadmissible for want of Registration may some times be admissible for collateral purpose. A collateral purpose is any purpose other than for acquiring, declaring, assigning, limiting or extinguishing a right to immovable property. Under the document in question termed as the main purpose is handing over the alleged possession of the land in lieu of Interest for the amount of Rs.40,000/- said to have been paid by the Plaintiff. Possession of the Plaintiff is the crux of the matter in the Lease Agreement; it cannot be said to be a collateral purpose or an alien purpose of the document. The Plaintiff claims to be in possession of the lands only pursuant to the document. Even in the Plaint prayer, the Plaintiff has prayed for Permanent Injunction restraining the Defendants from interfering with her possession pursuant to the Lease Agreement dated 13.04.1994. Since the nature of possession is the main issue involved, the Unregistered document cannot be received in evidence. 12. The defence put forth by the First Defendant is relevant to be noted. According to the Defendants, the Suit Property was allotted to the share of Murugesan, who has settled the properties in favour of his Son – Third Defendant – Malleswaran by a Settlement Deed dated 21.01.1987. The Defendants have alleged that they have been displaced from the Suit Property, which resulted in filing of the Suit in O.S.No.749 of 1987. That suit was for Declaration and Possession and the same was decreed on 14.10.1994. As against which, the said Murugesan is said to have been preferred an Appeal in A.S.No.55 of 1996, which is said to be pending. That suit was for Declaration and Possession and the same was decreed on 14.10.1994. As against which, the said Murugesan is said to have been preferred an Appeal in A.S.No.55 of 1996, which is said to be pending. The Defendants have alleged that the Lease Agreement by Murugesan in favour of his own Sister-in-law (Brother's Wife) is the collusion between them to defeat the lawful claim of the Defendants. The Defendants have put forth a substantial defence, raising objection to the validity of the document in question. The Execution and the passing of consideration under the document in question is very much disputed. 13. Contending that the Unstamped and Unregistered Instrument could be received in evidence for collateral purpose, learned counsel for the Revision Petitioner / Plaintiff has relied upon the decision reported in 2004 (1) L.W. 706 wherein the Supreme Court has held, "...The only defence set up against said document is that it is Unstamped and Unregistered and therefore it cannot convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, 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...." In the above decision, the document in question was an admitted document in the sense its execution was not in dispute. Under such circumstances, the Supreme Court has held that the Unregistered document could be looked into for collateral purpose. The case in hand stands entirely on a different footing wherein the Defendants have denied the execution of the Document and payment of Rs.40,000/- by the Plaintiff to the said Murugesan. When the Execution of the document is alleged to be a collusive one, applying the above decision, the document in question cannot be admitted in evidence. 14. Contending that the Unregistered document could be received in evidence and no prejudice would be caused to the Defendants by marking the document, learned counsel for the Revision Petitioner / Plaintiff has relied upon the decision reported in 1999 (II) M.L.J. 438 . Learned counsel for the Revision Petitioner / Plaintiff is not right in contending that by marking the alleged Lease Agreement, no prejudice would be caused to the Defendants. Learned counsel for the Revision Petitioner / Plaintiff is not right in contending that by marking the alleged Lease Agreement, no prejudice would be caused to the Defendants. There is an earlier litigation between the defendants and the First Defendant's Husband – Murugesan, in which the Defendants have succeeded. The Lease Agreement in question is dated 13.04.1994, which is subsequent to the Settlement Deed (dated 21.01.1987) in favour of Murugesan. If the document is admitted in evidence, it would cause serious prejudice to the rights of the parties, particularly in the earlier litigation, wherein the Defendants have succeeded and the Appeal in A.S.No.55 of 1996 is said to be pending. 15. Learned Principal District Munsif, Palani has rightly found that the document is more in the nature of usufructuary Mortgage, which is compulsorily registrable under Sec.17 of the Indian Registration Act. Where the document is of usufructuary Mortgage or Lease Agreement of Agricultural lands (being for five years), it should compulsorily be registered. The document is hit by Section 49 r/w 17(1)(d) of the Registration Act. It may incidentally pointed out that that the document in question-dated 13.04.1994 is alleged to be for a period of five years, which has already expired in 1999. 16. The lower Court has rightly found that the Document is inadmissible in evidence under Sec.49 r/w.17 (1)(d) of the Registration Act. The Impugned Order does not suffer from any material irregularity or error apparent on the face of record warranting interference, exercising powers of the court under Article 227 of the Constitution of India. This Civil Revision Petition has no merits and is bound to fail. 17. For the foregoing reasons, the order dated 30.07.2003 of the Principal District Munsif, Palani in I.A.No.728 of 2003 in O.S.No.870 of 1996 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No.18671 of 2003 is also dismissed.