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2007 DIGILAW 634 (MAD)

Jayabalan & Another v. Natesan & Others

2007-02-21

R.BANUMATHI

body2007
Judgment :- Short point falling for consideration is whether an unregistered and unstamped document termed "Inam Sasanam" is admissible in evidence. 2. This revision arises on the following facts: - 2. 1. The subject matter of the suit in O.S.No.477/1995 is R.S.No.136/1A and R.S.No.137/10A – Mela Perumpallam Village. Case of the Plaintiff is that one Ponnusami had conveyed the entire extent available in both Survey Numbers to one Sellappan on 20.12.1933. From that Sellappan, Plaintiffs father purchased the properties on 04.02.1934. In the family partition of Plaintiffs effected on 08.08.1980, Plaintiff was allotted the said property in R.S.No.136/1A and R.S.No.137/10A. 2. 2. The first Defendant is working as Village Administrative Officer. The second Defendant is his wife. Defendants claim to have purchased an extent of two cents in R.S.No.136/1A and three cents in R.S.No.137/10A from one Govindammal, wife of Ponnusami. Alleging that the first Defendant being Village Administrative Officer has maneuvered sub-division and committed trespass, Plaintiff has filed the suit for declaration and for delivery of possession. 3. During trial, Defendants produced document in question dated 05.09.1932, which is termed as "Inam Sasanam" by Ponnusami in favour of Kumarasami [who is stated to be grandfather of the first Defendant]. Under the document, Ponnusami is stated to have conveyed two cents in S.Nos.136/1 and three cents in S.No.137/1. The document is unregistered and unstamped. Referring to the recitals in the document, the learned District Munsif declined to admit the document observing that document unstamped and unregistered cannot be marked, nor can it be sent to the Revenue Divisional Officer for stamp duty. 3. Assailing the impugned Order, the learned Counsel for the Petitioners submitted that document was sought to be marked only for collateral purpose to show the nature of possession. It was further submitted that in 1932, value of 5 cents cannot be ascertained and it cannot be stated that value would be more than Rs.100/-, requiring registration. It was further submitted that the impugned Order declining to mark the document would cause serious prejudice to the Defendants in putting forth their defence. 4. Placing reliance upon 2000 (1) MLJ 1 [A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and others], the learned Counsel for the Petitioners submitted that the document, in respect of immovable property, being unstamped and unregistered, cannot be looked into for any purpose. 4. Placing reliance upon 2000 (1) MLJ 1 [A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and others], the learned Counsel for the Petitioners submitted that the document, in respect of immovable property, being unstamped and unregistered, cannot be looked into for any purpose. It was further submitted that as the document creates a right in favour of Kumarasami, it requires registration. 5. Section 17(1)(b) of the Registration Act lays down, among other things that all non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, any right, title or interest, must be compulsorily registered. Under Section 49 (c) of the Registration Act, a document which is required to be compulsorily registered under Section 17 shall not be received as evidence of any transaction affecting such property or conferring such power. 6. It is well settled that the question whether the document is admissible in evidence or not, primarily depends upon the nature and contents of the document and also the facts and circumstances of each case. The nomenclature given to the document is not decisive. The main question to be considered is whether the document by itself creates or extinguishes right in immovable property worth more than Rs.100/-. In ascertaining true nature of the document, the recitals thereon and intention of the parties have to be borne in mind. 7. The question to be considered is whether the document in question is mere recital of fact or something which itself either creates or extinguishes a right or interest in the immovable property. Though the recitals are to the effect that Kumarasami obtained the Sale Deed from Govindammal or legal heirs of Ponnusami, the other recitals in the documents are to the effect of creating right in favour of Kumarasami and extinguishing right of Ponnusami. The following recitals are relevant to be noted: - Tamil 8. From the above recitals, it is evident that the document is an unregistered sale, intended to create right, title and interest in respect of the immovable property in favour of Kumarasami. The document is neither recital of fact nor expressing mere intention to convey the property. The document therefore was compulsorily register able under the provisions of Section 17(1)(b) of the Registration Act and the consequence of its nonregistration. As provided in Sec.49 of the Act, document is inadmissible. 9. Defendants claim to be in enjoyment of 5 cents. The document is neither recital of fact nor expressing mere intention to convey the property. The document therefore was compulsorily register able under the provisions of Section 17(1)(b) of the Registration Act and the consequence of its nonregistration. As provided in Sec.49 of the Act, document is inadmissible. 9. Defendants claim to be in enjoyment of 5 cents. The second Defendant claims to have purchased 5 cents from Govindammal, wife of Ponnusami, by the Sale Deed dated 07.07.1990. The learned Counsel for the Petitioners contended that the ancient document could be received in evidence for collateral purpose of showing the nature of possession of the Defendants. Since the Defendants also claim through the disputed document, it cannot be looked into even for collateral purpose. 10. A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction, affecting immovable property. But it may be admitted for any collateral purpose i.e. for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. An unregistered document may be admissible in evidence for a collateral purpose, for instance of showing the nature of possession. Creation of right in favour of Kumarasami is the purpose for which the document was executed. Hence the document cannot be admitted even for collateral purpose. 11. Revision is filed under Section 155 CPC. The Order of the trial Court holding that the document in question was compulsorily register able and the same could not be received in evidence for want of registration does not relate to jurisdiction of that Court and therefore, the provisions of Sec.115 CPC are not attracted to such an Order. There is no error or irregularity in the exercise of jurisdiction, nor there is a question of failure to exercise jurisdiction in the present case. The impugned Order does not suffer from any error apparent on the face of record warranting exercising of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India also. This revision is devoid of merits and is bound to fail. 12. In the result, the Order of the District Munsif in O.S.No.477/1995 dated 04.01.2001 is confirmed and this CRP is dismissed. No costs.