S G Thrupthi, W/O Ekantha Reddy v. P Veena, D/O P N Prabhakara Reddy
2019-06-26
KRISHNA S.DIXIT
body2019
DigiLaw.ai
ORDER : The petitioners being the defendants in an injunctive suit in O.S.No.293/2015 filed by the respondents herein are invoking the writ jurisdiction of this Court seeking invalidation of the order dated 07.10.2017 entered by the learned Senior Civil Judge, Pavagada in respondent’s M.A.No.6/2017 whereby the respondent’s application in IA No.1 filed under Order XXXIX Rule 1 & 2 having been favoured, the petitioners’ application in IA No.2 filed under Order XXXIX Rule 4 has been rejected. After service of notice, the respondent has entered appearance through her counsel and resists the writ petitions. 2. Learned counsel for the petitioners vehemently argues that: (a) the lower appellate Court fell in error in treating the subject document as a sale deed when it is a deed of mortgage as was rightly held by the trial Court, keeping in view the smallness of consideration for the transaction qua the hugeness of the property comprised therein; (b) the lower Appellate Court failed to see that even now the original mother deed is still with the petitioners who have again mortgaged the subject property subsequent to the alleged sale deed; the entries in the revenue records still stand in the name of the petitioners. The above points having not been treated by the lower Appellate Court in the right perspective, the indulgence of this Court is warranted to set the injustice at naught. 3. The learned counsel for the respondent per contra makes submission in justification of the impugned orders contending that: (a) the subject document having been duly executed and registered as a sale deed cannot be treated otherwise; ordinarily a registered document is presumed to be true and valid, till contra is proved; (b) the petitioners have filed a civil suit in O.S.No.8809/2018 seeking a decree in effect for cancellation of the subject sale deed and that the trial Court there has not granted any interim relief to them; (c) since the trial Court had erred in favouring the petitioners, the lower Appellate Court having considered all aspects of the matter has made the impugned order which does not have any demonstrable errors of law or jurisdiction. So contending, the learned counsel seeks dismissal of the writ petition. 4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. have perused the petition papers. 5.
So contending, the learned counsel seeks dismissal of the writ petition. 4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. have perused the petition papers. 5. The first contention of the petitioners that the subject document comprises only the transaction of mortgage as contra distinguished from a transaction of sale is bit difficult to accept, without manhandling its tenor, text & context. Regardless of the nomenclature, true it is, that a document has to be read in full to ascertain what transaction it affects; with that base line, this Court having perused the said document is of a prima facie opinion that it comprises the sale transaction. The Apex Court in the case of Prem Singh. vs. Birbal 2006 (5) SCC 353 at para 27 observes “There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption……” A non-testamentary document which is compulsorily registrable in law, if registered, Court may, subject to all just exceptions, presume its contents to be true u/s.114 of the Indian Evidence Act,1872. That being so, no fault can be laid at the threshold of the lower Appellate Court in construing the said document with its apparent tenor i.e. sale deed. The contention that the consideration for the sale transaction is inadequate regard being had to the hugeness of the property comprised therein, is difficult to treat in the absence of evidentiary material; even otherwise also, that may not constitute a very relevant factor for deciding the nature of transaction. 6. The second contention that the mother deed is still with the petitioners and that they have mortgaged the subject property again after the alleged sale transaction does not yield any milk to the petitioners. Section 54 of Transfer of Property Act, 1892, speaks of sale of immovable property. In Mulla’s “THE TRANSFER of PROPERTY ACT” Eleventh Edition, at Page 358 reads “The definition (of sale) indicates that in order to constitute a sale, there must be transfer of ownership from one person to another, ie, all rights and interest in the properties which are possessed by that person or transferred by him with his free consent to another person.
The transferor cannot retain any part of his interest or right in that property, or else it will not be a sale…” Going by this version, the retention of the mother deed by the petitioner pales into insignificance, once the sale deed is registered under Section 17 of the Registration Act, 1908. With this the ownership of the subject property passes on to the buyer. 7. The other contention that petitioners even now have the possession of the subject property again is liable to be rejected because their alleged subsequent mortgage of the same in the face of the subject sale deed is irrelevant; the petitioners after the sale as already stated above do not retain any interest/rights or their shades whatsoever once the ownership is transferred by the registered sale deed, by virtue of nemo dat quad non habet ie, a person sans a title cannot pass on one. 8. The last contention of the petitioners till date entries in the revenue records do continue in their name only is of no avail. True it is that the entries in the Revenue Records have a presumptive value under Section 133 of the Karnataka Land Revenue Act, 1964, but the same evaporates once there is a registered sale deed which should be the basis for mutating the entries by the revenue authorities on their own; this having not been done, the presumption does not stand. 9. Yet another reason for denying relief to the petitioner is : Petitioners have filed a civil suit in O.S.No.8809/2018 seeking a decree for cancellation of the subject sale deed and the respondent herein admittedly happens to be a defendant thereto; respondent’s contention that the trial Court there has not granted any interim protection to the petitioners is not contradicted. Viewed from any angle, justice of the case warrants that these writ petitions being devoid of merits be dismissed and accordingly, they are. The observations made herein above, being confined to disposal of this case shall not in any way influence the trial of and decision making in the suits in O.S.No.293/2015 and O.S.No.8809/2018. Costs made easy.