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2022 DIGILAW 556 (AP)

Katepalli Jayarama Rao v. Katepalli Govinda Narasimha Rao S/o. Late Nagabushanam

2022-06-16

B S BHANUMATHI

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ORDER : B.S.Bhanumathi, J. The question fell for consideration by this Court is about admissibility, in evidence, of unregistered and unstamped document styled as a ‘hand letter’ dated 31.07.1983 by which first defendant allegedly wrote to the plaintiff agreeing to give to the plaintiff or person nominated by the plaintiff half of the land of Ac.1.17 cents irrespective of more or less in measurement, in R.S.No.193/1, 2 fell to his share in registered partition, through registration without receiving any consideration and executing a document whenever the plaintiff wishes. In essence, by this letter, allegedly defendant No.1 agreed to give half of his landed property out of Ac.1.17 cents to the plaintiff or his nominee by executing a registered document, without receiving any consideration, whenever the plaintiff wishes. 2. This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved of the order, dated 28.10.2017, passed in O.S.No.104 of 2011 on the file of the Court of Senior Civil Judge, Nuzvid. 3. Heard Smt. Nimmagadda Revathi, learned counsel for the revision petitioners/defendants and Sri M.R.K.Chakravarthy, learned counsel the respondent/plaintiff. 4. The facts that lead to filing of this revision by the revision petitioners/defendants is that on an objection raised by them with regard to marking of the document, that is, hand letter dated 31.07.1983, the trial Court, by the impugned order, held that this document is only hand-letter addressed by D1 by declaring his intention and no right or title is transferred through this document and is neither agreement nor settlement gift deed as pleaded by the defendants, and therefore, it does not require any stamp duty or registration. It is further held that the decision in Madala Jyothi and another v. Karanam Tirupalaiah and others 2015(5) ALD 587 is not applicable to the document. 5. It is further held that the decision in Madala Jyothi and another v. Karanam Tirupalaiah and others 2015(5) ALD 587 is not applicable to the document. 5. According to the learned counsel for the revision petitioners, a document agreeing to execute a registered settlement deed is also a ‘settlement deed’ as it is not just an out and out document of settlement, but an agreement to execute such a document in future also falls within the definition of ‘deed of settlement’ as can be seen from Section 2(24) of the Indian Stamp Act, 1899 Section 17(1) of the Registration Act, 1908 or Section 25(1) of the Indian Contract Act and thereby, it requires registration and stamp duty as per provisions of the Indian Stamp Act, 1899 or else it cannot be received in evidence (i) for want of registration by virtue of prohibition in Section 49 of the Registration Act, 1908, except for purposes permitted therein and (ii) for want of stamp duty by virtue of Section 35 of the Stamp Act, 1899, unless necessary stamp duty with penalty is paid as permitted in the proviso therein. 6. Learned counsel for the revision petitioners placed reliance on Madala Jyothi and Ors. vs. Karanam Tirupalaiah and Ors 2015 (5) ALD 587 , wherein it was held that even if a document is construed as agreement for execution of registered settlement deed/gift deed, it requires registration under Section 25(1) of the Indian Contract Act. 7. On the other hand, learned counsel for the respondent contended that no transfer of title is affected under the impugned document and unless such transfer of title in-praesenti is affected, the same cannot be treated as a deed of settlement, and therefore, the revision petitioners have no case. In support of his contention, learned counsel placed reliance on the following decisions: (i) T.T Gnanamurugan and Anr v. Inspector General of Registration, Chennai and Another, AIR 2009 MADRAS 202 (ii) Zaheda Begum and Another v. Lal Ahmed Khan and others AIR 2010 ANDHRA PRADESH 1; and (iii) Namburi Basava Subrahmanyam v. Alapati Hymavathi and others(1996) 9 Supreme Court Cases 388 8. At the outset, it is apt to refer to the relevant provisions here. At the outset, it is apt to refer to the relevant provisions here. Section 2(24) of the Indian Stamp Act, 1899, which defines ‘settlement’ as follows: ‘Settlement’ means any non-testamentary disposition, in writing, of movable or immovable property whether by way of declaration of trust or otherwise made – (a) In consideration of marriage; (b) For the purpose of distributing property of settler among his family or those for whom he desires to provide , or for the purpose of providing for some person dependent on him; or (c) For any religious or charitable purpose; and include an agreement in writing to make such a disposition and where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition.” A perusal of the above definition of deed of settlement clearly indicates that it is inclusive of even an agreement to make such a disposition as defined in respect of the word ‘settlement’. (i) Section 17(1) of the Registration Act: 17. Documents of which registration is compulsory: (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely: (a). instruments of gift of immovable property, (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 immovable property; (ii) Section 25(1) of the Indian Contract Act: "25. instruments of gift of immovable property, (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 immovable property; (ii) Section 25(1) of the Indian Contract Act: "25. Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.-An agreement made without consideration is void, unless- (1) It is expressed in writing and registered under the law for the time being in force for the registration of [documents] and is made on account of natural love and affection between parties standing in a near relation to each other; or unless;" A combined reading of these provisions makes it clear that such agreement also requires registration. (iii) Section 49 of the Registration Act, 1908: Section 49: Effect of non-registration of documents required to be registered:-No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall,- (a) affect any immovable property comprised therein, or (b) confer any power to adopt; or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered; Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument." The effect of an unregistered document which requires to be registered by the Registration Act, 1908, or the Transfer of Property Act, 1882, conspicuously omits the Contract Act. However, the agreement itself is made void in Section 25 of the Contract Act, if the agreement is not in writing and registered. (iv) According to Section 35 of the Indian Stamp Act, 1899, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person unless it is properly stamped. Section 35 of the Indian Stamp Act, 1899: 35. Instruments not duly stamped inadmissible in evidence, etc. (iv) According to Section 35 of the Indian Stamp Act, 1899, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person unless it is properly stamped. Section 35 of the Indian Stamp Act, 1899: 35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: As such the instrument which is chargeable with stamp duty shall not be admitted into evidence unless it is properly stamped. 9. In the present case, the deed which refers to a clause containing an undertaking to execute a document in future falls within the definition of ‘settlement’. As such, it cannot be denied that the document requires registration as contemplated under Section 17 of the Registration Act and also payment of proper stamp duty under the relevant provision of the Stamp Act. As such, the revision petitioners rightly objected such document to be received in evidence for want of registration and stamp duty as well. Therefore, the impugned order is liable to be set aside. However, as the respondent has not shown right now as to what is the collateral purpose for which it can be used, this Court is not expressing any opinion as to admissibility of such document in evidence on payment of stamp duty with penalty for admitting the same in evidence for any collateral purpose as per Section 49 of the Registration Act. As such, it is left open to the respondent to urge before the trial Court in this regard, if he is so advised. 10. In the result, the Civil Revision Petition is allowed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this civil revision petition shall stand closed.