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2024 DIGILAW 493 (AP)

Uppari Venkatararnudu v. Uppari Narayana

2024-04-26

KIRANMAYEE MANDAVA

body2024
ORDER : 1. This Civil Revision Petition challenges the docket order dated 13-09-2023 in O.S. No. 311 of 2014 on the file of Additional Senior Civil Judge, Kurnool, under which the unregistered gift deed was sent for impounding to collect stamp duty and penalty. The said order directed defendant No. 2 (DW-1) to pay the deficit stamp duty and a penalty of Rs.1,100/- for receiving the same in evidence for collateral purposes. 2. For the sake of convenience, the petitioners and respondents hereinafter, are referred to as plaintiffs and defendants, as arrayed before the Court below. 3. The plaintiffs and the defendants constitute one family. Defendant No. 1 is the father of the plaintiffs and defendants No. 2 & 3. The plaintiffs filed suit for partition. The plaintiffs contend that the defendant No. 1 was the only son of one Sri. Uppari Anjaneya @ Moogenna. Sri Uppari Anjaneya @ Moogenna, plaintiffs and the defendants constitute one family and father of defendant No. 1 had possessed house properties and agricultural lands. And that he also owned Ac. 12.00 of land in Sy. No. 60/1 of Baswapuram Village (plaint schedule land). From the total area of Ac. 12.00, the defendant inherited Ac. 6-00 from his ancestors. He then purchased the remaining Ac. 6.00 in the name of his son (D-1) on [27.03.1997], using joint family funds. The plaintiffs contend that in pursuance of an oral partition that was agreed on 08.05.2003, Sri. Uppari Anjaneya @ Moogenna, partitioned all his properties situated in Ulchala Village, among his son (D-1) and grandchildren (plaintiffs and D Nos. 2 & 3) and the same was reduced into writing and he kept the Ac. 12-00 of land in Sy. No. 60/1 of Baswapuram village, for himself (plaint schedule land).it is contended that in the said partition, plaintiff Nos. 1 & 2, respectively, got the properties as shown in the C & D schedule of the partition deed. Similarly, it is stated that defendant Nos. 1, 2 & 3 got the A, B & E schedule properties respectively towards their share. Ever since the partition, all of the coparceners are stated to have been in possession and enjoyment of their respective shares whereas Sri. Uppari Anjaneya @ Moogenna was in possession and enjoyment of the plaint schedule land till his intestate death. The further contention of the plaintiffs is that after the death of Sri. Ever since the partition, all of the coparceners are stated to have been in possession and enjoyment of their respective shares whereas Sri. Uppari Anjaneya @ Moogenna was in possession and enjoyment of the plaint schedule land till his intestate death. The further contention of the plaintiffs is that after the death of Sri. Uppari Anjaneya @ Moogenna, the plaint schedule land has been in joint possession and enjoyment of plaintiffs and the defendants, who got 1/5th joint share each and on coming to know that defendant No. 2 had been pressurizing defendant No. 1 to immediately transfer the plaint schedule land in his name, it is stated that the 1st plaintiff got issued a legal notice dated 15.05.2014, to defendant Nos. 1 & 2, to refrain from doing so and to immediately partition the land among all the coparceners. It is stated that the plaintiff, apprehending that defendant No. 1 may at any time transfer the entire plaint schedule land in the name of defendant No. 2, though he has no right or title to do so, filed the subject suit. 4. The defendant No. 1 filed his written statement and counter claim contending that Sri. Uppari Anjaneya @ Moogenna, had transferred Ac. 6-00 cents of land to his only son i.e., defendant No. 1 by way of unregistered gift deed in the year 1985 and from the date of execution of the said gift deed, Uppari Narayana, i.e. the defendant no. 1, became absolute owner, and was in peaceful possession and enjoyment of plaint schedule property. In support his contention, has filed the unregistered gift deed. He further contended that the document was filed only for collateral purpose in order to prove the possession of defendant No. 1 and sought to receive the said unregistered gift document. 5. During the suit proceedings, the defendant No. 1 died. The 2nd defendant filed his affidavit-in-chief to examine himself as DW-1 and the unregistered gift deed dated 25-06-1983 was sought to be marked by defendant No. 2. The plaintiffs objected to the marking of the same as the same was an unregistered document. The defendants contended that after collecting the deficit stamp duty and penalty, the unregistered and unstamped document could be received in evidence for collateral purposes under Sec. 49 of the Registration Act. The plaintiffs objected to the marking of the same as the same was an unregistered document. The defendants contended that after collecting the deficit stamp duty and penalty, the unregistered and unstamped document could be received in evidence for collateral purposes under Sec. 49 of the Registration Act. The learned trial Judge, relying on the decision of this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja, 2020 (1) ALD 162 observed that the unregistered and unstamped document could be received in evidence for collateral purpose after rectifying the defect of deficit stamp duty and by levy of penalty. He accordingly directed the defendants to pay the deficit stamp duty and penalty on the unregistered and unstamped gift deed, which was determined by him at Rs.1,100/-. Assailing the same, the present Civil Revision Petition has filed. 6. Heard Ms. Vinodini Ruth, learned counsel representing the Sri G. Sravan Kumar, learned counsel for the petitioners and Sri U. Ramanjaneyulu, learned counsel for the respondents. 7. The learned counsel for the petitioners contends that the document in dispute is a gift deed, which is a compulsorily registerable document under the provisions of Sec. 17 of the Registration Act. The document was not registered and unstamped, so it cannot be received as evidence, even for collateral purposes. And she relies on the following decisions: (i) Ranga Reddy vs. Sandhu Padamma and Others, 2002 (6) ALD 752 (ii) Shaik Khadaru Masthan vs. Sayyed Fathimun Bee, 2007 (6) ALD 482 (iii) Vangala Laxmamma Reddy vs. Pasham Narsi Reddy and Others, AIR 2010 A.P. 158 8. Per contra, the learned counsel for the respondents, relying on the decision of this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja, (supra) contends that the learned trial Judge had directed the document for collection of stamp duty and penalty for receiving the document in evidence for “collateral purposes alone.” In fact, the defendant No. 2 in the affidavit-in-chief, has stated that the gift deed was filed by him, for collateral purpose, in order to prove the possession of the defendant No. 1. 9. Perused the order under revision, and the material on record. 10. 9. Perused the order under revision, and the material on record. 10. The decision of this Court relied upon by the learned trial Judge is based on the principle laid down by the Hon’ble Apex Court in the case of K.B. Saha and Sons Pvt. Ltd. vs. Development Consultant Ltd. 2008 (8) SCC 56 and the decision in the case of Avinash Kumar Chouhan vs. Vijay Krishna Mishra, 2009 (1) ALD 109 (SC). 11. The decisions of this Court in the case of Ranga Reddy vs. Sandhu Padamma and Others and Shaik Khadaru Masthan vs. Sayyed Fathimun Bee, relied upon by the learned counsel for the petitioner, were prior to the decision of the Hon’ble Supreme Court in the case of K.B. Saha and Others and Vangala Laxmamma Reddy vs. Pasham Narsi Reddy and Others, the judgment of the Hon’ble Supreme Court in the case of K.B. Saha was not referred to. And the judgment of this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja referred supra is a subsequent decision and is after referring to the subsequent decision of the apex court. 12. The learned trial Judge, following this Court's decision, in Parchuri Sireesha and Another vs. Challpalli Jalaja, though rightly directed the petitioner to pay the deficit stamp duty and penalty, however, observed that upon payment of the said deficit stamp duty and penalty, the document would be received for collateral purposes. Whereas this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja, has observed as under: “16. In the considered view of this Court, merely on according permission to the defendants to pay the stamp duty and penalty on the gift deed in question and on collection of the same, no automatic right to have the gift deed exhibited for collateral purpose would either accrue to the defendants or be conferred on the defendants, as the trial Court would be required to consider what is a collateral purpose before receiving the gift deed in evidence for collateral purpose, in the event of payment of deficit stamp duty & penalty payable on the said instrument. The word ‘collateral purpose’ is explained in the decision of the Supreme Court in K.B. Saha and Sons Pvt. Ltd. vs. Development Consultant Limited, (2008) 8 SCC 56 wherein the Supreme Court held “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 as evidence of collateral facts, or for any collateral purpose that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.” Further, as per section 49 of the Indian Registration Act, 1908, a document, which is required by law to be registered, if not registered, shall not affect any immovable property comprised therein.” 13. This Court further observed at Para No. 19 of the order as under: “19. In the result, the civil revision petition is allowed and the impugned order is set aside and I.A. No. 378 of 2017 in I.A. No. 785 of 2016 in O.S. No. 291 of 2016 on the file of III Additional District Court, Guntur, is allowed directing the Trial Court to permit the defendants to pay the deficit stamp duty & penalty on the deed of gift in question and collect the same or do the needful by following the procedure established by law. It is made clear that in the event the deficit stamp duty and penalty are paid by the defendants as determined, the Trial Court shall then consider the admissibility of the said instrument for any collateral purpose, if any such request is made, however, following the precedential guidance of the Supreme Court wherein the words “collateral purpose” are explained.” 14. In the light of the above principle, the learned Judge, though has rightly directed payment of stamp duty and penalty relying on the said decision, had not followed the said judgment in the true sense, in as much as the learned judge observed that the said document would be received in evidence upon payment of the stamp duty as determined by it, for collateral purposes. However, this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja, referred supra has observed that upon payment of the stamp duty and penalty, no automatic right to have the document exhibited for collateral purpose would accrue. However, this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja, referred supra has observed that upon payment of the stamp duty and penalty, no automatic right to have the document exhibited for collateral purpose would accrue. The trial Court was directed to consider the admissibility of the said instrument for any collateral purpose following the precedential guidance of the Supreme Court in K.B. Saha’s case referred supra, wherein the words “collateral purpose” are explained. The learned trial Judge, without deciding the issue, as to what would constitute a collateral purpose, before receiving the document in evidence had observed that the document would be received in evidence for collateral purpose on payment of the stamp duty and penalty. 15. Therefore, this Court is of the considered view that the present Civil Revision Petition is required to be disposed of with the following direction: (i) The learned Judge, upon payment of the stamp duty and penalty by the defendant No. 2, in terms of the order of the learned trial Judge dated 13.09.2021, shall consider the admissibility of the subject document i.e. gift deed, for any “collateral purposes” in terms of the judgment of this Court in the case of Parchuri Sireesha and Another vs. Challpalli Jalaja. 16. With the above direction, the Civil Revision petition is disposed of. There shall be no order as to costs. 17. As a sequel, interlocutory applications, pending if any, shall stand closed.