Andhra Pradesh High Court - Amravati
V.Madhusudhan Rao And 7 Others vs S.Nirmala Bai And 4 Others on 6 March, 2019
HIGH COURT OF ANDHRA PRADESH WEDNESDAY .THE SIXTH DAY OF MARCH TWO THOUSAND AND NINETEEN 'PRESENT: THE HONOURABLE SRI JUSTICE 0.V.S.S.SOMAYAJULU CIVIL REVISION PETITION NO: 685 OF 2078 Petition under Article 227 of Constitution of India praying the Honourable High Court to revise the order dated 04.01.2018 passed in 1A No. 839 / 2047 in OS No.244 of 2009 on the file of the Additional Senior Civil Judge. Madanapalle, Chittoor District Between: V¥.Madhusudhan Rao S/o Venkoba Rao, M.P.Kusuma,, W/o M.P.Prabhakar Rao, V Vijaya Bhaskar,, S/o Late Venkoaba Rao, J.Manjula Bai,, Wio J.Rathan Kumar, V.Sandhya,, W/o Naryana Rao, J.V.Lakshmana Rao, S/o Late Venkoba Rao, V.Chandrasekhar,, S/o Late Venkoba Rao, J Sudharani,, W/o d. Chandrasekhar, a i i ._ Patitioner { Plaintiffs 1. S.Nirmala Bai, W/o Sathyanarayana Rao, R/o D.No,2-151, Sipoi Street, Madanapalie, Chittoor District. 2. Smt.R.Rakha,, W/o Late V.Ramesh, Rio 15, R.K.Street, Seshadripuram, Bangalore. 3. R.Roshan,, S/o Late V.Ramesh, R/o 15, R.K.Street, Seshadripuram, Bangalore. 4. B.Gopal Reddy., S/o Not Knawn, Sarpanch, Kothapaile, R/o Eswaramma Colony, Madanapalle, Chittoor District. 5. Ratakonda Kalavathi,, W/o R.Rajasekhar, R/o D.No.17-469-9-3, Nehru Nagar, Madanapalle. (RI to R3 not necessary in this petition) .. Respondent/Defendants IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in OS.No. 241 of 2009 pending on the file of Additional Senior Civil Judge, Madanapalle, Counsel for the Petitioner: Sri NPRAMOD Counsel for the Respondents 4 & 5: SRI R. RADHA KRISHNA REDDY THE COURT MADE THE FOLLOWING ORDER RT ants a GT MEM GTE ANAT OU WITTE STATE OGDEN AERTS RAS oa SRE HON 'BLE SEI JUSTICE D.V.8.8. SOMAYAJULU CRP.No.685 of 2018 ORDER:
This civil revision petition is filed questioning the order dated 04.01.2018 in IA.No.839 of 2017 in OS.No.241 of 2009 passed by the Additional Senior Civil Judge, Mandanapalle.
The suit OS.No.241 of 2009 is filed for partition of the plaint schedule property and to allot a share to the plaintiffs. In the said suit, the plaintiffs have taken a plea by way of amendment that a sale deed dated 31.01.1987 which is executed in favour of defendant No.4 is not valid. The sale deed dated 31.01.1987 is an unregistered document executed on stamp paper worth Rs.5/-. The plaintiffs filed a petition under Order 13 Rule 3 read with Sections 17 and 49 of the Registration Act, read with Section 151 CPC., for a direction that the said document cannot be accepted in evidence as it is not registered and is not adequately stamped. Respondents filed a counter in this application IA.No.839 of 2017 stating that they are ready to pay the stamp duty and penalty on the document. They also admit that the unregistered sale deed is admissible for a collateral purpose of proving the possession of the suit schedule property by the defendants. This application came to be allowed and the impugned order came to be passed on 04.01.2018.
The Court below held that the unregistered sale deed can only be received for the collateral purpose of proving the osetia possession of defendant No.4 and for no other purpose. Questioning the same, the present civil revision petition is filed.
This Court has heard Sri N.Pramod, learned counsel for the petitioner and Sri R.Radha Krishna Reddy, learned counsel for the respondents.
Learned counsel for the respondents argued that the lower Court committed @ serious error in receiving the document for a collateral purpose. According to him, the document is admittedly unregistered, and that a patent error was committed by the trial Court in receiving the document. Learned counsel relies upon judgments of the Hon'ble Supreme Court of India reported in Site Ram Bhama vw. Ramvatar Bhamal and Yellapu Uma Maheswari uv. Buddha Jagadheeswararac'. He argues that the substance of the transaction has to be determined with reference to the terms of the document and that as the suit is filed for partition, the decument should not have been received in evidence. It is his contention that in the counter filed, the respondents have agreed that the document suffers from registration and lack of stamp duty. The contention of the learned counsel is that the respondents in the revision and the petitioners in the interlocutory application are using the said document to prove their title to the property. Therefore, 1 Laws (SC} 208 3 36 2 Laws (SC} 2015 10 30 pal the counsel contends that the lower Court committed a serious error in allowing the application.
On the other hand, the respondents contend that the document can be received for establishing the collateral purpose of the possession. Learned counsel relies upon a judgment reported in Annamadevulu Chandrarao wv, M.Veera Raghavulw® and argues that the document can be received for a collateral purpose.
The question that arises for consideration is: whether the Court below committed any error in passing the impugned order.
A reading of the order shows that the lower Court held that the document could be received for the collateral purpose of proving the possession of defendant No.4, but not for the title. In view of the fact that this is an issue that arises frequently, this Court heard both learned counsel at length.
A document which is not stamped as required under law cannot be received in any evidence for any purpose. Section 35 of the Indian Stamp Act, 1899 makes this very clear. However, this is a curable defect and if the stamp duty and penalty is paid thereafter, the document becomes admissible. The proviso to Section 35 of the Indian Stamp Act, deals with this. Thus, the defect of stamp duty or deficit stamp ~duty is "a curable defect, but till the stamp duty /penalty is paid, the document is totally inadmissible for 3 2015 (4) ALT 463 any purpose (main or collateral). The following cases are relevant for this. Tatinent Venkata Subba Rae v. Kodati Jayalaxmi Devit and Mandati Srinivas uv. Gatla Raji Reddy'.
This Court in Tatineni Venkata Subba Rao's case held as follows:
22. Therefore, on a review of the entire case law available on record, this Court is of the opinion that an insufficiently stamped document cannot be received in evidence for any purpose {main or collateral. If an insufficiently stamped document comes before a Court, a duty is cast upon the Court to impound the document by following the procedwire under the Stamp Act and ensure that the requisite stamp duty is paid. Only after the requisite stamp duty is paid, the document becomes admissible in evidence. If the duty/penalty is net paid, it is wholly inadmissible.
Coming to the aspect of registration, Section 49 of the Registration Act, states that no document which has to be registered shall be received in evidence of any transaction effecting such property unless it is registered. Section 49 is to the following effect:
49, Effect of non-registration of documents required to be registered -- No document required by section 17 ler by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
fa} affect any immovable property comprised therein, or
(b) confer any power to adopt, or {ce} be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
+ 2018 {4} ALT I § 2017 (3) ALT 699 a3 Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter ID of the Specific Relief Act, 1877 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.
. (emphasis supplied) Thus, it is clear that as per the proviso to Section 49 of the Act, an unregistered document could be received in the following two circumstances, {1} as evidence of a contract in a suit for specific performance (2) as evidence of a collateral transaction not required to be effected by a registered instrument.
The next question therefore that falls for consideration is, what exactly is a collateral transaction.
The Hon'ble Supreme Court of India in a case reported in RL.B.Seha and Sons (P) Lid., v. Development Consultant Ltd.,® reviewed the law on the subject and enunciated following five (5) principles:
"1*, A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2*. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3*, A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4". A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. anv right, * (2008) 8 SCC 564 title or interest in immovable property of the value of one hundred rupees and upwards.
o*. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the Purpose of proving an important clause would not be using it as a collateral purpase."
Therefore, it is now clear that (1) a collateral transaction is a transaction which is independent of, or divisible from, the transaction which by law requires registration, (2) a term of a document cannot be proved by using the document which is inadmissible for want of registration.
Proving a term in a document cannot be really called as a collateral purpose, particularly, in a case like this. In the case on hand, the decument that is sought to be marked is styled as a sale deed. The recitals in the document refer to it as sale deed only. The body of the document clearly mentions that the property is being sold for a total sale consideration of Rs.79,000/- and having received the said amount, the possession is delivered to the purchaser. Therefore, the payment of sale consideration, transfer of title and delivery of Possession are an integral part of the same transaction. This delivery of possession which the petitioner wants to prove is not a transaction independent of, or divisible from the other part of the transaction in the decument. The law on the « . 2 .. . -- - Ta subject has been Succinctly laid down by the Hon'ble Supreme Court of India. It clearly states that if the transaction is separate and distinct from the main transaction, it is a collateral transaction. Similarly, if the document itself is inadmissible for want of registration, none of the terms of the document can be used for a collateral purpose also. In Annamadevulu Chandrarao's case (3 supra} cited by the respondent, the suit was filed for partition. In the course of examination of DW.1, a decument was sought to be filed which has an enumeration of the shares allotted to each sharer in an earlier oral partition. This is clear from para 2 of the judgment. in those circumstances, ie, an earlier partition and the later enumeration of the shares, the learned single Judge of this Court held that the document was admissible and it can be received in evidence for a 'collateral' purpose. In para 12 of the judgment, the learned single Judge clearly cautioned that the document can be received by making an endorsement on the face of it that it is marked for a collateral purpose of proving the possession of the defendant. Learned single Judge also cautioned that the document shall not be looked into for the purpose of establishing the share of the respective parties.
In the case on hand, if the circumstances are taken into consideration, the case of defendant No.4 is that they have purchased the property under a sale deed dated 31.05.1997 and that their predecessor in title was put in possession of the property pursuant to the said sale deed. It is very clearly mentioned in para 8 of the written statement that Raja Bai sold away Ac.1.80 cents of land along with her share in the well, electric motor etc., to Boyapati Padmavathamma under &a sale deed dated 31.01.1987 for valid consideration of Rs.79 »000/- and put her in Possession of the property. The contents of the document are alse to the Same effect, In that view of the matter, this Court is of the opinion that the sale deed In question cannot be received in evidence as it is not registered. ft cannot also be received for a collateral Purpose for the Simple reason that the possession is Hot a collateral transaction that is independent or divisible from tr ansfer recorded in the sale deed. As the decument is Not registered, none of its terms can also be looked into, Hence, for all these reasons, this Court is of the opinion that the lower Court committed an error in allowing the document to be Marked for a collateral Purpose. The impugned order is therefore set aside and the civil revisian petition is allowed. No order as to costs.
AS a sequel, miscellaneous petitions, if any, pending in this revision Shall Stand closed, veces sense nna nnanasamenntunanennnnnee inate Sdi- Vv. SEETHARAMA RAJU ASSISTANT REGISTRAR 4} TRUE COPY i/ SS SECTION OFFICER To, , ice D.V.S.S.Somayajulu i y to Hon'ble Sri Justice D. One Fair cory his lordship's kind perusal) i istrict The Additional Senior Civil Judge, wOroa, Chittoor Di One CC to Sri N Pramod Advocate [O a cate [OPUC] One CC to Sri R. Radha Krishna Reddy VO and Company Se ees scretary, Un Union of india, Ministry of Law, Justice and e atary, Buildings, Hyderabad
7. Two CD Copies ort & GON HIGH COURT DATED: 06-03-2019 ORDER CORP NO.685 OF 2018 \ Af Ogle ee Vo yD ALLOWING THE CRP WITHOUT COSTS. \ .
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