Madras High Court
A.Manicka Mudaliar vs Murugesa Mudaliar : 1St on 30 June, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30 -06-2011
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A.Nos.929 to 931 of 1998
A.Manicka Mudaliar : Appellants/2nd defendant
vs.
1.Murugesa Mudaliar : 1st respondent/Plaintiff
2.Tiruchengode Weavers
Co-operative
Production and Sales Sangam,
S.No.523 rep. by its Special
Offier : 2nd Respondent/1st Defendant
Prayer in S.A.No.929 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree of the Subordinate Judge, Sankagri, dated 09.11.1995 made in A.S.No.53 of 1994 confirming the judgment and decree in O.S.No.781 of 1985 on the file of the District Munsif, Tiruchengode.
A.Manicka Mudaliar : Appellants/Plaintiff
vs.
Murugesa Mudaliar : Respondent/Defendant
Prayer in S.A.No.930 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree of the Subordinate Judge, Sankagiri, dated 09.11.1995 made in A.S.No.52 of 1994 confirming the judgment and decree in O.S.No.219 of 1991 on the file of the District Munsif, Tiruchengode, dated 29.04.1994.
Prayer in S.A.No.931 of 1998: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree of the Subordinate Judge, Sankagiri, dated 09.11.1995 made in A.S.No.54 of 1994 confirming the judgment and decree in O.S.No.834 of 1986 on the file of the District Munsif, Tiruchengode, dated 29.04.1994.
For Appellants : Mr.P.Jagadeesan
For 1st Respondent
in S.A.929/1998
& Respondent
in S.A.939 & 931
of 1998 : Mr.S.P.Subramanian
COMMON JUDGMENT
The appellant herein was the plaintiff in O.S.No.219 of 1991 and O.S.No.834 of 1986 and the 2nd defendant in O.S.No.781 of 1985.
2.O.S.No.219 of 1991 was filed by the appellant for recovery of possession of the respondent. O.S.No.834 of 1986 was filed for injunction restraining the respondent from putting up any construction in the suit property. O.S.No.781 of 1985 was filed by the 1st respondent for injunction restraining the 1st defendant and the 2nd defendant from transferring the name of the suit property in favour of the appellant.
3.All the suits were tried together and common evidence was let in and by a common judgment, the suits filed by the appellant in O.S.Nos.219 of 1991 and 834 of 1986 were dismissed and the suit filed by the 1st respondent in O.S.No.781 of 1985 was decreed and the appeals filed by the appellant were also dismissed and hence, these second appeals.
4.The case of the appellant was that the landed property on which the house was constructed originally belonged to Tiruchengode Handloom Weavers' Cooperative Production and Sale Sangam herein-after referred to as Sangam and the appellant was a member of that Sangam and Plot No.8 was allotted to the appellant and he constructed a house thereon and in the year 1975, he left the place to Chidambaram and at that time, he allowed the 1st respondent to occupy the house as a tenant and the monthly rent was Rs.40/- and he also left the document of title in that house in the custody of the 1st respondent and at the request of the 1st respondent, he also put his signature in blank stamped papers and white papers and the 1st respondent was paying the rent regularly and the rent was enhanced to Rs.100/- and till 10.11.1983, the 1st respondent was paying rent and thereafter, the appellant came to the place and requested the 1st respondent to vacate and hand over the possession and that was refused and the 1st respondent claimed title over the suit property and the appellant filed R.C.O.P.No.12 of 1984 for eviction and that was dismissed as the 1st defendant denied the relationship of landlord and tenant and therefore, a suit was filed in O.S.No.219 of 1991 for recovery of possession of the suit property. In the meanwhile, the Sangam took steps to transfer the ownership in favour of the appellant and having realized the same, the 1st respondent filed a suit O.S.No.781 of 1985 for injunction restraining the Sangam from transferring the ownership of the property to the appellant and the 1st respondent started further construction in the suit property and as he has no title over the same, the appellant filed O.S.No.834 of 1986 for injunction restraining the 1st respondent from making any further construction in the suit property.
5.The 1st respondent contested the suit denying that the allegation made in the plaint that he was put in possession of the property as a tenant and he was paying rent and he obtained the signature of the appellant in stamped papers and white papers and later on, misused the same and claimed right over the property. Nevertheless, the 1st respondent admitted that the property viz., site originally belonged to Sangam and it was allotted to the appellant and the appellant entered into an agreement of sale on 22.05.1975 to sell the property to the 1st respondent and received a sum of Rs.500/- as advance and thereafter, he in-turn entered into an agreement, dated 21.07.1978 for the sale of the above property and a sum of Rs.4,000/- was received and finally on 04.11.1975, the appellant received balance sale consideration of Rs.4,000/- and executed a sale deed in favour of the 1st defendant and handed over the possession to the 1st respondent and the 1st respondent is in possession of the property since then and as the 1st respondent has purchased the property and is in possession of the property in part performance of the contract, he is entitled to be in possession of the property and the appellant has lost his right.
6.Both the Courts below held that under Exs.B4, 5 & 6, the 1st respondent entered into an agreement of sale and under Ex.B6, he paid the entire sale consideration and obtained a sale deed and therefore, he became the owner of the property and in part performance of the contract, he was put in possession and therefore, he is entitled to protect his possession as per provision of section 53-A of the Transfer of Property Act.
7.Both the Courts below further held that the 1st respondent became the owner of the property, the appellant is not entitled to the relief of recovery of possession and he cannot restrain the 1st respondent from putting up any further construction in the suit property and the 1st respondent being the owner of the property is entitled to maintain an action restraining the Sangam from transferring the ownership to the appellant and dismissed the suit filed by the appellant and decreed the suit filed by the 1st respondent. Hence, these second appeals.
8.The following substantial questions of law were framed at the time of admission:-
01.Whether the Lower Courts are right in holding that the respondent is entitled to defend his possession of the suit property under Sec.53(a) of the Transfer of Property Act especially when Lower Courts held that Ex.B6, the alleged sale deed cannot be relied on in as much as it is not a registered document and no proper stamp duty was paid?
02.In as much as Ex.B6, an unregistered document cannot be received as evidence as per Sec.49(c) of the Registration Act, whether the Lower Courts are right in relying on the said document to prove the fact that the respondent has paid the entire sale consideration to the appellant?
03.Whether the Lower Courts are right in holding that the respondent has purchased the suit property under Ex.B6, especially when the appellant himself has no right to alienate the suit property until and unless the Weavers Cooperative Sangam transfers the ownership of the said property in favour of the appellant?
04.Whether the Lower Courts are right in holding that the appellant has no right over the suit property and the respondent is entitled to put up construction in the suit property even assuming that the respondent is entitled to protection under Sec.53 (A) of the Transfer of Property Act, he can only protect his possession and not more than that?
9.It is submitted by the learned counsel appearing for the appellant that both the Courts below erred in holding that the 1st respondent became the owner of the property by virtue of Ex.B6, the unregistered sale deed as the 1st respondent has paid the entire sale consideration and therefore, the appellant is not entitled to the relief of recovery of possession.
10.The learned counsel appearing for the appellant further submitted that admittedly, Ex.B6 is an unregistered document and when a sale deed having a value of more than Rs.100/- is not registered, it is inadmissible in evidence and no title passes under the said document and hence, the 1st respondent cannot claim any title to the suit property under Ex.B6. He further submitted that the 1st respondent admitted the allotment of the suit property in favour of the appellant and having admitted the title of the suit property with the appellant, in the absence of title being transferred in the manner known to law in favour of the 1st respondent, he cannot claim any title or ownership over the suit property and without appreciating the same, both the Courts held that the 1st respondent is the owner of the property and therefore, the appellant is not entitled to the relief prayed for.
11.On the other hand, the learned counsel appearing for the respondents submitted that even though Ex.B6 was an unregistered document, the same can be used for collateral purpose under section 49 of the Registration Act and as per section 53-A of the Transfer of Property Act, the 1st respondent is entitled to protect his possession as he was put in possession of the property under Ex.B6 in part performance of the contract for sale and therefore, the suit filed by the appellant for recovery of possession is not maintainable.
12.He further submitted that under Ex.B6, the entire sale consideration was paid and the only technical formality was the registration of the sale deed and even though the sale deed was not registered, the 1st respondent became the owner of the property after paying the entire sale consideration and therefore, he cannot be restrained from putting up further construction in the suit property and the Sangam is also not entitled to transfer the ownership in the name of the appellant. He, therefore, submitted that both the Courts below have rightly held that the 1st respondent became the owner of the property and the appellant has no right over the suit property.
13.Heard both sides.
14.In these appeals, it is admitted that the suit land property was alloted to the appellant by the Sangam and both the Courts concurrently held that the appellant entered into two agreements of sale Exs.B4 and 5 and also executed an unregistered document Ex.B6 in favour of the 1st respondent. Even though, an unregistered sale deed was executed by the appellant in favour of the 1st respondent and the appellant alleged to have received the entire sale consideration, the title to the suit property will not pass until the sale deed is registered and in this case, admittedly, Ex.B6 is not a registered document and it is an unregistered sale deed.
15.As per the provision of Transfer of Property Act and also the provisions of Registration Act, title passes only after registration and in the absence of registration, the 1st respondent cannot claim title over the suit property and without appreciating the basic principles, both the Courts erred in holding that the 1st respondent became the owner of the property after the execution Ex.B6, as he has paid the entire sale consideration.
16.Further, under section 49 of the Registration Act, the 1st respondent cannot claim any title over the property through Ex.B6 as the same was not registered and he can make use of section 49 of the Registration Act only for the purpose of proving his possession and that can be used to protect his possession as per section 53-A of the Transfer of Property Act. Further, being an unregistered sale deed, the recitals regarding payment of consideration cannot be looked into.
17.In the judgment reported in (2010)5 SCC 401 in the case of S.Kaladevi vs. V.R.Somasundaram and others, the Hon'ble Supreme Court has held that an unregistered sale deed can be used as proof of oral agreement of sale and cannot be used as evidence of completed sale. Therefore, Ex.B6 can be used only for collateral purpose to prove the possession of the 1st respondent and it cannot be used to claim title over the suit property or for passing of consideration. In the absence of any title to the suit property, the 1st respondent cannot claim any right over the same and as held by the Hon'ble Supreme Court in the judgment reported in (2010)5 SCC 401, in the case of S.Kaladevi vs. V.R.Somasundaram and others, he can make use of the document to protect his possession under section 53-A of the Transfer of Property Act.
18.Therefore, Ex.B6 can be used only for the purpose of protecting his possession and it cannot be used for the purpose of passing of consideration, which is not a collateral purpose and therefore, the 2nd substantial question of law is answered in favour of the appellant and against the 1st respondent and both the Courts below erred in holding that under Ex.B6, the 1st respondent has paid the entire sale consideration.
19.In order to claim protection under the provision of 53-A of Transfer of Property Act, the party has to prove certain essential ingredients as settled by the Hon'ble Supreme Court in the judgment reported in 2002-3- LW 211 = (2002)3 SCC 676, in the case of Shrimant Shamrao Suryavanshi & another vs. Pralhad Bhairobe Suryavanshi (d) by Lrs & others:-
01.There must be a contract to transfer for consideration any immovable property.
2.The contract must be in writing, signed by the transferor, or by someone on his behalf.
03.The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
04.The transferee must in part performance of the contract take possession of the property, or of any part thereof.
05.The transferee must have done some act in furtherance of the contract, and
06.The transferee must have performed or be willing to perform his apart of the contract.
20.Further, in the judgment reported in 1997(II)CTC 595, in the case of Ruckmangathan vs. Ramalingam, the learned single Judge has held that unregistered sale deed can be admitted in evidence to prove part performance and separate possession of the property. Therefore, Ex.B6 can be used for the purpose of proving the possession of the suit property by the 1st respondent and also to protect his possession under 53-A of the Transfer of Property Act.
21.In this case, we will have to see whether the 1st respondent is entitled to seek protection under section 53-A of the Transfer of Property Act on the basis of Ex.B6.
22.Though, Ex.B6 can be received in evidence to prove the part performance of contract of sale, having regard to the conditions laid down by the Hon'ble Supreme Court in the judgment reported in (2002)3 SCC 211 supra, we will have to find out whether the 1st respondent is entitled to get protection under that section.
23.In the judgment reported in (2002)3 LW 211, six conditions were laid down by the Hon'ble Supreme Court for claiming protection under section 53-A of the Transfer of Property Act. In this case, though the 1st respondent satisfies the first four conditions, he failed to satisfy the remaining two conditions. According to me, unless the 1st respondent has proved that after taking possession of the property, he has done some act in furtherance of the contract and he was ready and willing to perform his part of contract, he cannot claim protection under section 53-A of the Transfer of Property Act.
24.In this case, admittedly no evidence was let in by the 1st respondent to prove that he has performed some act in furtherance of the contract, viz., Ex.B6 and he was ever willing to perform his part of contract.
25.As stated supra, under Ex.B6, no title passes to the 1st respondent in respect of the suit property and Ex.B6 can be used only for collateral purpose of proving possession and protect his possession under Section 53-A of the Act and even to claim protection he has to fulfill the conditions as laid down by the Hon'ble Supreme Court stated supra. As the 1st respondent has failed to prove the essential ingredients for claiming protection under 53-A of the Transfer of Property Act, in my opinion, he is not entitled to claim protection and therefore, the appellant is entitled to decree for recovery of possession as the appellant is admittedly the owner of the suit property. Hence, the 1st substantial question of law is answered partly in favour of the appellant and it is held that Ex.B6 can be relied upon for collateral purpose to protect the possession of the 1st respondent under section 53-A of the Act and as the 1st respondent failed to prove the essential ingredients as per the judgment reported in (2002)3 SCC 211, he is not entitled to claim protection under section 53-A of the Act.
26.As I have held that the 1st respondent is not the owner of the property and no title passes in favour of 1st respondent under Ex.B6, he is not entitled to put up any construction in the suit property. Hence, the 4th substantial question of law is answered in favour of the appellant.
27.Further, as the 1st respondent is not the owner, he cannot maintain a suit restraining the Sangam from transferring the ownership of the suit property in favour of the appellant in as much as the property was allotted to the appellant by the Sangam and in the absence of any title in favour of the 1st respondent, the title remains with the appellant and he is entitled to get the ownership transferred his name. Hence, the 3rd substantial question of law is also answered in favour of the appellant.
28.In the result, the judgments and decrees of the Courts below are set aside and the appeals are allowed. No costs.
er