Madras High Court
Mythili Chemical Private Limited vs Malaichamy (Died) on 21 February, 2019
Author: S.Ramathilagam
Bench: S.Ramathilagam
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :21.02.2019
CORAM:
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
C.R.P(PD)(MD)No.366 of 2019
and
C.M.P.(MD)No.1786 of 2019
Mythili Chemical Private Limited,
Through its Managing Director,
Mythili. :Petitioner
Vs.
Malaichamy (Died)
Athimoolam (Died)
Muthukaruppan (Died)
1.Athimoolam
2.Athi Narayanan
3.Sridhar @ Arjunan
4.Pirakalathan
5.Sethu Ramalingam
6.Muthukaruppan
7.Mallaichamy
8.Athimoolam Raja
9.Santhosh Kumar
10.Arjunan
11.Ashokan
12.Pushpavanam
13.Lingam
14.Athimoolam
http://www.judis.nic.in
2
15.Chandran
16.Perumal
17.Thirunavukkarasu : Respondents
(Cause title accepted as per order dated 14.02.2019 in C.M.P(MD)No.
1557 of 2019 in CRP(MD)No.SR6576 of 2019)
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the fair and decreetal order dated 20.11.2018 passed
in I.A.No.1779 of 2017 in O.S.No.194 of 2011 on the file of the Principal
District Munsif Court, Aruppukottai.
For Petitioner :Mr.S.Natarajan
ORDER
This Civil Revision Petition has been preferred by the petitioner herein against the order passed in I.A.No.1779 of 2017 in O.S.No.194 of 2011, on the file of the Principal District Munsif Court, Aruppukottai.
2.I.A.No.1779 of 2017 has been preferred by the petitioner.
The plaintiff is entitled to the suit property through a power of attorney document executed by the children of Angammal in favour of his wife Mythili. The said power deed executed on 23.02.1998, has also admitted by the defendants 1 to 3 and on the same date the said document was accepted and the sale consideration was also received on (cWjpbkhHp) and has also given a clear undertaking that http://www.judis.nic.in 3 the sale will not be cancelled. Hence the said document was under
the title “fpiuak;;”. It was executed in the presence of the notary public. Hence the contention of the petitioner in the said affidavit that the said document is only a receipt (cWjpbkhHp), it is only a “cWjpbkhHp rPl;L” and it is only a document for obtaining the sale amount.
3.It is also contended by the petitioner herein that the said document which he has filed along with the plaint, was not considered by the trial court for marking the same. Hence, the petitioner sought for marking the document only for the collateral purpose and for that only the sale consideration was received on the date and the said document is only a receipt and it has to be marked for the purpose of receipt of money and it is only a receipt and not a sale deed. Hence, the petitioner sought for the court to mark the said document.
4.The learned counsel for the petitioner relying upon the several judgements.
(A) In the case of Ramasamy Vs. Shanmugam and another reported in 2017 7 MLJ 606 in which, the relevant paragraphs reads as follows:
“19.Therefore, considered the above judgment http://www.judis.nic.in rendered by this Court and the Hon'ble Apex Court, I am of the 4 view that an unregistered document namely, the present document dated 07.04.1997, it is only a sale receipt, which was cured by payment of stamp duty and penalty, and can be looked into if it is a genuine document and proves any collateral purpose. Therefore, this Court warranting interference in the order passed by the trial Court and accordingly, the order in memo dated 06.07.2012, is set aside.
20.In the result:
(a) this civil revision petition is allowed, by setting aside the order passed in the memo in O.S.No.350 of 2010, dated 06.07.2012, on the file of the learned Principal District Munsif, Tindivanam;
(b) the learned Principal District Munsif, Tindivanam, is directed to impound the document dated 07.04.1997 and send for collecting stamp duty and penalty to the appropriate authority to receive the report within one month from the date of order passed by the learned Principal District Munsif, Tindivanam;
(c) on receipt of the report for the payment of stamp duty and penalty, the learned Principal District Munsif, Tindivanam, is directed to dispose of the suit within a period of three months thereafter. No costs. Consequently, connected miscellaneous petition is closed.” (B) In the case of Ezumalai and others Vs. Venkatesa Gounder reported in 2019 (1) CTC 8, in which, the relevant paragraphs reads as follows:
“9.Ex.A.1 receipt when carefully seen, the original encroacher one Mr.Kannan has received Rs.2,000/- from the http://www.judis.nic.in Plaintiff and another one Mr.Kannan for leaving his possessory 5 right to be enjoyed by the Plaintiff and the said Mr.Kannan. The entire reading of the receipt Ex.A.1 clearly indicates that it is only a receipt for giving up his possession in the suit property and executed a receipt for a sum of Rs.2,000/-. It is to be noted that Section 18 of the Indian Registration Act deals with the documents of which registration is optional.
Section 18(b) reads as follows:
18(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
10. The above provision makes it clear that any receipt or acknowledgment in respect of payment of consideration relating to creation of declaration or assignment or limitation or extinction of any such right, title or even interest, such instrument, registration is not mandatory only in optional. Ex.A.1 is merely a receipt showing the payment consideration for giving up his right in the property. Therefore, this Court is of the view that the above instrument evidencing the consideration does not require any registration. Since the above document is not created right in presenti. Whereas Ex.A.1 is only a receipt. It is to be noted that the Plaintiff has not claimed his possession only based on the Ex.A.1. Ex.A.1 has been filed to show the circumstance under which he came into the possession of the suit property and thereafter he was enjoying the property continuously. Therefore, the contention of the learned counsel for the Appellant that Ex.A.1 is inadmissible and hit by Section 17(1) of the Indian Registration Act cannot be countenanced.
Accordingly the First substantial Question of law is answered against the Appellant.” http://www.judis.nic.in 6 (C) In the case of SMS Tea Estates Private Limited Vs. Chandmari Tea Company Private Limited reported in 2011 (4) SCC 66, in which,the relevant paragraphs reads as follows:
“Re : Question (iii)
23. Where a lease deed is for a term of thirty years and is unregistered, the terms of such a deed cannot be relied upon to claim or enforce any right under or in respect of such lease. It can be relied upon for the limited purposes of showing that the possession of the lessee is lawful possession or as evidence of some collateral transaction. Even if an arbitrator is appointed, he cannot rely upon or enforce any term of the unregistered lease deed. Where the arbitration agreement is not wide and does not provide for arbitration in regard to all and whatsoever disputes, but provides only for settlement of disputes and differences arising in relation to the lease deed, the arbitration clause though available in theory is of little practical assistance, as it cannot be used for deciding any dispute or difference with reference to the unregistered deed.” (D) In the case of R.Munusamy Vs. G.Krishttappillai and others reported in 2014 (6) CTC 773, in which, the relevant paragraphs reads as follows:
“8.A careful perusal of the abovesaid provision of law would indicate that a document required to be registered under Section 17 of the Registration Act, 1908, if not registered, it shall not be received as evidence of any transaction affecting such property or conferring such power. Though such an embargo is http://www.judis.nic.in put under Section 49(c) of the said Act, the proviso made to the 7 said Section however contemplates that such unregistered document affecting immovable property may be received as evidence either in a suit for Specific Performance or as evidence of any collateral transaction not required to be effected by registered instrument. Thus, it is evident that the proviso to Section 49 permits receipt of such unregistered document as evidence of any collateral transaction.
9.Keeping the above provision of law in mind, if the facts and circumstances of this case are considered, it would only show that the order passed by the Court below cannot be sustained. The contention of the learned counsel for the respondents, confining his submissions based on Section 49(c), alone, cannot be accepted, especially when the proviso, as discussed supra, permits marking of such document for collateral purpose. The other contention of the learned counsel for the respondents, namely the proviso to Section 49 of the said Act is applicable only to the Suits for Specific Performance, is also liable to be rejected, since a careful reading of the said proviso would show that the same is applicable not only in respect of the Suit for Specific Performance, but also in respect of the other suits where such document is intended to be marked as evidence for any collateral transaction.
10.At this juncture, the decision of the Honourable Supreme Court reported in 2004 (1) LW 706 (SC) (Bondar Singh and others Vs. Nihal Singh and others) can be safely relied upon.
A perusal of the facts and circumstances of the case before the Honourable Supreme Court in that case would show that the plaintiffs therein filed the suit for declaration by adverse possession and for injunction to restrain the defendants from interfering with their possession of the suit lands. The plaintiffs therein marked an unregistered sale deed, dated 9.5.1931 in http://www.judis.nic.in proof of their possession. The defendants therein contended that 8 the said document was unstamped and unregistered, and therefore, it cannot convey title. The Honourable Supreme Court, while considering the said issue, has observed in paragraph 5 as follows:
"5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised. .. ..."
(emphasis supplied)
11. In the decision reported in 2010 (3) MWN (Civil) 556 (SC) (S.Kaladevi Vs. V.R.Somasundaram), the Honourable Supreme Court has considered the question of admissibility of an unregistered sale deed in a suit for specific performance of a contract and observed in paragraph 11 as follows:
"11. The main provision in Section 49, provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a Suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of Proviso, therefore, an unregistered Sale Deed of any immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a Suit for http://www.judis.nic.in specific performance of the contract. Such an unregistered Sale 9 Deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered Sale Deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the Proviso to Section 49 of 1908 Act. (emphasis supplied)
12. Further, this Court, in the decision reported in 2010 (1) MWN (Civil) 534 (Durai @ Subrayan Vs. Anandan), while considering the very same issue in respect of a suit for permanent injunction, has followed the decision of the Honourable Supreme Court in Bondar Singh's case (cited supra) and observed in paragraphs 10 and 16 as follows:
"10. The fate of non-registration of the documents require to be registered under the aforesaid provision of law has been dealt with under Section 49 of the Registration Act, 1908. A document required to be registered but not registered shall not be received as evidence of any transaction affecting such property as per Section 49 of the Registration Act, 1908. But, there is a proviso found thereunder which reads that such an unregistered document affecting immovable property can be received as evidence in a suit for specific performance filed invoking the provision under the Specific Relief Act, 1877. The proviso would further read that such an unregistered document affecting immovable property can also be received as evidence of any collateral transaction, which transaction is not required to be effected by registered instruments."
"16. Reverting back to the ratio laid down by the Supreme Court in Bondar Singh Vs. Nihal Singh, 2003 (2) CTC 635 (SC) : AIR 2003 SC 1905, the Court finds that an unstamped and unregistered sale deed can very well be looked into, even if the same was not admissible in evidence, to establish the nature of possession of the party concerned over the suit property."
(E) In the case of Venkatasubramaniya Chettiar (died). 2.V.Shyam Sundar and others Vs.Perumal Chettiar reported in 2012 (3) CTC 160, in which, the relevant paragraphs reads as follows:
http://www.judis.nic.in 10 “18. In Venkatachala Moopar (died) and others v. Balasubramanian, 2001 (1) T.L.N.J. 191 and K.Pattabiraman v. K.Banumathi and four others, 2001 (3) CTC 328, the single Judges of this Court held that "unregistered document though cannot be the basis for proving title can be looked into for deciding the nature and character of possession".
19. In the light of the above principles let us consider the admissibility/evidentiary value to be attached to Ex.B1.
Ex.B1-partition deed though not registered can be looked into for collateral purpose of division in status and also for considering the nature and character of possession. While the trial Court erred in declining to look into the contents in Ex.B1-unregistered partition deed, in our considered view, the contents of Ex.B1 could be looked into for "collateral purpose" of proving division in status and the subsequent separate enjoyment of the parties. To that extent, the finding of the trial Court as to the value to be attached to Ex.B1 -unregistered document is liable to be set aside.” (F) In the case of Bondar Singh and others Vs. Nihal Singh and others reported in AIR 2003 (SC) 1905, in which, the relevant paragraphs reads as follows:
“5.The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand never disputed plaintiffs' title or possession of the suit land. There is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in http://www.judis.nic.in question. There is a notice dated 16.4.1956 Exhibit P.6. The 11 notice was issued on behalf of the defendants and is addressed to the predecessor interest of the plaintiffs. By the notice the defendants called upon the plaintiffs to hand over possession of the suit land to them. According to the notice, the plaintiffs were trespassers on the suit land and were liable to hand over its possession to the defendants. This notice is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16th April, 1956. The notice was followed by an application dated 8th May, 1956 (Exhibit P.3). filed by the defendants under Section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the revenue authorities. In the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. It is further admitted that the land was being cultivated by the plaintiffs. It was prayed in the said application that the plaintiffs be declared trespassers over the suit land and possession of the land be given to the defendants. In their reply to the application, the present plaintiffs denied the allegation that they were trespassers on the suit land, they refer to the sale deed of 9.5.1931 by Fakir Chand in favour of their predecessor. Thus the plaintiffs were all along asserting that they were in possession of the land in their own right. The Tehsildar vide his order dated 3rd October, 1959 dismissed the said application of the defendants. He relied on an admission on the part of Poonam Chand, eldest son of Fakir Chand that the present plaintiffs were in possession for the last 26-27 years. Relying on the said statement the revenue authorities held that since possession of the present plaintiffs was continuing for last 26-27 years they could not be dispossessed from the suit land. The application of the defendants was dismissed. The defendant filed an appeal against the said order which was also dismissed on http://www.judis.nic.in 6.8.1962. A copy of the order of the Tehsildar is Exhibit P.8 while 12 a copy of the order of the appellate authority i.e. S.D.O. is Exhibit P.9. These judgments of the revenue authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. They also totally nullify the assertion of the defendants in their written statement in the present suit that they had taken possession of the suit land in 1957-58. If they had taken possession of the suit land in 1957-58 why were they pursuing the matter before the revenue authority till 1962 when the appeal was contested before the S.D.O. and the decision of the S.D.O. was given on 6.8.1962?” (G)In the case of T.Chakrapani Vs. K.Adimoolam reported in 2015 (1) CTC 359, in which, the relevant paragraphs reads as follows:
“11. A careful perusal of the proviso to Section 49 of the Registration Act quoted above, would show that a document required to be registered under Section 17 of the Registration Act, 1908, if not registered, it shall not be received as evidence of any transaction affecting such property or conferring such power. Though such an embargo is put under Section 49(c) of the said Act, the proviso made to the said Section however contemplates that such unregistered document affecting immovable property may be received as evidence either in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. Thus, it is evident that the proviso to Section 49 permits receipt of such unregistered document as evidence of any collateral transaction.
12. Learned counsel for the petitioner relied on the decisions of this Court reported in 2000 (3) LW 785 http://www.judis.nic.in (Mookkamayan.K. Vs. P.Pushparani and another) and 1997 (2) 13 CTC 595 (Ruckmangathan Vs. Ramalingam) in support of his submission that such unregistered document cannot be marked even for collateral purpose. But, this Court, in the recent decisions reported in 2014 (3) MWN (Civil) 578 (Minor Ravi Bharathi Vs. P.Balasubramani and another) and 2014 (5) LW 59 :
2014 (7) MLJ 861 (R.Munusamy Vs. G.Krishtappillai and 2 others), followed the decision of the Honourable Supreme Court reported in AIR 2003 SC 1905 = 2003 (2) MLJ 122 = 2004 (1) LW 706 (SC) (Bondar Singh and others Vs. Nihal Singh) (cited supra), now cited by the learned counsel for the respondent, wherein, the Honourable Supreme Court, while considering the said issue, observed as follows in paragraph 5:
"5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised. ..."
(emphasis supplied)
13. Thus, in view of the said decision of the Honourable Supreme Court reported in Bondar Singh and others Vs. Nihal Singh, 2003 (2) CTC 635 (SC) : AIR 2003 SC 1905 : 2003 (2) MLJ 122 : 2004 (1) LW 706 (SC), I find that the contentions of http://www.judis.nic.in 14 the petitioner cannot be sustained, as the trial Court has rightly allowed the marking of the said document.” (H) In the case of T.Sivaperumal Vs.S.Viswanathan and others reported in 2014 (1) CTC 447, in which, the relevant paragraphs reads as follows:
“29. Lastly, the third question of law, Ex.B.4, Sale Deed, a document, has been proved by the Appellant. But, here the Ex.B.4 cannot be treated as Sale Deed which is an unregistered document. At best, what can be construed is for payment of receipt, since Ex.B.4 is only the signature, which is marked. Ex.B4 is only a signature of the document and the signature of the other admitted documents. Therefore, it cannot be construed as a document as such it could only be considered as evidence for payment. In this aspect alone, it can be considered. Therefore, this question of law is answered in favour of the Appellant only to treat that in Ex.B.4 the signature has been proved for the purpose that the transaction, which took place between the parties and the sale consideration has been passed. When the sale consideration is passed and also when the Power of Attorney is proved coupled with interest, definitely, the same cannot be cancelled. Unfortunately, the Trial Court including the Appellant Court has totally failed to consider this aspect and was swayed away by the document, namely, Ex.B.4 being an unregistered Sale Deed.”
5.On the side of the respondents, it is contended that the said document, which the petitioner performing for marking the same is whether pleaded in the plaint as on 23.02.1998. “ikjpyp http://www.judis.nic.in 15 vd;gtUf;F kiyr;rhkp tifawh vGjpf; bfhLj;j Mtzj;ij FwpaPL bra;J bfhs;s mDkjp mspj;J cj;jputpl ntz;o kDjhuh;/thjp jug;gpy; Mh;lh; 7 U:y;
14(3) kw;Wk; gphpt[ rpgprp-d; go ,k;kD jhf;fy;.” Hence the defendants for the said petition, contended that the contents of the said petition also stated as follows:
4)nkYk; gpuhJ 4tJ gj;jpapy; fPH;f;fz;lthW bjhptpj;Js;shh;. “... me;j gth; gj;jpuj;ij vf;fhuzj;ijf; bfhz;Lk; uj;J bra;akhl;nlhk; vd;W cWjpbkhHp vGjp bfhLj;Jk;> gth; gj;jpu njjp Kjy; gth; Vb$z;l; ikjpyp vd;gtiu jhth brhj;ij mDgtpf;f brhy;ypa[k; fpiuak; vd;w Kotpw;F xU Mtzj;ij kJiuapy; cs;s xU nehl;lhp gg;spf; Kd;ghf 23.02.1998 njjpnyna xU Mtzj;ij vGjpf;bfhLj;Js;shh;fs;.”
6.Hence the respondents/defendants contented that the said document ought to have been a registered one and only then, the said document can be marked before the court.
7.The trial Court observed that the contentions raised by the both sides and also perused the said documents which has been prescribed by the plaintiff, it is stated that “gjptpy;yh fpiuag;gj;jpuk;”.
The trial court has observed all these facts and the contents and title of the document and also the objections raised by the defendants.
In the present case, the petitioner who seeks permission to make the said document for collateral purpose cannot be considered. http://www.judis.nic.in 16
8.Heard the learned counsel on either side.
9.It is argued by the learned counsel for the petitioner that the said document is filed only as a 'receipt' and only for the purpose of marking the same for a collateral purpose and it is not a sale deed, whereas, on the side of the respondent, it is contended that the contents of the document revealed the fact that it is a sale deed, when the details are very much clearly indicated in the said document and the title deed also stated that it is a “fpiuak;”. Hence the petitioner, who sought the court to mark the said document for collateral purpose cannot be marked, when it is not a document that sought for registration as per provision.
10.Hence the finding of the trial court based on the discretion of the document and the contention of the document whereas the petitioner's argument is that it is only a receipt and it need not be registered and even if it is impound, it can be only to a lesser value than the one which is for Rs.10 lakhs. But in the case on hand, it is the case whether the said document is to be marked for collateral purpose. It is a receipt or a sale deed. Hence, in view of the finding that it is not a receipt and it is only a sale deed and that the said document cannot be marked for any collateral purpose, as http://www.judis.nic.in 17 argued by the petitioner and hence, the order of dismissal not required any interference by this Court and hence, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2019
Index : Yes / No
Internet : Yes / No
das
To
The Principal District Munsif Court,
Aruppukottai.
http://www.judis.nic.in
18
S.RAMATHILAGAM, J.
das
C.R.P(PD)(MD)No.366 of 2019
and
C.M.P.(MD)No.1786 of 2019
21.02.2019
http://www.judis.nic.in