Andhra HC (Pre-Telangana)
Ranga Reddy vs Sadhu Padamma And Ors. on 24 October, 2002
Equivalent citations: 2002(6)ALD752, 2003(1)ALT228
ORDER V.V.S. Rao, J.
1. The 2nd defendant in OS No. 164 of 1993 on the file of the senior Civil Judge, Mahabubnagar is the revision petitioner. He impugnes the incidental order passed by the said Court in O.S. No. 164 of 1993 dated 4-4-2002. Be it noted that while passing the said order, the learned trial Judge held that the unregistered gift deed dated 17-5-1988 produced by the petitioner during trial is not admissible in evidence.
2. The 1st respondent herein filed a suit for partition and separate possession of the suit schedule properties. The petitioner herein who is defendant No. 2 filed a written statement alleging that the land admeasuring an extent of Ac.6.00 comprised in Survey Nos. 164 and 167 was gifted to him by the plaintiff and that he has been in possession of the said land since then. The matter went for trial. At that time, the petitioner on his own volition submitted the document before the Revenue Divisional Officer (Registrar) and the same was impounded for not paying proper stamp duty. Be that as it may, the plaintiff examined herself PW1 and marked Exs.Al to A4. The petitioner herein examined himself as DW1 and also examined DW2 and DW3. After that, he filed an application to recall himself for the purpose of marking the document dated 17-5-1988 under which the property allegedly in his possession was gifted to him. The opposite party objected for admitting the document in evidence as it was unregistered. The trial Court came to the conclusion that the document in question cannot be accepted in evidence even for collateral purposes as the suit is not for injunction where the only relevant issue would be as to who is in possession of the property and accordingly rejected the document.
3. Sri B. Narasimha Sharma, the learned Counsel for the petitioner submits that even without allowing DW1 to come into the box and explain as to what is the collateral purpose, it is improper for the trial Court to assume that the document cannot be marked for collateral purposes. He also submits that the document sought to be marked though is an unregistered gift deed, it comes within the scope of the proviso to Section 49 of the Registration Act, 1908 ('the Act' for brevity) and therefore it is admissible in evidence.
4. Sri K. Mahipathi Rao, learned Counsel for the 1st respondent submits that DW1 admitted in his evidence that he is not in possession of the property and that when the document in question is dealing in immovable property, it has to be necessarily either of the two documents mentioned in the proviso to Section 49 of the Act and mat it cannot be marked for any collateral purpose. He also placed reliance on the judgment of this Court in Amara Parvathi v. Peruru Chanti, , and the judgment rendered by me in Dadi Reddy Sivanarayana Reddy v. Kasi Reddi Chinnamma, .
5. The document dated 17-5-1988 is produced before me. The same is written on Rs. 5/- non-judicial stamp paper. The endorsement of the Revenue Divisional Officer, Mahabubnagar, dated 31-12-2001, a copy of which was also produced before me reads as under:
As per the recitals of the document it is a gift deed dated 5-7-1985, which falls under Section 29-I.S. Act, the same duty as a conveyance (No.20) which is required to be stamped for Rs. 270/- which is fixed as stamp duty Rs. 270/- together with (4) four times penalty of Rs. 1080/- totalling to Rs. 1350/-. The petitioner has remitted the same amount in the Government Treasury vide sub-treasury office, Mahabubnagar, Challan bearing No. 3279 {Rs.270) and 3280 (Rs.1080) dated 29-12-2001.] Hence this document is hereby validated.
6. In view of the fact that the petitioner herein accepted the same as gift deed which certainly requires registration under Section 17(1)(a) of the Act, can it fall within the scope of proviso to Section 49 of the said Act?
7. It is necessary to refer to Section 49 which reads as under:
Effect of non-registration of documents required to be registered :--No document required by Section 17 or by the 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 part performance of a contract for the purposes of Section 53-A of the-Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
8. Section 49 prohibits the Court to receive in evidence any document affecting immovable property which is not registered as required under Section 17 of the Act or any provisions of the Transfer of Property Act, 1882. The proviso to Section 49 contains three exceptions. They are-
(1) an unregistered document affecting immovable property required to be registered under law may be received as evidence of a contract in a suit for specific performance;
(2) an unregistered document affecting immovable property required to be registered under law may be received as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act; and (3) an unregistered document affecting immovable property required to be registered under law may be received as evidence of any collateral transaction not required to be affected by registered instrument.
9. The first two exceptions do not present any difficulty. However, the submissions of the learned Counsel for the petitioner that the document in question falls in the third exception cannot be accepted.
As noticed an unregistered document not required to be affected by registered instrument can only be used for collateral purposes. If a transaction, which affects immovable property and requires registration either under the Registration Act or under the Transfer of Property Act cannot be proved by a document marked for a collateral purpose.
10. In this case, admittedly the document in question is a gift deed; as transaction affecting immovable properties and is required to be registered under Section 17(1)(a) of the Registration Act and therefore it does not fall under the third exception. The submissions of the learned Counsel is devoid of any merit.
11. In Amara Parvathi v, Peruri Chanti, (supra), his Lordship Sri Justice Syed Shah Mohammed Quadri (as he then was) considered the question whether a gift deed by way of Pasupu Kunkuma is admissible for a collateral purpose. It was held that a gift given as Pasupu Kunkuma under an unregistered gift deed cannot be said to be a collateral transaction and therefore the document is not admissible either under the proviso to Section 49 of the Act or under Section 35 of the Indian Stamp Act. In Dadi Reddy Sivanarayana Reddy v. Kasi Reddy Chinnamma, this Court considered various authorities and enunciated the following principles.
1. A document produced for inspection of the Court cannot be admitted in evidence under Section 49(c) of the Registration Act, if it is required registration under Section 17 of the said Act.
2. Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing any right, title or interest but merely creating right to obtain another document does not require registration under Section 17 (1) of the Registration Act.
3. As a necessary corollary a document of contract for sale of immovable property creating right to obtain another document shall not require registration by reason of the payment of earnest money or whole or part of purchase money by the purchaser.
4. In any event, the prohibition under Section 49(c) of the Registration Act does not apply to an unregistered document effecting immovable property in a suit for specific performance under the Specific Relief Act or as evidence of part performance of contract of as evidence of any collateral transaction not required to be effected by registered document."
12. The submission of the learned Counsel Sri K. Mahipathi Rao that the petitioner as DW1 admitted that he is not in possession cannot be adverted to in this revision petition. Indeed, Sri. B. Narasimha Sharma, contends that DW1 never admitted that he is not in possession of the property. It is for the trial Court to decide the other issues.
13. In the result, for the above reasons, the revision petition fails and it is accordingly dismissed. No costs.