Madras High Court
B.Rajendran ... Revision vs K.Arumugham on 23 November, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2010 CORAM The Hon'ble Mr.Justice R.S.Ramanathan C.R.P(PD)No.654 of 2010 and M.P.No.1 of 2010 B.Rajendran ... Revision Petitioner Vs. 1.K.Arumugham 2.Minor Mohan Prabhu 3.Minor Sarathkumar (minors 2 and 3 are rep. by their father and natural guardian, the 1st respondent herein) ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India as against the fair and decreetal order dated 02.12.2009 made in I.A.No.371 of 2009 in O.S.No.36 of 2008 on the file of the Subordinate Court, Rasipuram. For Petitioner : Mrs.P.T.Asha for M/s. Sarvabhauman Associates For Respondents : Mr.S.V.Jayaraman Senior Counsel for Mr. T.R.Rajaraman O R D E R
The fifth defendant in O.S.No.36 of 2008, on the file of the Subordinate Court, Rasipuram, is the revision petitioner herein. The suit was filed by the respondents for declaration that 'A' Schedule Property belongs to the plaintiffs and for delivery of possession of the suit 'A' Schedule property by the defendants and for injunction. The fifth defendant viz., the revision petitioner filed I.A.No.371 of 2009, to receive the document dated 15.02.1996, entered into between the first plaintiff and the first defendant and that petition was dismissed. Aggrieved by the same, this revision petition is filed.
2. It is submitted by Mrs.P.T.Asha, the learned counsel appearing for the revision petitioner that the Court below without properly appreciating the contents of the document dated 15.02.1996, erroneously come to the conclusion that there was transfer of interest, in praesenti under the document. Therefore, the said document is hit by Section 17 of the Registration Act, 1908 ( hereinafter referred to as the 'said Act') and on that ground, held the document cannot be received in evidence. According to the learned counsel appearing for the revision petitioner, there was a Panchayat held on 03.07.1995 and in that Panchayat, the properties were divided between the parties and that was recorded and the document dated 15.02.1996 was marked as Ex.B-1 . Therefore, under the disputed document, past transaction was recorded and there was no transfer of interest in praesenti and without reading the core of the document, the Court below has taken some sentences in the document and arrived at a conclusion that under the document, transfer was effected. Hence, the document cannot be received in evidence.
3. On the other hand, Mr.S.V.Jayaraman, the learned Senior Counsel appearing for the respondents submitted that the Court below, after considering various clauses in the document has rightly come to the conclusion that there was transfer in preasenti and therefore, the order of the Court below need not be interfered with. According to the Learned Senior Counsel in the document, there was a reference to earlier partition deed dated 03.07.1995, and without producing that documents, the present document cannot be received, as the earlier mutchalika referred to in the document requires registration and when that document was not registered, the subsequent document viz., the disputed document cannot be received in evidence. The learned Senior Counsel further submitted that in the document, it has been stated that the second party viz., K.Subramani, took possession of the property on the date of document and that would prove that there was a transfer of interest. It was further stated that 'A' Schedule property was enjoyed by the second party absolutely and in that 1st and 3rd parties have no right over the same and this amounts to declaration of title of the second party. Therefore, as per Section 17 of the said Act, a document requires registration.
4. To appreciate the contention of both the counsel, we will have to see Section 17 of the said Act, to find out whether the document, which is sought to be marked requires Registration or not. As per Section 17 of the said Act, ....
b) the other non testamentary instrument which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
d) ...
5. Therefore, non testamentary instruments, which purport or create, declare assign, limit or extinguish, whether in present or in future, any right or title or interest, shall be compulsorily registered.
6. In this case, the relevant portion in the said document reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED
7. It is the cardinal principle of interpretation of document that the document must be read as a whole and intention of the parties must be ascertained by reading the document as a whole and some stray sentences should not be interpreted to give a different intention of the parties, who executed the document. In the document, there was a reference to earlier partition on 03.07.1995 and in the last paragraph also, it has confirmed that the said document was written and confirmed the division of taking up possession of the property, as per the decision of the Mediators. Therefore, a reading of the preamble as well as concluding portion would make it clear that there was earlier Panchayat in which the division had taken place and that was recorded under the document dated 15.02.1996. Now, in the said document, it has been stated that the second party has taken possession of the property on the date of document. The learned Senior Counsel has laid emphasis on the sentences "
VERNACULAR (TAMIL) PORTION DELETED
8. The learned counsel also laid emphasis on the third paragraph and submitted that it amounts to declaration of title of the second party to the 'A' Schedule property and therefore, it requires registration as per Section 17 of the Registration Act.
9. According to me, in the earlier Panchayat held on 03.07.1995, there was a division of properties and as per the division of properties under the document dated 3.07.1995, the second party took possession of the 'A' Schedule property. The word relied upon by the learned Senior Counsel only reiterated the past transaction and it has not been written as VERNACULAR (TAMIL) PORTION DELETED
10. According to me, it is only recording the fact of taking possession on that date, earlier to the execution of the document. Even otherwise, the division had taken place on 03.07.1995 and in pursuance of the division, possession was taken and even assuming that under the document, possession was taken, as contented by the learned Senior Counsel that will not create any right or title or interest in the suit property, as the division had already taken place on 03.07.1995. Similarly, the words in the third paragraph cannot be taken to construe that there was a declaration of title of the second party to the 'A' Schedule property.
11. As stated supra, the 'A' Schedule property was allotted to the second party even on 03.07.1995, and, it was stated in paragraph 3 referred to above, that the parties 1 and 3 have no objection for the second party to enjoy the property absolutely and they have no right over the 'A' Schedule property. Therefore, taking into consideration of the entire document, in my opinion, it only recorded the past transaction that had taken place on 03.07.1995 and no interest has been transferred or created or declared under the document dated 15.02.1996, Hence, the document does not require registration and without appreciating the same, the Court below has erroneously rejected the application.
12. Hence, order of the Court below is set aside and this Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
sd To The Subordinate Judge, Rasipuram