Madras High Court
R.Munusamy vs G.Krishttappillai on 8 October, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08-10-2014 CORAM: THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU C.R.P.(PD).No.3166 of 2011 & M.P.No.1 of 2011 R.Munusamy .. Petitioner Vs. 1. G.Krishttappillai 2. K.Mohan 3. K.Mukundan .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 16.6.2011 in I.A.No.124 of 2011 in O.S.No.146 of 2008 on the file of the District Munsif-cum-Judicial Magistrate Court, Uthiramerur. For petitioner : Ms.A.Sumathy For respondents: Mr.G.K.Sekar (Orders were reserved on 25.9.2014) ORDER
This Civil Revision Petition is filed challenging the order, dated 16.6.2011 made in I.A.No.124 of 2011 in O.S.No.146 of 2008 on the file of the District Munsif-cum-Judicial Magistrate Court, Uthiramerur, in dismissing the application filed by the petitioner under Section 151 C.P.C. to mark an unregistered sale deed, dated 27.7.1994 on his side.
2. The petitioner is the plaintiff and the respondents are the defendants in the said suit. The petitioner filed the said suit seeking the relief of permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property. The abovesaid I.A. was filed by the petitioner by contending that he had purchased the suit property under an unregistered sale deed, dated 27.7.1994 from the first defendant by paying the entire sale amount, who in turn handed over the possession of the suit property to the petitioner and for the purpose of proving his possession, the said document is to be marked only for such collateral purpose. The said application was resisted by the respondents mainly by contending that such unregistered sale deed cannot be admitted in evidence even for collateral purpose. The Court below rejected the said application only on the reason that the said document was not registered.
3. Learned counsel appearing for the petitioner submitted that the said document was sought to be marked only for collateral purpose to prove the possession of the plaintiff, and therefore, there is no legal bar in marking the said document. She further contended that one of the defendants subsequently filed a suit in O.S.No.10 of 2009 on the file of the District Munsif-cum-Judicial Magistrate Court, Uthiramerur in respect of the very same property against the petitioner herein, seeking for declaration and permanent injunction and the said suit came to be dismissed by judgment and decree dated 23.4.2014 by specifically giving a finding that the petitioner herein is in possession and enjoyment of the suit property. In support of her submissions, learned counsel relied on the following decisions:
(i) 2004 (1) LW 706 (SC) (Bondar Singh and others Vs. Nihal Singh and others);
(ii) 2010 (3) MWN (Civil) 556 (SC) (S.Kaladevi Vs. V.R.Somasundaram) and
(iii) 2010 (1) MWN (Civil) 534 (Madras High Court) (Durai @ Subrayan Vs. Anandan).
4. Per contra, learned counsel appearing for the respondents submitted that as per Section 49(c) of the Registration Act, 1908, the document under dispute cannot be received as evidence, as the same was not registered. He further submitted that proviso to Section 49 is applicable only in respect of a suit for specific performance filed under the Specific Relief Act, 1877 and not in respect of the present suit filed for bare injunction. According to the learned counsel, as per Section 54 of the Transfer of Property Act, 1882, the sale has not taken place, since the balance consideration has to be paid even according to the said document sought to be marked. In support of his submissions, learned counsel relied on the following decisions of this Court:
(i) 2006 (2) LW 437 (Pyarijan Vs. Puttappa and another) and
(ii) 2007 (3) CTC 633 (Nagammal Vs. Valliammal).
5. Heard the learned counsel appearing for the parties and perused the materials placed on record.
6. The point for consideration in this Civil Revision Petition is as to whether the unregistered sale deed, dated 27.7.1994 can be permitted to be marked as a documentary evidence on the side of plaintiff in a suit for bare injunction.
7. The Court below rejected the said application only on the reason that the said document was not registered. In order to answer the issue on hand, it is better to refer to the relevant provision, namely Section 49 of the Registration Act, 1908, which reads as follows:
"Section 49: Effect of non-registration of documents required to be registered: No document required by section 17 or by any provision 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 any collateral transaction not required to be effected by registered instrument."
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 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.
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 proof of their possession. The defendants therein contended that 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 specific performance of the contract. Such an unregistered Sale 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."
13. Thus, a perusal of the above referred to decisions of the Apex Court as well as this Court, would make it clear that the unregistered sale deed can be marked as evidence and looked into only for the collateral purpose of finding the nature of possession of the property concerned.
14. Learned counsel for the petitioner further pointed out that in respect of the very same property, a suit filed in O.S.No.10 of 2009 on the file of the District Munsif-cum-Judicial Magistrate Court, Uthiramerur, by the third respondent herein, against the petitioner herein, seeking for declaration and injunction, came to be dismissed on 23.4.2014. She also invited this Court's attention to the specific finding by the trial Court therein that the petitioner herein is in possession and enjoyment of the suit property by paying house tax, water tax and electricity. As the said decision has been made in another suit, though between the same parties, this Court is not expressing any view on the same as the issue involved in this Civil Revision Petition is different.
15. No doubt, learned counsel for the respondents relied on two decisions of this Court in support of his submissions. A careful perusal of the decision relied on by him, reported in 2006 (2) LW 437 (Pyarijan Vs. Puttappa and another) would show that the said suit was filed for recovery of money based on an agreement, dated 8.1.1992. The contention of the defendants therein was that the said document was possessory mortgage and should be registered. Therefore, they contended that the suit cannot be filed based on such unregistered document. The learned Judge found that the purpose of marking the said document was to prove the advancement of loan and creating an interest in the immovable property, and therefore, the document being unregistered was inadmissible in evidence of the transaction affecting the immovable property. In this case, the facts are totally different. Admittedly, the present suit is not for seeking declaration of title based on the unregistered document. On the other hand, it is for bare injunction and to prove such possession, the said document is sought to be marked for collateral purpose of proving possession. It is needless to say that a collateral purpose is a purpose other than creating, declaring, assigning, limiting or extinguishing a right of immovable property. Therefore, in my considered view, the said decision is factually distinguishable. Moreover, it appears that the decision of the Honourable Supreme Court made in Bondar Singh's case (cited supra) was not cited before the learned Judge.
16. The other decision relied on by the learned counsel for the respondents, reported in 2007 (3) CTC 633 (Nagammal Vs. Valliammal) is also not relevant for the present case, since the issue involved in that case was as to whether oral sale is valid or not. Considering the fact that the said issue is not the core issue in the present case, as the suit itself is only for injunction, the above decision is also not helping the respondents in any manner.
17. Considering the above facts and circumstances, I find that the petitioner is entitled to succeed in this Civil Revision Petition. Accordingly, the Civil Revision Petition is allowed. The impugned order passed by the Court below is set aside and I.A.No.124 of 2011 in O.S.No.146 of 2008 on the file of the District Munsif-cum-Judicial Magistrate, Uthiramerur, is allowed. Since the said suit is of the year 2008, the Court below is directed to take up the said suit in O.S.No.146 of 2008 and dispose of the same on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this order. No costs. The Miscellaneous Petition is closed.
08-10-2014 Index: Yes Internet: Yes cs To The District Munsif-cum-Judicial Magistrate, Uthiramerur.
K.RAVICHANDRABAABU,J cs Order in C.R.P.(PD).No.3166 of 2011 08-10-2014