Karnataka High Court
C Lakshminarayana Sony vs Divakar on 24 August, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT DATED THIS THE 24"' DAYWQF4Aug3"u'sT"e2.O'i'o,'_'_;_ BEFORE' THE HON'BLE MR. 3usT1cE'e'A;-5. VENV-!JVGOPA'£eA"«C;O\AI§A WRIT PETITION No.i1$'455/2010'(~<;:S4gcéC) BETWEEN: C.Lakshminarayana So.ny_,=., ' S/0. late B.Char§d_ran;,_' ' '. Aged 45 vea'rs,T:~g 4. Residing at No.3.2;:--_VAnc;:«ep'et,"'_ V Basavana' Temj:a_|e Si:reet~,.Ve_' .. Aven;.ee----R.oad_ Crbss., Bangalore ¥7S_6Q (3)53-._ (By st-eaAM.es.varadérajfaTn;Adv.) _l_\_f_\l__[)--:., v ., '1\C._'bav'akaT--r.,' S/0.' Taté Venkatachary, . V * -. _Ag,ed.3«6_ "years, ' , Rc--:si»d&ir.g"at_iN0.62, I 'A' Cross, Ma§n_',-._Ci2dlur Palya, " Mag.adi"j'Road, "Bar2ga!'ore - 560 023. n2,_.Dr§"'B.asha, S/0. Ibrahim, _ Residing at No.77/34, No.4, Park road, 15' Cross, Basavanagudi Street, Anchepen Bangalore -- 560 053. . .. PETITION ER RESPONDENTS
(By Sri S.Chennaraya Reddy & Sri S.Shekar Reddy, Advs. for R2) This writ petition is filed under Artic!es;"'2'26.'~a..nd:22? of the Constitution of India praying to quashthe-.i,mr-pugn'ed'» order dated 21.4.2010 passed in O.S.661/--9,.7f3n"--t,he fileof the Addl. City Civil Court, Bang-ai'ore,City _(Annjexuvre. -~'-A) j V and direct the Triai Court to reL:eive_the'-said"'doi:ument.in ' evidence, by ailowing this writ petiti'on". This petition comingl._,:o'nV_ forA"'hea~ring-.2thisrdajy, the Court made the following: V V ,_ O The petitionerA,...andV--.. plaintiff and defendants ::jre'lief""plrayed in the suit is specific under an agreement dated 22.1.Vi'99--4_,javnd"for-<:o'nsequentia| reliefs. _ _ 2. A'ccordi,ri--g to the plaintiff, the 1" defendant who is a_Ab,sol..ute ow"r'*.--er"of the suit property, entered into a 32.1993 and inducted him into the suit scheduie property by receiving Rs.2~,-$3,000/--, enabling him to remain in occupation A A.wtlh'"e-«reof for a period of 3 years 6 months. According to the spiaintiff, the 15' defendant executed an agreement of sale dated 22.1.1994 and agreed to sell the suit property to him for a consideration amount of Rs.7,50,000/- and \'7.
agreed to adjust the amount received document dated 3.2.1993 and _r,ec:,ei4ved_'.VRs.'é,'§u,0QQ/~'i-as'. advance and the balance amount payiaajief Rs.2,50,000/-. Alieginghig that, itdespite'.:de.;r;'a~n.d*s and requests, the sale deed was___:n:o.t__e~x_ecuted.a_nd_gregiste-red, the suit for the said Vrelifef has
3. The has been placed who has purchased the suit de_Fe'ndant, has filed the written stateVn1erut_ and the suit claim. Issues have been striuckh and:vwhte_n"the piaintiff was deposing as PW.1, th*e'3'«:documentdated3.2.1993 stated supra, was sought to ' bernariéedwthrough him, but was opposed by the learned "counseli 2"" defendant on the ground that it is insufficiently stamped and that it also required compulsory registration.
4. The Trial Court has held that, the document in question though styled as an agreement, is a lease--cum~ usufructuary mortgage deed and the same has not been \s» r.
drawn on the requisite stamp paper and that the docigrrnent required compulsory registration. Though it for the plaintiff that, the stamp duty and paid, the Court below has upheldudthegg ogbjecti:o'n_o'n:7the ground that, by mere payment ofiildutyiand i'p¢n'a:vy plaintiff, the document in qu_ie"s--t,ion "can_n'otf'_:be'1.:ya'lidatedif because it is not regi'stered;'"Agg'rie\;e_d, the"'piaintiff has filed this writ petition. if 'd if 5;rffirii"NiS':;:ig€ara'daraia'n;'"learned counsel appearing for the:pgtitionerjicont»e'n'd.ed__that, the Trial Court has acted irrationally*--.._anVdifiileg.a'liy..'---~'i'in uphoiding the objection for of the""sa..id...docurnent without noticing the fact 'tVh'at.,e gth_e'~pi'a,intiff is not reiying upon the document for the .p'ur'pose'ofejendfoircing any right or iiability, but only for the coilaterai purpose i.e., to find out the nature of possession. Le'ar.nAed"counsei contended that, so long as the plaintiff is 'seeking to enforce any right under the document in Wguestion, the question of its inadmissibiiity does not arise > and hence, the impugned order being illegal, ;inte,rfe__re'nce, is called for.
6. Sri C.Shankar Reddy, for the 2"" respondent, on theother."handuco,nte;n'ded'that,V»if the document having o,e~en,"",':-.a'd..mittediy_ drawn on insufficient stamp a lease~cum-= usufrctuary ..red:ui'red compulsory registration' recorded by the Trial .iar1d;hence,:-n_o:§interference is calied for. Learned" in support of the findingsVV"a«--nxd the Trial Court in the impugned o,_r'd'.e r. ' heard the learned counsel on both sides, I am of~thVé.~' opinion that, having regard to the proviso to , Sectio_n' 49 of the Registration Act, 1908 ('the Act' for .,.V"s_h.o7rt), the Trial Court has erred in not admitting the deed .:in question in evidence and has committed an error and illegality. S.17 of the Act is a disabling Section. The documents defined in Clauses (a) to (e) thereof require 1,:
registration compuisorily. Either a lease deed beyond a year or a mortgage deed in___r]es.per:t~ of immovabie property of the vaiuie requires compuisory registration. P'a~rt X 'witn"th'e=.p effects of registration and ni'o.rf--'registratifon}-I gives' teeth to S.17 by p'ro\ii.dingdef.'non-registration of document required to _t)_ev'f'regihstfereddfif7*
8. g5dr .:h_Ve'iA;c.i,_yieacis as roiiows;
f1§iffect.:'.'oi:"noneregistration of documents reqt1ired_to:'be'*:egi,§tered:- No document required by section ' provision of the Transfer of _ Property Act, of 1882), to be registered shall-
" La.) V"a£f,ect any immovable property comprised . or 1 «confer any power to adopt, or f toe received as evidence of any transaction M if affecting such property or conferring such power, "if" _ 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 {4 of 1882], to be reirtered may be /4 I "34.
9
From the principles laid down in theigvarious decisions of this Court and the High referred to hereinabove, it is evident that:
1.
A document required to ifs' unregistered is not:'iadr"nissi';oleginto evidence under Section 49 of Re_gi*svtratio'n Such unregistere_d~.. document can "~1_v1ow.ev:er be i used as an evidencemof collateral purpose as provided. 'i11..g_the"v'proviiso Sectionf49 of the Registratio'n}Act.'' } v V' A' A c.o11aterai"transa_'ewtion' mustvbe independent of, or divisible f1?oi'r"1, theetransaction to effect which _ 1'tv1l'1e lava required registration. 4' A vco1la.terai'~«transaction must be a transaction ~ not.itself=_req'uired to be effected by a registered do"c'u.me_nt, that is, a transaction creating, etc. "any right, title or interest in immovable property i_j..the value of one hundred rupees and ' 'j_ upwards.
" If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
(Emphasis supplied) '*2 I' 10
11. In the case of KALAVAKURTI VENKATA SUBBAIAH VS. BALA GURAPPAGARI GURUV'I...Vi'iF°?y:EE?_DY, (1999) 7 scc 114, it has been heid that, an.§u'nr'e'gji--stefifed_ sale deed could be received in evidence'»v-tofi.prove them agreement between the parties::.y:tho_ug.h it_rn.ay 'no:ti.___its.el«f constitute a contract to transfer the i;)_r'opert'-/it
12. Sri M.S.\i'a..radaArraj'ang_:,'-- 'VV'su_bmitted that, the petitioner is ready to upay'theydu'ty_:a'nd._pe.nalty. The Triai Court.»'o'ug.h.t";Vtoé:'::i?3a-ve'--.Vim'pou'nded the document for the purpose penaity. By not doing so, it has comrn~i.tted an error.'-"land iiiegality. The document be duty and penaity payable be ' de'terrnin~e'd«.iimaccordance with law and be paid. Upon such' payment', the document be marked only for the collateraiti purpose and not to prove the transaction in guestion. The petitioner shall not enforce any of his rights hoinithe suit property on the basis of the said document. In Minot doing so, the Trial Court has committed irrationality and illegality. \9;,« f.