Andhra HC (Pre-Telangana)
Dr. Rayadurgam Gurappa And Anr. vs Chowdam Kondappa on 14 June, 2005
Equivalent citations: AIR2006AP28, 2005(5)ALD381, AIR 2006 ANDHRA PRADESH 28, AIR 2006 (NOC) 750 (AP), 2006 A I H C 1086, (2005) 36 ALLINDCAS 475 (AP), 2005 (36) ALLINDCAS 475, (2005) 5 ANDHLD 381
JUDGMENT P.S. Narayana, J.
1. The matter is coming up for admission today. It is represented that Sri L.J. Veera Reddy had lodged a Caveat on behalf of the respondent/ plaintiff.
2. Sri V.R. Reddy, learned Counsel for the revision petitioners had made submissions at length to the effect that this is a suit for refund of consideration and for the relief of specific performance. The learned Counsel also would submit that in the light of the amendment introduced by A.P. Amendment Act 4 of 1999, an agreement of sale of the value of the immovable property of more than Rs. 100/-is compulsorily registerable under Section 17 of the Indian Registration Act, 1908 and in view of the nature of the suit, the proviso to Section 49 of the Act cannot be made applicable. The Counsel also would submit that even otherwise the document in question is liable for stamp duty and penalty.
3. Per contra, Sri L.J. Veera Reddy, the learned Counsel representing the respondent-plaintiff would submit that in view of the lack of marketable title or defective title, the respondent/plaintiff had thought of instituting the suit for refund of consideration and also for damages and in the light of the nature of the prayer sought for in the suit, the document in question would definitely fall under collateral transaction though the same cannot be received under the former portion of the proviso to Section 49 of the Indian Registration Act, 1908.
4. In view of the fact that both the Counsel made submissions at length, the main CRP is being disposed of at the admission stage.
5. Respondent herein, who is the plaintiff in O.S. No. 117 of 2003 on the file of the Senior Civil Judge, Proddatur, instituted the suit for refund of consideration and also made a claim for damages. The said agreement of sale dated 5.2.2003 was engrossed on a stamp paper worth Rs. 110/-. Two objections had been taken for marking the said document. The first objection is that inasmuch as it is an agreement of sale of a value of more than Rs. 110/-, it is compulsorily registerable under Section 17 of the Indian Registration Act, 1908 and yet another objection is that the stamp duty is liable to be paid as per Article 6-B of Schedule-1A of the Indian Stamp Act, 1899. The learned Judge made an elaborate order and ultimately concluded that it is admissible in evidence. Aggrieved by the same, the present civil revision petition is preferred.
6. There is no serious controversy between the parties that in view of the A.P. Amendment Act referred to supra, the agreement of sale exceeding the value of Rs. 100/- requires registration under Section 17 of the Indian Registration Act, 1908.
7. Section 49 of the Indian Registration Act 1908 deals with the effect of non-registration of documents required to be registered. Section 49(c) proviso reads as hereunder:
(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. This question had fallen for consideration in Javvadi Koteswara Rao v. Sonti Sambasiva Rao, , wherein the learned Judge of this Court held at Paras 5 to 7 that Section 17 of the Registration Act, 1908 reads as follows:
17. Documents of which registration is compulsory :--The following documents shall be registered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:
(2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to,
(v) any document other than the document specified in Sub-section (1-A) except an agreement of sale as mentioned in Clause (g) of Sub-section (1) not in itself creating, declaring, assigning, limiting or extinguishing any right, tide or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create declare, assign, limit or extinguish any such right, tide or interest; or This is a general provision making the agreements of sales compulsorily registerable, but certain exceptions have been provided under the Act itself. Sub-section (2) of Section 17 indicates the nature of documents that are exempted from registration. Section 17(2)(v) makes the position clear that any document other than the documents specified in Sub-section (1-A) except an agreement of sale as mentioned in Clause (g) of Sub-section (1) not in itself creating, declaring, assigning, limiting or extinguishing any right, tide or interest of value of Rs. 100/- and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, tide or interest. The learned Counsel for the respondent submits that the document by itself did not create any right or tide over the property covered by the agreement of sale, therefore, it comes under the exception provided under Clause (v) and also under the proviso to Section 49 of the Act.
Section 49 of the Act reads as follows:
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,--
(i) affect any immovable property comprised therein, or (ii) confer any power to adopt, or
(iii) 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.
9. In Sardar Darshan Singh v. Sardar Ram Singh, , it was held at Paras 7 and 8 A mere perusal of the said proviso shows that an exception is carved out from the rigor of Section 49 which ordains that the document which is required to be registered under Section 17 of the Registration Act shall not be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The exception applies to three categories, namely, (i) the document may be received as evidence of a contract in a suit for specific performance; (ii) as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882; and (iii) as evidence of any collateral transaction not required to be effected by registered instrument. In respect of these three categories of transactions, notwithstanding the fact that the document which is required to be registered has not been registered and, therefore, shall not be received as evidence, can be received as evidence.
Here is a case where the document in question is an agreement of sale and sought to be relied upon as a defence in an application filed for injunction to restrain the party thereof from interfering with the alleged possession of the plaintiff. The defence taken in such action appears to be that the propounder of the document has purchased the property under a contract of sale and, therefore, he i; in possession. Having regard to the competing claims, it is obvious that the document in question attracts either Clause (1) or (2) of the proviso to Section 49 of the Registration Act and, therefore, the document in question can be received as evidence by the Court.
10. These decisions were distinguished by the learned Counsel representing the revision petitioners on the ground that if a suit for specific performance or a suit for specific performance with an alternative relief of refund of consideration had been filed, the proviso to Section 49 of Indian Registration Act, 1908 may be made applicable. But the learned Counsel would contend that this is a suit for the relief of refund of consideration simplicitor and hence on facts the decisions are distinguishable. It is true that the former part of the proviso to Section 49(2)(c) of the Indian Registration Act, 1908 refers to the relief of specific performance and Section 53-A of the Transfer of Property Act, 1882. The latter part of the proviso refers to collateral transaction. Decisions are too numerous on interpretation of the terms or expression of collateral transaction. This is a suit for refund of consideration on the ground of lack of marketable title or defective title as the case may be and also for damages. The transaction is not in serious controversy. For the reasons best known, though it may not be necessary, in the light of the respective stands taken by the parties, the respondent/ plaintiff had thought of marking this document.
11. In the present case, the suit is for the relief of refund of consideration and for damages. In the light of the second part of the proviso specifying collateral transaction, it cannot be said that this document would not fall under collateral transaction in the light of the nature of the relief prayed for in the suit. Hence, viewed from any angle, the objection taken as to the marking of the document definitely cannot be sustained.
12. The second objection, which had been raised regarding the payment of stamp duty and penalty, need not be discussed at length in the light of the fact that relying on the ratio laid down by me in Pechitti Ramakrishna v. Nekkanti Venkata Manohara Rao, and also the view expressed by a Division Bench of this Court in Saranam Peda Appaiah v. S. Narasimha Reddy, (DB), the learned Judge held that the second objection relating to the law of stamp duty and penalty also cannot be sustained.
13. Hence, viewed from any angle, this Court is of the considered opinion that the civil revision petition is devoid of merits and accordingly the same shall stand dismissed. No costs.