Andhra Pradesh High Court - Amravati
Polaka Venkata Rami Reddy vs Polaka Chinnamma on 5 January, 2024
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CIVIL REVISION PETITION No.1728 OF 2022
ORDER :
The Civil Revision Petition has been filed aggrieved by the Docket Order dated 14.07.2022 passed in O.S.No.56 of 2009 on the file of the Senior Civil Judge, Kandukur.
2. The facts, in brief, are that the petitioner/plaintiff filed the aforesaid suit O.S.No.56 of 2009 against the respondents/ defendants seeking the relief of declaration of title and permanent injunction in respect of suit A schedule property. The respondents/defendants filed their written statement. Trial began in the said suit. At the time of examination of the plaintiff as P.W.1, Exchange Deed dated 28.01.1989 is sought to be marked as Ex.A1. Learned counsel for respondents/ defendants objected for the same on the ground that it is an unregistered Exchange Deed and cannot be marked to prove acquisition/transfer of rights. It is the contention of the petitioner/plaintiff that since he paid stamp duty and penalty on the said Exchange Deed, it can be marked to prove the collateral transaction of nature of possession. The trial Judge, vide the impugned Docket Order dated 14.07.2022, sustained the 2 objection raised by the respondents/defendants and rejected request of petitioner/ plaintiff to mark the said Exchange Deed. Challenging the said order, the present revision came to be filed.
3. It is the contention of the learned counsel for the petitioner that since stamp duty and penalty have been paid on the said document, to prove the collateral transaction of nature of possession of the petitioner/plaintiff over the schedule property, the Exchange Deed can be marked as contemplated under Section 49 of the Registration Act, 1908, but the Court below committed illegality in rejecting to mark the said document for the purpose of proving the collateral transaction also, and hence the impugned order is liable to be set aside and sought a direction to mark the Exchange Deed dated 28.01.1989 as an Exhibit.
The learned counsel relied on a decision in K.Ramamoorthi v. C.Surendranatha Reddy1 in support of his contention.
4. On the other hand, learned counsel for respondents 2 to 7 and 9 contended that the subject Exchange Deed dated 28.01.1989 is an unregistered document and hence, it cannot be used to establish acquisition/transfer of rights in immovable 1 2012 (6) ALT 786 (S.B.) 3 property. He further submits that since no possession was transferred under the subject Exchange Deed, though stamp duty and penalty have been paid on the said document, it cannot be marked even to prove the collateral transaction, as contemplated under Section 49 of the Registration Act, 1908, and considering these aspects, the trial Court right rejected the request to mark the said document and there are no grounds to interfere with the said order.
5. O.S. No.56 of 2009 on the file of the Senior Civil Judge, Kandukur has been filed by the petitioner/plaintiff against the respondents/defendants for declaration of title and permanent injunction in respect of suit A schedule property. After filing written statement and settlement of issues, trial began in the said suit. At the time of examination of the plaintiff as P.W.1, when Exchange Deed dated 28.01.1989 was sought to be marked as Ex.A1, on the objection of counsel for respondents/defendants, the trial Judge rejected the request of petitioner/plaintiff to mark the said document as Ex.A1, by the impugned Docket Order. Aggrieved by the same, the present revision petition is filed.
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6. Section 17 of the Registration Act, 1908 specifies the documents whose registration is compulsory. Under Section 17 (1) (b), other non-testamentary instruments 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, are included. The subject exchange deed, which conveys right and title in the immovable property, falls in this category of instruments.
Under Section 45 of the Registration Act, 1908, which lays down effect of non-registration of documents required to be registered, no document required by Section 17 of the Registration Act, 1908 or by any provisions of the Transfer of Property Act, 1882 to be registered shall (a) effect 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. Proviso to Section 49 of the Registration Act, 1908, which is relevant for the present purpose, carved out an exception to the rule contained in the main provision as regards the effect of an unregistered document requiring registration and receiving of such document as evidence of any transaction. The proviso 5 permits such document to be received as evidence under two contingencies, namely (1) as piece of evidence of a contract in a suit for specific performance in Chapter II of the Specific Relief Act and (2) as evidence of any collateral transaction not required to be effected by registered document.
7. It is pertinent to mention herein the Hon'ble Supreme Court in S. Kala Devi Vs V.R. Somasundaram2 held as follows "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 an 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 2 (2010) 5 Supreme Court Cases 401 6 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."
8. It is relevant to mention herein this Court in Peddina Subba Rao Vs. Peddina Prasad and others in C.R.P.No.3310 of 2019 held as follows, "An unregistered sale deed is admissible in evidence for the collateral purpose to the limited extent of showing possession. In the similar manner, an Exchange Deed also is admissible in evidence for the collateral purpose to the limited extent of showing possession. In this regard the collateral transaction is not transaction affecting the immovable property but a transaction which is incidentally connected with that transaction. The unregistered partition deed of insufficiently stamped partition deed can be used for collateral purpose under the proviso only on payment of stamp duty and penalty and the said proposition of law was laid down in P. Rama Subbareddy v.
P.Subba Reddy alias G. Subbanna"
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9. Under Section 35 of the Indian Stamp Act, 1899, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person unless such instrument is duly stamped. When once a document comes within the meaning of an 'instrument', stamp duty and penalty are required to be paid on the said document, otherwise it cannot be used for any purpose in view of the bar under Section 35 of the Indian Stamp Act, 1899. Even in case of the document which is compulsorily registerable under Section 17 (1) (b) of the Registration Act, 1908 but is not registered, it can be used for proving a collateral transaction as provided under proviso to Section 49 of the Registration Act, 1908.
10. In the case on hand, a perusal of the recitals in the document in question viz. unregistered Exchange Deed dated 28.01.1989, shows that the parties therein mutually exchanged their respective properties orally and taken over possession of the respective properties after the exchange, on 10.6.1985. Thereafter in order to avoid legal complications, they reduced the oral exchange effected on 10.6.1985 into writing by way of the document in question i.e. unregistered Exchange Deed, on 28.01.1989. Admittedly, stamp duty and penalty have been paid on the said unregistered Exchange Deed. The said document is 8 evidencing a past transaction of exchange of properties between the parties thereto, which took place on 10.06.1985, including handing over the possession of the respective properties after the exchange under the aforesaid document. It is clear that the parties had already exchanged their properties on 10.06.1985 and possession of respective properties were handed over on the said date itself i.e. on 10.06.1985, and only in order to avoid future disputes, the said document came to be executed between the parties on 28.01.1989. Therefore, for the purpose of the proving collateral transaction of delivery of possession of the respective properties to respective parties exchanged under the said document, the document in question can be marked. However, the trial Court has not considered these aspects and rejected the request of the petitioner to mark the said document.
11. Accordingly, the Civil Revision Petition is allowed setting aside the Docket Order dated 14.07.2022 passed in O.S.No.56 of 2009 on the file of the Senior Civil Judge, Kandukur. The document in question i.e. unregistered Exchange Deed dated 28.1.1989, shall be marked as Exhibit for the purpose of proving the collateral transaction of delivery of possession of the respective properties to the respective parties exchanged under the said document. 9
As a sequel, pending miscellaneous petitions, if any, in the C.R.P. shall stand closed. There shall be no order as to costs of the C.R.P. __________________________________ JUSTICE K. SREENIVASA REDDY .01.2024 DRK 10 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CIVIL REVISION PETITION Nos.1728 OF 2022 .01.2024 DRK