Madras High Court
Anjalai vs Union Of India on 13 March, 2024
S.A. No.547 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :13.03.2024
CORAM:
THE HON'BLE MR. JUSTICE P.B. BALAJI
S.A. No.547 of 2020
and CMP No.11749 of 2020
Anjalai .... Appellant
Versus
1.Union of India
Rep by Chief Secretary of
Government of Puducherry,
Chief Secretariat, Goubert Avenue,
Pondichery-605 001.
2.Department of Revenue,
Rep by Secretary-cum-Collector,
Government of Puducherry,
Chief Secretariat, Goubert Avenue,
Pondicherry-605 001.
3. Office of Sub Registrar,
Pondicherry-605 001.
4. Saroja
5.Aravalli
6.Saradha
7.Olagam
1/24
https://www.mhc.tn.gov.in/judis
S.A. No.547 of 2020
8.Varalakshmi
9.Maheswaran'
10.Gangaiammal
11.Jenarthanan ... Respondents
Second Appeal filed under Section 100 of the Civil Procedure code,
against the decree and judgment passed in A.S. No.24 of 2019 dated
16.12.2019 on the file of II Additional District Judge, Pondicherry,
confirming the judgment and decree dated 10.04.2019 in O.S.No.119 of
2009 on the file of Sub Judge, Pondicherry.
For Appellants : Mr.S.Sudarshan
For Respondents : Mr.Ramaswamy Meyyappan
Government Advocate (Pondy.)
For R.1 to R.3
Mr.R.Veeramani
For R.4 to R.11
JUDGMENT
The plaintiff, in a suit, seeking direction to the defendants to be personally present in the Office of the fourth defendant/Sub Registrar, Pondicherry, for the purposes of re-presenting and completing the registration of the already executed sale deed dated 31.03.2009 is the appellant herein. The parties are described as per their litigative status in the suit. 2/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020
2. It is the case of the plaintiff that the first defendant was assigned by the Pondicherry Government, the suit property, under the Pondicherry Land Reforms (Fixation of Ceiling on Land and Disposal of Surplus Lands) and the plaintiff had, under various unregistered agreements entered into with the first defendant, obtained possession of the suit property and was cultivating the said lands. While so, the first defendant, being unable to repay the money due and payable to the plaintiff, offered to sell the suit property to the plaintiff and there was an oral agreement between the plaintiff and the first defendant, alleged to have been executed on 20.04.2008, in terms of which, the first defendant should execute a sale deed within one year from the date of the said oral agreement. Further, it is the case of the plaintiff that the parties viz., the plaintiff and the first defendant had agreed to register the sale deed on 31.03.2009 before the Sub Registrar, Puducherry.
3. It is the further case of the plaintiff that the parties were present on the said date before the Sub Registrar's Office and a sale deed was also signed and photographs of the plaintiff and the first defendant were also affixed on the reverse of the first page of the sale deed. While the plaintiff and 3/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 the first defendant were waiting for their turn for registration, the first defendant left the Sub Registrar's Office, without any justifiable cause and thereby, avoided registration of the sale deed. In such circumstances, the suit was filed for a direction, which has already been mentioned herein above.
4. The first defendant filed a written statement, denying the very execution of the sale deed, as claimed by the plaintiff. It is his specific case of the first defendant that he borrowed only a sum of Rs.30,000/- from the plaintiff and at that time, the plaintiff obtained the signatures of the first defendant in blank stamp papers which have been misused to bring about the alleged lease agreements/Ex.A.2 to Ex.A.6, unregistered sale deed/Ex.A.7 as well as unregistered sale deed/Ex.A9.
5. The first defendant died pending the suit and the legal representatives of the first defendant viz., defendants 5 to 14 were brought on record. The fourth defendant viz., the Sub Registrar filed a written statement stating that no document was presented to him for registration and he had given only a slip, indicating the amount that was payable for registration. 4/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020
6. Before the trial Court, the plaintiff examined four witness and the defendants examined two witnesses. The trial court dismissed the suit holding that the first defendant had no right to alienate the suit property and disbelieved the evidence of P.W.2/Scribe and P.W.3/one of the witnesses to the unregistered sale deed/Ex.A.9.
7. The plaintiff, aggrieved by the dismissal of the suit, preferred an appeal in A.S.No.24 of 2019 and the first appellate Court also confirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the plaintiff has preferred the present Second Appeal.
8. On 28.10.2020, the above Second Appeal was admitted on the following substantial questions of law: -
1. Whether the first Appellate Court was right in concluding that Exhibits A.2 to A.7 are 5/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 inadmissible for want of registration overlooking the fact that they are sought to be relied upon for collateral purposes?
2. Whether the Courts below were right in rejecting the relief of mandatory injunction for registration of the Sale Deed Ex.A.9, the execution of which by the first defendant has been proved beyond doubt.
3. Whether the Courts below were right in concluding that the lands in question are inalienable despite amendments introduced to the Pondicherry Land Reforms (Fixation of ceiling on land and disposal of surplus lands) (Amendment) Rules, 2003.
9. Learned counsel for the appellant would take me through the pleadings as well as the judgments of the Court below. He would state that Exs.A.2 to A.7 ought to have been relied upon by the appellant for collateral purposes, even though the said documents required registration. The said documents, according to the learned counsel for the appellant, were exhibited 6/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 only to establish the character of possession of the plaintiff and therefore, the Courts below erroneously proceeded to reject Exs.A.2 to A.7 solely on the ground that they were not registered documents.
10. Learned counsel for the appellant would also invite my attention to Ex.A.16, a Certificate issued by Tahsildar to the first defendant, certifying that there is no due payable in respect of assignment given to the first defendant. He would further state that in the teeth of Ex.A.1, the courts below ought not to have relied upon Ex.X.1 Certificate, which was produced during the trial, stating that the interest component on the instalment remains unpaid and therefore, the first defendant was not entitled to deal with the property without clearing the dues, even though the 20 years period have lapsed. According to the plaintiff, the plaintiff has been put in possession and has been cultivating the lands. This was in violation of terms of the assignment, where the assignment order required the assignee alone to cultivate and he was not permitted to sublet to any third parties.
11. Learned counsel for the plaintiff, with regard to denial of execution 7/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 of unregistered sale deed/Ex.A.9, would invite my attention to Ex.B.4 and Ex.B.7, according to which, the first defendant has already been receiving Special Funds for handicapped persons from the Government. According to the learned counsel for the plaintiff, this would falsify the case of the defendant that the original assignment deed as well as the photographs were given by the first defendant to the plaintiff only to facilitate the first defendant to receive the stipend from the Government, which was available for handicapped persons and therefore, the defence set up by the first defendant, was clearly unsustainable and false. Learned counsel for the appellant would therefore pray that the concurrent findings of the course below being set aside and the Second Appeal being allowed. In support of his contentions, the learned counsel for the appellant would rely on the following decisions:-
i) Bhaiya Ramanuj Pratap DEO vs Lalu Maheshanuj Pratap DEO and others reported in [ (1981) 4 SCC 613 ]
ii) S.Muruganandam vs J.Joseph reported in (2022 SCC Online Mad 958)
12. Per contra, learned counsel for the respondents would submit that the first defendant never denied the execution of the unregistered sale deed as 8/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 well as other lease deeds, marked as Exs.A.2 to A.6 as well as unregistered sale deed Ex.A.7. Further, he would invite my attention to Exs.A.2 to A.6, which are all pertaining to only 30 cents, even though assignment was to an extent of 30 ares. He also pointed out to the dates of Exs.A.2 to A.7 and contended that there was no necessity for execution of further deeds Exs.A.3 to A.6 when under Ex.A.2, already the period was fixed as three years and verbatim on the very same terms and conditions, subsequent deeds Exs.A.3 to A.6 have been entered into, which only goes to show that the plaintiff has taken advantage of the blank stamp papers with the first defendant, with left thumb impression affixed and misused the same to bring about the deeds in order to snatch the suit property. He would also invite my attention to the findings of the trial Court regarding the evidence of P.W.2 as well as P.W.3 and highlight the inconsistencies and contradictions. which clearly falsify the case of the plaintiff.
13. According to the learned counsel for the respondents, the respondents never parted with possession and their admitted liability is only 9/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 for a sum of Rs.30,000/- and nothing more. Further, he would also reply to the arguments of the learned counsel for the appellant that Exs.A.2 to A.6 and as well Ex.A.7 are documents, which are required to be compulsorily registered under Section 17 of the Registration Act, 1908 and for collateral purposes alone, the said documents could be marked. However, in the present case, the appellant seeks to mark the said documents for the main purpose, but, not collateral purpose, as according to the learned counsel for the respondents, under Exs.A.2 to A.7, the factum of the plaintiff, being in possession, coupled with payment of advance sale consideration is sought to be established and therefore, the said documents cannot be received in evidence.
14. Further, the learned counsel for the respondents 1 and 5 to 14 would submit that even under Exs.A.2 to A.7, the dates of stamp papers as well as, the names, in which, the papers have been purchased, all were in the name of strangers and neither in the name of the first defendant nor in the name of the plaintiff. He would also state that the wife of the first defendant was also a signatory by way of affixing her left thumb impression in Exs.A.2 10/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 to A.6, and apart from the first defendant, signatures of the first defendant's wife (left thumb impression) was obtained and there was no necessity for the same. Therefore, according to the learned counsel for the respondents 5 to 14, all these create suspicion on the genuineness of the transaction. Further, he would also refer to the evidence of P.W.2 and P.W.3, who have also categorically admitted that they have not seen the first defendant before the said date i.e., 31.03.2009. He also points out to the fact that the attesting witness is none else than the employee of the Scribe/P.W.2 and therefore, according to the learned counsel for the respondents 1, 5 to 14, the plaintiff has clearly played fraud on the first defendant and attempted to snatch away the valuable property and the learned counsel also contended that the very object of assignment to landless poor farmers was sought to be defeated by the act of the plaintiff. Contending that the Courts below have rightly dismissed the suit and therefore, he prays for dismissal of the Second Appeal. Learned counsel for the respondents would rely on the following decisions:-
i) Veena Singh (dead) through legal representative vs District Registrar/Additional Collector and 11/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 another reported in [ (2022) 7 SCC 1 ]
ii) Naryanamma and Another vs Govindappa and Others reported in (2019) 19 SCC 42
iii)K.B.Saha and Sons Private Limited vs Development Consultant Limited reported in [ (2008) 8 SCC 564 ]
iv)J.Ashok vs G.Prabhurajadurai reported in (MANU/TN/3659/2020)
15. The learned counsel for the respondents 2 to 4 Mr.Ramaswamy Meyappan would contend that the relilef sought for in the plaint cannot be granted since admittedly the executant of Ex.A.9 unregistered sale deed is no more and his legal representatives cannot re-present the said document and complete the registration formalities, especially in the light of prevailing registration Rules which require production of life certificate and also the photographs and thumb impression, being taken at the Sub Registrar's Office, for which, physical presence of the first defendant is not possible, in view of 12/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 his demise. He would further submit that this Court, exercising its power under Section 100 of Civil Procedure Code, cannot interfere with the concurrent findings which are based on the pleadings and the evidence available on record. He would also pray for dismissal of the Second Appeal.
16. I have heard Mr.S.Sudarshan, learned counsel for the appellant and Mr.Ramaswamy Meyyappan, learned Government Advocate for the respondents 1 to 3 and Mr.R.Veeramani, learned counsel for the respondents 4 to 11. I have also gone through the pleadings, the evidence of the plaintiff and three other witnesses examined on the side of the plaintiff, defendant and the other witnesses/daughter and grandson of the first defendant. I have also gone through Ex.X.1 marked before the trial court, which was a Certificate/letter issued by the Tahsildar regarding the dues/amounts payable by the first defendant towards interest on the original assignment and also the judgments of the trial Court as well as the first appellate Court.
17. In the case of Bhaiya Ramanuj Pratap DEO vs Lalu Maheshanuj Pratap DEO and Others reported in [(1981) 4 SCC 613 ], the Hon'ble 13/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 Supreme Court has held that an unregistered document, which requires registration under the Registration Act, can be looked into for collateral purposes. In the case of S.Muruganandam vs J.Joseph reported in (2022 SCC Online Mad 958), this Court, following the decision of the case of Sengappan vs Arumbatha Veda Vinayagar Temple rep by its Hereditary Trustee reported in (2000) 1 Mad LJ 198, held that an unregistered sale deed can be looked into for collateral purpose for ascertaining the character of possession.
18. In Veena Singh (dead) through Legal representative vs District Registrar / Additional Collector (F/R) and another reported in (2022) 7 SCC 1, the Hon'ble Supreme Court while relying upon “ execution” has held that even if a person's signature on the document is admitted, they can still deny its execution if they did not agree to or understand the contents of the document while signing it.
19. In the case of Narayanamma and Another vs Govindappa and Others reported in [(2019) 19 SCC 42], the Hon'ble Supreme Court has held 14/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 that when the interest of seller is a non-alienable, specific performance cannot be granted, contrary to statutory provisions.
20. In the case of K.B.Saha and Sons Private Limited vs Development Consultant Limited reported in (2008) 8 SCC 564, the Hon'ble Supreme Court, referring to collateral transaction, held that an unregistered document can be relied on for establishing the important terms, forming part of the lease agreement.
21. In the case of D.Santhanadurai vs A.Nishanth Joe Raj and Others reported in MANU/TN/3659/2020, the Division Bench, while dealing with Tamil Nadu Cultivating Tenants Protection Act, held that an agricultural lease deed requires compulsory registration and if a tenancy is created in respect of the agricultural land, the same requires compulsory registration and also attracts stamp duty as provided under the Indian Stamp Act.
22. Admittedly, the specific case of the plaintiff is that he has paid money to the first defendant on various dates and was unable to repay the 15/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 same. The first defendant has offered to execute the sale deed and register the same in favour of the plaintiff. It is the specific case of the plaintiff that on the agreed date i.e., 31.03.2009, the plaintiff and the first defendant assembled before the Sub Registrar's Office and the sale deed was duly signed (left thumb impression affixed) by the first defendant, however, when the parties were waiting for their turn for registration, the first defendant fled from the scene and thereby avoided registration of the sale deed, despite having executed the same.
23. I have gone through ExA.9/unregistered sale deed in respect of which mandatory injunction is sought for. On going through Ex.A.9, I find that the document states the entire sale consideration of Rs.4,50,000/- has been paid on the said date viz., 31.03.2009. Ex.A.13 Lawyer's Notice dated 14.03.2014 says that the entire sale consideration was paid in the presence of one Annamalai. Section 54 of Transfer of Property, 1882 Act assumes significance in this regard and the same is extracted hereunder for ready reference:
54. “Sale” defined 16/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale A contract for the sale of immovable property is a contract that a sale of such property shall take place 17/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
24. Sale is complete only if the sale consideration is shown to be paid to the vendor. Here, the case of the plaintiff is that he never paid any money on the date of the registration of the sale deed. It is his specific case that various amounts that have been lent by him to the first defendant, not being repaid, was the cause for the first defendant coming forward to sell the suit property. However, in Ex.A.9 sale deed, I do not find any such covenant and on the contrary, Ex.A.9 specifically states that entire sale consideration of Rs.4,50,000/- has been paid in cash across the execution of the sale deed (not registered). Therefore, there is absolutely no evidence to satisfy payment of sale consideration under Ex.A.9 and Section 54 of Transfer of Property Act, 1882 would come into play and render the sale deed a void document. Even otherwise, as rightly contended by the learned counsel for the respondents 2 to 4, admittedly, the prayer in the suit is to require the presence of the legal representatives of the first defendant before the Sub Registrar Office, 18/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 Puducherry to re-present unregistered sale deed, executed by the first defendant already and complete the registration formalities. Unfortunately, such a prayer cannot be granted especially in the light of the prevailing registration Rules in the Union Territory of Puducherry. Even on this score, the plaintiff has to be non-suited.
25. Even otherwise, I find from the judgment of the trial Court as well as the first appellate Court that the Courts have discussed thread bare, the oral and documentary evidence adduced by the parties and have arrived at conclusions which are neither illegal nor irregular or perverse in order to be interfered under Section 100 of Civil Procedure Code. The substantial questions of law are answered hereunder:-.
26. Insofar as the first substantial question of law is concerned, the purpose of relying Exs.A.2 to A.7 is to establish the payment of money, being advance sale consideration to the first defendant and also the factum of the plaintiff being put in physical possession of property. It is clearly not a collateral purpose, but the plaintiff is attempting to prove factum of 19/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 possession under these documents. In such view of the matter, Exs.A.2 toA.7 being unregistered and inadmissible in evidence, they cannot be looked into. Accordingly, the first substantial question of law is answered against the plaintiff.
27. Insofar as the second substantial question of law is concerned, the Courts below concurrently found that execution of Ex.A.9 unregistered sale deed has not been satisfactorily proved by the plaintiff and therefore, I do not find any justifiable ground to interfere with the well considered findings of the Court below and therefore, the second substantial question of law is answered against the plaintiff.
28. Insofar as the third substantial question of law is concerned, with regard to inalienable right of the first defendant, in view of Pondicherry Land Reforms (Fixation of ceiling on land and disposal of surplus lands) (Amendment) Rules, 2003 and in view of Ex.X.1, the Certificate of Tahsildar, coupled with the evidence of P.W.4, it is clear that when there are dues, certificate could not be given and admittedly, accordingly to the records, 20/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 P.W.4, who was surprisingly examined on the side of the plaintiff, he himself state that the principal amount alone was paid and the interest on instalments was not paid by the defendant and he further states that when such interest amount is due and payable, 'No Arrears Certificate' cannot be granted. Even though, there is some force in the submissions of the learned counsel for the appellant that having issued Ex.A.16 dated 25.03.2019, “No Arrears Certificate” in the name of the first defendant, the Tahsildar cannot go back on his own statement and take a contradictory stand in the evidence of P.W.4 and also under Ex.X.1 dated 19.03.2019.
29. The no arrears certificate has been produced by the plaintiff and not by the first defendant. Further, I also find from Ex.A.9 sale deed dated 31.03.2009 that the stamp papers for the sale deed have been purchased in the name of the appellant on 30.03.2009. In fact, it has come out in evidence especially P.W.2 that money for purchasing stamp papers were given only three days prior to 31.03.2009, that being so, the stamp papers could not have been purchased in the name of the appellant even in March 2009. 21/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020
30. However, on perusal of Ex.A.16, I find that the certificate has been produced by the plaintiff. The said certificate was in the name of the first defendant and it is dated 20.02.2008. On perusal of Ex.A.16, I find that the letter head is in the name and style of “Government of Puducherry Taluk Office” and the Certificate Number is 638/TOP/C/2008 and it is specifically mentioned the place of issue as Government of Puducherry and dated 20.02.2008. However, in the Government seal, affixed, I find that it contains the name of “ Taluk Office, Government of Pondicherry”.
31. Admittedly, when Pondicherry has been rechristened as “Puducherry”, the seal carrying the name of “Pondicherry” appears to be suspicious one and cannot be relied. on. In such circumstances, Ex.X.1 can be safely relied on. The third substantial question of law is also answered against the appellant.
32. I do not find any perversity or illegality, warranting interference under Section 100 of the Civil Procedure Code and all the substantial questions of law are answered against the appellant and the Second Appeal 22/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
13.03.2024 Index: Yes/No Speaking Order/Non-Speaking Order sr To
1. II Additional District Judge, Pondicherry,
2. Subordinate Judge, Pondicherry
3. The V.R.Section, High Court, Chennai.
23/24 https://www.mhc.tn.gov.in/judis S.A. No.547 of 2020 P.B.BALAJI,J.
sr S.A.No.547 of 2020 13.03.2024 24/24 https://www.mhc.tn.gov.in/judis