Madras High Court
Savari Ammal vs Kulandai Thiresu (Died) on 25 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25.09.2018
RESERVED ON : 10.09.2018
DELIVERED ON : 25.09.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A. No. 2003 of 2000
Savari Ammal .. Appellant
Vs.
1. Kulandai Thiresu (died)
2. Alphones (died)
3. A. Elizabeth
4. Therasammal Shanthi
5. Sagaya Elilarasi
6. Arockia Earnest
7. A. Arockiasamy .. Respondents
(Respondents 3 to 7 are brought on record as legal representatives of the
deceased second respondent vide order of Court dated 06.09.2018 made in
MP(MD) No.1 of 2008)
PRAYER : Second Appeal is filed under Section 100 of Civil Procedure
Code, against the Judgment and Decree in A.S. No.132 of 1998 on the file of
Sub-Court, Sivaganga dated 30.08.2000 setting aside the Judgment and Decree
in O.S.No.223 of 1995, on the file of the District Munsif Court, Thiruppathur
dated 20.03.1998.
!For Appellant : Mr.K. Lavan
^For Respondents-3 to 7 : Mr.T.S. Mohamed Mohideen
:JUDGMENT
The defendant in O.S.No.223 of 1995 on the file of the District Munsif Court, Thiruppathur is the appellant. O.S.No.223 of 1995 had been filed by Kulandai Thiresu and Alphones for a declaration of title or in the alternative declaration of possessory title and consequential injunction to protect possession in respect of the suit property.
2. The suit property was punja land measuring 1.22.0 hectares in Nemam Village, Thiruppthur Taluk, Sivagangai District.
3. The first plaintiff is the mother and the second plaintiff is her son. The first plaintiff claimed title on the basis of a unregistered sale deed dated 21.5.1986 executed by the defendant/Savariammal. After purchase, the plaintiffs were granted patta by the Tahsildar, Thiruppathur. The defendant had filed an application to cancel the patta and the same was dismissed by the Tahsildar. The defendant had filed an appeal before the Revenue Divisional Officer and the same was allowed. The plaintiffs had filed an appeal before the District Revenue Officer and the same was dismissed. The defendant, therefore, claimed title and attempted to disturb the possession of the plaintiffs. Consequently, the suit had been filed, seeking the reliefs as stated above.
4. In the written statement the defendant claimed that the sale deed dated 21.05.1986 was forged by the plaintiffs. The defendant claimed that consideration was not paid. The defendant affixed her thumb impressions without knowing the contents of the document which were not read out and explained. The defendant claimed that she was an illiterate person. The defendant sought dismissal of the suit.
5. On the basis of the above pleadings, the learned District Munsif, Thiruppathur had framed the following issues.
1.Whether the first plaintiff was entitled to the suit property by way of sale deed or by way of possessory title?
2.Whether the suit property was in the possession of the defendant?
3.Whether the sale deed dated 21.05.1986 was obtained by cheating the defendant and her family members?
4.Whether the plaintiffs are entitled for the relief of declaration and permanent injunction?
5.To what reliefs are the plaintiffs entitled to?
6. During trial, on the side of the plaintiffs, the second plaintiff Alphones was examined as P.W.1 and three independent witnesses Sundari, Vellaikkannu and Kandasamy were examined as P.W.2, P.W.3 & P.W.4. The plaintiffs had marked Ex.A.1 to Ex.A.14. Ex.A.1 is the Patta granted on 08.08.1986. Ex.A.2 is the UDR Patta. Ex.A.3 is the unregistered sale deed. Ex.A.4 to Ex.A.9 are the tax receipts paid by the plaintiffs. Ex.A.10 is the order of the Tahsildar dated 12.06.1989. Ex.A.11 is the Order of the District Revenue Officer dated 31.12.1992.
7. On the side of the defendant, the defendant Savariammal was examined as D.W.1 and one independent witness Chinnappan was examined as D.W.2. The defendant had marked Ex.B.1 to Ex.B.17. Ex.B.1 to Ex.B.15 are tax receipts and Ex.P.17 is the Order of the District Revenue Officer.
8. On consideration of oral and documentary evidence, the learned District Munsif, Thiruppathur held that the plaintiffs claimed title on the basis of an unregistered sale deed and observed that an unregistered document is not admissible in evidence and no relief can be granted on the basis of the said document. It was observed that a sale deed has to be compulsorily registered and it was held that the plaintiffs cannot be granted the relief of declaration or the relief of possessory title. The suit was dismissed.
9. The plaintiffs then filed A.S. No.132 of 1998 which came up for consideration before the Subordinate Court, Sivagangai. The learned Subordinate Judge re-examined the evidence on record and framed the following points for determination.
1.Whether the plaintiffs got title to the suit property by virtue of the unregistered sale deed under Ex.A.3?
2.Whether Ex.A.3 can be admitted in evidence for collateral purpose I.e., to decide the nature and character of possession of the suit property by the plaintiffs?.
3.Whether the suit property is in the absolute possession and enjoyment of the plaintiffs?
4.Whether the plaintiffs are entitled to the decree prayed for?
10. On reappraising the evidence, the learned Subordinate Judge held that the execution of Ex.A.3 unregistered sale deed had been proved by the evidence of P.W.2 & P.W.3. Consequently, the learned Subordinate Judge held that eventhough Ex.A.3 is inadmissible in evidence, the terms in the deed can be examined for collateral purpose to determine possession. Thereafter holding that in the said sale deed it was covenanted that possession has been handed over to the plaintiffs the learned Judge held that the plaintiffs are entitled for a decree of permanent injunction restraining the defendant from disturbing their possession. Consequently, the Judgment and Decree of the trial Court was set aside.
11. The defendant filed the present Second appeal, challenging the said finding that the plaintiffs were entitled for decree of permanent injunction. It must be pointed out that the plaintiffs had not been filed any appeal against the rejection of the relief of declaration of title or possessory title. This Second appeal was admitted and the following substantial questions of law were framed.
1.Whether the Appellate Judge is right in reversing the well considered findings of the Trial Court?
2.On the available facts and circumstances of the case, whether the learned Judge is right in granting the relief of possessory title, without applying the law laid down by this Honourable Court reported in 1999 (3) L. W. 727?
12. Heard arguments advanced by Mr.K. Lavan, learned counsel for the appellant and Mr.T.S. Mohamed Mohideen, learned counsel for the respondents.
13. For the sake of convenience the contesting parties shall be referred to as Plaintiffs and Defendant. The defendant is the appellant and the plaintiffs are the respondents.
14. The second substantial question of law revolve around the Judgment reported in 1999(3) L.W. Page No.727, Kammavar Sangam, through its Secretary R.Krishnasamy Vs. Mani Janagarajan. A single Judge of this Court held that a person claiming possessory title cannot be granted the relief of injunction as against the true owner or as against a person having better title. The ratio laid therein implies that injunction cannot be granted against a person who has a better title or against the true owner.
15. In the present case, the plaintiffs had claimed title, on the basis of an unregistered sale deed dated 21.05.1986. The said sale deed had been marked as Ex.A.3.
16. Section 54 of the Transfer of Property Act defines 'sale' as follows:
?Sale is a transfer of ownership in exchange for a price paid on promised or part-paid and part-promised.
Such transfer, in the case of tangible immovable 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?
17. Section 17 of the Registration Act is as follows:
?The following documents shall be registered, if the property to which the relate is situate in a district in which, and if they have been executed on or after the date on which, Act. No.VI of 1864 of the Indian Registration Act, 1866 (XX of 1866) of the Registration Act 1871 (VII of 1871), or the Indian Registration Act, 1827 (III of 1877), or this Act came of comes into force, namely.
(a)........
(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.
...........
...........?
The provision extracted above. A Sale Deed of the value of Rs.100/- and more has to be registered.
18. Ex.A.3 has been perused by me. It is written in Tamil. It contains three sheets. The first sheet is written in a Rs.5/-stamp paper. The second and third sheets are plain green sheets. The left thumb impression of the defendant Savariammal has been affixed in each page. The document has been attested by R.M.Veerappan, Government Pleader and Notary, Devakottai. He had attested and stated that the thumb impression was affixed before him. He was not examined as witness in the Court. This is a very significant, because even in the evidence it had come out that the document was prepared and executed in the office of the said Advocate R.M.Veerappan. P.W.2 & P.W.3 are witnesses of the document. The witnesses also affixed their thumb impressions. The document is also attested on the last page by the President of Nemam Village, Panchayat Union. Even that person was not examined as witness to the document. This also assumes significance, because the defendant had clearly stated that she did not know anything about the contents in the said document and that her thumb impression was obtained without reading and explaining the written matter. She claimed to be an illterate person.
19. In 2009 (1) C.T.C. Page 426, A.Anthony Pushpam Ammal Vs.Rev. Mother Superior, St. Joseph's Leprosy Home, Arokiapuram, Tuticorin and another. It had been held that, ?In the case of illiterate person, entire burden lies on person who relies upon particular document to prove that the same has been read and explained to illiterate person.?
20. In Ramaswami Jadaya Gounder (died) and another v. V.T.Elaiya Pillai and another, AIR 1972 Mad. 336, this Court has held that ?the onus to prove that the document was properly explained and interpreted to illiterate person affixing his mark so as to make him understand its true import is on the party relying on the document?
21. I hold that to prove knowledge of the contents of Ex.A.3 by the defendant, the plaintiffs should have examined the Advocate R.M. Veerappan or the President of the Nemam Village, Panchayat Union. The witnesses to the document can only state that it was the defendant who affixed her thumb impressions. That would not imply that the contents of the document were read over and explained to her. The plaintiffs had a larger decree of burden to discharge namely, that the defendant had knowledge of the contents of the document. That burden which cannot be shifted has not been discharged by the plaintiffs.
22. In 2008 (8) SCC Page.564, K.B.Saha and Sons Private limited Vs. Development Consultant Limited, it had been held that, ?34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that;
1.A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2.Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3.A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4.A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5.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.?
23. In the present case, Clause 5 applies and it is clear that if the document is inadmissible in evidence for want of registration, it cannot even be relied upon for collateral purpose.
24. The learned first Appellate Judge had therefore erred in law in relying upon Ex.A.3 for the collateral purpose of determining possession. The said document is inadmissible and cannot be relied upon for any purpose whatsoever. The learned first Appellate Judge had granted relief of injunction holding that the plaintiffs are in possession. The plaintiff has no title. The plaintiffs cannot be granted injunction against the defendant who has title and is the true owner, since Ex.A.3, Sale Deed is a void document. No right flowed by it or could have been conveyed by it.
25. In view of the fact that, Ex.A.3 is an unregistered document it does not and cannot convey title. The defendant has a better title than the plaintiffs.
26. Applying the ratio enunciated, in 1999 (3) L.W. Page 727, I hold that the relief of injunction cannot be granted against the defendant who has better title and who is the true owner of the property. The substantial questions of law are answered accordingly.
27. I hold that the Judgment and Decree of the first Appellate Court requires interference. The Judgment and Decree dated 30.08.2000 in A.S. No.132 of 1998 on the file of the Subordinate Court, Sivagangai is set aside. The Judgment and Decree dated 20.03.1998 in O.S. No.223 of 1995 on the file of the District Munsif Court, Thiruppathur is confirmed.
28. In the result, this Second appeal is allowed with costs. .