Karnataka High Court
Sri Sachidananda Alva vs Sridhara Alva on 28 March, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR SECOND APPEAL No.459/2009
BETWEEN:
Sri Sachidananda Alva
Aged 42 years
S/o Sridhara Alva
Kumblakodi House
Peruvai Village & Post
Bantwal Taluk - 574 211. ...Appellant
(By Sri.Sachin B.S., Advocate)
AND:
1. Sridhara Alva
S/o Kinhanna Alva
Aged about 70 years
Kumblakodi House
Since deceased by LR:
(a) Smt.Pushpavathi
W/o late Sridhar Alva
Aged 70 years
Kumblakodi House
Peruvadi Village & Post
Bantwal Taluk-574 211
2. Smt.Manu Shankari Marla
D/o Sri Sridhara Alva
Kumblakodi House
RSA.No.459/2009
2
Peruvadi Village & Post
Bantwal Taluk. ...Respondents
(By Sri.M.Sudhakar Pai, Adv. for R-2;
R-1(a) is served)
This Appeal is filed under Section 100 of CPC, against
the judgment and decree dated:18.2.2009 passed in
R.A.No.41/2007 on the file of the III Addl. District Judge,
D.K., Mangalore, dismissing the appeal and confirming the
judgment and decree dated: 8.8.2007 passed in
O.S.No.24/2006 (old No.76/2004) on the file of the Civil
Judge (Sr. Dn.) & JMFC., Bantwal.
This Appeal having been heard and reserved for
judgment on 21.03.2018 and coming on for pronouncement
of Judgment this day, the Court delivered the following:
JUDGMENT
The appellant herein had instituted a suit in O.S.No.24/2006 (old No.76/2004) against the respondents herein in the Court of Civil Judge (Sr.Dn.) & J.M.F.C., Bantwal, D.K. (henceforth for brevity referred to as 'the Trial Court') for recovery of money.
2. The summary of the case of the plaintiff in the Trial Court was that, there was an agreement between himself and the defendants entered into on 22.10.2002 RSA.No.459/2009 3 in respect of the property in dispute. The defendants had agreed to pay him a sum of `4,00,000/- in lieu of he foregoing his right in the suit schedule property. Accordingly, a sum of `2,00,000/- was paid to him on the date of agreement. The balance of `2,00,000/- was to be paid in two installments i.e., `1,00,000/- on or before 21.10.2003 and the remaining amount of `1,00,000/- was to be paid on or before 21.10.2004. The defendants failed to pay `1,00,000/-, which was due on 21.10.2003. Inspite of repeated requests, demands and issuance of legal notice dated 4.12.2003 also, the defendants failed to comply the demand. Hence, the plaintiff was constrained to file a suit for recovery of a sum of `1,00,875/- from the defendants with interest @ 12% per annum from the date of suit till the date of realization.
RSA.No.459/20094
3. The second defendant filed her written statement wherein she denied the plaint averment about the defendants executing any agreement dated 22.10.2002 in favour of the plaintiff agreeing to pay him a sum of `4,00,000/-. On the other hand, she contended that the first defendant had executed a registered settlement deed dated 24.9.2002 and since then, she is in actual possession as absolute owner of the suit schedule property. She also contended that the agreement relied upon by the plaintiff is barred under the provisions of the Contract Act, Hindu Law and Transfer of Property Act and the agreement is not legally enforceable in the eyes of law.
4. Based upon the pleadings of the parties, the Trial Court framed the following issues:
1) Whether the plaintiff proves that himself and defendants entered into an agreement dated 22.10.2002?RSA.No.459/2009 5
2) Whether the plaintiff is entitled for interest as prayed for?
3) Whether the defendants prove that 1st
defendant has executed Registered
Settlement deed on 24.9.2002 in favour of the 2nd defendant?
4) Whether the plaintiff is entitled for reliefs as prayed for?
5) What order or decree?
5. In support of his case, the plaintiff got himself examined as PW-1 and got examined two more witnesses as PWs-2 and 3 and got marked the documents from Exs.P1 to P15. On behalf of the defendants, defendant No.2 got herself examined as DW-1 and also got the documents marked from Exs.D1 to D4.
6. The Trial Court after hearing both side and perusing the material placed before it, by its judgment RSA.No.459/2009 6 and decree dated 8.8.2007 answered issue Nos.1 and 2 in the negative and issue No.3 in the affirmative and dismissed the suit of the plaintiff.
7. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiff preferred an appeal before the Court of the III Additional District Judge, D.K., Mangalore (henceforth for brevity referred to as 'the First Appellate Court') in R.A.No.41/2007. The respondents therein contested the matter.
8. The First Appellate Court framed the following points for its consideration:
1) Whether the plaintiff is entitled to `1,00,875/- with 12% interest from the date of suit till the complete realization?
2) Whether the interference in the judgment and decree passed by the learned trial court is necessary?
3) What order or decree?RSA.No.459/2009 7
9. After hearing both side and perusing the material placed before it, the First Appellate Court by its judgment and decree dated 18.2.2009 answered both points in the negative and dismissed the appeal.
10. It is against the said judgment and decree of the First Appellate Court, the plaintiff has preferred the present appeal.
11. In response to the notice, respondent No.2 is being represented by her Counsel. Respondent No.1(a) is served and unrepresented.
12. The lower court records were called for and the same are placed before the Court.
13. The appeal was admitted to consider the following substantial questions of law:
1. "Whether Exhibit P1 ought to be construed as an agreement or a release RSA.No.459/2009 8 deed which was compulsorily registerable under Section 17 of the Registration Act, 1908?
(2) Whether the first appellate court was justified in holding that it was a release deed, which required registration?
14. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court.
15. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the Trial Court respectively.
16. Learned Counsel for the appellant in his arguments submitted that admittedly the parties to the dispute are family members and that the document at Ex.P1 upon which the plaintiff has instituted the suit is an agreement, which has come into existence as a result of family arrangement. As such, the same does not require any registration under the Registration Act, 1908 RSA.No.459/2009 9 (henceforth for brevity referred to as 'the Act'). He further submitted that, at the time of marking the said agreement, the defendants did not raise any objection, as such, since the document is marked without any objection, it stands admitted. However, while concluding his argument, he submitted that, even if it is presumed that the document at Ex.P1 was compulsorily registerable, still, the Court can consider the said document for collateral purpose. As such, the court below has committed an error in not decreeing the suit of the plaintiff.
In support of his arguments, he relied upon three judgments of the Hon'ble Supreme Court and this Court, which would be considered at the appropriate stage hereafterwards.
17. Learned Counsel for respondent No.2 in his argument submitted that, the appellant has suppressed RSA.No.459/2009 10 the fact that the very same plaintiff had executed a 'Consent Deed' on the very same date of Ex.P1 i.e., 22.10.2002, in favour of second defendant. As such, the question of defendants executing agreement in favour of the very same plaintiff on the very same day agreeing to pay him any money does not arise.
He further submitted that, a reading of the agreement at Ex.P1 go to show that it creates charge on the property and it is a release and relinquishment deed, as such, it is compulsorily registerable under the Act. While referring to a Division Bench judgment of the Dharwad Bench of this Court in Sri Ramachandra Narayan Talawar -vs- Kumar Soukharya and Others reported in ILR 2017 KAR 2555, he submitted that, irrespective of any objection being raised by the defendants at the time of marking of the document, the nature of the document is such that it was compulsorily RSA.No.459/2009 11 registerable and is of such a nature that document itself was inadmissible in evidence. Therefore, the non- registration aspect can be raised by the defendants at any stage.
18. The original first defendant is the father of the plaintiff and defendant No.2. During the pendency of the original suit, due to the death of said father of other parties, the wife of first defendant i.e., mother of the parties has been brought on record as the legal representative of the deceased/original defendant No.1. The defendant No.2 is the sister of the plaintiff. The relationship between the parties is not in dispute. The only basis for the claim for alleged recovery of money by the plaintiff in his suit is, the alleged agreement said to have been executed by the original defendant in his favour on 22.12.2002, which is marked at Ex.P1. According to him, in lieu of he foregoing his right over RSA.No.459/2009 12 the suit schedule properties, the defendants had agreed to pay him a sum of `4,00,000/-, out of which, only a sum of `2,00,000/- has been paid to him and balance amount has not been paid by the defendants. The defendants have totally denied the alleged agreement and their alleged commitment under the agreement. As such, it is the said agreement, which is at Ex.P1, is the only document, which has to be analyzed in the case.
19. Admittedly, the said document, which is on `50/- stamp paper and shown to have been executed by both the defendants in favour of the plaintiff, is an unregistered document. The said document, after referring to a Settlement Deed dated 24.9.2002 (it was marked at Ex.D1 from the defendants' side) shows that, in view of the same, the defendants as a first party to the agreement had agreed to pay a sum of `4,00,000/- to the plaintiff towards his livelihood and also in lieu of RSA.No.459/2009 13 he foregoing his right in the immovable properties shown in that agreement. It is further stated in the very same agreement that, the second party i.e., plaintiff has got a charge over the property in question towards the balance amount payable to him by the defendants. It is further stated in the same agreement that, once the consideration of `4,00,000/- is paid by the first party (defendants) to the second party (plaintiff), the first party would have no rights in the properties. The said agreement further acknowledges transfer of possession of the properties by the plaintiff in favour of the defendants.
20. Both the courts below have held that the said document at Ex.P1 is a compulsorily registerable document under Section 17 of the Act and since that document has not been registered, the plaintiff cannot enforce the same.
RSA.No.459/200914
21. Section 17 of the Act deals with the documents, registration of which is compulsory and relevant portion of it reads as below:
"17. Documents of which registration is compulsory-
(1) The following documents shall be registered, if the property to which they relate is situate 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:-
(a) instruments of gift of immovable
property;
(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;RSA.No.459/2009 15
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates 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;
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.
RSA.No.459/200916
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. . . . . . . . . . . . . . . . . ."
The effect of non-registration of documents required to be registered is dealt under Section 49 of the Act, which reads as below:
"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-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or RSA.No.459/2009 17
(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." The proviso to Section 49 of the Act is in the nature of an exception, which provides for admissibility of a document, which is not duly registered. Two instances where a document, which is not registered, could be looked into are provided therein. They are (i) an unregistered document i.e., a 'sale deed' could be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877; (ii) unregistered documents could be looked into for any collateral transaction. The collateral purpose RSA.No.459/2009 18 would be any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. However, the collateral purpose has a limited scope and meaning.
22. Learned Counsel for the appellant in his argument, that the document at Ex.P1 is a family arrangement document, as such, it does not require any registration, relied upon a judgment of the Hon'ble Supreme Court in Subraya M.N. -vs- Vittala M.N. & Ors. reported in AIR 2016 SC 3236 and drew the attention of this Court to paragraph-17 in that judgment, which reads as below:
"17. Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family arrangements/settlements, there is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise.RSA.No.459/2009 19
Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in items No.1 and 2."
A reading of the above judgment makes it clear that the Hon'ble Apex Court has not stated that a family arrangement, if written into writing, is exempted from registration, but it only says that there is no provision of RSA.No.459/2009 20 law requiring family settlement to be reduced to writing and registered, though when reduced to writing, the question of registration may arise, which means, the family arrangements can be made orally also. In such a case, the question of registration does not arise. However, if that family arrangement is reduced to the form of writing with the purpose that the terms should be evidenced by it, then it requires registration and without registration, it is inadmissible.
In the instant case, there is nothing to consider Ex.P1 as a family settlement. A reading of the said document makes it clear that it is an agreement entered into between the parties shown therein. Secondly, at more than one place, it mentions about the second party having certain rights in the immovable properties mentioned in the document and that he relinquishing his rights in those properties in favour of the first party in RSA.No.459/2009 21 return of consideration of a sum of `4,00,000/-. It is further stated in the same documents that till the amount is paid to him, the second party would have charge over the immovable properties and that once the consideration is passed over to the second party, he would lose all his rights in the immovable property and all those rights would vest with the first party. It is further mentioned in the same agreement that the possession of the immovable properties have been delivered by the second party in favour of the first party. As such, the said agreement not being a mere family arrangement, it also creates and assigns certain rights in favour of the first party by extinguishing certain right in immovable property of the second party. As such, the said document being a written document is compulsorily registerable under Section 17 of the Act. RSA.No.459/2009 22
23. Learned Counsel for the appellant also relied upon the judgment of Co-ordinate Bench of this Court in Rajappa s/o Munivenkatappa -vs- Rajappa s/o Muniswamappa reported in LAWS(KAR) 2014 3 143 and submitted that, even though the document is unregistered, the same can be relied upon for collateral purpose. In the said judgment, a Co-ordinate Bench of this Court after discussing the effect of non-registration of document required to be registered and referring to proviso to Section 49 of the Act was pleased to observe that unregistered documents could be looked into for any collateral transaction. It further observed that the collateral purpose would be any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. However, the collateral purpose has a limited scope and meaning. In the instant case, the very purpose of the agreement at Ex.P1 is release and relinquishment of certain rights RSA.No.459/2009 23 in favour of the first party to the agreement by the second party in consideration of a sum of `4,00,000/-. Thus, the very purpose of the agreement is, assigning or relinquishing of certain right in favour of one party, as a reciprocal, the other party receives a consideration in terms of money. Except these, if any other purposes are mentioned in the agreement, that could have been considered as collateral purpose. However, the suit being for the recovery of money under Ex.P1, which is the main purpose of the agreement, as a reciprocal consideration, the said purpose cannot be considered as a collateral purpose.
24. Lastly, learned Counsel for the appellant also relied upon one more judgment of Co-ordinate Bench of this Court in K.Amarnath -vs- Puttamma reported in LAWS (KAR) 1998 7 97 and submitted that, once the document is marked in evidence, the other party cannot RSA.No.459/2009 24 raise any objection on the same. Though in the said judgment at para-10, the learned Judge was pleased to observe that, once a document is admitted in evidence, it cannot be called in question thereafter on the ground that it was not duly stamped and that once the court admits a document even wrongly, such admission becomes final and cannot be reopened, but in the very same judgment, the Court was further pleased to observe that the admissibility of the document should also be examined with reference to Section 49 of the Indian Registration Act, i.e., whether it relates to an immovable property requiring registration under Section 17 of Registration Act or any provision of Transfer of Property Act or whether it confers any power to adopt. It was further pleased to observe that as per Section 49 of the Act, if a document which is required to be registered under law is not registered, then such document shall not affect any immovable property RSA.No.459/2009 25 comprised therein, nor can it confer any power to adopt, nor can it be received as evidence of any transaction affecting such property or conferring such power. Thus, the said judgment cannot be construed as though once a document is marked as an exhibit in the evidence, then the said document remains unquestionable under any circumstance.
25. Learned Counsel for respondent No.2 in his argument relied upon a judgment in Sri Ramachandra Narayan Talawar's case (supra) wherein the Division Bench was pleased to observe that, the objection as to admissibility of a document in evidence can be classified in two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be RSA.No.459/2009 26 irregular or insufficient. If the controversy refers to the inadmissibility of the document itself which would fall in first category, then such an objection can be raised even at a later stage in appeal or revision. Whereas in respect of objection that falls in the second category, such objection cannot be taken unless it was raised at the stage when the document was tendered in evidence.
26. In the instant case, the document at Ex.P1 was objected to in the argument before the Trial Court as well in the First Appellate Court about non-registration of the said document. However, by that time, the said document was marked as an exhibit. The nature of the said document being in the form of a release deed or a relinquishment deed than a mere agreement towards family arrangement, the said document is compulsorily registerable in terms of Section 17 of the Act. Therefore, the said document, which is an unregistered RSA.No.459/2009 27 document, was by itself inadmissible in evidence, falling within the classification No.(i) as per Sri Ramachandra Narayan Talawar's case (supra), then such an objection can be raised even at a later stage i.e., in the present appeal also. As such, the objection raised by the respondents herein (defendants) regarding the inadmissibility of the said document due to its non- registration is required to be upheld and it has to be held that, the document at Ex.P1 is to be construed as a document attracting compulsory registration under Section 17 of the Act and that the First Appellate Court was justified in holding that it was a document requiring registration.
27. In view of answering substantial question of law as above, the finding of the First Appellate Court on the points framed by it for its consideration cannot be found fault with. The judgment and decree challenged RSA.No.459/2009 28 in this appeal does not warrant any interference at the hands of this Court. Accordingly, I proceed to pass the following ORDER The appeal is dismissed. The judgment and decree dated 18.2.2009 passed by the III Additional District Judge, D.K., Mangalore, in R.A.No.41/2007, is confirmed.
Sd/-
JUDGE KNM/-