Madras High Court
A.Swaminathan vs Tharvesh on 2 February, 2016
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 02.02.2016 CORAM THE HONOURABLE Mr. JUSTICE P.R.SHIVAKUMAR C.R.P.[PD] No.153 of 2016 and C.M.P.No.827 of 2016 A.Swaminathan ... Petitioner Vs. 1.Tharvesh 2.V.Balu 3.C.Kali 4.E.Chandran 5.D.Nagappan 6.N.Chellappan 7.D.Thananchezhian 8.K.Krishnan 9.Govindasamy 10.Nagappan 11.Gopal 12.Mani 13.Ezhumalai 14.Senthamarai 15.Krishnan 16.Murugesan 17.Dhanalakshmi 18.Dhanalakshmi 19.Ganga 20.Kamatchi 21.Sekar 22.Kaliammal 23.Thangamani 24.Mari 25.Mari 26.Chandran 27.Mohan 28.Kanniappan 29.Mari 30.Nirmala 31.Dharmalingam 32.Suguna 33.Dhansingh 34.Nagarathinam 35.Meena 36.Poongothai 37.Shankar 38.Murugan ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 13.02.2015 passed in I.A.No.1505 of 2014 in OS.No.313 of 2007 on the file of the District Munsif Court, Madurantagam. For Petitioner : Mr. K.Govi Ganesan O R D E R
The respondent herein wanted to mark the unregistered sale deed dated 30.11.1994 in evidence. As it was opposed and the trial court also did not permit the respondent to mark the said document, on the premise that the document is inadmissible for want of registration under Section 17 of the Registration Act, 1908, the respondent filed an interlocutory application in I.A.No.1505 of 2014 in the original suit in O.S.No.313 of 2007 on the file of the trial court for a specific prayer for rendering a finding regarding the admissibility of the said document, as it was sought to be used for proving a collateral transaction and for a collateral purpose. The application was opposed by the petitioner herein. Ultimately, the learned trial judge passed an order holding that the document, though unregistered, could be received as evidence for a collateral purpose/to prove a collateral transaction. However, holding further that even if the document was sought to be used to prove a collateral transaction, the document could not be received in evidence for want of payment of proper stamp duty, the learned trial judge passed the impugned order dated 13.02.2015, admitting the said document dated 13.11.1994 as a documentary evidence, provided stamp duty and stamp duty penalty were paid by the respondent herein. The said order is sought to be challenged by the petitioner by invoking the power of superintendence of this court under Article 227 of the Constitution of India.
2. Of course, Section 17 of the Registration Act, 1908, enumerates the documents of which registration is compulsory. There is no dispute that the property sought to be conveyed under the document in question is an immovable property, whose value as on the date of the document was more than Rs.100/- and hence, it was compulsorily registrable. Then, what is the effect of non-registration of a document of which registration is compulsory. For an answer to the said question, we have to refer to Section 49 of the Registration Act, 1908. For better appreciation, Section 49 is reproduced hereunder.
49. Effect of non-registration of documents required to be registered No document required by section 17 32[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
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
3. The main provision is to the effect that the unregistered document, registration of which is compulsory either under Section 17 of the Registration Act, 1908 or under any of the provision of the Transfer of Property Act, 1882, shall not be received as evidence of any transaction affecting the immovable property. However, two exemptions are provided in the proviso. The first one is use of the said document as evidence of a contract for sale in a suit for specific performance. The second one is that such documents can be received as evidence of any collateral transaction which is not required to be effected by a registered instrument. The respondent herein relied on the second exemption.
4. The respondent had made it clear that the document was sought to be used to prove only a collateral transaction, which was not required to be effected by a registered instrument. Hence, there is no infirmity in the order passed by the learned trial judge to the effect that the said document could be received in proof of a collateral transaction or for a collateral purpose, which is not required to be effected by a registered instrument.
5. However, the requirements of the Registration Act, 1908 are to be differentiated from the requirements of the Stamp Act, 1899. Section 35 of the Stamp Act, 1899 deals with the receipt and instruments unstamped and not duly stamped. It says no instrument, chargeable with a duty shall be admitted in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Proviso [a] permits reception of such documents on payment of the stamp duty chargeable with a penalty, which may be equal to ten times of such stamp duty or such portion. By now, it is well settled that though Section 49 proviso of the Registration Act, 1908, permits the court to receive an unregistered document, which is required to be compulsorily registered, as a piece of evidence for proving a collateral transaction, the said section does not dispense with the requirement of collection of deficit stamp duty and stamp duty penalty under Section 35 of the Indian Stamp Act, 1899, and that even if such document is sought to be used for proving a collateral transaction, the deficit stamp duty and stamp duty penalty should be collected before its admission as a piece of evidence for the said purpose.
6. The learned trial judge has appreciated the point in proper perspective and rendered a perfect finding, based on which, the impugned order came to be passed. This court does not find any patent error or absence of jurisdiction to pass such an order or failure to exercise the jurisdiction conferred on the trial court in passing the impugned order. No other valid reason to assail the order of the trial court has been assigned by the petitioner. Hence, the petition deserves to be dismissed at the threshold.
Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
02.02.2016 Index : Yes Internet : Yes gya To The District Munsif Judge, Madurantagam.
P.R.SHIVAKUMAR, J.
gya C.R.P.[PD] No.153 of 2016 and C.M.P.No.827 of 2016 02.02.2016