Madras High Court
Durai @ Subrayan vs Anandan on 25 November, 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 25.11.2009 Coram The Honble Mr.Justice M.JEYAPAUL Second Appeal No.1640 of 1995 and C.M.P.No.18283 of 1995 Durai @ Subrayan Appellant vs. Anandan Respondent For appellant : Mr.T.P.Manoharan For respondent : Mr.R.Natarajan Prayer:- Second Appeal against the judgment and decree of the learned Principal District Judge at Pondicherry dated 28.4.1995 made in A.S.No.102 of 1994 preferred against the judgment and decree of the learned I Additional District Munsif at Pondicherry dated 2.6.1994 made in O.S.No.276 of 1993. JUDGMENT
The defendant is the appellant before this court. The suit was filed by the respondent, who is the plaintiff, praying for grant of permanent injunction restraining the defendant from trespassing upon the schedule mentioned property.
2. It is contended by the plaintiff that the suit schedule property originally belonged to one Athilakshmi Ammal. She sold the suit property in favour of one Radhakrishnan by virtue of sale deed dated 27.8.1977. Radhakrishnan executed a Will dated 28.9.1983 in favour of his son Arumugam born through his first wife and thereafter, he died in the year 1984. The mother of the said Arumugam also died leaving him behind her as her only legal representative. The plaintiff purchased the schedule mentioned property by virtue of sale deed dated 3.2.1993. Alleging that the defendant is making an attempt to trespass upon the suit property using force, the plaintiff filed the suit for the aforesaid relief.
3. In the written statement, the defendant has contended that the legal heirs of Radhakrishnan viz., his first wife Poorani, Arumugam the son born through his first wife and Gunabushni, the daughter born through his first wife entered into a contract of sale with the defendant on 27.7.1990 in respect of the suit property. Full consideration of Rs.30,000/= was already paid. The vendors also handed over possession of the suit properties to the defendant after receiving full consideration on 27.7.1990. Formal sale deed was agreed to be executed in favour of the defendant by the vendors. The plaintiff is not the bona fide purchaser for valuable consideration inasmuch as the defendant has been in possession of the suit property eversince the date of contract of sale entered into between the parties. The plaintiff, taking advantage of the interim injunction granted in the suit, took possession of the suit property. The vendors evaded to execute the deed of conveyance demanding additional sum of Rs.10,000/=. At any rate, the plaintiff was not in possession and enjoyment of the suit property on the date of filing of the suit. Therefore, the plaintiff is not entitled to an order of injunction as prayed for in the suit, it is contended.
4. The Trial Court, having observed that though Ex.B1 is in the form of sale deed, defendant, having paid full consideration thereunder, has been in possession and enjoyment of the suit property on the day of filing of the suit by the plaintiff. Ex.B1 can be relied upon to establish possession of the property. The possession of the defendant will have to be protected under section 53A of the Transfer of Property Act. The Trial Court chose to dismiss the suit filed by the plaintiff.
5. In the first appeal preferred by the plaintiff, the first appellate court, adverting to the evidence of D.Ws.1, 2 and 4, arrived at a conclusion that the defendant was not in possession of the suit property at the time of filing the suit. Having observed that Ex.B1 is a sale deed and the same cannot be relied upon even for establishing possession of the property, the first appellate court chose to reverse the finding of the Trial Court.
6. The following substantial questions of law were framed at the time of admission of the second appeal:-
"1. Whether the respondent, who is claiming under the appellant's vendor, is not debarred from enforcing any right against the appellant in respect of the suit property when the terms of Ex.B1 constitute the transfer of the suit property in favour of the appellant, he had satisfied the remaining requirements of Section 53-A of the Transfer of Property Act and the respondent had notice about the same.
2. Whether the respondent, who failed to specifically plead and prove his vendor's possession of the suit property prior to Ex.A4 and his possession and enjoyment of the same thereafter, more particularly on the date of the suit, is entitled to a decree for permanent injunction.
3. Whether the respondent, who entered into possession of the suit property after and on the strength of the ex parte interim injunction, can be said to be in legal possession of the same and consequently, whether he is entitled to protect such an illegal possession by way of a decree for permanent injunction."
7. Learned counsel appearing for the defendant/appellant would submit that though Ex.B1 has been styled as a sale deed, it is only an agreement of sale inasmuch as there is an unambiguous clause that a proper sale deed would be executed at a future date. Even assuming for the sake of argument that Ex.B1 is a pacca sale deed and the same was not properly stamped and registered as required under law, still the court is empowered to rely upon such a document for collateral purpose. Referring to the evidence of DW1 to DW4, he would submit that the defendant has established that he has been let into possession of the suit property the moment Ex.B1 was executed in his favour by his vendors. It is his further submission that the plaintiff was already put on notice about the sale transaction clinched by the defendant, but, the plaintiff has wantonly suppressed the document which had come into existence in favour of the defendant and filed a suit and obtained order of injunction and thereafter got into possession of the suit property. Therefore, he would submit that the first appellate court has clearly erred in holding that it was only the plaintiff who has been in possession and enjoyment of the suit property at the time when the suit was laid.
8. The learned counsel appearing for the plaintiff/respondent would submit that DW2 and DW4 have categorically spoken to the fact that at the time when the plaintiff purchased the suit property from the vendor, he was let into possession of the suit property. Inasmuch as there is evidence to show that the plaintiff was let into possession of the suit property from the date of the purchase, the first appellate court has rightly protected his possession by issuing a decree for permanent injunction. It is his further submission that the finding of the Trial Court that Ex.B1 is a sale deed was not put to challenge by the defendant before the first appellate court. Therefore, the defendant cannot contend before this court that Ex.B1 is not a sale deed, but, an agreement of sale. Ex.B1 was not only unregistered but was also insufficiently stamped. Further as per the decision of the Hon'ble Supreme Court, the terms of an instrument which requires to be registered but not registered cannot be looked into even for collateral purpose of proving the possession. It is his further submission that the Trial Court failed to collect the stamp duty when Ex.B1 was marked. Referring to section 23 of the Indian Registration Act, the learned counsel appearing for the plaintiff would submit that as Ex.B1 was not registered within four months from the date of execution as contemplated therein, it becomes extinct and no reliance can be placed on such a document. Referring to section 50 of the Registration Act, the learned counsel appearing for the plaintiff would submit that when a registered document is placed in juxtaposition with the unregistered document, registered document has a overriding effect than the unregistered document which fact has been lost sight of by the Trial Court. In short, the learned counsel appearing for the plaintiff would submit that the plaintiff has established that he has been in possession and enjoyment of the suit property at the time when the suit was laid. The defendant cannot bank on an unstamped and unregistered document Ex.B1 to establish his possession. Therefore, he would submit that the judgment of the first appellate court does not call for interference.
9. Section 17(1)(b) of the Registration Act, 1908 would read that all non-testamentary instruments which purport to create, declare, assign or extinguish presently or in future, any right, title or interest of the value of Rs.100/= or upwards in any immovable property require to be compulsorily registered.
10. The fate of non-registration of the documents require to be registered under the aforesaid provision of law has been dealt with under section 49 of the Registration Act, 1908. A document required to be registered but not registered shall not be received as evidence of any transaction affecting such property as per section 49 of the Registration Act, 1908. But, there is a proviso found thereunder which reads that such an unregistered document affecting immovable property can be received as evidence in a suit for specific performance filed invoking the provision under the Specific Relief Act, 1877. The proviso would further read that such an unregistered document affecting immovable property can also be received as evidence of any collateral transaction, which transaction is not required to be effected by registered instruments.
11. The learned counsel appearing for the plaintiff, at this stage, referred to the decision of the Honourable Supreme Court in K.B.SHAH AND SONS PRIVATE LIMITED v. DEVELOPMENT CONSULTANT LIMITED (2008(5) CTC 260) wherein the properties governing the admissibility of an unregistered document has been adumbrated as follows:-
"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 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."
12. That was a case where the plaintiff chose to rely upon an unregistered lease agreement to establish a seminal term in the agreement that the premises was let out only to a particularly named officer and not to the respondent company. The Supreme Court has held that such a vial term found in an unregistered document cannot be referred by the court. The Supreme Court has categorically held that an unregistered document can, however, be used as an evidence for collateral purpose as provided in the proviso to section 49 of the Registration Act. The only embargo is that such a collateral transaction must be independent of the transaction which requires no registration. It is to be noted that a document reciting delivery of possession does not require any registration at all.
13. In this case, it is very much relevant to refer to a similar case which came up for consideration before the Honourable Supreme Court in BONDAR SINGH v. NIHAL SINGH (AIR 2003 SC 1905) wherein it has been categorically held as follows:-
"The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case, the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized."
14. Before applying the principles laid down by the Supreme Court in the aforesaid judgment, let me refer to Ex.B1 to find whether it is an agreement of sale or a pacca sale deed which requires to be registered. On a careful analysis of Ex.B1, it is found that it was not only styled as sale deed but was also intended to convey right and title absolutely under Ex.B1. If we just remove the expression that the vendors of the defendant are obligated to execute the sale deed as and when required by the defendant, the remaining contents of Ex.B1 would go to unambiguously establish that it is only a sale deed which extinguished the right and title of the vendors on the date when Ex.B1 was executed.
15. A clause found in Ex.B1 to the effect that the sale deed executed would be registered in future would not dilute the nature of the document purportedly executed under Ex.B1. Therefore, it is held that Ex.B1 is a pacca sale deed which requires to be sufficiently stamped and registered. But, quite unfortunately, the said document was not presented for registration within four months from the date of execution as contemplated under section 23 of the Registration Act, 1908.
16. Reverting back to the ratio laid down by the Supreme Court in BONDAR SINGH v. NIHAL SINGH (AIR 2003 SC 1905), the court finds that an unstamped and unregistered sale deed can very well be looked into, even if the same was not admissible in evidence, to establish the nature of possession of the party concerned over the suit property.
17. On a perusal of Ex.B1, it is found that the vendors of the defendant have put the defendant in possession of the suit property when they executed the sale deed Ex.B1 on 27.7.1990.
18. DW1 has categorically deposed before the court that even on the date of filing of the suit by the plaintiff, he has been in possession and enjoyment of the suit property by virtue of the instrument executed by his vendors under Ex.B1. But, unfortunately, the plaintiff, having obtained an order of injunction behind his back, disturbed his possession. The plaintiff got a sale deed from his vendors under Ex.A4 on 3.2.1993. The defendant chose to give a complaint before the Sub Inspector of Police, DW3 alleging that the plaintiff was making an attempt to disturb the possession. DW3, having produced the General Diary entries marked as Exs.X1 and X2, deposed before the court that the defendant, in fact, gave a complaint Ex.B4 before him, but, on enquiry, having found that it was a civil dispute, he advised the parties to approach and get relief before the civil court. It is to be noted that within 20 days from the date of sale deed, Ex.A4 obtained by the plaintiff from the vendor, the complaint has been lodged by the defendant that there was an attempt on the part of the plaintiff to disturb his possession. If at all the defendant had not been in possession and enjoyment of the property at the time when he lodged the complaint, he would not have preferred such a complaint.
19. The suit has been filed on 12.4.1993 within about two months from the date of purchase by the plaintiff under Ex.A4 from his vendors. As the time gap between the date of sale deed and the date of filing the suit is very thin, it appears that DW1 and DW4 chose to depose before the court that the plaintiff came into possession of the property on the date of execution of sale deed in his name by his vendor. Such a stray reference made by DW2 and DW4 in their evidence cannot be taken advantage of by the plaintiff to establish his possession. He, having come to the court with a case that he has been in possession and enjoyment of the suit property from the date of sale deed executed by his vendors, has to independently establish that he has been in possession and enjoyment of the suit property on the date of filing the suit.
20. As rightly pointed out by the learned counsel appearing for the defendant, it is found that the sale deed Ex.B1 standing in the name of the defendant was produced before the police authority, DW3 and the plaintiff also on his part produced the sale deed, Ex.A4 standing in his name before the very same police authority. DW3 has advised the parties having adverted to the rival sale deeds in the name of the plaintiff as well as the defendant to get necessary relief from the civil court. In all fairness, the plaintiff who seeks an equitable relief from the court should have referred to the sale deed which stands in the name of the defendant. Had the plaintiff disclosed in the plaint that there is a sale deed which stands in the name of the defendant, the Trial Court would not have ventured to grant ad interim injunction even before the defendant entered his appearance.
21. The contention made by the defendant that his possession was effectively disturbed only after obtaining an order of injunction cannot be simply brushed aside.
22. The learned counsel appearing for the respondent/plaintiff would submit that the sale deed Ex.A4 specifically refers to delivery of possession of the suit property by the vendor of the plaintiff. Ex.B1, which has come into existence long before the execution of Ex.A4, specifically refers to the delivery of possession by the vendors to the defendant. There is no reason for the defendant to vacate the property facilitating the plaintiff who got the sale deed under Ex.A4 to take possession of the suit property. Had he facilitated the plaintiff to take possession of the suit property after the execution of the sale deed Ex.A4 by the vendors, he would not have gone to the police station with a complaint twenty days after the date of execution of E.A4, that his possession was being disturbed by the plaintiff.
23. To say the least, it is found that the vendor Arumugam had fraudulently executed the sale deed Ex.A4 in the name of the plaintiff having already executed unregistered sale deed, Ex.B1 in the name of the defendant. Unfortunately, the poor defendant had not laid any criminal complaint as against the said Arumugam to take criminal action as against the said Arumugam for the fraudulent act he had committed to cheat the defendant. It is found that the defendant, who was put in possession of the property by virtue of Ex.B1, is entitled to protect his possession.
24. The first appellate court has given much importance to the reference made by D.Ws.2 and 4 to the effect that the plaintiff had come into possession of the property on the date when he got the sale deed executed in his name, ignoring the material evidence on record and also forgetting for a moment that the suit itself has been filed within two months from the date of execution of the sale deed in the name of the plaintiff.
25. As it is established that the defendant has been in possession of the suit property on the date of filing of the suit having taken possession of the property under Ex.B1, he is entitled to protect his possession.
26. It is a case where the defendant has set up a plea that he has got physical possession from the vendors the moment Ex.B1 was executed in his name. There is no evidence on the side of the plaintiff to show from whom he has got possession of the suit property. No evidence has been let in to show that the vendors of the plaintiff had been in possession and enjoyment of the suit property on the date when Ex.A4 was executed in his favour. In view of the above facts and circumstances, all the aforesaid substantial questions of law framed by this court at the time of admission of the second appeal are decided in favour of the appellant/defendant.
27. Therefore, setting aside the judgment of the first appellate court and confirming the judgment of the Trial Court, the second appeal is allowed with costs. The connected miscellaneous petition is closed.
ssk.
To
1. The Principal District Judge Pondicherry.
2. I Additional District Munsif, Pondicherry