Madras High Court
Kousalya Ammal vs Valliammai Ammal And Anr. on 24 September, 1997
Equivalent citations: 1997(2)CTC517, AIR 1998 MADRAS 287, (1998) 3 CIVLJ 444, (1998) 2 ICC 532, (1998) 3 CIVILCOURTC 560, (1998) 1 MAD LW 208, (1999) 1 LANDLR 222, (1998) 1 MAD LJ 724, (1997) 2 CTC 517 (MAD)
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The above revision petition has been preferred against the order of the District Munsif, Cuddalore refusing to admit the unregistered lease executed by the respondents in favour of the petitioner as a documentary evidence. The petitioner sought to rely on the document to prove his character of possession which was collateral purpose to the terms of the lease deed. According to the petitioner, he was not relying on the document for proof of any terms in the document itself.
2. The District Munsif rejected the said application on the ground that the document is an unregistered one and therefore a document which is not registered under the provisions of Section 49 of the Registration Act could not be admitted as additional document.
3. I have heard Mr. Kannan and Mrs. Hema Sampath for the respective parties. According to Mr. Kannan the document of unregistered lease deed is not totally inadmissible and that it is admissible for proof of collateral purpose. Referred to Section 49 of the Registration Act, he submitted that the said section does not bar reception of an unregistered document in evidence. Mr. Kannan in support of his contention cited the following decisions:
(1) Ugni v. Chowa Mahto, AIR 1968, Pat. 302 (F.B.); (2) Gangayya v. S.M.C. Samdaria, ; (3) AIR 1977, Kel. 196; (4) Doddappa v. Basavanneppa, .
Arguing contra the learned counsel for the respondent submitted that the document which is required to be registered is not admissible in evidence at all and that since the unregistered deed has been set forth in the plaint and made out as the basis for claiming tenancy, the document is sought to be relied on for the main purpose itself. The learned counsel also contended that the relief of injunction itself is not maintainable through Civil Court. The learned counsel for the respondent cited the following decisions:
(1) Yasodammal v. Janakiammal, ; (2) Ranganathan v. Venkatesan, 1995 (I) MLJ 159; (3) Krishnamurthy v. Sokab Products Private Limited, 1996 (I) MLJ 218.
4. Before proceeding to consider the rival submissions made by the respective counsels, it is better to consider the scope of Section 49 of the Registration Act.
Section 49 has been amended by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. The amendment in the first paragraph settles a doubt as to whether the section applies not only to documents compulsorily registrable Under Section 17 of the Registration Act but also to documents of which registration is required by the Transfer of Property Act. The amending Act came into force on the 1st April, 1930 and it has been held that it is not retrospective as to documents executed before that date. But the correct view is that it is not retrospective only with regard to suits instituted before the Act came into force.
5. Section 17 of the Indian Registration Act deals with the documents of which registration is compulsory. The said section provides for compulsory registration of the documents mentioned in the section. That section is made effective by the present section which provides that any document so required to be registered shall not unless it has been so registered.
(1) after any immovable property comprised therein or (2) be received as evidence of any transaction affecting such property.
It is important to observe that the section does not say that an unregistered document which requires to be registered shall not be received in evidence. It says as evidence of any transaction affecting the property. It may be received in evidence for a collateral purpose even if that purpose does indirectly affect the property.
6. It is submitted by the learned counsel for the petitioner that the document of unregistered lease deed is not totally inadmissible and the same is admissible for proof of collateral purpose. In support of the said contention, the learned counsel relied on the Full Bench (5 Judges) decision of the Patna High Court in Ugni v. Chowa Mahto, A.I.R. 1968 Pat. 302 at 305, wherein it was held as follows:-
"It is true that a valid agricultural lease may be created by a registered instrument as pointed out in Jangal Singh v. Mukund Kumar, AIR 1948 Patna 446 and if such a registered document is created, delivery of possession is not necessary to prove the title of the lessee. If, however, the lease is not registered, and is, therefore, inadmissible as evidence of title, it will always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. There is also no legal bar to a person claiming raiyati interest on two alternative pleas. He may claim such a right on the basis of a written document of lease. If, however, such claim fails on the ground that the document, being compulsorily registrable, was not registered nevertheless his alternative claim based on actual possession, coupled with acceptance of rent by the landlord, may succeed. In that case, the unregistered lease will be admissible for the collateral purpose of proving the nature of possession."
7. Next the learned counsel for the petitioner cited the decision reported in Gangayya v. S.M.C. Scumdaria, wherein V. Ramasamy. J., (as he then was) held as follows:
"Even though the unregistered lease deed was not admissible for proving the terms of tenancy it could be relied upon for the purpose of proving the nature and character of possession of the tenant and also the date from which such possession in the hands of the tenant commenced. , relief on."
8. Next the learned counsel for the petitioner cited the decision reported in Doddappa v. Basavanneppa, wherein it was held as follows: (para 17 at page 146).
"Thus, it is a well-established proposition of law that a deed which is compulsorily registrable Under Section 17 of the Registration Act, cannot be looked into, if it is not so registered, to create, declare, assign, limit or extinguish any right in immovable property. That is what Section 49 of the Indian Registration Act lays down. It is equally well established that such a document could be looked into as evidence for collateral transactions or for a collateral purpose. Examining the facts of this case in that perspective, it becomes manifest that the unregistered lease deed at Exhibit D-3 cannot be looked into to hold that the said document proprio vigore creates any interest in the property, leased in this case, because, that would be using the document for the direct purpose for which it is executed. It can certainly be looked into for the collateral purpose, for example, to understand the character of possession of the person in whose favour the document is executed, to show, for example that he is not a trespasser and that he is in permissive possession."
9. The contention of the counsel for the respondent that the document which is required to be registered is not admissible in evidence at all cannot be accepted. Such a contention in my opinion is against the express provision of Section 49 of the Registration Act. In this case, the document is inevitabley referred to in the plaint, for, in the absence of such reference, no evidence at all could be possible to speak even for a collateral purpose. The purpose of marking the document, whether main purpose or collateral purpose will have to be decided on the purpose for which it is sought to be used in evidence. In this case, the plaintiff wants to use it only for the purpose of proving his character of possession and not for proving any of the terms of the lease deed. Such a proof will have to be made without reference to the document. The next contention of the learned counsel for the respondent is that the relief of injunction is not maintainable through civil court has no merit and such a contention in my opinion is outside the scope of the revision petition. In any event, the relief of injunction cannot be granted by the Revenue Authority constituted under the Record of Tenancy Act and that it could be granted only by the Civil Court. In my opinion for the sake of admission of a document by marking the same in evidence, it is not necessary that the document must be admitted by the adversary. Only two factors have to be established namely;
(1) Whether the document which is sought to be filed is relevant for the purpose of the case. In this case, the character of possession is relevant, once the possession is established for securing the relief of injunction against defendant.
(2) Whether the person through whom the document is sought to be marked has knowledge about the document. In this case he is a party to the document and hence a competent person to speak about.
10. The learned counsel for the respondent relied on the Judgment reported in Yasodammal v. Janakiammal, . The above judgment was rendered by a Division Bench of this Court which deals with the scope of Section 35 of Stamp Act and also about the unstamped document. In that case, the question of consideration was entirely different. The point which arise for decision in that case are:
(a) Whether factually there was an agreement of sale entered into between the parties?
(b) Whether that agreement was in writing?
(c) As the agreement was admittedly un-stamped, whether any relief can be granted to the first defendant on the basis of such agreement? and
(d) Whether the agreement of sale satisfies the requirements of the stringent conditions of Section 53-A of the Transfer of Property Act?
In the above case, the Bench decided about the prohibition contained in Section 35 of the Stamp Act, being absolute, and held that a common Stamped document cannot be acted upon for any purpose whatsoever and the fact that the document was wrongly detailed by the other side would not make any difference. The above Judgment therefore has no application to the facts of the case.
11. In the decision reported in Ranganathan v. Venkatesan, 1995 (I) MLJ 159 (AR. Lakshmanan, J) was relied upon by the learned counsel for the respondent that an unregistered deed of lease of immovable property for 5 years cannot be used to determine the rights of parties. The court held that an unregistered agreement by itself could be used only for collateral purposes to find out who is in possession, etc., and an unregistered lease agreement cannot be used to determine the rights of parties and to determine whether the transactions entered into was composite lease or not because, these questions are not collateral question, but direct questions which affect the immovable property and confers a power on the landlord to avail the benefit of exemption under the Act having legal consequences. Therefore to confer the legal benefit or legal right is totally impermissible based on unregistered lease agreement. Even the trial court was in error at the threshold in acting upon such document to decide the rights of the parties depriving the appellant/defendant's on the basis of unregistered lease agreement the benefit of which he would have otherwise been entitled to under the provisions of the Act.
12. As already noticed, the document is sought to be relied on by the plaintiff only for the purpose of proving his character of possession and not to be used to determine the rights of the parties and also not for proving any of the terms of the lease deed. Therefore, even in the above Judgment, the court has held that an unregistered agreement by itself could be used only for collateral purposes to find out who is in possession.
13. In the decision reported in B. Santhakumar v. Indian Bank, 1995 (I) LW 115 (Jayasimha Babu, J) was relied on by the learned counsel for the respondent that the term, breach of which is complained, is clearly one which is required to be effected by registered instrument. Such a term cannot be any means by regarded as collateral transaction. The very foundation of the plaintiffs suit is thus based upon a transaction which was required to be effected by a registered instrument but has not been so effected. The learned Judge relied on Section 49 of the Indian Registration Act clearly precludes the plaintiff from relying on this unregistered document as evidence of transaction of lease for a period of 5 years and from seeking to recover damages from the defendant on the ground that the period so specified had not been adhered to by the defendant. The unregistered document, relied upon by the plaintiff to prove that the document though unregistered, should be looked into for ascertaining the period of lease for the purpose of deciding whether the plaintiff is entitled to damages by reason of the breach on the part of the defendant in adhering to the period of the lease, is clearly an untenable plea and has no foundation in law. The above judgment also in my opinion has no direct bearing or relevance on the question at issue in our case.
14. A recent decision of our High Court rendered by Raju, J in M.K. Varappan v. Sri Lakshminarayana Venugopalaswamy Temple by its Executive Officer, Big Bazzar Street, Coimbatore, 1997 (3) LW 27 can also be usefully noticed in the present context. That is also a case of the plaintiff filing the suit for permanent injunction against the defendant from altering the superstructure and attempting to put up a pucca masonary construction with a foundation. The case of the plaintiff temple was that the temple was the owner of the vacant site with the building and that it was leased out to the defendant on a monthly rent of Rs. 3 and that the defendant being a tenant has no right to remove the superstructures on the property, etc., and attempted to put up a pucca masonary construction which necessitated that filing of the suit. The defendant in the written statement contended that what was leased out was only the vacant site and the superstructures therein belonged to the defendant and the owner of the superstructure had every right to alter the superstructure or replace the same with a new superstructure. The trial court came to the conclusion that what was leased out was vacant site and the plaintiff is not the owner of the superstructure and therefore not entitled to have any injunction with regard to the superstructure. Consequently the suit was dismissed. Aggrieved the plaintiff pursued the matter on appeal before the sub court in A.S.No. 25 of 1982. The learned Subordinate Judge chosen to re-appreciate the evidence by placing reliance upon the recitals contained in Ex.A-1 an unregistered rent deed which disclosed that the subject matter of the lease was not only vacant site but the superstructure thereon. The Appellate Court held that there was no impediment in relying upon the unregistered rent deed for collateral purpose and chose to disagree with the findings recorded by the learned trial Judge and came to the conclusion that the subject matter of lease between the parties was the land with superstructure. Hence the plaintiff filed a second appeal in this Court. It is argued on the side of the plaintiff that Ex.A.1 is inadmissible in evidence for want of registration and non-payment of proper stamp duty, etc.,
15. The learned Judge (Raju. J) held in para; 4 (at page 28) that:
"I have carefully considered the submission of the learned counsel appearing on either side. In my view, the Judgment of the learned first Appellate Judge does not call for any interference. It is by now well settled that though a document particularly a document of the nature under consideration, the unregistered rent deed has not been registered under the law of registration, there is no impediment for referring to the same or relying upon the recitals therein for collateral purposes."
16. Therefore on consideration of the entire materials placed before me and of the arguments advanced by both sides, I am of the view that the document in question can certainly be looked into for collateral purposes namely for the purpose of proving the plaintiffs character of possession. No prejudice should be caused to the respondent by marking the document. Mere marking the document does not prove any of the recitals of the document itself. The truth of the document has to be independently proved. It is always open to the respondent to contend that he did not execute the document at all and that even for a collateral purpose, it cannot be relied on. The revision therefore succeeds, however there will be no order as to costs.