Madras High Court
Lawrance (Died) vs Karunakaran on 10 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.09.2018
RESERVED ON : 31.08.2018
DELIVERED ON : 10.09.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.No.88 of 2003
1.Lawrance (Died)
2.Jessi
3.L.Idensony
4.Siminsony
5.L.Maltosony ..Defendants/ Appellants/Appellants
(Impleading Petition ordered vide order of this Court
dated 20.09.2013 in M.P.(MD).Nos.1 to 3 of 2013)
Vs.
1.Karunakaran
2.Dayanandan ... Plaintiffs/ Respondents/Respondents
1 & 2
3.Easu Rathinam ...2nd Defendant/2nd Appellant/3rd
Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 19.02.2002 made in A.S.No.91
of 1998, on the file of the 1st Additional Subordinate Judge's Court, camp at
Padmanabapuram, confirming the judgment and decree dated 22.04.1998, made in
O.S.No.140 of 1995, on the file of the Principal District Munsif Court at
Padmanabapuram.
!For Appellant : Mr.S.Anand Chadrasekar
for M/s.Sarvabhauman Associates
^For Respondent No.1 : Mrs.N.Krishnaveni
Senior Counsel
for M/s.P.Thiagarajan
For Respondent No.2 : No Appearance
For Respondent No.3 : No Appearance
:JUDGMENT
This Second Appeal has been filed by the first defendant in O.S.No.140 of 1995 which was pending on the file of the Principal District Munsif Court, Padmanabhapuram.
2. O.S.No.140 of 1995 had been filed by two plaintiffs viz, Karunakaran and Dayanandan against two defendants viz., Lawrance and Eesurathinam. They had filed a suit, seeking declaration of title and permanent injunction with respect to the plaint ?A? schedule property viz., 25 cents of land and trees on the northern side portion of a larger extent of 77+ cents of land, inclusive of shop building Nos.7/80 and 81 at Chumaduthangivilai in Kanyakumari District. The plaintiffs claimed that the suit property originally belonged to Madhavanpillai. He settled the property by way of a settlement deed dated 01.08.1973 to his daughter Vasanthakumari. She was in possession of the property. Thereafter, on 03.01.1993, she executed a sale deed with respect to 27.5 cents in the property. The plaintiffs have been in possession of the northern most portion of the property which is under dispute. The first defendant had been disputing both the ownership and also the possession of the said northern side of the property to an extent of 25 cents. The plaintiffs claimed title by way of a sale deed dated 03.01.1992. The plaintiffs did not claim any relief against the second defendant. They sought a decree and judgment for declaration of title and injunction against the first defendant.
3. The defendants in their written statement stated that the first defendant was in possession of the disputed property as a lessee. They were also paying the property tax. It was also stated that the sale deed relied on by the plaintiffs is not a legal document. In the sale deed, an additional property at Parasala in Kerala, had been included and the said sale deed was a sham and nominal document. The defendants, therefore, claimed that the suit should be dismissed.
4. On the basis of the pleadings, the learned Principal District Munsif, Padmanabhapuram, framed the following issues:-
?(i).Whether the sale deed dated 03.01.1992 is a legally valid document?
(ii).Whether the 25 cents of land, which had been declared as ?B?
Schedule in the plaint, is the absolute property of the first plaintiff and whether he is in possession of the said property?
(iii.).Whether the plaintiffs are entitled to the relief of declaration and permanent injunction with respect to the said property??
(iv).Whether the plaintiffs are entitled to construct in the ?B? Schedule in the said property?
(v)To what reliefs, which the plaintiffs are entitled to??
5. During trial, on the side of the plaintiffs, two witnesses were examined and 46 documents were marked as Ex.A1 to Ex.A46. The sale deed, which is under challenge by the defendants dated 03.01.1992, had been marked as Ex.A5. The other documents were with respect to possession like house tax receipts and other revenue documents. On the side of the defendants, four witnesses were examined and 33 documents were marked. They also filed revenue documents and also more importantly filed Ex.B19, which is the Certificate issued by the Village Administrative Officer, Parasala.
6. On consideration of the oral and documentary evidence, the learned Principal District Munsif, Padmanabhapuram, by judgment and decree dated 22.04.1998, decreed the suit and granted the relief of declaration and injunction.
7. As against the said judgment and decree, the defendants filed A.S.No.91 of 1998, before the Sub Court, Padmanabhapuram. The learned Sub- Judge re-appreciated the evidence and framed necessary issues for consideration. He re-examined the oral and documentary evidence and dismissed the appeal and confirmed the judgment and decree passed in O.S.No.140 of 1995 by the Principal District Munsif, Padmanabhapuram. This judgment was delivered on 19.02.2002.
8. Challenging the said judgment, the first defendant - Lawrance, had filed the present Second Appeal. The Second Appeal was admitted on the following substantial question of law:-
?Have not the Courts below committed an error in decreeing the suit on the basis of the sale deed which is invalid in law under Sections 17 and 28 of the Indian Registration Act as envisaged in judgment reported in 1988 (1) MLJ 447??
9. During the pendency of the Second Appeal, very unfortunately, the appellant died and his legal representatives were brought on record as appellants 2 to 5. The first and second respondents were the plaintiffs in the suit. The third respondent was the second defendant, who did not chose to file any appeal.
10. Heard arguments advanced by Mr.S.Anand Chandrasekar for Ms.Sarvabhauman Associates, on behalf of the appellants / legal representatives of the first defendant and Mrs.N.Krishnaveni, learned Senior counsel, representing Mr.P.Thiagarajan, learned counsel appearing for the first respondent / first plaintiff. None appeared on behalf of the second and third respondents. They did not participate in the judicial proceedings.
11. The property, under dispute, is the northern portion of a larger extent of 77 1/2 cents. This northern portion measures to an extent of 25 cents. The first respondent claimed title from one Vasanthakumari to whom the property had been settled by her father - Madhavanpillai by a registered document dated 01.08.1973. Vasanthakumari sold the property to the first respondent by Ex.A5, which is a sale deed dated 03.01.1992. The substantial question of law surrounds this particular document. Ex.A5 not only contains transfer by sale of the suit property, but also of one more property in Parasala in Kerala State. There had been an unhealthy practice adopted in several documents to include one another property, particularly, in Parasala in Kerala State to avail the benefit of lower registration charges and stamp duty. By including one more property in Kerala, the registration charges and stamp duty payable significantly reduces. However, it is often the case that the property included and said to be situated in Parasala was more often than not a fictitious property. In other words, it is a property over which the vendor has no title and consequently cannot also transfer title. Issues of this nature had come before this Court on earlier occasions. The substantial question of law, which was very specifically framed, was whether this particular document viz., sale deed dated 03.01.1992, by which Vasanthakumari transferred the suit property to the first plaintiff can be considered as a void transaction, in view of the ratio laid down in (1988) 1 MLJ 447-(M. Mohamed Kassim And Ors. vs C. Rajaram And Ors ).
12. In (1998) 1 MLJ 447-(M. Mohamed Kassim And Ors. vs C. Rajaram And Ors.), a Division Bench of this Court had considered the virus of such documents wherein a property at Parasala in Kerala, was also included in the sale deed only to reduce and avail the benefits of lower registration charges and the stamp duty payable on registration. That issue came up for consideration in A.S.Nos.756 and 1177 of 1979 and 82 of 1982. In that judgment in Paragraph 28, the Division Bench held as follows:-
?28. Point No. 4 : One other important objection raised by the learned Counsel for the first respondent/plaintiff is that the impugned sale deeds having not been registered before the Registrar having jurisdiction and on the other hand having been registered in Kerala including a fictitious property are void. It is the admitted case that a property to which the vendors are not entitled has been included in the sale deeds just for the purpose of registering it in Kerala. The reason given by them is that the registration fees in Kerala are cheaper and, therefore, they have chosen to register the case there. It is also in evidence that the vendors under these sale deeds had no sembalance of title to the said property in Kerala and there is also no evidence to show that such properties exist in Kerala. It is a case where the parties had deliberately chosen to register the sale deeds in Kerala, with a view to defeat the provisions of law of this State. There is no difficulty if actually the vendors had any property in Kerala and it is included in the sale deeds, since in such a case the sale deeds can be registered in Kerala and they will be perfectly valid. In this connection, we have to note the relevant provisions in the Registration Act. The sale deeds are compulsorily registrable under Section 17 of the Indian Registration Act of 1877. Section 28 of the Act requires that every registrable document shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. Section 49 enacts that no registrable instrument shall affect any immovable property comprised therein unless it has been registered in accordance with the provisions of the Act. Section 65 provides for the transmission of copies to the offices of other districts in which any of the property is situate. Therefore, the registration law is positive that a document should be registered only before the Sub Registrar within whose jurisdiction the property is situate with certain exceptions. It is also seen from the above provisions that a document not registered in accordance with the said provisions of Act has no effect on immovable property comprised therein. In order to show that the sale deeds have been validly registered, there must be evidence to show that the properties of Kerala included in the sale deeds really exist and that the vendors had any semblance of title or right over the same. It is the case of the plaintiff that the inclusion of a fictitious property in Kerala in the sale deeds just for the purpose of getting the documents registered in Kerala, is a fraudulent act, therefore, the documents should be held to be void.?
13. Mr.S.Anand Chandrasekar, learned counsel appearing for the appellants, submitted that Ex.A5 through which the first plaintiff claimed title, has also to be necessarily declared as a void document and consequently, neither declaration of title nor injunction can be granted to a litigant, who has claimed title based on such void document.
14. Mrs.N.Krishnaveni, learned Senior Counsel appearing for the first respondent seriously disputed this assertion that Ex.A.5 was a void document. The learned Senior counsel pointed out the further observations in the very same judgement referred to above and which is found in paragraph 29 of the said judgment. In paragraph 29, the Division Bench had examined an earlier judgment dated 18.06.1986 in A.S.No.212 of 1979-(Mytheen Beevi and Ors v. Podi Pillai and Another) and that judgment was distinguished on facts. It was found in that judgment that the property was actually existing and there was no collusion between the parties to the document. The Division Bench held as follows:-
?A.S. No. 212 of 1979 Mytheen Beevi and Ors v. Podi Pillai and Anr. Judgment dated 18.6.1986, wherein, a Bench of this Court had considered the question in a different context. In that case, the Bench found that the property shown in the document really existed in Kerala and, therefore, they held that it is not a case of a non-existing property having been shown to exist with a view to persuade the registering authorities to effect the registration of a document presented for registration. They further held that it was not a bogus property and that the vendor has got title to the same. They also held that both the parties intended that a security should be created over such a property in order to validate the document. The Bench also found that there was no collusion between the parties to the document. It was in those circumstances the Bench held that the impugned document in that case is valid. As a matter of fact, the said decision supports the case of the first respondent and not that of the appellants. Considering all these facts and the legal principles noticed above, we have no hesitation in holding that the impugned sale deeds are void and no title can pass under the documents. This point is answered accordingly.?
15. The learned Senior counsel appearing for the respondent further pointed out that the property in Parasala, was also actually transferred to Vasanthakumari and later to the first plaintiff. This fact had also been established in documentary evidence before the Trial Court and the First Appellate Court in Ex.A39 which is a sale deed executed by Narayana Pillai, in favour of Ambrose, on 14.01.1991 and subsequently, by a sale deed in favour of Vasanthakumari on 03.01.1992, Ex.A40.
16. The learned Senior counsel also stated that additional stamp duty and registration charges were also paid by the first respondent. The document filed to prove that the stamp duty had been paid was marked as Ex.A32. This is the proceedings of the District Registrar, Marthandam. The learned Senior counsel, therefore, stated that the ratio laid down in (1998) 1 MLJ 447-(M. Mohamed Kassim And Ors. vs C. Rajaram And Ors.), would not be applicable to the facts of this case.
17. Section 28 of the Registration Act, 1908, is as follows:-
?Place for registering documents relating to land.?Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clauses (a), (b), (c) 2 [, (d) and (e), section 17, sub-section (2), in so far as such document affects immovable property,] and section 18, clauses
(a), (b) 3 [(c) and (cc),] shall be presented for registration in the office of a Sub-Registrar within whose subdistrict the whole or some portion of the property to which such document relates is situate.?
18. Section 28 is to be read in conjunction with Section 17 of the Registration Act, 1908. Section 17 of the Registration Act, 1908, particularly, Section 17 (1) Clause a, b, c, d and e paragraphs as follows:-
?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 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 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;
(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;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and 3 [(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 leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.?
19. In the present case, the property in Parasala had actually been conveyed to the vendor of the first respondent and later to the first respondent and documents have been produced to that effect. Additional registration charges have also been paid and the sale deed had been regularized. I hold that since the property actually existed in Kerala and the vendor also had title to the same, the sale deed would not be vitiated.
20. Another case with similar facts also came up for consideration in 2011 (1) CTC 694-(Gopi Vs. H.David and another). The learned Single Judge further expanded the place for registration of documents relating to lands under Section 28 of the Registration Act, 1908 and stated that unless there is collusion or fraud practised by both the parties to the document presented for purpose of registration, the documents cannot be declared as invalid or void documents. In that judgment also, wherein, a property in Kerala, had been included in the sale deed. The learned Single Judge examined whether the evidence pointed out to fraud in such registration in the absence of any evidence and finally declared that the document cannot be held to be void and the transaction cannot be held to be a nullity.
21. In the present case , the first respondent has repeatedly stated that he is in possession of the suit property. Vasanthakumari also had title to the property in Parasala in Kerala and later, the first plaintiff had purchased the same.
22. In view of these facts, the substantial question of law has to be necessarily answered holding that the judgment of the Courts below are not impinged with error to necessitate interference by this Court. Consequently, the Second Appeal is dismissed and the judgment and decree of the First Appellate Court made in A.S.No.91 of 1998, dated 19.02.2002 is confirmed. The judgment and decree made in O.S.No.140 of 1995, on the file of the Principal District Munsif Court, Padmanabhapuram, dated 22.04.1998, is also confirmed.
23. Accordingly, the Second Appeal is dismissed with costs.
To
1.The I Additional Subordinate Judge's Court, Padmanabapuram.
2.The Principal District Munsif Court, Padmanabapuram.
3.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.