Andhra Pradesh High Court - Amravati
Sri Sagi Vijaya Ramachandra Raju vs Koppisetti Satyanarayana on 23 October, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
C.R.P.No.5930 of 2018
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HON'BLE SRI JUSTICE M. VENKATA RAMANA
CIVIL REVISION PETITION No.5930 OF 2018
ORDER:
This Civil Revision Petition is directed against order of the Court of learned Principal Senior Civil Judge, Kovvur, in O.S.No.197 of 2007, dated 27.07.2018.
2. The plaintiffs are the petitioners. They filed the suit for grant of relief of declaration of their title to the plaint schedule property, as the absolute owners and for consequential injunction restraining the respondents, who are defendants in the suit, from in any way interfering with their peaceful possession and enjoyment of his property and for costs.
3. The property in dispute is an extent of Ac.21.40 cents (as per document) and Ac.19.30 cents (as per measurements) out of Ac.135.86 cents in Old estate Nos.A-1 to A-5 and R.S.No.455 at Yernagudem, Devarapalli Mandal, West Godavari District.
4. The suit is resisted by the 1st respondent filing written statement and some other defendants are also contesting the suit.
5. At the trial, the plaintiffs intended to exhibit a document dated 09.01.1988. This document did not have any caption or title. But its contents described it as 'pasupu kumkuma gift document'. In the order under revision, it is described as 'pasupu kumkuma letter'.
6. Objections raised on behalf of the contesting respondents at the trial for exhibiting it on behalf of the petitioners as a part of their evidence on the ground that it is inadmissible under Section 17 of Registration Act and for want of payment stamp duty.
7. Considering the objections, after hearing both the parties and upon considering the nature of this document, the impugned order was passed holding that this document is creating a right and interest MVR,J C.R.P.No.5930 of 2018 2 in the schedule property, that therefore, it requires payment of proper stamp duty and being inadmissible for want of registration including for collateral purposes.
8. Sri M.Adinarayana Raju, learned counsel for the petitioners while inviting attention of this Court to the nature of this document contends that it merely recorded a past transaction of giving away certain properties and the object in its execution is only for evidencing such fact as an 'aid-memoir'. It is further contended that this document did not record transferring of property in praesenti, which fact was also observed by the learned trail Judge and on account of recording of pre-existing easementary rights, it cannot have been treated inadmissible. Even otherwise, it is contended that the trial Court could have directed the petitioners to pay stamp duty and penalty thereon impounding the same.
9. Sri E.V.V.S.Ravi Kumar, learned counsel for the contesting respondents opposing this revision petition, supporting the order under revision, contends that the recitals of the document are clear in recognizing the right conferred on the beneficiaries and it is a 'pasupu kumkuma gift deed' requiring registration. It is further contended for the respondents that in as much as easementary rights are created under this document, conferring benefit on the alleged donees, it requires registration and that if at all it is to be considered for collateral purposes, it is exigible for stamp duty and penalty.
10. Now, the point for determination is: "Whether the document in question is liable to be impounded for want of proper stamp duty and penalty?"
11. In view of the contentions addressed on behalf of both the parties, it is necessary to consider the recitals in the document sought MVR,J C.R.P.No.5930 of 2018 3 to be exhibited by the petitioners. A copy of this document, is shown hereunder, and to consider its recitals.
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12. As per recitals of this document, the 1st petitioner has executed the same in favour of petitioners 2 and 3 respectively. 2nd petitioner is the wife of the 1st petitioner. The 3rd petitioner is their daughter.
13. The recitals are that the 1st petitioner for his necessities, had sold property given to the 2nd petitioner towards 'pasupu kumkuma' and since the marriage of the 3rd petitioner has to be performed, out of the land purchased by him under the sale deed dated 22.09.1958, in an extent of Ac.21.40 cents, he had given away Ac.12.40 cents out of it to the 2nd petitioner, in lieu of the land given to her towards 'pasupu kumkuma' (which he had earlier sold) and that 3rd petitioner was given away balance Ac.9.00 cents towards 'pasupu kumkuma'. The recitals are further to the effect that the 1st petitioner had decided earlier to give away such extents to both of them and had also conferred possession of these extents on them, which they have been enjoying with absolute right and interest.
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14. The extents so given away to petitioners 2 and 3 are described in 'A' and 'B' schedules of these documents respectively, with specific boundaries.
15. A note is appended in Page-3, recording use of two bore-wells for irrigation facility located in 'A' and 'B' schedule lands for joint enjoyment while further recording right of way, use of water bodies and all easementary rights.
16. A careful consideration of these recitals indicates that the 1st petitioner merely recorded in this document the factum of giving away such properties to petitioners 2 and 3. There is also a recital in this document to the effect that he did not execute any other document in respect thereof in favour of petitioners 2 and 3 and since they requested him to execute a document in respect thereof, he got this document prepared. This recital is a clear indication of the intention of the parties to this document to the effect that it is merely a memorandum recording a past transaction to aid and assist the parties to the document. It did not as a matter of fact either acknowledge or recognize much less confer any right, title and interest in the properties concerned to it on the beneficiaries, viz., petitioners 2 and 3. The recitals in this document are as clear in this regard as could be. As rightly contended for the petitioners in Para-8, learned trail Judge has also recognized the same and has recorded such observations.
17. The objection as to admissibility of this document as seen from the order under revision is with reference to the contents of Page-3 of this document. They are considered by the learned trial Judge as confirming certain easementary right of right of way and thus, it was held that this document created right and interest in respect of the properties covered by it.
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18. The recitals in Page-3 as discussed above, recorded the fact of availability of irrigation facility by means of two bore-wells in 'A' schedule property, meant for the purposes of the properties in both 'A' and 'B' schedules, apart from right of way as well as right to water bodies and easementary rights. These recitals cannot be considered disjunctively. They have to be considered along with recitals in the document itself, to make out that it is only an 'aid-memoir'. These recitals cannot be considered in isolation. They must be read as a whole. They record the fact of existence of irrigation facilities as well as easementary rights relating to pathways, water bodies etc., They should necessarily be treated as pre-existing rights and which were not conferred under the document itself.
19. Therefore, when the recitals in the document as a whole are considered, the observation so recorded by learned trail Judge particularly with reference to contents of Page-3 of this document cannot be concurred.
20. Thus, this document stands as a memorandum of past transaction. Having regard to nature of this document, it is contended for the petitioners that it can be treated admissible at least for collateral purpose, objection relating to Section 17(1) of registration extends in terms of Section 49 of the Registration Act, upon collecting necessary stamp duty. Reliance is placed in this context in YELLAPU UMA MAHESWARI AND ANOTHER v. BUDDHA JAGADHEESWARARAO AND OTHERS1 in given facts of the case, while upholding applicability of Section 17(1)(b) of Registration Act in respect of documents in question, in this ruling, in Para-18, it is thus observed:
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2016(1) ALD 40(SC) MVR,J C.R.P.No.5930 of 2018 8 "Then the next question that falls for consideration is whether these can be used for any collateral purpose. The Larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."
21. Learned counsel for the contesting respondents sought to describe this document as a gift covering 'pasupu kumkuma' transaction and thus contended that if at all Section 49 of Registration Act is applicable, stamp duty and penalty shall be collected on this document, treating it as a gift.
22. The nature of document falls within the scope of Section 2(14) of Stamp Act as an instrument. It is so held, since it has recorded certain facts relating to past transaction. Nature of this document did not fall within purview of or description of instruments enlisted in Schedule-A of the Stamp Act as applicable to the State of Andhra Pradesh. Therefore, the conclusion to be withdrawn is that it is not liable for any duty under the Stamp Act much less penalty.
23. Though the trial Court has recorded objection as to admissible nature of this document basing on the recitals in page-3, as if MVR,J C.R.P.No.5930 of 2018 9 conferring right relating to easements, reasons are already recorded, they are not to that effect.
24. At this stage, Sri E.V.V.S.Ravi Kumar, learned counsel for the respondents brings to the notice of this Court that the respondents have right to question this document, having regard to pasupu kumkuma transaction recited therein.
25. In view of the submissions on behalf of both the parties and relying on YELLAPU UMA MAHESWARI AND ANOTHER v. BUDDHA JAGADHEESWARARAO AND OTHERS (referred to supra), it is desirable to leave open such question to the trial Court to consider at appropriate stage, while setting aside its findings in all respects.
26. In the result, this Civil Revision Petition is allowed, setting aside the order of the Court of learned Principal Senior Civil Judge, Kovvur, in O.S.No.197 of 2007, dated 27.07.2018. The document dated 09.01.1988 relied on by the petitioners (plaintiffs) is directed to be let-in as a part of evidence on their behalf and the respondents are given liberty to raise objections basing on Section 49 of Indian Registration Act, at that stage. The trial Court is directed to consider such objections in final arguments in the suit after recording them. No costs. Pending petitions, if any, shall stand closed.
__________________________ M. VENKATA RAMANA, J Dt:23.10.2019 Rns MVR,J C.R.P.No.5930 of 2018 10 HON'BLE SRI JUSTICE M. VENKATA RAMANA CIVIL REVISION PETITION No.5930 OF 2018 Date:23.10.2019 Rns MVR,J C.R.P.No.5930 of 2018 11