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The Code Of Civil Procedure (Amendment) Act, 1956
The Registration Act, 1908
Section 49 in The Registration Act, 1908
The Transfer of Property Act, 1882
Section 49(a) in The Registration Act, 1908

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Andhra High Court
P.M. Anand Babu And Ors. vs Mir Akbar Ali Khan And Anr. on 10 June, 2003
Equivalent citations: AIR 2004 AP 243, 2003 (4) ALD 461
Author: B S Reddy
Bench: B S Reddy



ORDER
 

B. Seshasayana Reddy, J. 

1. This Civil Revision Petition is directed against the order dated 30-10-2001 passed in Review Petition No. 1366/2001 in I.A. No. 1111/ 2001 in O.S.No. 2033 of 1996 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad, whereby the learned Junior Civil Judge reviewed the order dated 20-8-2001 passed in I.A.No. 1111/2001 filed under Order 13 Rule 3 of CPC read with Section 49 of Registration Act.

2. The petitioners herein are the plaintiffs in O.S.No. 2033/96. They filed the suit against the respondents herein for perpetual injunction in respect of the suit schedule property. It is their case that the suit schedule property originally belonged to Hamid Ali and it devolved on his sons viz., Imam Ali and Mohammed Ali by way of succession. Thereafter Mohd. Ali sold the suit property in favour of V. Gopal, S/o Laxmaiah under a sale deed dated 17-9-1953. The name of V. Gopal was mutated in the revenue records and patta pass book was also issued in his name in respect of the suit property. Subsequently in the year 1971, they purchased the suit property from the said V. Gopal under a sale deed dated 24.4.1971 and since then they have been in possession and enjoyment of the same. The sale deeds dated 17.9.1953 and 24.4.1971 were impounded in the year 1994 itself and endorsements were made to that effect on the said documents. These two sale deeds were marked as Exs.A-3 and A-4 through P.W.1. Later on the respondents/ defendants filed I.A.1111/2001 under Order 13 Rule 3 CPC read with Section 49 of Registration Act seeking rejection of unregistered documents marked as A-3 and A-4. The learned Junior Civil Judge by order dated 29-8-2001 allowed the application of the defendants partly and directed the plaintiffs to take steps for impounding the documents within ten days from the date of the order. Subsequently D-1 and D-3 filed Review Petition No. 1366/2001 under Order 47 Rule 1(c) and Section 151 CPC seeking review of the order dated 29-8-2001. The learned Junior Civil Judge allowed the review application and rejected the sale deeds which were already marked as Exs.A-3 and A-4 through P.W.1. Feeling aggrieved by the order, the plaintiffs have filed this Civil Revision Petition.

3. Learned Counsel for the petitioners/plaintiffs contends that sale deeds dated 17.9.1953 and 24.4.1971 though un-registered can be admitted in evidence for collateral purpose as provided under proviso to Section 49 of Registration Act. He placed reliance on the following decisions of our High Court in support of his contentions: PSG Industrial Institute v. R. Randhir Singh, , S.R. Taramma v. D. Narasaiah, 1977 ALT 107 and Ummadi Subramanyam v. Ukka Dhanamma and Anr., . In the PSG Industrial Institute case (supra) decision our High Court held that going by the plain terms of the language used in proviso to Section 49, it is clear that the unregistered document can be received as evidence only to substantiate the plea of part-performance of a contract whether it can be a contract of sale or lease or mortgage. The document can be looked into only insofar as it serves as evidence of the part performance of a contract. So also, it can be received as evidence of collateral transaction not required to be effected by registered instrument. If the transaction is such that it requires to be registered in order to give effect to the same, the document cannot be relied upon to prove the transaction as such. In the S.R. Taramma case (supra) decision our High Court held that unregistered sale deed can be admitted in evidence for the purpose of proving possession in a suit for perpetual injunction restraining the defendant from interfering with the possession of the plaintiff. In the Ummadi Subramanyam case (supra) decision our High Court held that unregistered sale deed can be received in evidence in a suit filed for specific performance provided it is impounded by the Court or the Collector under Section 33 of the Stamp Act.

4. Learned Counsel for the respondents/defendants submits that the unregistered sale deeds cannot be admitted in evidence since the very claim of the petitioners/plaintiffs is based on them. He placed reliance on the following decisions:- Ruckmangathan v. Ramalingam, 1998 MLJ 114, Hussain Begum v. M. Ranga Rao, , and Ranga Reddy v. Sadhu Padamma, . In the Ruckmanagathan case cited decision Madras High Court held that unregistered sale deed cannot be used to prove possession. In the Hussain Begum case cited decision our High Court held that unregistered lease deed is inadmissible in evidence when the factum of lease is the contentious issue. In the Ranga Reddy case cited decision our High Court held that unregistered gift deed effecting immovable property cannot be admitted in evidence even for collateral purpose.

5. The petitioners herein filed O.S.No. 2033 of 1996 against the respondents for injunction simplicitor. They placed on record un-registered sale deeds dated 17-5-1953 and 24-7-1971 to prove their possession. It is not out of place to mention that the suit is not for declaration of title. Section 49 of the Registration Act reads as follows:

"No document required by Section 17 or by any provisions 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:

Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of the contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."

The last clause of the proviso expressly enacts that the unregistered document may be admitted as evidence of any collateral transaction not required to be affected by registered instrument. I may make myself clear that the petitioners have not sought for declaration of their right and title over the suit property basing on the unregistered sale deeds. The relief sought for by them in the suit is injunction simplicitor. They want to mark the unregistered sale deeds for collateral purpose i.e., to prove their possession over the land. At this juncture, I may refer the decisions of our own High Court on the admissibility of unregistered documents for collateral purpose. The collateral purpose is i.e., to say for any purpose other than that of creating, declaring, assigning limit, or extinguishing a right to immovable property. The expression "collateral purpose" is no doubt a very vague one and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to be conveyed by the document. But by the simple devise of calling it a "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect of which it would have had if reregistered. The expression "collateral transaction" in the proviso to Section 49 of Registration Act is not to be used in the sense of an ancillary or a subsidiary transaction to a main or principal transaction. The transaction as recorded could be a particular or specific transaction, but it would be possible to read in that transaction what may be called the purpose of transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of a transaction but nonetheless a transaction which runs together with or on parallel lines with the same.

6. In Dadireddi Ramireddi v. Chinnamma, 1958 ALT 561, it has been held by our High Court that where the plaintiff does not claim title to the properties comprised by deed of adoption, an unregistered document, but relies upon it only to prove that he is the nearest reversioner, it is admissible for proving the collateral fact of adoption. In Balkishtiah v. Ranga Reddy, 1960 ALT 62, a Division Bench of our High Court held that a document which is unregistered is admissible for collateral purposes as also for proving any admission contained therein. The plaintiff therein placed reliance on unregistered lease deed to prove the fact thai Ahmed Sherif was his kauldar. The defendant therein raised objection with regard to the admissibility of the unregistered lease deed. I feel it apposite to extract the observation of the Division Bench and it is thus:

"...The plaintiff-appellant in order to prove that Ahmed Sherif was his kauldar, apart from the oral evidence, relies on two lease deeds, Exhibits 2 and 20. Exhibit 2 is a kaulnama executed by Ahmed Sherif on 4th Dai, 1350-F for a period of 5 years. Exhibit 20 is another kaul dated 26th Khurdad, 1336-F by Sherif Sab, son of lsmail Sab. It may be noted here that Ahmed Sherif is the son of Ismail Sab and Khaja Sherif and Maqdoom Sherif are the sons of Ahmed Sheriff Yousuf Ali, P.W.2 and Khaja Mia, P.W.5 have spoken to the fact of these kabuliats. The contention of the learned Counsel for the appellant is that though these kabuliats are unregistered, still they are admissible to prove the nature of possession and also the admission by Ahmed Sheriff that the plaintiff is the owner, whereas the contention of the other side is that these kabuliats being unregistered are inadmissible in evidence and they cannot be relied upon even to prove the nature of possession or admission. In this connection, the learned Counsel placed his reliance on Kanuparti Subbiah v. Kurnam Muddulatiah and Ors., (1907) 17 MLJ 469. We do not find sufficient force in the contention of the learned Counsel for the respondent. There is sufficient authority for the proposition that a document which is unregistered is admissible for collateral purposes. In the instant case, the appellant relies on this document for the purpose of proving the admission of Ahmed Sherif contained therein. There is also sufficient authority for the proposition that an unregistered document can be admitted in evidence for the purpose of proving the admission contained therein."

In A. Parvathi v. P. Chanti @ Chinnammayi, , it has been held by our High Court that unregistered deed by way of pasupu kumkuma is inadmissible in evidence and it cannot be admitted for collateral purposes as party could not state the collateral transaction which is not required to be effected by registered instrument. The petitioner therein filed application under Order XXI Rule 58 CPC for raising of attachment over the land on the ground that an extent of two acres was given to her by way of 'Pasupu Kumkuma' at the time of her marriage. In support of her case, she relied on an unregistered gift deed. The petitioner claimed title to the property that was brought to sale in execution of the money decree, therefore it was the title of the petitioner over the property that was required to be adjudicated upon. Coming to the facts of the case on hand, it is not the title of the petitioners i.e., required to be adjudicated in the suit. The suit was for bare injunction and therefore the facts in the above referred case and the facts in the case on hand are distinctive and the proposition of law laid down in the above referred case is not applicable to the facts of the case on hand.

7. In Dadi Reddy Sivanarayana Reddy v. Kasi Reddy Chinnamna, , it has been held by our High Court that any document by whatever name called not creating, declaring, assigning, limiting or extinguishing any right, title or interest, but merely creating right to obtain another document does not require registration under Section 17(1) of the Registration Act. In the above referred case, the plaintiff filed a suit against the defendants for specific performance of agreement of sale dated 15.4.1984 executed by the defendant in respect of agricultural land in S.No. 201/1 admeasuring Ac.1-60 cents cited at Gillella Village, Proddutur Mandal. The plaintiff also sought the relief of permanent injunction. During the trial, when the plaintiff sought to mark the document dated 15-4-1984 the Counsel for the defendant raised objection that the suit document is a sale deed and for want of registration and proper stamp duty, the same is not admissible in evidence. The Trial Court referring to the recitals in the document in question came to the conclusion that the document being unregistered sale deed is inadmissible in evidence. On thorough reading of the contents of the documents, V. V.S. Rao, J., observed as follows:

"15. Keeping in view the legal principles, I propose to examine the suit document. The document dated 15-4-1984 has a heading as 'sale agreement' giving possession of the land. After giving necessary recitals, the agreement says that the vendor sold the land in consideration of an amount of Rs. 28,000/- given by the plaintiff to the defendant at the time of her marriage. It speaks of possession being given to the plaintiff and also says that the vendor shall execute another document at the office of Sub-Registrar as and when requested by the vendee. There are clauses that the vendor has handed over the property to the plaintiff with all rights of enjoyment and clause admitting that the vendor or her heirs have no rights in the land. In the last clause again vendor says that she is executing the sale agreement on her own volition.

16. It is well settled that where the document is to be construed, the document itself should be looked into to gather the intention of the parties. The document has to be construed as a whole and no clause can be read in isolation in an attempt to resort to extraneous enquiry as to what the parties thought or intended. If there is any ambiguity in the language employed it is however permissible to look to the surrounding circumstances to determine what was intended. The document in question purports to convey immovable property to the plaintiff with all rights of sale, gift etc. One should ask a question whether on the basis of the suit document the plaintiff can validly convey title of the property to third parties, that is to say whether the plaintiff has a marketable title vesting in him (see Section 49(a)) and whether the agreement has extinguished the right in the defendant. As per Section 17(2)(v) of the Act when a document creates right, title or interest in one party and extinguishes any right, title or interest in the other party, then only it is registrable. In this case, the heading as well as the last clause in the agreement describes the document as sale agreement. It further says that the vendor shall execute another document at the office of the sub-registrar as and when required. In the light of these compelling circumstances, the clause that vendor sold the property to be enjoyed by the plaintiff and his heirs does not conclusively extinguish the rights in defendant and hence does not require registration. Not only explanation to Section 7 but proviso to Section 49 of the Registration Act comes into play."

8. Learned Counsel for the respondents/ defendants has strongly relied on the decision of Madras High Court in Ruckmangathan v. Ramalingam, 1998 MLJ Reports 114, for the proposition that an unregistered sale deed cannot be looked into even for collateral purpose. In the cited case the execution of the document itself is in dispute. It is useful to refer the facts in the cited case and they are:- the plaintiff filed the suit to direct the defendant to deliver possession of the suit property and for consequential relief. In the plaint it is alleged that the plaint schedule property is the ancestral property of Dharmalinga Naicker and sons and they were residing in the said property. For the purpose of meeting the expenses of the marriage of his daughter, he wanted to raise a loan, and for the said purpose he approached the defendant who is a money-lender. He wanted a sum of Rs. 3.25 lakhs. Since the defendant insisted on security and also wanted to enjoy the property in lieu of interest, possession was handed over to him. It is said that possession of the defendant is only as a charge holder and he was the mortgagee for all the purposes. Since the defendant was also in possession and was enjoying and if the amount is calculated as per Tamilnadu Debt Relief Act, only a sum of Rs. 650/- is payable and the balance must be treated as discharge in view of the appropriation of income. A lawyer's notice was issued asking the defendant to surrender possession, which was not complied with. The suit was therefore filed for the relief stated above. In the written statement filed by the defendant, he said that for meeting the marriage expenses of his daughter, late Dharmalinga Naicker executed a sale deed though it was unstamped or unregistered. It is his case that pursuant to that document, he obtained possession and he is in possession as owner. He also effected improvements to the suit property. It is his case that his possession as mortgagee as alleged by plaintiff is not true, and the sale was executed for valuable consideration, and for family necessity. He further says that the suit filed for recovery of possession without a prayer for setting aside the sale is not maintainable. He also pleaded that the age of the plaintiff is wrongly stated.

9. It is explicit from the pleadings of the parties therein that there is no dispute with regard to the possession of the property by the plaintiff. The dispute is whether the plaintiff is in possession of the property as a mortgagee or as a purchaser. Coming to the facts of the case on hand, the suit filed by the petitioner/plaintiff is one for injunction simplicitor. The petitioners/ plaintiffs relied on the unregistered sale deeds to prove the fact of their possession. Therefore, the facts in the cited case and the case on hand are distinctive and the proposition of law laid down in the cited case has no application to the facts of the case on hand. The Supreme Court in Bondar Singh v. Nihal Singh, , held as follows:

"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 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 facts in the above case are that the plaintiffs claim title to the land in suit on the basis of the plea that they had become its owners by adverse possession. The land was owned by one Fakir Chand, predecessor-in-interest of the appellants therein (defendants in the suit). Fakir Chand sold the land to Tola Singh, predecessor-in-interest of the plaintiffs by an unstamped and unregistered sale deed dated 9-5-1931. The plaintiffs claim to have entered into possession of the land on the basis of the said sale deed and they claim to be continuously in possession since then. The defendants tried to dispossess the plaintiffs, which led to the suit being filed by them on 15-4-1972. In the written statement filed by the defendants, they denied the sale of land by their father Fakir Chand to Tola Singh. They denied possession of the plaintiffs of the suit land. They also took the plea that the alleged sale deed was false, fictitious and without consideration. According to the defendants, their father was in possession of the lands till his death. After the death of their father, their mother had given possession of the land to Tola Singh for the purpose of cultivation in order to earn some money for supporting her family. According to the defendants, they had taken back possession of the land from Tola Singh in the year 1957-58. They also pleaded that after the death of Fakir Chand, the land had been mutated in their names in the revenue records to the knowledge of the plaintiffs. The plea of adverse possession was denied by stating that actually the defendants were in possession of the land and there was no question of adverse possession of the land by the plaintiffs qua the suit land. The only defence set up by the defendants against the unregistered sale deed dated 9-5-1931 is that it is unstamped, unregistered and therefore it cannot convey title to the land in favour of the plaintiff. On the basis of the facts stated above, it has been held by the Supreme Court that the sale deed dated 9-5-1931, even though not admissible in evidence can be looked into for collateral purposes.

10. Since the suit filed by the petitioners/plaintiffs is injunction simplicitor and the unregistered sale deeds sought to be relied on is only to prove their possession over the property, they can be admitted into evidence under the third proviso to Section 49 of Registration Act.

11. In the result, this Civil Revision Petition is allowed with costs by setting aside the order dated 30-10-2001 passed in Review Petition No. 1366/2001 in IA No. 1111/2001 in OS No. 2033 of 1996 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad and consequently Review Petition filed by the respondents/ defendants stands dismissed.