Civil Revision Petition No.5720 of 2009

17th March, 2010

Petitioner Counsel: P.S.P. SURESH KUMAR
Respondent Counsel: M. VENKAT RAM REDDY

Cases Cited:
Abdul Majeed Vs. Yadram Suresh, 2001(2) ALT 417 [Para PARA7,15,17,18]
T. Arthi Vs. K. Anand Reddy, 2006(5) ALT 42 [Para PARA7,10]
Telugu Kishan Mohan Vs. Smt. Boggula Padmavathi, 2009(5) ALT 132 [Para PARA7,14,18]
B. Narayanamma Vs. Ramaiah, 1975(11) APLJ 298 [Para PARA7]
K. Ramulu Vs. K. Narsimulu, 1999(1) ALT 569 [Para PARA8,9]
Zaheda Begum Vs. Lal Ahmed Khan, 2010(1) ALL MR (JOURNAL) 36=2009(6) ALD 432 [Para 9]
Palampalli Rama Subba Reddy Vs. Palampalli Subba Reddy, 2005(5) ALD 274 [Para PARA13]

JUDGMENT

-This revision is directed against the order dated 27.8.2009 passed in OS No.89 of 2007 on the file of the Senior Civil Judge, Nalgonda, whereby and whereunder, the learned Senior Civil Judge overruled the objection with regard to admissibility of the document dated 21.5.1990 and marked the same as Ex.B-1.

2. The petitioner herein is the plaintiff and whereas the respondents herein are the defendants in OS No.89 of 2007 on the file of the Senior Civil Judge at Nalgonda. The plaintiff filed the suit for partition and separate possession of her share in the suit schedule property. The reliefs sought for in the suit read as hereunder :

(a) That a preliminary decree may be passed by partitioning the suit schedule property by declaring that the plaintiff is entitled to a total share of 1/3rd in the plaint schedule property and accordingly the defendant No.1 is entitled to 1/3rd and defendant Nos.2 and 3 are entitled to 1/3rd share.

(b) A Commissioner may be appointed for the purpose of affecting the division of the suit property and the learned Commissioner so appointed by the Hon'ble Court may be directed to effect the division of property in accordance with the respective shares of the parties by keeping in view of the bad and good nature of soil and market value of the property.

(c) After the property is divided into shares as mentioned above the plaintiff may be put in her respective 1/3rd share.

(d) After the plaintiff is put in her allotted share separately a final decree may be passed accordingly.

3. It is the case of the plaintiff that the defendant No.1 is her junior paternal uncle and defendants 2 and 3 are daughter and wife respectively of another junior paternal uncle, by name Pasham Shiva Reddy. The suit schedule property is an ancestral property and therefore, she is entitled to 1/3rd share. It is further averred in the plaint that the plaintiff along with defendants is in joint possession and enjoyment of the suit schedule property and the plaintiff has been receiving agricultural produce towards her share towards the suit schedule property from defendant No.1 till recent past. Paragraph 5 of the plaint needs to be noted and it is thus :

"The plaintiff submits that from the last one year-the defendant No.1 in collusion with defendant Nos.2 and 3 evaded to pay the share in the income of the agricultural land to the plaintiff in the suit schedule property on a pretext that there was drought condition prevailing in the locality and there were no profits received from the agriculture. The plaintiff submits that during the month of January, 2006 the plaintiff approached the defendants and enquired about the matter with regard to her share in the income of the suit schedule property but the defendant No.1 did not give any suitable reply as such approached the defendant Nos.2 and 3 and they also did not give any suitable reply. The plaintiff submits that having vexed with the attitude of the defendants the plaintiff enquired in the Revenue Office and came to know that the defendant No.1 in collusion with defendant Nos.2 and 3 manipulated the entire revenue record and got incorporated her name in the entire revenue records to the total extent of Acs.18-25 gts ignoring the 1/3rd share of the plaintiff. The plaintiff submits that immediately on 10.4.2007 the plaintiff approached the defendants for partition and amicable settlement of joint family property and the defendants denied the share of the plaintiff as such the plaintiff forced to file the present suit and the plaintiff and defendants have got 1/3rd equal share in the suit schedule property. In all the circumstances mentioned above it is essential to pass a preliminary decree in favour of the plaintiff and against the defendants in accordance with the respective shares of the parties. It is also essential to appoint a Commissioner for the purpose of effecting the partition of the suit schedule property according to the shares of the parties by metes and bounds and by keeping in view of the bad and good quality of the soil and market value of the same and the plaintiff may be put in her separate and exclusive possession of her allotted shares in the suit schedule property mentioned in the schedule annexed with the plaint."

4. The defendants filed written statement resisting the claim of the plaintiff. The defendants pleaded that the plaintiff relinquished her rights over the suit schedule property. The trial Court settled the issues. The plaintiff examined witnesses on her behalf. While the 1st defendant being examined as DW1 produced a copy of the relinquishment deed and sought to mark it on his behalf. The plaintiff raised an objection on the ground that the relinquishment deed sought to be marked is an unstamped and unregistered and therefore, the same is inadmissible. The learned Senior Civil Judge overruled the objection of the plaintiff and marked the relinquishment deed as Ex.B-1, by order dated 27.8.2009. The said order is assailed in this revision.

5. Notice before admission came to be ordered on 3.12.2009. The respondents entered appearance through a Counsel.

6. Heard Sri P.S.P. Suresh Kumar, learned Counsel appearing for the petitioner-plaintiff and Sri M. Venkatrama Reddy, learned Counsel appearing for the respondents-defendants.

7. Learned Counsel appearing for the petitioner-plaintiff submits that the relinquishment deed which is sought to be marked on behalf of the respondents-defendants is a compulsorily registerable document under Section 17 of the Registration Act and the same being not properly stamped and not registered is inadmissible in evidence, and therefore, the order passed by the trial Court is liable to be set aside. Learned Counsel took me to the contents of the document to show that the rights have been relinquished under the document 'in prasenti', and therefore, it cannot be treated as recording a past transaction, whereunder rights had already been relinquished over movable and immovable property of the joint family. In support of his submission, reliance has been placed on the decisions of this Court in Abdul Majeed Vs. Yadram Suresh, 2001(2) ALT 417; T. Arthi Vs. K. Anand Reddy and others, 2006(5) ALT 42; Telugu Kishan Mohan and another Vs. Smt. Boggula Padmavathi and others, 2009(5) ALT 132 and B. Narayanamma Vs. Ramaiah, 1975(11) APLJ 298.

8. Learned Counsel would also contend that the trial Court having referred the decision of this Court in K. Ramulu and another Vs. K. Narsirnulu and another, 1999(1) ALT 569, failed to note that the document even if it is to be received for collateral purpose, the same is required to be properly stamped. In a way, his contention is that since the document sought to be received in evidence on behalf of the respondents-defendants is not properly stamped, it cannot be received even for the purpose of proving collateral transaction. Much emphasis has been laid by the learned Counsel on Para 13 of the referred judgment, which reads as hereunder :-

"Thus, I am satisfied that the finding of the learned Senior Civil Judge that it is an arbitration award is correct but the other limb of the order that it is not admissible for collateral purpose cannot be sustained. It is, however made clear that it requires stamp duty and hence it is open for the learned Senior Civil Judge to impound the document and collect stamp duty. As the suit pertains to the year 1989, it would be proper to direct the learned Senior Civil Judge to complete the formalities of impounding the document by himself and expedite the trial and dispose of the suit as early as possible."

9. Per contra, Sri Venkatrama Reddy, learned Counsel appearing for the respondents-defendants submits that the plaintiff had already relinquished her share in the joint family properties, movable and immovable, and the document dated 21.5.1990 is only evidencing past transaction and therefore, it is not a compulsory registerable document. He would also submit that the trial Court having considered the contents of the document and placing reliance on the decision of this Court in K. Ramulu and another Vs. K. Narsimhulu (supra), proceeded to overrule the objection of the petitioner-plaintiff and marked it as Ex.B-1, and therefore, the order passed by the trial Court does not warrant interference of this Court in exercise of powers under Article 227 of the Constitution of India. In support of his submissions, reliance has been placed on the decision of this Court in Zaheda Begum and another Vs. Lal Ahmed Khan and others, 2009(6) ALD 432 : [2010(1) ALL MR (JOURNAL) 36].

10. He would also submit that the document dated 21.5.1990 does not create any right in prasenti over the property, and therefore, it is to be construed as settlement deed and in which case it does not require registration. A further submission has been made that the decision of this Court in T. Arthi's case (supra), is wholly inapplicable to the facts and circumstances of this case.

11. The Indian Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by providing for consequences of non-registration.

Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which 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 Rs.100/- and upwards to in immovable property.

Section 49 of the said Act provides that no document required by Section 17 to be registered shall affect any immovable property comprised therein or received as evidence of any transaction affecting such property, unless it has been registered. Registration of a document gives notice to the public that such a document has been executed.

12. It is provided under Section 49 of the Indian Registration Act that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it is registered. As per the provision made in the proviso to that section such a document may be received as evidence of any collateral transaction not required to be effected by registered instrument. It has consistently been held by Courts of law that an unregistered document of transfer which is required to be registered and not registered is admissible in evidence to prove the date of entering into the fact of possession of the transferee and to show the character of his possession. Though an unregistered document required to be registered under law is not admissible in evidence to claim any right under it, it would be admissible in evidence for a collateral purpose i.e., for a purpose other than that for which the document was created. It has always been held that a vendee under an unregistered sale deed, who conies into possession under it, though the document is inadmissible in evidence to prove title or any rights under it, though the document is inadmissible in evidence to prove title or any rights under it, it will be admissible in evidence to show the character of possession of the vendee viz., whether it is in his own right or whether it is with permission like that of a lessee or licensee and if he continues in such possession for over the statutory period he acquires title to the property not on account of the unregistered sale deed, but on account of the fact of his having been in possession for over the statutory period in his own right adversely to the real owner. Similarly, if a lessee comes into possession of immovable property under an unregistered lease deed which requires to be registered under law, certainly, it would be admissible in evidence to show the character of his possession, viz., that his possession is that of a lessee and therefore permissive in nature, since a lessor, who parts with physical possession to a lessee, under law is always considered to be in constructive possession through the lessee. Therefore, so long as the possession of the lessee is permissive, he cannot prescribe any title hostile to his lessor.

13. It is also well settled that if an unregistered document is sought to be relied on for collateral purpose under proviso to Section 49, the party has to pay the stamp duty and penalty, decision of this Court in Palampalli Rama Subba Reddy Vs. Palampalli Subba Reddy, 2005(5) ALD 274.

14. The issue whether an unregistered relinquishment document can be admitted in evidence is no more res integra in view of the decision of this Court in Telugu Kishna Mohan's case (supra), wherein it has been held that an unregistered relinquishment deed is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act. Paragraph 29 of the cited judgment needs to be noted and it is thus :-

"29. The recitals of the document in controversy already had been referred to supra. Since, this Court is of the opinion that the document in question is an unregistered relinquishment deed, the same is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act. It is needless to say that the document is inadmissible in evidence for want of registration inasmuch as the purpose for which the document is being relied upon is the principle purpose not for any collateral purpose. The question of sending such document to the Revenue Divisional Officer, Nandyal for levying of stamp duty and penalty also may not arise. The question of sending such document to the Director of Forensic Science Laboratory, Hyderabad for the purpose of comparison also would not arise."

15. In Abdul Mazeed's case (supra), a learned Single Judge of this Court has held that a document which purports to create, declare, assign, limit or extinguish any right, title or interest requires registration under Section 17 of the Registration Act. Paragraph 4 of the cited judgment needs to be noted and it is thus :-

"4. After hearing the Counsel on either side, and a reading of the document, it shows that the executant Abdul Majeed, son of Lal Mohammed states that he had purchased an open plot through a registered sale deed dated 6.1.1984 from one Gundappa S/o. Venkanna. But after purchasing the same, he came to know that the vendor Gundappa had already sold the said land in favour of one Verupaksha through a registered sale deed and, therefore, he cannot be the owner and possessor of the said land and he is not in possession of the same on the basis of a sale deed. Further, the said Verupaksha had gifted the said land in favour of one Y. Siddamma through a gift deed dated 28.11.1984 and accordingly the ownership and possession of the said land is with the said Smt. Siddamma. However, it says that under mutual understanding and having received Rs.13,000.00 from Y. Siddamma, he undertakes that he will not file any false suit on the basis of the said illegal sale deed dated 6.1.1984 and in case of default, he will refund the said amount with interest to Siddamma. Thus, from the very nature of the contents of the said document, it shows that though Abdul Majeed has purchased in pursuance of a sale deed, he could not get any title as the land was already transferred in favour of another person, who in turn again executed a gift deed. Further, having received the sum, he sought to record that he will not file any false claim. On this very basis, the contention of the respondents is that no title itself has passed in favour of Abdul Majeed. The question of any further transfer or relinquishment is not there but it only records the non-existence of any such right and, therefore, there being no creation or extinction of any right, title or interest, the provisions of Section 17 of the Registration Act are not attracted. However, it has to be seen that if a transaction is entered into with a vendor, who himself has already parted with the property, no doubt no title would pass and if any such vendee tries to rely on such document, it can safely be held that the said vendee did not get any title. However, when there is an admission of non-existence of any such right or giving up claim in pursuance of the sale deed, which though did not confer any title, more so on receipt of consideration as pointed out under the document, it certainly reiterates, reasserts that such executant had no right, title or interest which only results into the relinquishment or release of the rights in whatever form. In view of the same, for the purpose of Section 17 of the Registration Act, a document which purports to create, declare, assign, limit or extinguish any right, title or interest requires registration even though the executant had no title. Therefore, the said document needs to be registered and properly stamped. It cannot be said that it is only an assertion or reiteration or declaration of a fact, which does not in any way affect any right, title or intrest. However, once a document is sought to be executed with such reiteration or even a declaration, it certainly touches upon creation, declaration and assignment limiting or extinguishing whatever right, title or interest whether valid or invalid. In view of the very terms as such, it can in no circumstances be said that the said document is an agreement falling under Articles 5 and 6 of the Stamp Act. I am also fortified in this view of mine by the decision of a Division Bench of the Lahore High Court in Abdul Rahman Vs. Gurdit Singh wherein while considering the provisions of Sections 17 and 49 of the Registration Act, it was held that a document which purports to declare that the executants held no title in the house and have relinquished their action, requires registration and if unregistered is inadmissible in evidence."

16. The only issue involved in this revision is :-

"Whether the document dated 22.5.1990, which is unstamped and unregistered, can be admitted in evidence ?"

17. Learned Counsel appearing for the respondent-defendant submits that the document is only a family settlement deed and did not provide for any rights in prasenti, and therefore, it is not a compulsorily registerable document. Learned Counsel placed reliance on the decision of this Court in Abdul Majeed Vs. Yadram Suresh (supra).

18. I have gone through the contents of the document dated 21.5.1990. A plain reading of the contents of the document indicate that the petitioner-plaintiff is stated to have relinquished her rights in the Joint Family properties, both movable and immovable. It is not recording a past transaction whereunder the party had already relinquished her rights. Under the document in question, the petitioner-plaintiff is stated to have relinquished her rights over the joint family properties movable and immovable. Therefore, facts in the case on hand and the facts in Abdul Majeed's case (supra), are distinct and therefore, it is of no help to the respondents-defendants. The proposition of law laid down by this Court in Telugu Kishna Mohan's case (supra), squarely applies to the facts of the case on hand. Since the document sought to be marked on behalf of the respondents-defendants is a relinquishment deed and since the same is not properly stamped and unregistered, it is inadmissible in evidence. The trial Court has misread the contents of the document and thereby, erred in receiving the same and marking it as Ex.B-1.

19. Accordingly, this civil revision petition is allowed setting aside the docket order dated 27.8.2009 passed in OS No.89 of 2007 on the file of the Senior Civil Judge, Nalgonda. There shall be no order as to costs.

Petition allowed.