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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
Amertham - Appellant
Versus
Thannace & Another - Respondent
C.R.P(MD)No. 1493 of 2011 & M.P.(MD)No. 1 of 2011
Decided On : 02-06-2020
Constitution of India, 1950 - Article 227 - Stamp Act - Section 33 - Registration Act, 1908 - Section 49 – Transaction - Purchased acre by sale deed - Contended that remaining extent of cents on southern side Survey belonged to plaintiff by virtue of registered settlement deed stated to have been executed by one Marimuthu - It is further case of revision petitioner that out of extent of acre cents purchased by first defendant plaintiff purchased acre by sale deed executed by first defendant in his favor - Stating that plaintiff orally gifted an extent of cents in favor of his brother out of cents he got gift deed it is case plaintiff that he is entitled to acre cents in Survey - Further case of petitioner is that common well was dug by him in an extent of cents out of cents and another two cents from holding of first defendant and that plaintiff thereafter is entitled to suit property measuring acre cents in Survey - Second defendant is son of first defendant – Held, Petitioner has not even mentioned in plaint that document of sale deed is an unstamped and unregistered document - As it was pointed out earlier contention of petitioners counsel that petitioner has pleaded adverse possession cannot be accepted as there is no specific plea as required in law - Document of unregistered sale deed is relied upon not for collateral purpose but for proving transfer of right in immovable property as per pleadings - Though it is stated by Counsel for petitioner that document may be relied upon to prove oral agreement of sale date of entry into possession of land and nature possession from date of transaction collateral transaction referred to by Counsel flow from document of conveyance and collateral purpose referred to by counsel are to establish right of petitioner unregistered sale deed - From pleading in plaint it cannot be contended that document is required to prove collateral transaction - Judgment of Privy Council relied upon by petitioner has no application since unregistered gift deed was relied upon to prove adverse possession before Privy Council - Similarly judgment of Honble Supreme Court in Bonder Singh case is based on pleading as borne out from records - If court consider issue in background pleading this Court has no hesitation to hold that unregistered sale deed cannot be admitted in evidence as petitioner claims title and suit itself is for declaration of title based on unregistered sale deed - As it has been by Honble Supreme Court and this Court in several judgments collateral transaction must be independent and divisible from transaction which requires registration - Collateral transaction should be one which does not create or extinguish title or interest in immovable property – Petition disposed
JUDGMENT
(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order, dated 24.03.2011 passed in I.A.No.112 of 2011 in O.S.No.219 of 2010 on the file of the Additional District Munsif Court, Sankarankovil.)
1. The revision petitioner filed a suit in O.S.No.219 of 2010 on the file of the Additional District Munsif Court, Sankarankovil, for declaration of his title and consequential permanent injunction restraining the defendants/respondents herein from interfering with his peaceful possession and enjoyment of the suit property. The suit property is an extent of 0.55.5 Hectares equivalent to 1 acre 37 cents in Survey No.1051/1 in Kalingapatti Revenue Village within Tenkasi Registration District.
2. The case of the revision petitioner in the plaint is that an extent of 1 acre 58 cents on the northern side of Survey No.1050/1 belong to one Krishna Thevar and others who sold the same to the first defendant by a registered sale deed dated 21.01.1963. It is contended that the remaining extent of 78 cents on the southern side of Survey No.1050/1 belonged to the plaintiff by virtue of a registered settlement deed stated to have been executed by one Marimuthu. It is the further case of the revision petitioner that out of the extent of 1 acre 58 cents purchased by the first defendant, the plaintiff purchased 1 acre by a sale deed executed by the first defendant in his favour. Stating that the plaintiff orally gifted an extent of 39 cents in favour of his brother out of 78 cents he got under the gift deed dated 25.09.1971, it is the case of plaintiff that he is entitled to 1 acre 39 cents in Survey No.1050/1. The further case of petitioner is that a common well was dug by him in an extent of 2 cents out of 1 acre 39 cents and another two cents from the holding of the first defendant and that the plaintiff thereafter is entitled to the suit property measuring 1 acre 39 cents in Survey No. 1050/1. The second defendant is the son of first defendant.
3. Defendants filed a written statement specifically denying all the averments made in the plaint para-wise. During the pendency of the suit, the petitioner filed a petition in I.A.No.112 of 2011 for marking a document namely an unregistered sale deed dated 25.11.1973. The said petition was contested by the respondents on the ground that the alleged sale deed dated 25.11.1973, which is neither stamped nor registered, is inadmissible in evidence and that the said document cannot be admitted for any collateral purpose as the petitioner claim title and possession only on the basis of the said document. In the additional written statement, the respondents raised an issue regarding the genuineness of the transaction namely the unregistered sale deed dated 25.11.1973.
4. The trial Court, after considering several precedents, dismissed the petition mainly on the ground that the unregistered and unstamped document, which is relied upon to prove one's title, cannot be admitted in evidence even to prove collateral transaction. Aggrieved by the same, the above Civil Revision Petition is preferred by the plaintiff in the suit.
5. The learned Counsel appearing for the revision petitioner though admits that the document, namely, the sale deed dated 25.11.1973 is unregistered and unstamped, submitted that as per proviso to Section 49 of the Registration Act, 1908, an unregistered document affecting immovable property can be received in evidence for any collateral transaction which is not required to be effected by registered instrument. The learned Counsel concedes the legal position that an unstamped and unregistered document cannot be admitted in evidence even for a collateral purpose. The learned Counsel appearing for the petitioner relied upon a judgment of the Privy Council in Varada Pillai v. Jeevaathinammal reported in XLIII Madras 244 (PC) wherein the position is explained by referring to an illustration as under:
“...An illustration for the point wherein an unregi
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