Danaboina Edukondalu v. Paruchuri Sivaji
HONOURABLE SRI JUSTICE P. NAVEEN RAO CIVIL REVISION PETITION No.2115 of 2011 Date : 08-03-2016 Between :
Danaboina Edukondalu S/o Venkata Subbaiah, Age 59 years, Cultivation, R/o Venigandla village, Pedakakani Mandal, Guntur District.
....Petitioner And Paruchuri Sivaji S/o late Ranga Rao, Aged 49 years, Business, R/o D No.3-30-53/6, 3rd line, Brundavan Gardens, Guntur district. .... Respondent The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO CIVIL REVISION PETITION No.2115 of 2011 ORAL ORDER:
Petitioner herein is defendant in O.S No. 243 of 2009 on the file of the IV Additional District Judge, Guntur. Petitioner challenges the order dated 30.3.2011 in CFR No. 3611 of 2010 in O.S No. 243 of 2009. By the said order, the trial Court allowed marking of document i.e., unregistered agreement of sale, overruling the objections raised by the petitioner herein.
2. Heard the learned counsel for petitioner and learned counsel for respondent.
3. Learned counsel for petitioner contended that an agreement of sale of immovable property of value of Rs.100/- and above has to be compulsorily registered in accordance with Section 17
(1) (g) of the Registration Act. Thus, unless a document is registered in terms of the above provision, same cannot be relied upon and therefore cannot be marked as a document.
4. By relying on the judgment of the Supreme Court in AVINASH KUMAR CHAUHAN Vs VIJAY KRISHNA MISHRA[1], learned counsel for petitioner submitted that even for collateral purposes, an unregistered document cannot be looked into.
5. Learned counsel for respondent submitted that the suit is for refund of advance and possession is not transferred, and therefore the document can be looked into for collateral purposes i.e., to establish that there was a transaction and money was paid to the defendant. In support of the claim for refund of advance paid, the plaintiff can rely on such unregistered document. Learned counsel further submitted that the principle laid down by the Supreme Court in AVINASH KUMAR CHAUHAN, relied on by learned counsel for petitioner, is distinguishable on facts and therefore the decision arrived at by the trial Court is legal and valid. He submits that as held by this
Court in SARDAR DARSHAN SINGH Vs SARDAN RAM SINGH AND ANOTHER[2], an unregistered document can be looked into for collateral purposes i.e., proof of payment of advance to the defendant. He therefore submitted that there is no illegality committed by the trial Court warranting interference by this Court.
6. In AVINASH KUMAR CHAUHAN, facts in issue are, the respondent therein who is a member of the Scheduled Tribe with an intention to sell house and land situated in tribal area, received part sale consideration from the appellant and possession was delivered. However, in view of the fact that the property is situated in tribal area, for effecting transfer of the said property, permission of the Collector was required. The appellant filed suit for recovery of the amount paid by him from the respondent. In support of the claim for recovery of amount, appellant placed reliance on agreement dated 4.8.2003 which was unregistered. By order dated 9.1.2007 same was impounded relying Section 35(a) of the Stamp Act, 1899. The said decision of the trial Court was questioned before the High Court.
It was contended on behalf of the appellant therein that unregistered deed of sale was sought to be put in evidence not for the purpose of enforcement of contract but only for the purpose of recovery of amount of consideration and it being for collateral purposes, the provisions of Section 33 and 35 of the Stamp Act were not attracted. Reliance was placed on proviso appended to Section 49 of the Registration Act.
7. On detailed consideration of the relevant provisions of Stamp Act, Registration Act and earlier decisions, the Supreme Court, held " If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes" (para 25). The appeal was accordingly dismissed.
8. In SARDAR DARSHAN SINGH suit was instituted for specific performance of contract of sale. At the time of enquiry, four
documents were marked on the side of the plaintiff-petitioner and on the side of the respondent, he sought to mark unregistered agreement of sale. Objection was taken for introducing the said document, firstly on the ground that document could not be marked as it was insufficiently stamped and secondly as the document required registration under Section 17(1)(g) of the Registration Act and as it was not registered, it was not admissible. This Court held as under: "7. A mere perusal of the said proviso shows that an exception is carved out from the rigor of Section 49 which ordains that the document which is required to be registered under Section 17 of the Registration Act shall not be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.
The exception applies to three categories, namely, (i) the document may be received as evidence of a contract in a suit for specific performance; (ii) as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882; and (iii) as evidence of any collateral transaction not required to be effected by registered instrument. In respect of these three categories of transactions, notwithstanding the fact that the document which is required to be registered has not been registered and, therefore, shall not be received as evidence, can be received as evidence.
8. Here is a case where the document in question is an agreement of sale and sought to be relied upon as a defence in an application filed for injunction to restrain the party thereof from interfering with the alleged possession of the plaintiff. The defence taken in such action appears to be that the propounder of the document has purchased the property under a contract of sale and, therefore, he is in possession. Having regard to the competing claims, it is obvious that the document in question attracts either Clause (1) or (2) of the proviso to Section 49 of the Registration Act and, therefore, the document in question can be received as evidence by the Court."
9. The suit is for recovery of money. In support of the contention of the plaintiff that he paid certain amounts to purchase the property of the defendant and an agreement was executed between the plaintiff and defendant, he sought to mark a document and by the impugned order, the Court below allowed the said application. As seen from the record, the only objection raised by the defendant was that it was not registered as required by Section 17 of the Registration
Act and, therefore, cannot be marked. Nowhere, it was urged that it was insufficiently stamped and therefore the provisions of Section 35 of the Indian Stamp Act, are attracted. On the contrary, in the written statement filed in the suit, defendant clearly admits that the said document can be used either for specific performance or for collateral purposes. Thus, the contention now urged by the learned counsel for petitioner was never raised before the trial Court. It was not stated before the trial Court or before this Court that the document in issue was insufficiently stamped and, therefore, Section 35 of the Indian Stamp Act, is attracted.
10. Proviso appended to Section 49 of the Registration Act is attracted to the case on hand. Thus, the trial Court rightly marked the document as sought for by the plaintiff. The prohibition imposed by Section 35 is attracted only in case the document is insufficiently stamped. As the same is not the contention of petitioner/defendant before the trial Court, nor in this revision, except making a vague allegation, the decision of the Supreme Court in AVINASH KUMAR CHAUHAN, does not come to the rescue of the petitioner. On the contrary, this Court in SARDAR DARSHAN SINGH held that the document, even if it is not registered, is admissible for collateral purposes. Therefore, I do not see any error in the decision of the trial Court dated 30.3.2011 warranting interference of this Court. The revision fails and accordingly the same is dismissed. It is made clear that observations made herein above are for disposal of this revision petition.
All the contentions on merits of respective parties are preserved.
Consequently, miscellaneous petitions, if any pending, are closed. No costs.
____________________ P NAVEEN RAO,J DATE: 08-03-2016
TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO
CIVIL REVISION PETITION No.2115 of 2011 Date : 08-03-2016 Tvk [1] (2009) 2 SCC 532 [2] 2004(6)ALT 217