CRP/4992/2014 of Konchada Surya Rao Vs Hanumanthu Venkata Rao on 30 December 2014

ORDER:

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTICIVIL REVISION PETITION No.4992 of 2014

This Civil Revision Petition under Article 227 of the Constitution ofIndia by the petitioners/defendants is directed against the docket orders dated25.11.2014 passed in the Memo in G.R.No. 3206/2014 in I.A. No.91/2013 inO.S.No.79/2013 on the file of the Court of the learned Senior Civil Judge,Sompeta of Srikakulam District.

2. I have heard the submissions of the learned counsel for thepetitioners/defendants (‘the defendants’ for brevity) and of the learned SeniorCounsel for the respondent/plaintiff (‘the plaintiff’ for brevity). I have perusedthe material record.

3. The introductory facts, in brief, are as follows: ‘The plaintiff had fileda suit for perpetual injunction; and in that suit the plaintiff had also filed aninterlocutory application in I.A. No.91/2013 under Order 39 Rule 1 of the Codeof Civil Procedure for granting a temporary injunction. While the hearing in thesaid Interlocutory Application was in progress, the plaintiff wanted to rely uponan unregistered sale deed dated 16.05.1979. On that, an objection was raisedon behalf of the defendants that the said unregistered and unstamped saledeed cannot be marked. The defendants in fact had filed the memo objectingfor marking the said document by placing reliance on two precedents. However, the stamp duty and penalty were paid on the said unregistered saledeed; and the plaintiff had made a request to the Court below to mark the saiddocument for collateral purpose. A further objection was raised on behalf of thedefendants that the sale deed being unregistered, even though the stamp dutyand penalty are paid, it cannot be marked as it is being sought to be reliedupon to prove title and possession, which are the main purposes and which arenot collateral purposes. However, having regard to the provisions of Sections17 and 49 of the Indian Registration Act, the trial Court had overruled theobjections raised by the learned counsel for the defendants and had passedthe impugned orders rejecting the memo filed by the defendants and permitting the plaintiff to mark the said unregistered sale deed for collateral purpose. Aggrieved of the said orders of the Court below rejecting the memo of thedefendants and permitting the plaintiff to mark the said document for collateralpurpose, the present revision petition is filed by the defendants.

4. During the course of the submissions, the learned counsel for thedefendants had submitted that the order of the trial Court permitting to mark anunregistered sale deed is illegal, arbitrary, irregular and contrary to the legalposition and also the ratio in the decision of this Court in Golla Dharmanna Vs.Sakari Poshetty @ Wadoor Poshetty and others[[1]]wherein this Court heldthat if a document is inadmissible in evidence for want of registration, none ofits terms can be admitted in evidence and that use of such a document for thepurpose of proving an important clause would not be using for collateralpurpose.

5. The learned senior counsel for the plaintiff had submitted that thetrial Court had categorically observed in the order impugned that the plaintiff ispermitted to mark the document in the interlocutory proceeding for collateralpurpose and that, therefore, the trial Court was conscious of the fact that thedocument cannot be looked into for any main purpose and that what is acollateral purpose depends upon the facts and circumstances of each case andthat what is a collateral purpose in the facts and circumstances of the case onhand has to be gone into by the trial Court at the appropriate stage and that,therefore, there is no merit in this revision petition and that by the impugnedorder no prejudice has been caused to the defendants and that the defendantsare still at liberty to raise any objection before the trial Court in case the plaintiffseeks to rely upon the document for the main purpose.

6. I have bestowed my attention to the facts and the submissions of thelearned counsel for both the sides. Admittedly the document is an unregisteredsale deed on which the stamp duty and penalty are paid and collected. Whilerejecting the memo of the defendants raising the objection for marking the saiddocument, the trial Court in the concluding portion of the impugned order hadclearly held that the plaintiff is permitted to mark the document for collateral

7. Section 49 of the Indian Registration Act which deals with Effect ofnon-registration of the documents required to be registered says that nodocument required by Section 17 or by any provision of the Transfer of PropertyAct, 1882 (4 of 1882), to be registered shall affect any immoveable propertycomprised therein unless it is registered and that no such unregistereddocument can be received in evidence of any transaction affecting suchproperty. The proviso of the said provision of law says that an unregistereddocument affecting immoveable property and required by the Registration Actor the Transfer of Property Act to be registered may be received as evidence ofany collateral transaction not required to be effected by registered instrument. Therefore, the law as envisaged in the proviso to Section 49 of the IndianRegistration Act clearly permits marking of an unregistered sale deed asevidence of any collateral transaction not required to be effected by theregistered instrument. Therefore, since the document was permitted to bemarked for collateral purpose, this Court finds no merit in the revision. However, as rightly contended by the learned counsel for the defendants, thetrial Court is obliged to follow the ratio in the aforementioned decision whileconsidering the admissibility of the said document for collateral purpose i.e.,the purpose for which the plaintiff can rely upon the said document during thecourse of enquiry in the interlocutory application and also while considering itsprobative value. Viewed thus, this Court finds that this revision petition can bedisposed of with certain directions.

8. Accordingly, the Civil Revision Petition is disposed of directing thetrial Court to consider the unregistered sale deed only for collateral purpose,which must be independent of, or divisible from, the transaction to effect whichthe law requires registration. The trial Court shall also bear in mind the legalposition that a collateral transaction must be a transaction not itself required tobe effected by a registered document, that is, it must not be a transactioncreating, declaring, assigning, limiting or extinguishing any right, title or interestin immoveable property of the value of one hundred rupees and upwards. And,further, while considering the admissibility and import of the said document for collateral purpose, the trial Court shall have due regard to the ratio in thedecision aforementioned and then dispose of the interlocutory application onmerits and in accordance with the procedure established by law having dueregard to the facts peculiar to the case. It is made clear that the defendants areat liberty to raise the objection that the document cannot be looked into for anypurpose other than the collateral purpose and that it cannot be treated that it isreceived in evidence of any transaction affecting such property.

Date: 30.12.2014

Note: Issue C.C. by 05.01.2015(B/O)MVA

____________________________

M.SEETHARAMA MURTI, J

[1][1] 2013 (5) ALD 490