Allowed

Sri Sri Sri Lalithananda Haranadha Sarawathi Swamy, v. Katragadda Bharathi Devi

Andhra Pradesh HC7 Nov 2022CRP/5574/2017

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition held that the trial court erred in refusing to mark an unregistered gift settlement deed as an exhibit for collateral purposes. The High Court directed the trial court to tentatively mark the document and allow the objection to be decided at the final disposal of the case, citing statutory and precedential requirements regarding registration and evi

What did the court decide?

The civil revision petition is allowed, and the petitioner/defendant is directed to mark the unregistered gift settlement deed and the trial court shall decide on admissibility at the final disposal.

Sri Sri Sri Lalithananda Haranadha Sarawathi… — Property and Title | Andhra Pradesh HC (2022)

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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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CIVIL REVISION PETITION No.5574 of 2017

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ORDER:

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This Civil Revision Petition is filed by the petitioner/defendant under Article 227 of the Constitution of India against the docket order dated 18.09.2017 passed by learned Principal Senior Civil Judge, Eluru, in O.S.No.78 of 2009 wherein and whereby learned trial Judge not permitted the petitioner/defendant to mark unregistered gift settlement deed dated 14.08.1991. The respondents/plaintiffs have filed suit against the petitioner/defendant for declaration of their title to the plaint schedule immovable property and for consequential relief of permanent injunction restraining the petitioner/defendant from interfering with their possession and enjoyment of the plaint schedule property. During the course of trial of the suit, the petitioner/defendant intended to mark unregistered gift settlement deed dated 14.08.1991 as exhibit in his evidence. For which, learned counsel representing the respondents/plaintiffs before trial Court objected for the same. Then after hearing both sides, learned trial Judge passed orders, which reads as under:-

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“….Therefore, in the above case the defendant who intended the exhibit the said document, requested this Court to receive in evidence on collateral purpose but on the other hand the learned counsel for the plaintiff denied the said request by raising objection that it cannot be admitted in the evidence as it is

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mandatory required to be registered on verification of the recitals of the document, it clearly shows transfer of rights of the schedule property in favour of the defendant and also shows extinguishment of the rights executants. Therefore, by way of such transfer, the rights are created in favour of the defendant in whose favour the said document is executed. It is also styled as gift settlement deed and further the said property is transferred by way of gift settlement deed. Therefore, under the above facts and circumstances such document is compulsorily registerable in terms of Section 123 of T.P. Act and Section 17(1) b of the Registration Act and merely because it is stamped as per the validation by the District Registrar, it cannot be permitted to be admitted in the evidence unless it is registered. Therefore, under the above facts and circumstances the said document being a gift settlement deed it is compulsorily required to be registered.

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Hence, the plea of the defendant to admit the said document in evidence is rejected for want of registration.”

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Aggrieved by the orders passed by learned trial Judge, the petitioner/defendant filed present civil revision petition stating that orders passed by trial Court are erroneous, contrary to law and weight of evidence. He submits that deciding the validity of the document by the trial Court is pre-matured, which is contrary to well established law. It is the contention of the revision petitioner that document though it is not registered when it is impounded can be received for collateral purpose. He prays to allow this petition.

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Learned counsel for the revision petitioner would submit that though document dated 14.08.1991 styled as settlement deed creating rights in the immovable property in favour of the petitioner/defendant, which requires registration but as stamp duty and penalty is paid on the document before District Registrar, Eluru, which can be received in evidence for collateral purpose, which failed to consider by learned trial Judge. It is the contention of learned counsel for the revision petitioner that refusing to mark the document by the trial Court is erroneous and findings of the trial Court with regard to nature of the document and its purpose without adducing evidence on both sides is pre-matured one, which is liable to be set aside. He relied on following precedent law:-

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1) Yellapu Uma Maheswari and another … Appellants Vs. Buddha

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Jagadheeswararao and others … Respondents 2015 (16) SCC 787

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wherein it is held at para Nos.17 and 18, which reads as under:-

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“17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, becomes an

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inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.

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Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy GariVankatReddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B-22 for collateral purpose subject to proof and relevance.”

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2) Bipin Shantilal Panchal … Appellant Vs. State of Gujarat …

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Respondents Judgment in Criminal Miscellaneous Petition No.862 of 2001, dated 22.02.2001 wherein it is held at Para Nos.12, 13, 14, 15 and 16, which reads as under:-

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“12. As pointed out earlier, on different occasions the trial judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the concerned parties to go before the higher courts for the purpose of challenging such interlocutory orders.

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It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

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When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the

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objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

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The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

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We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.”

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3) Parchuri Sireesha … Petitioner Vs. Challapalli Jalaja …

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Respondent 2019 (6) ALT 338 wherein it is held by this Court that an unregistered instrumentcannot be admitted even for collateral purpose

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unless the required stamp duty and penalty collectable on the instrument are paid and collected.

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He prays to allow the civil revision petition.

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Learned counsel for the respondents/plaintiffs vehemently opposed the contention of the revision petitioner on the ground that when claim of the petitioner is based on document dated 14.08.1991, which is admittedly unregistered settlement deed in respect of immovable property due to that though stamp duty and penalty said to be paid, it will not cure the defect of registration and it cannot be admitted even for collateral purpose. He relied on following precedent law:-

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1) Maduraboina Deepika Vs. Kuna Sujatha Devi and another 2017

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(3) ALD 1 wherein it is held that document which is compulsory registerable if not registered and when proper stamp duty is not paid cannot be admitted in evidence for collateral purpose also.

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2) K.B.Saha and Sons Private Limited … Appellant Vs. Development Consultant Limited … Respondent (2008) 8

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Supreme Court Cases 564 wherein Hon’ble Apex Court explained meaning of collateral purpose while disposing Civil Appeal and held at para No.34, which reads as under:-

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“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-

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A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.

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Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

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A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

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A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.

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If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.”

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3) Chinnappareddigari Pedda Muthyalareddy … Appellants Vs.

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Chinnappareddigari Venkatareddy and others … Respondents

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AIR 1969 Andhra Pradesh 242 Full Bench wherein it is held unregistered partition deed though cannot be looked into for terms of partition, can be looked into for establishing severance in status.

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4) K.Ramamoorthi Vs. C.Surendranatha Reddy 2012 (6) ALD 163

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wherein this Court after elaborate discussing precedent law in respect of objection with regard to admissibility of unregistered document held at para Nos.24 and 25, which reads as under:-

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“24. On a compendious reference of the case law discussed above, the followings conclusions emerge:

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i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such power. The phrase "affecting the immovable property" needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property.

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ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property.

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iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether.

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iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.

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v) The phrase "collateral purpose" is with reference to the transaction and not to the relief claimed in the suit.

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vi) The proviso to Section 49 of the Registration Act does not speak of collateral purpose but of collateral transaction i.e., one collateral to the transaction affecting immovable property by reason of which registration is necessary, rather than one collateral to the document.

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vii) Whether a transaction is collateral or not needs to be decided on the nature, purpose and recitals of the document.

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Having culled out the legal propositions, the discussion on this issue will be incomplete if a few illustrations as to what constitutes collateral transaction are not enumerated as given out in RadhomalAlumal (2 supra) and other Judgments. They are as under:

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a) If a lessor sues his lessee for rent on an unregistered lease which has expired at the date of the suit, he cannot succeed for two reasons, namely, that the lease which is registrable is unregistered and that the period of lease has expired on the date of filing of the suit. However, such a lease deed can be relied upon by the plaintiff in a suit for possession filed after expiry of the lease to prove the nature of the defendant's possession.

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b) An unregistered mortgage deed requiring registration may be received as evidence to prove the money debt, provided, the mortgage deed contains a personal covenant by the mortgagor to pay (See: Queen-Empress v Rama Tevan, (’92) 15 Mad.253, P.V.M.KunhuMoidu v T.MadhavaMenon, (’09) 32 Mad. 410 and Vani v Bani, (’96) 20 Bom. 553).

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c) In an unregistered agreement dealing with the right to share in certain lands and also to a share in a cash allowance, the party is entitled to sue on the document in respect of movable property

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(Hanmantapparao v RamabaiHanmant, (’19) 6 AIR 1919 Bom. 38=21 Bom. L.R.716).

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d) An unregistered deed of gift requiring registration under Section 17 of the Registration Act is admissible in evidence not to prove the gift, but to explain by reference to it the character of the possession of the person who held the land and who claimed it, not by virtue of deed of gift but by setting up the plea of adverse possession (Varada Pillai case (supra).

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(e) A sale deed of immovable property requiring registration but not registered can be used to show nature of possession (RadhomalAlumal’s case (supra), Bondar Singh case (supra) and A.Kishorecase (supra).

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The above instances are only illustrative and not exhaustive. There may be many more situations where a transaction can be collateral to the transaction which affects the immovable property. The Courts will have to carefully decide on a case to case basis in the light of the legal principles contained in the above discussed and various other judgments holding the field.”

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He would further submit that in the written statement, the petitioner categorically stated that he is the absolute owner of plaint schedule property, which he got under gift settlement deed dated 14.08.1991 and claim of revision petitioner is based on unregistered gift settlement deed, which is not for collateral purpose due to that learned trial Judge rightly rejected to mark the document in the evidence of petitioner/defendant.

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He prays to dismiss the revision petition.

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Now, the issue that emerges for consideration by this Court is:

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" Whether the orders under challenge are sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?"

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POINT:

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As rightly held by learned Single Judge of this Court in K.Ramamoorthi case relied on by learned counsel for the respondents/plaintiffs wherein it is also observed that the question with regard to admissibility document quiet often vexes the Bar and Bench alive and after elaborate analysis of precedent law learned Single Judge explained the phrase collateral purpose in a suit filed for permanent injunction and also gave illustrations wherein illustration (d) of para 25 referred supra is relevant to the facts of the present case.

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In the present case also suit is filed by legal heirs of alleged Donor of petitioner/defendant for declaration of their right and for permanent injunction in respect of plaint schedule agricultural land wherein petitioner herein filed written statement, which copy of it furnished by learned counsel for the respondents, which shows that the petitioner is claiming title and possession over the suit schedule property by virtue of gift settlement deed dated 14.08.1991 said to be executed by Mr.K.Venkata

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Prasad Rao and said to be validated by the District Registrar, West Godavari, after paying the stamp duty and penalty. The revision petitioner also claiming possession over the pliant schedule property basing on unregistered gift settlement deed dated 14.08.1991. He also pleaded that the claim of the respondents/plaintiffs is barred by limitation. Though leaned Single Judge in K.Ramamoorthi case referred supra extensionally referred precedent law explaining the phrase “collateral purpose” and not discussed stage of deciding the said aspect when unregistered document is tendered in evidence for marking. The Hon’ble Apex Court having noticed delays in disposal of cases in view of objection raised with regard to admissibility of document directed the subordinate Courts manner which and stage of deciding the objections in Bipin Shantilal Panchal case referred supra. Wherein it is categorically held that objection of admissibility of document other than stamp duty and penalty is raised such objection has to be noted and document has to be tentatively marked as an exhibit subject to such objection to be decided at the time of final disposal of the Judgment. The Hon’ble Apex Court explained necessity of such practice to avoid delay in disposal of the cases. The decision in Bipin Shantilal Panchal case referred supra is binding precedent on all the Courts but inspite of it trial Courts are deciding the admissibility of document even other than the objection with regard to stamp duty and penalty at evidence stage, which causing delays in

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disposal of civil cases as party, who could not succeed in marking the document as an exhibit in his evidence used to approach higher Courts. Such practice is deprecated by Hon’ble Apex Court in Bipin Shantilal

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Panchal case and also directed trial Courts that whenever objection is raised regarding the admissibility of any material or any item of oral evidence the procedure prescribed in such decision shall be followed.

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The Hon’ble Apex Court in Yellapu Uma Maheswari and another case referred supra relied on by learned counsel for the petitioner also explained the phrase ‘collateral purpose’ and held that an unregistered document can be marked for collateral purpose after payment of stamp duty and penalty subject to proof and relevancy.

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In the present case, learned trial Judge when document dated 14.08.1991 is sought to be marked by the petitioner/defendant refused to mark the same and also discussed that the contents of the document and held that it cannot be marked for collateral purpose also. The findings of the trial Court is admittedly before recording the evidence on behalf of the petitioner/defendant though objection is not with regard to payment of stamp duty and penalty, learned trial Judge without following the directions of Hon’ble Apex Court in Bipin Shantilal Panchal case referred supra refused to mark the document. Therefore orders passed by learned trial Judge refusing to mark the document as per procedure laid

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down by Hon’ble Apex Court in Bipin Shantilal Panchal case referred

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supra are not sustainable in law and also on facts in view of relief of permanent injunction also sought by the respondents in the suit and the petitioner is also claiming possession over the petition schedule property basing on unregistered gift settlement deed dated 14.08.1991. Therefore, orders passed by learned trial Judge refusing to mark unregistered gift settlement deed dated 14.08.1991 are not legal, which needs interference by this Court under Article 227 of the Constitution of India. However, the respondents/plaintiffs are at liberty to raise objection with regard to admissibility and its evidentiary value at the time of final disposal of the case. Learned trial Judge shall record the objection of learned counsel or the respondents/plaintiffs at the time of marking the document dated 14.08.1991 and then mark the document and proceed with the trial of the case.

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In the result, the Civil Revision Petition is allowed. No order as to costs. Consequently, miscellaneous petitions if any pending shall stand closed. Learned trial Judge is directed to allow the petitioner/defendant to mark unregistered gift settlement deed dated 14.08.1991 by regarding the objection of learned counsel for the respondents/plaintiffs and then proceed to dispose of the case and he shall decide the admissibility of document dated 14.08.1991 at the time of final disposal of the case by keeping in mind the ratio laid down by Hon’ble Apex Court in Yellapu

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Uma Maheswari and another case and K.B.Saha and Sons Private

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Limited Vs. Development Consultant Limited case referred supra and also the ratio laid down by this Court in K.Ramamoorthi Vs.

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C.Surendranatha Reddy case referred supra.

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______________________ BANDARU SYAMSUNDER, J Dt:07.11.2022. Chb

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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER