Dismissed

Nallu Servai v. Arasan Servai

Madras HC9 Mar 2021SA/1681/2008

Case brief

AI extract

What is this about?

This second appeal challenges the lower courts' finding that an unregistered exchange deed (Ex.A6) is invalid for want of registration. The court held that since the property value exceeded Rs.100, registration was mandatory under the Transfer of Property and Registration Act. Finding the lower court's conclusion based on proper appreciation of evidence, the appeal was dismissed.

What did the court decide?

The judgment and decree of the Subordinate Court and District Munsif Court were confirmed; the second appeal was dismissed with costs.

Nallu Servai Vs Arasan Servai — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 02.03.2021 PRONOUNCED ON : 09.03.2021

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CORAM

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THE HONOURABLE MR. JUSTIC E T.RAVINDRAN S.A.No. 1681 of 2008

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Nallu Servai S/o. Veeramalai Servai

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...Appellant/Plaintiff

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Vs.

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Arasan Servai S/o. Veeramalai Servai ... Respondent/ Defendant

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Prayer:

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Second Appeal filed under Section 100 of CPC, 1908 against the judgment and decree dated 29.09.2008 made in A.S.No.48 of 2008 on the file of the Sub Court, Rasipuram, confirming the judgment and decree dated 01.12.2004 made in O.S.No.185 of 2002 on the file of the District Munsif Court, Rasipuram.

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For Appellant : Mr.T. Dhanyakumar For Respondent : Mr. D. Ravichandar

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JUDGMENT

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The second appeal is directed against the judgment and decree dated 29.09.2008 passed in A.S.No.48 of 2008 on the file of the Subordinate Court, Rasipuram, confirming the judgment and decree dated 01.12.2004 passed in O.S.No.185 of 2002 on the file of the District Munsif Court, Rasipuram.

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2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.

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The plaintiff in O.S.No.185 of 2002 is the appellant in the Second Appeal.

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The second appeal has been admitted on the following substantial question of law. "Whether the finding of the courts below that Ex.A6 is invalid for want of registration is correct, legal and sustainable?"

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Thus it is noted that the plaintiff is questioning the finding https://hcservices.ecourts.gov.in/hcservices/ of the courts below as regards Ex.A6 as an invalid document

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for want of registration. According to the plaintiff, the abovesaid determination of the courts below qua Ex.A6 is incorrect and not sustainable in the eyes of law.

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In the light of the abovesaid question of law formulated in the second appeal, it is not necessary to go into the facts of the case in detail.

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Suffice to state that the suit has been laid by the plaintiff as regards the XY thadam and sought for the relief of permanent injunction restraining the defendant from interfering with his possession and enjoyment of the said thadam and also sought for the reliefs of permanent injunction and mandatory injunction as B and C reliefs pertaining to W well and considering the materials placed on record on the part of the plaintiff and the defendant, both oral and documentary, the plaintiff having examined P.Ws.1 to 3 and marked Exs.A1 to A6 in support of his case and the defendant having examined D.Ws.1 and 2 and marked Ex.B1 in support of his case and further Exs.C1 and C2 had also been marked, the trial court was pleased to decline the relief of permanent injunction sought for by the plaintiff as regards the XY thadam i.e the relief A and decreed the suit in favour of the plaintiff as regards the reliefs sought for by him pertaining to W well i.e the reliefs B and C. Impugning the judgment and decree of the trial court, the first appeal has been preferred by the plaintiff. The first appellate court, on an appreciation of the materials available on record, finally came to the conclusion that as regards XY thadam, both the plaintiff and the defendant are each entitled to 0.01 cent as per Ex.B1 partition deed and accordingly, the plaintiff and the defendant are entitled to enjoy their respective share and they are not entitled to disturb the possession and enjoyment of the other qua the enjoyment of XY thadam and accordingly though the plaintiff and the defendant are the co-owners in respect of XY thadam, the plaintiff has established that the defendant is attempting to interfere with his possession and enjoyment of the abovesaid thadam and granted the relief of permanent injunction in favour of the plaintiff as regards the XY thadam.

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Now the case has been projected by the plaintiff before the courts below that the plaintiff and the defendant had entered into an exchange deed dated 26.11.2001 marked as Ex.A6, whereunder the defendant had given his right of ownership of 0.01 cent in XY thadam to the plaintiff and in turn, the plaintiff had handed over his right and ownership of 1.1/4 cent in YZ portion shown in Ex.A5 rough plan to the defendant and on that footing i.e. under Ex.A6 exchange deed according to the plaintiff, it is only he who is wholly and exclusively entitled to use XY thadam. For that purpose the plaintiff mainly relied upon Ex.A6 exchange deed. Admittedly Ex.A6 exchange deed is not a registered document. https://hcservices.ecourts.gov.in/hcservices/

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Now according to the defendant, the exchange deed had not been voluntarily executed by him and the plaintiff had obtained Ex.A6 exchange deed from him by exercising coercion and threat and therefore, the same should not be relied upon. However, the abovesaid version of the defendant had been disbelieved by the courts below.

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Still the courts below proceeded to hold that inasmuch as Ex.A6 exchange deed is an unregistered instrument whereunder the parties had endeavoured to exchange the properties worth more than Rs.100/-, on that premise, held that it is an invalid document. In this connection, the courts below had properly appreciated the materials available on record, particularly, considering the guideline value marked as Ex.B1 and accordingly holding that the property involved under exchange is having the value of more than Rs.100/- accordingly though Ex.A6 is found to have been executed between the parties, as the same is an unregistered instrument, it cannot be held to be a valid document. In this connection, the plaintiff having failed to place any material as to what was the market value of the property involved under the exchange deed Ex.A6 and on the other hand, when it is seen that the plaintiff witness P.W.2 himself has tendered evidence that the plaintiff's property is worth Rs.75,000/- per acre and so viewed, as held by the courts below, the value of one cent would be Rs.750/- and accordingly when the property involved under the exchange deed is more than one cent definitely as held by the courts below, Ex.A6 requires to be lawfully registered as per the provision of the Transfer of Property and Registration Act and accordingly, it is held by the courts below that the plaintiff cannot claim exclusive and absolute right over XY thadam based on Ex.A6 exchange deed and that the exchange deed Ex.A6 is an invalid document for want of registration as per law.

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The abovesaid determination of the courts below qua Ex.A6 is found to be based on the proper appreciation of the available materials on record, both oral and documentary and on factual matrix as well as on the point of law, and when they are not shown to be in any manner perverse, illogical and irrational by the plaintiff, resultantly, the finding of the courts below that Ex.A6 is an invalid instrument for want of registration is not liable to be disturbed or interfered with. The substantial question of law formulated in this second appeal is accordingly answered in favour of the defendant and against the plaintiff.

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The defendant's counsel in support of his various contentions, placed reliance upon the decision reported in (2003) 9 Supreme Court Cases 606 (Banarsi and others vs. Ram Phal). The principles of law outlined in the abovesaid decision are taken into consideration and followed as https://hcservices.ecourts.gov.in/hcservices/ applicable to the case at hand.

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In conclusion, the judgment and decree dated 29.09.2008 passed in A.S.No.48 of 2008 on the file of the Subordinate Court, Rasipuram, confirming the judgment and decree dated 01.12.2004 passed in O.S.No.185 of 2002 on the file of the District Munsif Court, Rasipuram, are confirmed. Resultantly, the second appeal is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

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Sd/-

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Assistant Registrar(CS)

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//True Copy//

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Sub Assistant Registrar

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bga

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The Subordinate Judge,Rasipuram. 2.The District Munsif, Rasipuram.

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3.Copy to:

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The Section Officer, VR Section, High Court, Madras.

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+1cc to Mr.T.Dhanya kumar, Advocate SR.No. 15335 +1cc to Mr.D.Ravichandran, Advocate SR.No. 14818

S.A.No.1681 of 2008

KK (CO)

A.SK(29.09.2021)

https://hcservices.ecourts.gov.in/hcservices/

Nallu Servai v. Arasan Servai

Case brief

What is this about?

What did the court decide?

Nallu Servai v. Arasan Servai

Case brief

What is this about?

What did the court decide?

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