Dismissed

Deshetti Narayana Rao v. Zarupula Ramdas

Telangana HC25 Jan 2024CRP/3617/2023

Case brief

AI extract

What is this about?

This order dismisses a civil revision petition challenging a trial court's decision to reject an unregistered memorandum of deposit of title deed as evidence. The High Court upheld the trial court's view that the document, creating an equitable mortgage, required registration under the Transfer of Property Act and Stamp Act, distinguishing it from stamp duty deficiency cases covered by Bipin Shant

What did the court decide?

The civil revision petition is dismissed, confirming the order dated 10.11.2023 passed by the Principal District Judge, Hanumakonda.

Deshetti Narayana Rao Vs Zarupula Ramdas — Property and Title | Telangana HC (2024)

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[³¹⁶⁸ I

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HIGH COURT^{FOR THE STATE OF TELANGANA}

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THURSDAY,THE . -^{TWENTY FIFTH DAY OF JANUARY} TWOTHOUSANDANDTWENTYFOUR

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PRESENT

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THE HONOURABLE^{SRI JUSTICE K.LAKSHMAN}

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. ..1'.;,[:l lrHf,f" ,.

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clvIL^{REVISION PETITIO} NO:3617^{OF 223}

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Petition under^{Arlicle227 of the Constitutionof lndia'aggrieved by the} order dated^{10t11t2023 in oil'ruo. iiqtiozzon the file of the Principal District} Judge, Hanmakonda

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Between:

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I DeshettiNarayanaRao,s/o.Rangaiah'Age.64years,occ.Retired employee,

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2 Deshetti Viiava,^{W/o. Narayana Rao,Age59 years'Occ Housewifebeing} reo bv her GPA^{holder D":ftti*N;;;i;ni-nao'S/o' Rangaiah' Age 64} years, Occ. Retired^emPloYee,

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Rolh are residenls of^{H.No.2-7-1076, KanakadurgaColony'Subedari'} -tranmatonOa, Warangal, T.S- 506001 '

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...PETITIONERS/PLAINTIFFS

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AND

TaruoulaRamdas,s/o.NanyaNaik,Age.54years'.occ.Government :il;'.;;".'Fio]"ci,i"r^{Frunnirig officdr,Flannins-department' collectorate} offites complex,^{Khammam-507001'}

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... RESPONDENT/DEFENDANT

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IA NO:1 OF²⁰²³

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PetitionunderSectionl5lCPCprayingthatinthecircumstancesstated in the affidavit^{filed in support of the petition,the HighCourt may be pleased to} grrni it.V of the ordei^{passed by the pa19!by.^PrincipalDistrict tudge} ilanamkonda in^{o.S. No.13412022 (old o.S.No.8t2O17) dated 1o11112O23,} pending disposal of the^CRP

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Counsel for the^{Petitioners: SRl. N. NARAYANA}

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Counsel for the Respondent:^{JOGRAMTEJAVAT}

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The Court made the^{following:ORDER}

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',1. ,rsl'

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HON'BLE SRI JUSTICE K. LAKSHMAN C IVIL REVISION PETITION No.3617 OF 20,13

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ORDER:

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Hear,l Mr. Nimma Narayana, leamed counsel for the petitioners and Mr. Jog ram Tejavath, leamed counsel for the respondent.

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T rc present Civil Revision^petition is filed challenging the order dated 10.11.2023 in O.S. No.134 of 2022 (Old O.S. No.0g of 2017) passed by the Principal District Judge, Hanumakoncla, holding that the memorandum of deposit of title deed dated )4.04.2016 referred to as Ex.Al in the evidence affidavit of^pW. 1 is in,rdmissible in evidence and cannot be exhibited and cannot be re,ceived in evidence as it is not a registered document though it is cornpulsorily registerable one.

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The petitioners herein are the plaintiffs in O.S. lrio.l34 of 2022 pending on the file of Principal District Judge, Hanumakonda, while the respondent herein is the defendant.

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Fol the sake of convenience, the parties will be hereinafter called as arrayed in O.S. No. I 34 of 2022.

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5, PlzLintiffs filed the aforesaid suit (O.S. No. 134 of 2022) against the d:fendant for preliminary decree for recovery of money

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2 KL, J CRP No.l6l7^of2023

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and the^{mortgagedpropertyand final decreefor sale ofthe mortgaged} proPerty.

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i) In the^{plaint, it is averredby the plaintiffs that the defendant} took an amount^{of Rs'55'00lakhs from themas loan agreeing to repay} the same^{with interest @ 2%' per month thereonwithin six (06)} months^{and offeredthe scheduleproperty as security for the said loan'} After receipt^{of the said amount'the defendantcreated equitable} mortgage^{of the suit scheduleproperty by way of depositof title deeds} and evidencing^{the same, the defendant had executeda Memorandum} of Deposit^{of Title Deeds on 14'04'2016in favour of the plaintiffs'}

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When^{the aforesaidsuit was comingfor trial' plaintiffNo'l} had filed^{his affidavitin lieu of chief-examinationas PW'l' In the} said afhdavit,^{the plaintiffsexhibited the said original memorandum} of deposit^{of title deeds, dated14'04'2016 as Ex'Al' for whichleamed} counsel for^{the defendant objectedon the groundthat the said} document^{requiresregistration as it was executed on the sameday} evidencing^{creation of equitable mortgageby deposit of title deedsas} security ofthe^{loan transactionandprayed the trial Courtto decide the} said issue before^{proceedingwith further'On the other hand' ieamed}

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I I

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KL, J CIIP !()-3617 of2023

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counsel for the plaintiffs contended that the said document does not require registration.

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Leemed, counsel for the defendant objected for marking the aforesaid do{)ument as an exhibit on behalf of the plaintiff and requested the trial Court to decide the said issue as a prelimir:ary issue before proce,:ding with the matter further. The trial Cc,urt after hearing both sides on the said objection, passed the impugrted order holding that the memorandum of deposit of title dee,d dated 14.04.2016 referred to as Ex.Al in the evidence affidavit of pW.1 is inadmissible in evidence, cannot be exhibited and recr:ived in evidence as it is not a registered document and it requires regir;tration.

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Challenging the said order dated 10.11.2023 passed by the trial Court in O.S. No.l34 of 2022 the plaintiffs filed the present revision on tht: following grounds:

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i) The subject document has already been impounced and, therefore, the objection with regard to insufficiency of starnp duty cannot be sustirined;

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ii) Th: only objection raised is with regard to .,rrant of registration wt ich could have been postponed as per the principle taid

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KL, J CRP No.36l7 of2023

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down by the^{Hon'bleSupreme Court in BipinShantilal Panchal v.}

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State of Gujaratr;

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iii) The trial Court^{committedmaterial irregularity while} exercising its^{power vestedwith it under law;and}

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ir) The trial Court^passed the^{impugnedorder based on} misconception^{of law and facts;}

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On the other^{hand, leamed counselfor the defendantwould} submit that the^{defendantdid not take any amount much less the} amount alleged^{in the suit from the plaintiffsand did not execute the} alleged mortgage^{document. Sincethe said documentis not registered} one, it is inadmissible^{in evidence and, therefore,the same cannotbe} received in evidence.^{He would further subrnit that the impugned} order passed by trial^{Court is reasonedand well-founded and thereis} no error in it.

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As discussed above,^{plaintiffshave filed the aforesaid suit} vide O.S. No.134 of^{2022 againstthe defendant for recovery of money} basing on the subject^memorandum of^{deposit of titledeed.} Admittedly, the said^memorandum of^{depositof title deed is an} unregistered document.^{PlaintiffNo.1 had filed affidavit in-lieuof his}

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'.^{aln 2oot sc tts8} -,,

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KL, J CRt'No.l6l7 of2023

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chief-examination^{(PW.1) and} sought to mark the said mernorandum of deposit^{ol title deed, dated 14.04.2016} as an exhibit. The defendant objected^{for markingof the same} on the^ground that il is not a registered^{dccumentand, therefore,} the same is inadmissible tn evidence.

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I 1. Ir. is the specific contention of the plaintiffs ttrat it was executed^{by rhe defendantonly for} collateral^purpose and, therefore, it need not^{be registered.Whereas,} it^{is the} specific contention of the defendant ofthe^{plaintiffshave} filed the aforesaid suit basi:rg on the said memorandum^{of deposit} of title deed, therefore, registration of the said^{docrtmentis mandatory. Both the parties} have relied upon some^{judgmentsreferred to in the impugned} order.

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F.eferring to the principle laid down in the aforesaid judgments, the trial Court gave a specific finding that cbjection regarding^{ina,lmissibilityof memorandum of deposit} of title deed for want of regis.ration^{has to be decidedbefore proceeding} further and that the^{sub. ect memorandum} of^deposit of title deed requires registration^{es itwas executed on the} day of^extending loan evidencing^{cr,)ation of equitable mortgage} by deposit of title deed of securing^{loatr transaction. Therefore,} the said docu.lent is

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.1
n

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KL, J CRP No.36l7 of202l

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inadmissible^{in evidence and cannot be exhibitedand cannot be} received in^{evidence as it is not a registered documentthough it is} compulsorily^{registerable document.}

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Leamed^{counselfor the plaintiffs relied upon the principle} laid down by^{the Apex Courtin Bipin Shantilal Panchalr, wherein it} was held as follows:

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"14.^{Whenso recast, the practice whichcan be a} better substihrte^{is this: Whenever an objectionis} raised during evidence^{takingstageregardingthe} admissibility of^{any materialor item of oral} evidence the trial^{courtcan makea noteof such} objection and mark the^{objecteddocument} tentatively as an^{exhibitin the case(or record the} objected^part of^{the oral evidence) subjectto such} objections to^{be decidedat the last stage in the} final^judgment. If^{the court finds at the final stage} that the objection^{so raised is sustainablethe 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 relatesto} dehciency of^{stamp duty of a documentthe court} has to decide^{the objection beforeproceeding} further. For all^{other objectionsthe procedure} suggested^{above can be followed.)}

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KL, J CRI No.36l7 of2023

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Thc above procedure, if followed, will havc fvo advantages. First is that the time in the trial court, during evidence taking stage, would not be v,asted on account of raising such objections and tlre court can continue to examine the witnesses. The witnesses need not wait for long hours, if not dlys. Second is that the superior court, when the sirme objection is re-canvassed and reconsidered in al)peal or revision against the final judgment of the trial court, can determine the correctness of the vjew taken by the trial court regarding that olrjection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would rlot cause arry prejudice to the parties to the litigation and w ruld not add to their misery or expenses.

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. 6. 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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i) Thr: plaintiffs have also relied upon the principle l,tid down by this Court in Sheikh Qutubuddin v. Goli Vishwarratham2, wherein a lez.rned Judge of this Court referring to Bipin tihantilal Panchall anc other judgments held that if an objection regarding '.^zott 1zy^{eto re}

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KL, J CRP No.l6l7^of2023

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maintainability^{of a document is raised on the ground that there was} deficiency^{of stamp duty, the Court has to decide the objectionbefore} proceeding further.^{The said principlewas reiterated in Ahmed} Abdul Raheem^{v. Mohd. AbdulAziz3'}

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The defendant^{hasrelied upon the principle laid down by} the Delhi^{High Court in Sh. Ishar Dass Malhotrav' Sh' Dhanwant} Singha and^{the combinedHigh court ofAndhra Pradesh at Hyderabad} in Ahmed Abdul^Raheem3.

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In the subject^{memorandum of deposit of title deed, dated} 14.04.2016,itisspecif,rcallymentionedthatthedefendantisthe absolute owner^{and possessor of the subject property' Hehas} delivered and^{depositedthe said title deed and the link document in} favour of the^{plaintiffsherein by creating equitable mortgage of the} aforesaid property^{for securing the repaymentof Rs'55'00lakhs which} he borrowed that^{day with interest thereon} @^{2Yo per month' He also} agreed to^{pay the said amount together with interest within six (06)} months.Thesaiddocumentwasexecutedon14.04.2016andthesaid amount was^{paidto the defendant by the plaintiffs on the sameday' It}

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was executed only^{on fifty rupee non-judicialstarnp paper'}

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t . zotz 121 eLo zoa n. ntn tg85 Delhi tl

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KL. J CRP^.1o.3617 of2023

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\ \

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Admittedly, it is not a registered document. Therefore, the said document ha; to be registered necessarily and registration of the said document is^r:ompulsory in terms of Section - 58(a) of the Transfer of Property Act, 1882 and the provisions of the Indian Stamp l.ct, 1899. Thus, the co;rtention of the plaintiffs that it was executed oniy for collateral purl)ose and, therefore, registration is not compulso.y cannot be accepted.

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The defendant has raised an objection with regard to marking of subject memorandum of deposit of title deed, dated 14.04.2016 on the ground that it is inadmissible since it is an unregistered c ocument, the said aspect has to be decided firr;t before proceeding further.

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On consideration of the said aspects, more particularly, the provisions of the Transfer of Property Act, 1882 and the Indian Stamp Act, 1899 and the principle laid down by the Apex Court and other High Courts in the aforesaid^judgments, vide impugned orderr, dated 10.11.2023, trial Court held that the memorandum of deposir of title deed dated 14.04.2016^{is inadmissible} in evidence. The samt; cannot be exhibited^{rrnd cannot} be^received in evidence as it ir; not a registered doctrment^{though it is compulsorily} registerable do,:ument.

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KL. J CRP No.36l7 of2023

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The trial Court rightly^{held that the said issue has to be decidedfirst} and then proceed further^{in the matter. Thesaid finding of the trial} Court is a reasoned^{one and well-founded. It does not require any} interference by this Court^{in exercise of its supervisory powers under} Article - 227 of the Constitution^{of India. Thus, the revision fails and} the same is liable to be dismissed.

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The present Civil^{RevisionPetition is accordingly} dismissed confirming the^{orderdated l0'l1.2023in O.S. No.134 of} 2022 (Old.O.S. No.08^{of 2017) passed by the PrincipalDistrictJudge,} Hanumakonda. In the^{.circumstancesof the case, there shallbe no} order as to costs.

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As a sequel, miscellaneous^{petitions,if any, pending in the}

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revision shall stand closed.

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"'''^3B,Stfffl$ffiiew SECTION ''/ ;ER I^OFFIC

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//TRUE^COPY// SECTION ''/ ;ER I^OFFIC

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