Madras High Court
Chengammal vs Kadar Basha on 6 November, 2025
S.A. No. 762 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.10.2025 : Pronounced on 06.11.2025
CORAM
THE HONOURABLE Dr. JUSTICE R.N.MANJULA
S.A. No. 762 of 2010
and M.P. No. 1 of 2010
1.Chengammal
2.Munusamy Naidu ...Plaintiffs /Appellants
Vs.
1.Kadar Basha
2.Abdul Raheem ...Defendants/Respondents
PRAYER: Second Appeal is filed under section 100 of the Code of Civil
Procedure, 1908, to set aside the judgment and decree dated 12.11.2008 made
in A.S. No. 14 of 2003 on the file of the Subordinate Judge, Ponneri, reversing
the judgment and decree dated 26.03.2003 made in O.S. No. 401 1983 on the
file of the District Munsif Court, Ponneri.
For Appellants : Mr.R.Munuswmy
For Respondents : M/s.N.S.Mohamed Jafarullah, K.Anusarala (R1)
R1-unclaimed
JUDGMENT
The appellants are the plaintiffs. The suit has been filed by the plaintiffs
for the relief of recovery of possession. The trial Court decreed the suit and
the First Appeal preferred by the defendants was allowed by the First
Appellate Court by reversing the judgment of the Trial Court. Hence, the
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Second Appeal has been filed by the plaintiffs.
2. Short facts pleaded in the plaint :-
2.1. The plaintiffs 1 and 2 are wife and husband. The suit
property is the absolute property of the 1st plaintiff. She
constructed a house in the suit site out of her own funds which she
earned out of milk vending business. The plaintiffs are in
possession and enjoyment of the suit property for more than 15
years. As the 2nd plaintiff was managing the family, the property
tax of the suit property was originally assessed in his name and
later it was assessed in the name of the 1st plaintiff.
2.2. On 15.07.1983, the defendants came to the suit property
and took up an argument with the plaintiffs and asked them to
vacate. It is claimed by the defendants that the 2nd plaintiff has
affixed her thumb impression in blank papers. The 1st defendant
taking undue advantage of the friendship he had with the 2nd
plaintiff, compelled him to consume country arrack and got his
thumb impression in blank papers when he was under the
influence of alcohol. The defendants have also taken some house
tax receipts from the 2nd plaintiff.
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2.3. On 18.07.1983, the 1st plaintiff sent a legal notice to the
1st defendant calling upon him to return the papers illegally
obtained from her husband. The 1st defendant received the notice,
but he did not comply with the demand. As the 1st and 2nd
defendants joined hands and tried to evict the plaintiffs from the
suit property, the plaintiffs have filed the suit for permanent
injunction. As the defendants have dispossessed the plaintiffs
during the pendency of the suit by force, the plaint has been
amended by including the relief of declaration and recovery of
possession.
3. The written statement of the 1st defendant in brief:-
3.1. The 1st plaintiff is not the absolute owner of the suit
property. The 1st plaintiff did not have any means to acquire the
property. The 2nd plaintiff had occupied the suit property and put up
a superstructure out of his own funds and started to live there. The
1st plaintiff was not doing any milk vending business. The 2nd
plaintiff was the milk vendor. The 1st plaintiff was living in the suit
property only as a dependant of the 2nd plaintiff. The house tax
assessment was made only in the name of the 2nd plaintiff.
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3.2. It is denied that the house was assessed in the name of
the 1st plaintiff. The 2nd plaintiff's legally wedded wife belongs to
Aarambakkam and she got separated from him. So he started to live
with the company of some other woman and thereafter, with the 1st
plaintiff.
3.3. On 03.05.1983, the 2nd plaintiff conveyed the suit
property to the 1st defendant for a sale consideration of Rs.1,100/-
and executed an unregistered sale deed and on the same day, he
delivered the possession of the suit property also. It is false to state
that the thumb impression of the 2nd plaintiff was obtained by
forcing him when he was in an intoxicated mood and he also
handed over the tax receipts to the defendants.
3.4. After taking possession, the 1st defendant has renovated
the damaged superstructure. The 1st defendant has performed his
part of contract and he is entitled to the benefit of Section 53-A of
the Transfer of Property Act, 1882. Hence, his possession has to be
protected. The 2nd defendant has filed his written-statement stating
that he is an unnecessary party and he had never attempted to
trespass into the suit property.
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4. On the basis of the above pleadings, the following issues have been
framed by the trial Court:-
“1. Whether the first plaintiff was the owner of the suit
property?
2. Whether the first defendant is in possession of the suit
property in part performance of a contract and if so whether he
is qualified to get the benefits of Section 53A of the Transfer of
Property Act.
3. Whether the plaintiffs are entitled to evict the first defendant
and recover vacant possession from him?
4. To what other relief are the plaintiffs entitled?”
5. During the course of trial, on the side of the plaintiffs, two witnesses
were examined as PW1 and PW2 and four documents were marked as Ex.A1
to A4 and on the side of the defendants, four witnesses were examined DW1
to DW4 and 14 documents have been marked as Exs. B1 to B14.
6. At the conclusion of the trial and after considering the evidence on
records, the Trial Court has decreed the suit as prayed. Aggrieved over that,
the defendants have filed the first appeal in A.S. No. 14 of 2003 on the file of
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the Sub Court, Ponneri and the same was allowed by reversing the judgment
of the Trial Court. Hence, the plaintiffs have filed this Second Appeal.
7. The Second Appeal has been admitted on the following substantial
questions of law :-
“(1) Whether the unregistered inadequate stamped document
/Ex.B1 could grant title and right of possession to the
respondents?
(2) Whether under the said Ex.B1 which is neither registered
nor adequately stamped, the respondents could claim right of
part performance under Section 53-A of the Transfer of
Property Act, 1882?”
Appellants arguments:-
8. The learned counsel for the appellants/plaintiffs
submitted that under Section 53-A of the Transfer of Property
Act, 1882, the contract must be lawful and enforceable. If the
contract is executed by fraud, mistake and want of free will,
the benefit of Section 53 will not accrue to the transferee viz.,
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the 1st defendant.
8.1. The Trial Court has observed that Ex.B1/alleged
unregistered sale deed is found to be in two parts written in
different inks and with different hand writings and the thumb
impression of the 2nd plaintiff has not been obtained below the
2nd part. There are some interlineations and additions seen in
that document. The Trial Court has observed that Ex.B2 is a
doubtful document and it cannot be relied. The 1st defendant
had ignored the right position and proceeded to file the appeal.
The First Appellate Court has not considered the legal aspect
of Section 53-A of the Transfer of Property Act, 1882 and the
validity of Ex.B1 which is an unregistered document and
cannot be relied as an evidence.
Respondents side arguments:-
9. The learned counsel for the 1st respondent/1st defendant
submitted that the 1st defendant has taken possession right from
the year 1983 and he has been in enjoyment of the same. The
plaintiffs have not proved that there was a forcible eviction as
pleaded by them. As the possession of the 1st defendant itself
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would show that the performance of the agreement to sell the suit
property to the 1st defendant, his possession has to be protected.
The First Appellate Court has rightly appreciated the said fact
and allowed the First Appeal.
Discussion:-
10. The fact that the suit property originally belonged to the 2nd plaintiff
is not denied, but the 1st defendant has denied that the 1st plaintiff is the owner
of the property, but the 2nd plaintiff had been in possession of the same. The
1st defendant has claimed further that on 03.05.1983, the 2nd plaintiff had
validly conveyed the suit property to the 1st defendant by receiving the entire
sale consideration of Rs.1,100/- and executed a deed. It is further claimed that
the 2nd plaintiff has delivered the possession of the suit property also to the 1st
defendant. Admittedly, Ex.B1 document which is claimed to be the document
of title in favour of the 1st defendant is not a registered one. At the same time,
it has not been stated that Ex.B1 is only a sale agreement. The 2 nd plaintiff did
not have any previous document of title in his name. It appears that the
plaintiffs have been in enjoyment of the suit property by paying house tax for
the same. In Ex.A3/House Tax Receipts, names of both the plaintiffs are
found. The plaintiffs are husband and wife. So, in the absence of any
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document to show that the 2nd plaintiff is the absolute and sole owner of the
suit property, it cannot be denied that the 1st plaintiff has joint interest in the
suit property by taking into consideration of the joint enjoyment of the
plaintiffs over the suit property.
11. The contention of the plaintiffs is that the 1st defendant had
managed to obtain the thumb impression of the 2nd plaintiff in Ex.B1 while he
was in an intoxicated mood and claimed to have derived title. However, it is
claimed by the 1st defendant that Ex.B1 conveys valid title in his favour and
consequent thereof, he has been put in possession also. At another stretch, the
1st defendant also claims that he is entitled to the benefit of Section 53-A of
the Transfer of Property Act as he has done the part performance of the
contract. It is further pleaded by the 1st defendant that he is ready to perform
his part of contract. If the 1st defendant had paid the sale consideration in full
to the 2nd plaintiff by proceeding that he is the sole owner of the suit property,
it is not known what is the remaining part of the contract to be fulfilled by the
1st defendant.
12. As per Section 17 of the Registration Act, 1908, any non-
testamentary instrument, which purports or operates to create, declare,
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assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, in respect of an immovable property of
value of more than Rs.100 /-, shall be registered.
13. As per Section 49 of the Registration Act, the documents required
to be registered under Section 17 cannot be received as the evidence for any
transactions affecting such property, unless it has been registered. But as per
proviso to Section 49 before amendment (Act 48 of 2001), even an
unregistered document affecting immovable property can be received as
evidence for particular performance of a contract for the purposes of Section
53-A of the Transfer of Property Act, 1882. As per Section 53-A of the
Transfer of Property Act as it stood before amendment, the possession of a
person, who has partly performed a contract, can be protected even against
the transferor or any person claiming under him. This is irrespective of the
fact whether the contract is a registered one or not. Ex.B1 through which the
1st defendant claims his interest over the suit property is dated 03.05.1983.
The above date is prior to 2001 amendment and hence, the 1st defendant ought
to have made his stand clear whether Ex.B1 document is considered as a sale
deed or sale agreement. The 1st defendant has made confusing averments in
their written statement and the 1st defendant himself is not sure about the
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transaction.
14. But on perusal of the Ex.B1, and by going with the averments
therein it can only be presumed that Ex.B1 is written as a sale deed and it was
not treated as sale agreement by the 1st defendant. In such case, the 1st
defendant cannot have the benefit of protection of possession by invoking
Section 53-A of the Transfer of Property Act, 1882.
15. Once it is concluded that Ex.B1 cannot be treated as sale
agreement, then it ought to have been registered in terms of Section 17 of the
Registration Act, 1908. So, inadmissibility of an unregistered sale deed even
before or after amendment of the immovable property of value is more than
Rs.100/- remains the same. So the 1st defendant cannot claim title and
consequent possession over the suit property by considering Ex.B1 as the
document transferring title in the suit property, which even according to the
1st defendant is valued at Rs.1,100/-. So there is no question of applicability
of Section 53-A of the Transfer of Property Act on the basis of the facts
pleaded by the 1st defendant.
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16. Apart from the unregistered nature of Ex.B1, the 1st defendant has
not made it clear as to whether the 2nd plaintiff is the absolute owner of the
suit property. It has already been stated that Ex.A3 House Tax Receipts seem
to be standing in the name of the plaintiffs. No prior document of title is said
to have been handed over to the 1st defendant at the time when Ex.B1 was
executed by the 2nd plaintiff.
17. The contention of the plaintiffs is that the 1st defendant had obtained
the thumb impression of the 2nd plaintiff by making him intoxicated. Even if it
is presumed that the 2nd plaintiff has affixed his thumb impression consciously
on Ex.B1, it cannot convey any valid title in favour of the 1st defendant as it is
an unregistered document. As the unregistered sale deed cannot convey any
title in favour of the transferee in view of the bar under Section 17 of the
Registration Act, 1908, the 1st defendant ought not to have been found to have
acquired title and consequent protection for his possession.
18. The First Appellate Court appears to have considered the possession
of the 1st defendant as part performance of a contract under Section 53-A of
the Transfer of Property Act, 1882. But the 1st defendant had at no point of
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time claimed that Ex.B1 is a sale agreement and it was an incomplete contract
of sale and by way of part performance, he was put into possession of the suit
property. Even if it is assumed for the sake of argument without attempting
that Ex.B1 is a partly performed contract, then the benefit of protection of
possession under Section 53-A of the Transfer of Property Act is available to
the 1st defendant only when the contract is not tainted by fraud, mistake or for
want of free will etc.,
19. The Trial Court had observed in its judgment that contracts that
comes under the Transfer of Property Act shall be considered as part of the
Indian Contracts Act as well. In such case, the transferee of the Ex.B1 has got
the burden to prove that it is a valid contract. The 1st defendant himself did not
deny the title of the plaintiffs though he claimed that the title vested only with
the 2nd plaintiff. Even if it is presumed that the 2nd plaintiff alone is the title
holder of the suit property, it should be proved by the 1st defendant that Ex.B1
contracts has been executed by the 2nd plaintiff out of his free will while he
was not in an intoxicated mood and unsound state of mind. At the time when
the suit was filed, the plaintiffs were in the possession of the suit property and
to prove that, the house tax receipts in the name of the plaintiffs have also
been produced as Exs. A3 and A4. On perusal of Ex.B1/sale deed, it is seen
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that the thumb impression of the 2nd plaintiff has been obtained on revenue
stamp and the property, which is said to have been subjected to sale, had been
written below his thumb impression. The 2nd plaintiff has not affixed his
thumb impression once again below the property particulars. So, there are
possibilities for the 1st defendant himself to include it subsequently.
20. In all probabilities, Ex.B1 document can neither be considered as a
valid sale deed for want of registration nor considered as a valid contract for
want of proof of free will on the part of the 2nd plaintiff. In whichever way
Ex.B1 is adduced in evidence, that will not confer either valid title or valid
possession over the suit property for the 1st defendant. Ex.B1 pertains to a date
prior to the year 2001, but it ought to have been registered because the 1st
defendant had considered that as a sale deed by showing the sale value as
Rs.1,100/-. The difference between the claim of the person under Section 17
and under Section 53-A has been elaborated by the Hon'ble Supreme Court in
the judgment of the Guman Singh -vs- Manga Singh reported in
Manu/SC/0872/2016. By making reference to the earlier judgment in
Ranchhoddas Chhaganlal -vs- Devaji Supdu Dorik reported in 1977 (3) SCC
584, the Hon'ble Supreme Court in Guman Singh has held as follows:-
“From the facts narrated above, it becomes manifest that
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the purported sale deed dated 02.05.1966 was never registered
and remained an unregistered document. Even as per the
appellants, consideration for the suit land was Rs.9000/-, i.e.,
more than Rs.100. The transaction pertains to immovable
property. Such a sale deed was compulsorily registrable under
Section 17 of the Indian Registration Act. The consequence of
non-registration are provided in Section 49 thereof. Such
document cannot be led into evidence and no rights indicated in
the said document can be pressed and claimed. The document
can be seen only for collateral purposes. In the instant case, on
the basis of the said document, the appellants are claiming
ownership which cannot be countenanced. Thus, the appellants
cannot claim that they had become owners of the suit land on the
basis of document dated 02.05.1966. Insofar as rights claimed
on the basis of Section 53A of the Act are concerned, that deals
with only part-performance. It has been held by this Court in
'Ranchhoddas Chhaganlal v. Devaji Supdu Dorik' [1977 (3) SCC
584] that the plea of Section 53A of the Act can be taken only in
defence. It is a sword and not a shield. In the present case, suit
was filed by the appellants and we are not dealing with a
situation where suit is filed against the appellants and on the
allegations of the said part-performance, their claim had to be
their defence. In order to get the reliefs claimed by them, they
were required to show their ownership in the suit land, in which
attempt they have failed may be because of the reason that the
sale deed in question on which they rely upon is an unregistered
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document.”
21. In the case on hand, the 1st defendant tried to use Ex.B1/Sale deed as
a sword and a shield by making pleas to consider it both as the sale deed and
also as a partly performed contract under Section 53-A of the Transfer of
Property Act. As the 1st defendant had taken a confused stand and Ex.B1
document does not have any averments to consider that as an incomplete sale
or sale agreement, the said document cannot be considered either to confirm
the title or to protect the possession of the 1st defendant over the suit property.
So Ex.B1 is hit under Section 17 of the Registration Act. The petitioner cannot
be found to be either owner or a person who is in lawful possession of the suit
property. In other words, though Ex.B1 was prior to 2001 amendment, it can
be considered as a sale deed in view of its recitals, and due to its unregistered
nature, it cannot convey any effective title. Hence, the substantial questions
of law No.1 is answered accordingly.
22. Ex.B1 document is not proved to be a valid contract. On the other
hand, the manner in which it has been written and the type of affixure of the
thumb impression of the 2nd plaintiff on the same would only show that there
is no valid contract which might protect the possession of the 1st defendant
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against the transferee viz., the 2nd plaintiff. Thus, the substantial question of
law No.2 is answered accordingly.
23. As the First Appellate Court had properly appreciated both the facts
and law involved in this case, and the answers to the substantial questions are
given in favour of the plaintiffs, this Second Appeal deserves to be allowed.
24. In the result, the appeal is allowed. The judgment and decree dated
12.11.2008 in A.S. No. 14 of 2003 passed by the First Appellate Court is set
aside and the judgment and decree dated 26.03.2003 in O.S. No. 401 1983
passed by the Trial Court is restored. No costs. Connected petition is closed.
25. The 1st defendant shall hand over the possession of the suit schedule
property to the plaintiffs within a period of one month from the date of receipt
of a copy of this judgment.
06.11.2025
Index : Yes/No
Speaking order : Yes/No
NCC : Yes/No
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Maya
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To
1. The Subordinate Judge, Ponneri.
2. The District Munsif Court, Ponneri.
3. The Section Officer,
V.R. Section,
High Court, Madras.
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Dr.R.N.MANJULA, J.
Maya
06.11.2025
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