Telangana High Court
M. Panduranga Reddy vs Smt. N. Narsamma on 29 November, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
C.R.P.No.2124 OF 2023
Between:
M.Panduranga Reddy
... Petitioner
And
Smt.N.Narsamma
... Respondent
JUDGMENT PRONOUNCED ON: 29.11.2023
THE HON'BLE MRS. JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
__________________
SUREPALLI NANDA, J
2
CRP_2124_2023
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
C.R.P.No.2124 OF 2023
% 29.11.2023
Between:
#M.Panduranga Reddy
... Petitioner
And
$ Smt.N.Narsamma
... Respondent
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr.P.Srihari Nath
^ Counsel for Respondent : Mr. B.Jithender
? Cases Referred:
(1) AIR 2008 SCW 4829 SCC
(2) AIR 1969, SC 1316
(3) 2023 SCC Online SC 381
(4) 2010 SCC
3
CRP_2124_2023
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
C.R.P.No. 2124 OF 2023
ORDER :
This Civil Revision Petition is filed challenging the propriety
and legality of the docket order dated 26.06.2023 in O.S.No.53
of 2017 passed by the Court of Junior Civil Judge, Zaheerabad
whereby and whereunder it was held by the trial Court that the
unregistered Agreement of Sale dated 25.01.2000 is inadmissible
in evidence and accordingly the objection raised by the plaintiff
was sustained.
2. For the sake of convenience, the parties are referred to as
they are arrayed in the suit before the trial Court.
3. The plaintiff filed the suit against the defendant for
declaration of her title for the suit property, for the eviction of
the defendant and for a decree for correction in the house tax
Revision Register of the Grampanchayat at Rajole for the year
1998-1999, by incorporating her name as owner of the suit
property after deleting the name of the plaintiff in respect
thereof.
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4. As can be seen from the plaint, the case of the plaintiff in
brief is that one Narayana Rao, was the owner and possessor of
the house bearing No.3-106, admeasuring 507.65 sq. yards
situated in Rajole Village. In the year 1987, the plaintiff
purchased the western portion of the said house which includes
constructed and open area admeasuring 226.65 sq. yards under
registered sale deed bearing document No.1723 of 1987 dated
18.08.1987 from the said Narayana Rao for valid consideration
and the vendor delivered possession of the properly to her as
shown in the schedule to the plaint (suit property). The
defendant is younger brother of the plaintiff. M.Vittal Reddy, the
father of the plaintiff and the defendant jointly purchased the
eastern portion of the above said house under registered sale
deed bearing document No.1722 of 1987 dated 18.08.1987.
About seven or eight years ago, the plaintiff at the request of the
defendant permitted him to reside in the suit house in January
2017, she asked him to vacate the suit house but he refused and
that is why plaintiff is constrained to file the suit. The defendant
filed written statement denying the case of the plaintiff and took
the plea that the plaintiff sold the suit house to him under simple
sale deed dated 25.01.2000 for sale consideration of Rs.31,000/-
and that with her consent he got mutated his name in revenue
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record and that ever since the date of purchase he has been in
possession and enjoyment of the suit house.
5. The impugned docket order shows that the defendant
intended to mark the unregistered agreement of sale dated
25.01.2000 and the plaintiff objected to the marking of the
document on the ground that the document is compulsorily
registerable under Section 17 of the Indian Registration Act,
1908 (for short the 'Act') and so it is inadmissible in evidence.
6. The trial Court upheld the objection of the plaintiff.
Aggrieved thereby the defendant preferred the present Revision
Petition.
7. Heard the arguments of both the learned counsel on
record.
PERUSED THE RECORD.
DISCUSSION AND CONCLUSION:
8. The learned counsel for the revision petitioner mainly
contended that the document is an agreement of sale and that
the document was impounded and stamp duty and penalty was
paid and so it can be admitted into evidence, and in support of
the said contention he relied upon the following Judgments.
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(1) The Apex Court Judgment dated 10.04.2023 reported
in 2023 SCC Online SC 381 in "R.HEMALATHA
v.KASHTHURI", in Civil Appeal No.2535/2023 (@SLP (C)
No.14884/2022).
(2) The Apex Court Judgment dated 12.04.2010 reported
in 2010 SCC in "S.KALADEVI v.V.R.SOMASUNDARAM &
OTHERS", in Civil Appeal No.3192/2010 (Arising out of SLP
(C) No.1451/2009).
(3) The order of this Court dated 25.04.2023 in "PATHI
CHANDRASEKHAR v. SYED SALAR AND & 16 OTHERS", in
Civil Revision Petition No.24 of 2003.
9. The learned counsel for the respondent refuting the above
contention submitted that the document is compulsorily
registrable under Section 17 of the Indian Registration Act, 1908
and so it cannot be admitted into evidence in the suit for
declaration of title and delivery of possession and in support of
his case, he relied upon the following decisions.
(1) The Madras High Court Judgment dated 02.06.2020
reported in 2020 in "AMERTHAM v. THANNACE; PALAIYA",
in Civil Revision Petition: Miscellaneous Petition No.1493 of
2011, 1 of 2011.
(2) The Apex Court Judgment dated 12.05.2008 reported
in AIR 2008 SCW 4829 Supreme Court in "M/s. K.B.SAHA
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AND SONS PVT.LTD v. M/s. DEVELOPMENT CONSULTANT
LTD", in Civil Appeal No.5659-5660 OF 2002.
(3) The Apex Court Judgment dated 03.02.1969 reported
in AIR 1969 Supreme Court 1316 in "RAGHUNATH AND
OTHERS v. KEDARNATH", in Civil Appeals Nos.457 and 458
of 1966.
(4) The Apex Court Judgment dated 23.09.2022 reported
in 2022 SCC Online SC 1283 in "BALARAM SINGH v. KELO
DEVI", in Civil Appeal No.6733 OF 2022.
10. A perusal of the agreement of sale dated 25.01.2000
would show that it is recited therein that the plaintiff sold
the property for consideration of Rs.31,000/- and
delivered possession of the property to the defendant and
that she assured she would not claim any right over the
property in future. The recitals in the document thus
would clearly show that the document in fact is a sale
deed though it is styled as agreement of sale. It is settled
position of law that the nature of the document has to be
decided by considering the recitals therein and not by the
nomenclature of it.
In "M/s.K.B.SAHA AND SONS PVT.LTD v. M/s.
DEVELOPMENT CONSULTANT LTD" reported in AIR 2008 SCW
4829 the Hon'ble Supreme Court in its Judgment dated
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12.05.2008 after considering its earlier decisions and of various
other high courts laid down legal principles regarding
admissibility of unregistered document for collateral
purpose/transaction and the proviso to Section 49 of the Act in
para 21 as hereunder:
"21. From the principles laid down in the various
decisions of this Court and the High Courts, as
referred to hereinabove, it is evidence that:-
1. A document required to be registered is not
admissible into evidence under Section 49 of the
Registration Act.
2. 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.
3. A collateral transaction must be independent of,
or divisible from, the transaction to effect which
the law required registration.
4. 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.
5. 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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In "RAGHUNATH AND OTHERS v. KEDARNATH", reported in
AIR 1969, SC 1316 a three Judges bench of Supreme Court vide
its judgment dated 03.02.1969 held that the documents of which
registration is necessary under the transfer of property Act but
not under the Registration Act fall within the scope of Section 49
of the Registration Act, 1908 and if not registered are not
admissible as evidence of any transaction affecting any
immovable property comprised therein, and do not affect any
such immovable property.
In "R.HEMALATHA v. KASHTHURI" reported in 2023 SCC
Online SC 381, it was held that an unregistered Agreement to
sell is an admissible evidence in a suit for Specific Performance
and the proviso is exception to the first part of Section 49 of the
Registration Act, 1908.
In "S.KALADEVI v. V.R.SOMASUNDARAM & OTHERS",
reported in 2010 SCC wherein the Apex Court held that in a suit
for Specific Performance an unregistered sale deed is admissible
in evidence.
11. In the present case the suit is filed for declaration of
title and eviction of the defendant. There is no dispute
about the fact that the defendant is not in possession of
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the suit property. Regarding the nature of possession, the
plea of the plaintiff is that the possession of the defendant
is permissive possession whereas the defendant asserts
that he is in possession as lawful owner by virtue of
agreement of sale which disclosed complete sale. In as
much as the document in question is a sale deed showing
conveyance of title it is compulsorily registrable under
Section 17 of the Registration Act, 1908. That stamp duty
and penalty was paid is no ground to admit the document
in evidence in view of the embargo under Section 49 of
the Registration Act, 1908 regarding admission of a
document which is compulsorily registrable. The
document cannot be admitted into evidence on the ground
of collateral purpose/transaction for the reason that the
document is sought to be admitted in evidence for proof
of the transaction affecting the immovable property
comprised therein.
12. This Court opines that the decisions relied upon by
the counsel for the revision petitioner, are not applicable
to the facts of the present case because those decisions
were rendered in a suit for specific performance whereas
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in the present case the suit is filed for declaration of title
and recovery of possession.
13. For the aforesaid reasons, this Court opines that
there is no illegality or impropriety in the order dated
26.06.2023 in O.S.No.53 of 2017 passed by the Court of
Junior Civil Judge, Zaheerabad, and accordingly, the Civil
Revision Petition is dismissed. There shall be no order as
to costs.
Miscellaneous petitions, if any pending, shall stand
closed.
__________________
SUREPALLI NANDA, J
Date: 29.11.2023
Note : L.R. Copy to be marked.
(B/o) Yvkr.
