E.J. Sebastian and Annakkutty Sebastian v. M.M. Sebastian and ESki

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 1853 of 2008(U) ------------------------OS.118/2006 of MUNI-MAGI COURT, DEVICOLAM .................... PETITIONER: ------------ 1. E.J.SEBASTIAN, PLANTER, ELANJIMATTATHIL HOUSE, PUTHUPPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, GODOWN ROAD, EDAPPALLY TOLL, COCHIN-24. 2. ANNAKUTTY SEBASTIAN, RESIDING IN -DO- -DO-, (PETITIONERS REP.BY THEIR P/A HOLDER THEIR SON, REJI SEBASTIAN, BUSINESS AND PLANTER, ELANJIMATTATHIL HOUSE, PUTHUPPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE, GODOWN ROAD, EDAPPALLY TOLL, COCHIN-24). BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: - ------------- 1. M.M.SEBASTIAN, WORKER, MOOLANVEETTIL, VILAKK PART, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK. 2. ESKI, WORKER, S/O. VELUCHAMY, VILAKK, CHINNAKANAL KARA, UDUMBANCHOLA TALUK. R1, R2 BY ADV. SRI.LATHEESH SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WPC.1853/08** ## **PETITIONER'S EXHIBITS** : EXT.P1: DATED 10.9.1969, TRUE COPY OF THE DOCUMENT, THEER UDAMPADY. EXT.P2: DATED 7.1.2008, TRUE COPY OF THE ORDER IN O.S.NO.118/06 MUNSIFF'S COURT, DEVIKULAM. /TRUE COPY/ ## **M.SASIDHARAN NAMBIAR, J.** ------------------------------- W.P.(C) No.1853 of 2008 ------------------------------- Dated this the 8[th] July, 2008. ## **J U D G M E N T** Petitioners are the plaintiffs and respondents the defendants in O.S.No.118 of 2006, on the file of Munsiff Court, Devikulam. When the power of attorney holder of the petitioners was being examined by proof affidavit, Ext.P1 document written in a stamp paper worth Rs.1.50 was sought to be marked. Marking was objected to on two grounds. Firstly, it was contended that it is not sufficiently stamped. Secondly, it was contended that document is inadmissible in evidence under Section 49 of Registration Act. Learned Munsiff under Ext.P2 order upheld both the contentions finding that the document is compulsorily registerable as provided under Section 17 of the Registration Act, and as it is not registered, the document is inadmissible in evidence. Finding that the document was not sufficiently stamped, it was impounded as provided under Section 33 of Kerala Stamp Act holding that stamp duty and penalty payable on the document is to be decided along with the suit. **W.P.(C) No.1853/2008** 2 ## 2. The learned senior counsel appearing for petitioners and the learned counsel appearing for the respondents were heard. 3. Learned senior counsel argued that Ext.P1 is not a sale deed, and it only recites factum of transfer of possession and receipt of consideration, prior to the execution of the document, and therefore the document is sufficiently stamped and in any case it is not to be registered as provided under Section 17 of the Registration Act. 4. On going through Ext.P1 document, I cannot agree with the submission. Ext.P1 shows that executants, Deviappan and Nagayya, assigned their right and possession in respect of an extent of 7.50 acres in Survey Nos.82/1, 197, 11/1, 82/1, 491and 594 in favour of the petitioners for a consideration at the rate of Rs.250/= per Acre. Though the total consideration is not shown in the document, when the total extent is 7 acres 50 cents, and the consideration per Acre is Rs.250/=, the total consideration could definitely be fixed without difficulty. Ext.P1 shows that the total consideration as stated was received on the same day and on receipt of the consideration, possession was also transferred. Though the senior counsel argued that there is no divesting of title of the executants by that document, the last portion of the document recites **W.P.(C) No.1853/2008** 3 that by the document, executants have divested their right and possession in favour of the petitioners. In such circumstances, finding of the learned Munsiff that the document is compulsorily registerable under Section 17 of the Registration Act and as it is not registered, it cannot be admitted in evidence under Section 49 and document is not sufficiently stamped is perfectly correct and there is no illegality or irregularity in the order to that extent. 4. But when an instrument is produced before the court and it appears to the court that such instrument is not duly stamped, as provided under Section 33 of the Stamp Act, court is bound to impound the same. But once it is impounded, as provided under sub-section (1) of Section 33 of the Stamp Act, court is bound to proceed as provided under Section 37 of the Stamp Act. If the party producing the document is prepared to pay the deficit stamp duty and the penalty payable, court is to receive the same and thereafter has to sent the copy of the instrument to the Collector, as provided under sub-section (1). If the party is not prepared to pay the deficit stamp duty and penalty payable, court has no option but to send the original document to the Collector, in which case, Collector has to proceed, as provided under Section 39 of the Stamp Act. The learned Munsiff is therefore not justified in not deciding the deficit stamp duty and **W.P.(C) No.1853/2008** 4 penalty payable on the document and postponing the decision to a later stage. Learned Munsiff is to be directed to fix the deficit stamp duty and penalty payable on Ext.P1, and if the petitioners are prepared to pay the same, has to receive the same and proceed as provided under Section 37 of the Stamp Act. ## 5. The learned senior counsel relying on the decision of ## the Apex Court in **Rana Vidya Bhushan Singh and another v. Shri** **Rati Ram** (1969 (1) S.C.W.R. 341) argued that learned Munsiff did not consider the effect of proviso to Section 49 of the Registration Act, and even if the document is inadmissible for non registrationfor collateral purposes, to prove possession the document could be relied on, and learned Munsiff may be directed to consider that question. There is force in the submission. 6. Apex Court in Rana Vidya Bhushan Singh v. Shri Rai Ram (1969 (1) S.C.W.R. 341) held, ## “6. The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in **W.P.(C) No.1853/2008** 5 evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement of lease. Section 49 of the Indian Registration Act, 1908, insofar as it is relevant to this appeal provides: _“No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall -_ _(a) affect any immovable property comprised therein, or_ _(b) x x x x_ _(c) be received as evidence of any transaction affecting such property for x x x x_ _unless it has been registered:_ _Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1992, to be registered may be received as evidence x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x of any collateral transaction not required to be effected by registered instrument. A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property._ As stated by Mulla in his Indian Registration, 7[th] Edn., at p.189: **W.P.(C) No.1853/2008** 6 _“The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under sec.17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.”_ It may be sufficient to refer to the judgment of this Court in _Padma Vithoba Chakkavva v. Mohd. Multani_ (1963) 3 S.C.R.229. In that case one R executed a usufructuary mortgage of the certain lands in favour of M. He later executed a sale deed of the same lands in favour of Rajanna. Rajanna found it difficult to obtain possession. Rajanna, R & M entered into an arrangement under which the sale deed was cancelled by making endorsements on the deed and the lands were thereafter sold by R to M. After the death of Rajanna his legal representative filed a suit against M for possession of lands. M pleaded that the sale deed of 1923 was cancelled. The plaintiff urged that the endorsement was in effective, as it was **W.P.(C) No.1853/2008** 7 not registered and the sale deed in favour of M passed no title to him. In dealing with the question that the endorsement of cancellation was inadmissible in evidence, Venkatarama Aiyer J., observed at p.236. _“The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923, has been held, x x x to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is whey the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter.”_ In support of these observations the learned Judge referred to _Varatha Pillai v. Jeevanathammal_ (1918) L.R. 46 I. A. 285.” As settled by the Apex Court, even if the document is unregistered for collateral purpose of proving possession, the document can be admitted in evidence. As the learned Munsiff did not consider the question whether the document, after collecting the deficit stamp duty and penalty payable can be admitted as evidence 8 ## **W.P.(C) No.1853/2008** for collateral purpose, Munsiff is directed to consider the question. Petition is disposed of accordingly. **M.SASIDHARAN NAMBIAR, JUDGE** **nj.**