Irusa Gounder vs Palanippan

K. Ravichandra Babu, J.—This revision petition is filed challenging the order of the learned Principal District Munsif, Bhavani in I.A.No. 1403 of 2014 in O.S.No. 185 of 2011 dated 17.09.2014 dismissing the application filed by the petitioners, who are the defendants 2 to 6 in the said suit, seeking for marking a document dated 13.03.1990.

The second respondent herein is the plaintiff in the said suit. He filed the said suit for declaration to declare the impugned sale deed dated 10.05.2011 affecting plaintiff''s equal half share in the well in R.S.No. 123/2 of Kadappanallur village, Bhavani Taluk as null and void and for permanent injunction restraining defendants 2 to 5 from taking water from the well in the suit property under the guise of impugned sale deed dated 10.05.2011 and for partition.

The petitioners before this Court, as defendants 2 to 6, filed the above interim application and sought to mark an unregistered agreement dated 13.03.1990. The trial Court rejected the application on the reason that the document was not registered even though the consideration and title were passed on under the said agreement.

The learned counsel appearing for the petitioners submitted that no registration is required since the document is only an agreement for sale and therefore, the Court below is not justified in rejecting the application. Learned counsel also relied on the proviso to Section 49 of the Registration Act to contend that even an unregistered document can be received in evidence. In support of his submissions, learned counsel also relied on a judgment of this Court in Sengappan Vs. Arumbatha Veda Vinayagar Temple and 10 Others and a judgment of the Hon''ble Supreme Court in Hamda Ammal Vs. Avadiappa Pathar and Others, .

Heard the learned counsel for the petitioners and perused the materials placed before this Court.

The petitioners want to mark the agreement dated 13.03.1990, which the Court below has rejected on the ground that the same was not a registered one. It is the finding of the Court that the right of the immovable property has been transferred and consideration of Rs.2,000/- was also passed on under the said agreement and therefore, it cannot be marked unless the same is a registered one. Though the learned counsel for the petitioners has contended that such a finding is factually not correct, a perusal of the agreement, which is enclosed in the typed-set of papers, would show that the Court below is right in holding so. For better appreciation, the relevant averments in the agreement dated 13.03.1990 is extracted hereunder:

A perusal of the above said recital of the disputed agreement would show that title and consideration have been passed on to the respective parties and therefore, the learned counsel is not correct in contending that the said agreement does not require registration. The learned counsel invited support from proviso to Section 49 of the Registration Act to contend that the above unregistered document can be received as evidence. A perusal of the above said proviso to Section 49 would show that such an unregistered document affecting immovable property can be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. In this case, the dispute with regard to the right in the well and the agreement sought to be marked is dealing with the rights of the parties in the said well. Therefore, it cannot be contended that the document is sought to be marked for collateral purpose. In fact, it is not the case of the petitioners also. Therefore, the proviso to Section 49 of Registration Act is not helping the petitioners in any manner.

The decision of the Hon''ble Supreme Court in Hamda Ammal Vs. Avadiappa Pathar and Others, also shows that Section 49 proviso is applicable in respect of an unregistered document only for the purpose mentioned in proviso to Section 49. As I have pointed out that the said document is directly dealing with respect to the dispute between the parties in the said suit property, the said decision is not helping the petitioners in any manner. Likewise, the other decision relied on by the petitioners in Sengappan Vs. Arumbatha Veda Vinayagar Temple and 10 Others is also not helping them, since the facts of the said case are totally different and distinguishable wherein a document, though compulsorily registrable, however not registered, was sought to be marked for establishing relationship between the parties therein. The Court has found in the said decision that it can be relied on to prove in what capacity the defendants therein were occupying the building and nature of their possession. In my considered view, the facts of the present case are totally different. Therefore, the said decision is also not helping the petitioners. Hence, I find that the order of the Court below does not warrant any interference.

Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous Petition is closed.