Jayaraman vs The State of Tamil Nadu and Others

Thangamani, J.—The revision petitioner is the fourth defendant in O.S. No. 546 of 1989 in the Court of the District Munsif of

Thiruthuraipoondi. The fifth respondent/plaintiff instituted that suit for a declaration that he is the Manager of one Muslim Minority Educational

Institution known as Valluvar Aided Elementary School, Vittukatti, Thiruthuraipoondi Taluk and for a permanent injunction restraining the

Secretary Education Department, District Educational Officer, Pattukottai and Deputy Inspector of Schools, Thiruthuraipoondi, present revision

petitioner Jayaraman and one Murugesan who are defendants 1 to 4 respectively from interfering with his right of management in the administration

of the said institution. His case is that his father was the founder and Manager of the said elementary school. He established and administered the

same till his death on 17.4.1987 After his demise in a family arrangement plaintiff took over the management of the said Institution. As headmaster

of the school the revision petitioner/ fourth defendant can exercise only control over the working staff of it. He has no other powers. And the

school is functioning in a thatched-cum Mangalore tiled building constructed by the founder of the school in a Natham Jari. All the furniture and

other movables were procured byway of donations and purchases by the founder. The suit property is described as the Elementary School in

Vittukatti hamlet functioning in partly titled and partly thatched brick built in R.S. No. 227/2 Natham Jari with 9 teachers inclusive of Headmaster

and with all furniture like tables, chairs, etc. right to manage the above school with all its properties. It appears that the revision petitioner based his

claim to the school on a document dated 25.2.1979 purported to have been executed by Abdul Kader Rowther, the Founder/Manager of the

School.

When the revision petitioner was examined. The said instrument dated 25.2.1979 was sought to be marked through him by the defendants. And

this was objected to by the plaintiff. In his order dated 23.6.1993 learned District Munsif held that the document was inadmissible for want of

registration and accordingly refused to mark the same. And this order is assailed in this civil revision petition.

For the purpose of appreciating the controversy herein the operative part of the impugned document is extracted hereunder.

The trial court took the view that under this instrument all the belongings of the school and right of management as well as correspondence-ship

have been conveyed to the revision petitioner for a consideration of Rs. 4,000. The properties of the school include buildings also. And the

document concludes by saying that the revision petitioner is to take and enjoy the subject matter of conveyance with all the right of alienation

hereditarily. Since it comprises of movable and immovable properties, it is compulsorily registrable u/s 17 of the Registration Act and so it would

not be admissible in evidence.

Learned Counsel for the revision petitioner submitted that this document does not purport or operate to create, declare, assign, limit or

extinguish, whether in present or in future, any right or interest, whether vested or contingent in immovable property. The court below has failed to

see pith and substance of the document which envisages only transfer of management of school. The court below has failed to see that as per the

terms of the document only right to manage the school is transferred. And entrustment of the properties belonging to the school to the petitioner is

only in his capacity as Headmaster of the school. However, a careful reading of the document does not support this claim of the revision petitioner.

Under this document right of supervision or management as well as correspondenceship of the school are transferred to the revision petitioner and

all the buildings and furniture are handed over to him for a consideration of Rs. 4,000 received by the said Abdul Kader Rowther, Founder of the

School. Evidently this is a sale transaction which includes the building. Learned Counsel for the revision petitioner pointed out that there are no

permanent structures belonging to the school. Only some thatched sheds are put up in a poramboke land. However, I do not think this makes any

difference since in any event the superstructure is conveyed for a consideration.

Under Section 17(1)(b) of the Registration Act, any non-testamentary instrument which purports or operates to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards,

to or in immovable property is compulsorily registrable. And Section 49 puts an embargo on reception of such documents as evidence of any

transaction affecting such property. However, under the proviso, an unregistered document effecting immovable property and required to be

registered may be received as evidence of any collateral transaction not required to be effected by registered instrument. In this case there is no

scope for invoking the proviso referred to above to receive the document in evidence. In Sobharam v. Raja Mahton AIR 1967 Pat. 278, relied on

by learned Counsel for the respondent a Division Bench of the Patna High Court has held that it is not open to the trial court to base its finding

about plaintiffs title on an unregistered lease deed. The trial court could not indirectly do that which the law prohibited from doing. The use made of

the document is not a collateral purpose, because plaintiff used it as evidence of transaction itself, which is law he could not do.

Mrs. Prabha Sridevan, learned, counsel for the revision petitioner mainly argued that right of management of the school which is the subject

matter of transfer in the impugned document does not require registration u/s 17 of the Registration Act. In support of her claim she cited the

decision of a Division Bench of this Court in Kesava v. Kannusamy 15 M.L.J. 30. There it has been laid down that the right of a manager of a

Hindu temple even though involving the holding of immovable property forming part of the endowments of the temple is not immovable property

within the meaning of the Registration Act. A document transferring among others the right to manage a temple and its endowments is sufficiently

descriptive if it mentions the name of the temple, its situation, the extent of the lands and the registry. Evidently this ruling cannot help the revision

petitioner since there the property vested in the deity and what was transferred was only right of management of the temple no doubt including the

movable properties belonging to it. Whereas in the present case the school is not legal entity and it is not the owner of the superstructure thereon.

The said superstructure belongs to the founder and while conveying the management of the school he has transferred that superstructure also.

Learned Counsel for the revision petitioner next submitted that strictest construction should be placed upon the prohibitory and penal sections of

the Registration Act which impose serious disqualifications upon the non-observance of the rule of registration and unless a document is clearly

brought within the purview of the Act, non-registration is no her to its being acted upon or received in evidence, and in case of doubt the benefit of

the doubt should be given to the person who wants the Court to act upon or receive it in evidence. And in support of her contention she based

reliance on the Full Bench decision in Hassan and v. Joohomal AIR 1936 Sind. 79. However, we find from the terms of the document that the

property mentioned therein is conveyed hereditarily with all powers of alienation to the revision petitioner. While so, even a strictest construction of

the section as contemplated by the Full Bench decision referred to have cannot help her in any manner.

Learned Counsel for the respondent submit that in the impugned document superstructure right of management and correspondenceship are

transferred for a total consideration of Rs. 4,000. And it is not possible to apportion the price of each separately. We cannot substitute our own

opinion in the place of that of the parties to the document. So, the agreement is one and indivisible and it is not possible to reject in evidence only

that part of the document which relates to immovable property. In Ayitham China Suryarao Vs. Maddala Suryachandra Rao by mother and

guardian Ramanamma, , in a partition, in order to equalise shares of the members of the family, it was arranged that one of the family members

should pay off all family debts and that the other two members should execute promissory notes respectively for the amounts due from them.

Accordingly the defendant''s mother executed the suit note in favour of the member who undertook to discharge all family debts. In a suit on the

note it was held that though the claim of the plaintiff was one for money only, it is part of an agreement which affects immovable property and that

agreement must be regarded as an indivisible whole to effect a fair distribution of the assets'' and so the plaintiff cannot be permitted to tender his

unregistered document in evidence.

In Samuvier v. Ramasubbier 60 M.L.J. 527, it has been held that if there are two distinct provisions in a contract, the one relating to rights in

immovable property and the other to the payment of money, proof of the latter provision can be given though the document is not registered. But

where, as in this case, the contract consists of a number of counter balancing terms, some affecting immovable property and some not, so

inextricably mixed up that it can only be regarded as a single and indivisible transaction, no part of the agreement is admissible in evidence for the

enforcement of any of its terms.

In Shambhu Nath v. Gokul Chand AIR 1962 P&H 146, an agreement of reference itself stated that title to immovable property was one of the

matters in dispute. The award also clearly showed that some properties stood in the names of various individual members of the two branches of a

joint family who had referred the matter to arbitration. Notwithstanding the apparent titles of individual members, the arbitrator considered all these

properties as joint properties and partitioned them half and half between the branches. The movables were also divided on the same basis taking

into consideration the distribution of immovable property. Held the award did not merely declare a preexisting fact but created title to the

immovable property in dispute and as such was compulsorily registrable u/s 17(b), Registration Act. While so, we find that there is no infirmity in

the order of the Court below in refusing to mark the impugned document as inadmissible in evidence for want of registration.

In the result, the civil revision petition is dismissed. No costs.