Kollurur Sreeramulu vs Kolluru Subba Rao

Ninala Jayasurya, J

Heard Mr.T.V.Jaggi Reddy, learned counsel for the petitioner. Despite service of personal notice, none entered appearance on behalf of the respondent.

The petitioner herein, filed O.S.No.539 of 2016 on the file of the Court of the Learned Principal Junior Civil Judge, Tenali, Guntur District, seeking a declaration that he is the absolute owner of the plaint schedule property; for a consequential relief of possession of the same from the respondent/defendant and for a direction to remove the construction made in the plaint schedule property. The petitioner/plaintiff filed an application i.e., I.A.No.115 of 2019 under Sections 33 and 35 of the Indian Stamp Act R/w Section 151 of C.P.C, seeking to send an un-registered Gift Deed dated 09.05.1966 to the District Registrar, Tenali for payment of stamp duty. The respondent/defendant filed a counter and opposed the said application. The learned Principal Junior Civil Judge by an Order dated 02.04.2019 dismissed the said I.A, against which the present Revision Petition came to be filed.

The learned counsel for the petitioner, inter alia, submits that the order under challenge without considering the matter in a proper perspective is not sustainable. He submits that the Court below failed to exercise the jurisdiction vested in it. It is his submission that the un-registered document/un-stamped deed dated 09.05.1966 can be used for collateral purposes of showing possession. He also submits that when a document which was insufficiently stamped is produced, the Court is required to direct impounding of the document. Relying on the decision of K.Ramamoorthi vs. C.Surendranatha Reddy 2012 (6) ALT 786 , the learned counsel would submit that for the limited purpose of showing petitioner’s possession, the un-registered document on being impounded is admissible in evidence and in view of the same, the order under challenge is liable to be set aside.

In the decision cited supra, a Learned Judge of the erstwhile High Court of Judicature of Andhra Pradesh at Hyderabad was dealing with a question as to whether an un-registered Sale Deed sought to be produced by the plaintiff in evidence in a suit for permanent injunction could be marked for collateral purposes? In the said case, the Trial Court had upheld the objection raised by the defendant that the Sale Deed pertains to an immovable property, which requires compulsory registration and as the same is not registered, it cannot be admitted in evidence even for the purpose of proving the plaintiff’s possession. The learned Judge after referring to a catena of cases and detailed analysis of the matter, interfered with the order of the Trial Court, while setting out the conclusions at Para 29, which reads thus:-

i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such power. The phrase "affecting the immovable property" needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property.

ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property.

iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether.

iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.

v) The phrase "collateral purpose" is with reference to the transaction and not to the relief claimed in the suit.

vi) The proviso to Section 49 of the Registration Act does not speak of collateral purpose but of collateral transaction i.e., one collateral to the transaction affecting immovable property by reason of which registration is necessary, rather than one collateral to the document.

vii) Whether a transaction is collateral or not needs to be decided on the nature, purpose and recitals of the document.

Further, at Para 30, the Learned Judge has also given certain illustrations as to what constitute collateral transaction, the relevant portion of which in the present context, reads as follows:-

“d) An unregistered deed of gift requiring registration under Section 17 of the Registration Act is admissible in evidence not to prove the gift, but to explain by reference to it the character of the possession of the person who held the land and who claimed it, not by virtue of deed of gift but by setting up the plea of adverse possession.”

The learned Judge ultimately held that “the un-registered Sale Deed is admissible in evidence for the collateral purpose to the limited extent of showing possession of the plaintiff.”

Rangareddy vs. Sadhu Padamma and others 2003(1) ALT 228, on which the Trial Court placed reliance, the issue was as to whether a Gift Deed and transaction effecting immovable property is required to be registered under Section 17(1)(a) of the Registration Act? In the said Judgment, it was inter alia held that as the document in question was a Gift Deed, a transaction effecting immovable property and is required to be registered under Section 17(1)(a) of the Registration Act and therefore, it does not fall under the third exception to proviso to Section 49 of the Registration Act. However, this Court is of the considered view that the decision in K.Ramamoorthi’s case referred to supra aptly applies to the facts of the present case, more particularly, in the light of the conclusions and illustrations enumerated therein.

In P.Venkayamma vs. Bhimavarapu Bhimeswara Prasad 2022 SCC OnLine AP 1885 , a Learned Judge of this Court while reiterating the legal position that when a document is not duly stamped and tendered for evidence, the first duty of the Court is to act in accordance with Section 33 of the Indian Stamp Act and impund the document, inter alia held that even if a document is compulsorily registerable, that is a matter which the Learned Trial Court is required to consider as and when the document is once again tendered for evidence after payment of Stamp Duty and penalty, if any.

In the light of the above cited decisions, the reasoning of the Learned Trial Court in rejecting the application in question at the threshold is not sustainable.

In the aforementioned view of the matter, the Civil Revision Petition is allowed. Order dated 02.04.2019 in I.A.No.115 of 2019 in O.S.No.539 of 2016 on the file of the Court of the Principal Junior Civil Judge, Tenali, Guntur District is set aside. Consequently, the I.A stands allowed. There shall be no order as to costs.

As a sequel, miscellaneous applications if any, pending shall stand closed.