K. Periyasamy vs Selvakumar

R. Mala, J.—The Civil Revision Petition is filed against the fair and decretal order dated 14.02.2014 made in I.A. No.266 of 2013 in O.S. No.112 of 2010 on the file of the Sub-Court, Gobichettipalayam.

The first respondent herein as a plaintiff filed a suit for specific performance stating that the defendants 1 to 3 are owners of the suit property and they had entered into a sale agreement with the fourth defendant on 20.02.2010 and they agreed to sell the suit properties to the tune of Rs.10,00,000/- and the fourth defendant has paid a sum of Rs.3,50,000/- on the date of sale agreement itself as an advance. After receiving the balance sale consideration, the defendants 1 to 3 agreed to execute the sale deed. As the defendants 1 to 3 delaying the execution of the sale deed as per the terms of sale agreement dated 20.02.2010, on 05.05.2010, the fourth defendant received a sum of Rs.3,50,000/- from the plaintiff and transferred his right to the plaintiff by making an endorsement on the sale agreement. Even the plaintiff is ready and willing to perform his part of contract, the defendants 1 to 3 did not execute the sale deed in favour of him. So the plaintiff issued a notice to the defendants and after receipt of reply notice, the plaintiff filed a suit.

The defendants 1 and 2/revision petitioners herein filed a written statement and stated that the advance amount said to have been paid under the agreement of sale for the suit property is as security for the loan transaction and the defendants 1 to 3 gave signed blank papers (one stamped and three unstamped papers) to the fourth defendant. In the written statement itself, they had stated that the assignment made on the sale agreement needs registration.

The plaintiff in his reply statement stated that since the sale agreement need not require registration, assignment of right also need not be registered.

Before commencement of trial, the defendants 1 and 2 filed an application in I.A. No.266 of 2013 under Order 14 Rule 5 of C.P.C. for framing additional issue in respect of whether the endorsement dated 05.05.2010 on the sale agreement dated 20.02.2010 is inadmissible in evidence for want of proper stamp and registration and it so whether the suit is maintainable? The trial Court, after hearing both sides, dismissed the application, stating that additional issue as sought for by the petitioners is not necessary to decide the main issues in the case. Further it was held that the unregistered sale agreement of immovable property does not amount to conveyance as per Section 2(10) of the Indian Stamp Act and the assignment does not require registration under Section 17 of the Registration Act, against which, the defendants 1 and 2/revision petitioners preferred this revision petition.

Learned counsel for the revision petitioners submitted that assignment is a conveyance under Section 2(10) of the Indian Stamp Act and it must be incorporated in the proper stamp papers and it must be registered as per Section 17 of the Registration Act. To substantiate his arguments, he relied upon the decision of this Court in CRP.(PD)No. 1836 of 2001, dated 27.07.2005 (A. Dhanasekaran v. V.K.O. Ramanathan Chettiyar and R. Vijayalakshmi) and submitted that if any defence has been raised, that point has to be decided by way of framing proper issues. Further he relied upon the decision of this Court reported in AIR 1934 Madras 615 (R. Rajagopala Ayyangar and others v. Ranganatha Ayyangar and another) and 2012 (3) CTC 48 (P.B. Kasee Sah v. P.T. Hiru Sah). He further submitted that the revision is maintainable and he relied upon the decisions reported in 1999 (1) CTC 92 (Sundaram v. Vadivelu) and (2003) 6 SCC 675 (Surya Dev Rai v. Ram Chander Rai and others) and prayed for allowing the revision petition.

Resisting the same, learned counsel for the respondents submitted that sale agreement itself is not transferred any right of immovable property and that the document need not be registered. Since sale agreement does not require registration, assignment of sale agreement need not be required any registration and he has also drawn attention of this Court through Section 2(10) of the Indian Stamp Act and 17(a) and 17(2)(v) and 18(b) of the Registration Act. It is further submitted that it is the discretion of the trial Court to frame issues and to substantiate his arguments, he relied upon the decision of the Karnataka High Court reported in 2000 AIHC 3256 (Smt. Kamalakshi and others v. Sri Manappa Gowda and others) and prayed for dismissal of the revision petition.

Considered the rival submissions made on both sides and perused the typed set of papers.

The admitted facts of the case are the first respondent herein as a plaintiff filed a suit for specific performance on the basis of the sale agreement dated 20.02.2010, which was made over to the plaintiff on 05.05.2010 by the fourth defendant by making endorsement on the sale agreement. The suit has been filed after issuing notice to the defendants and receiving reply notice. The trial Court, after considering the plaint, written statement and reply statement, has framed the following issues:

"Whether the plaintiff is entitled for the relief of specific performance as prayed for? Or

Whether the plaintiff is entitled for the alternative relief as prayed for?

Before commencement of trial, the revision petitioners/defendants 1 and 2 filed an application in I.A. No.266 of 2013 under Order 14 Rule 5 of C.P.C., to raise the following issue as an additional issue:

"Whether the endorsement dated 05.05.2010 on the sale agreement dated 20.02.2010 is inadmissible in evidence for want of proper stamp and registration and it so whether the suit is maintainable."

Whether the revision petition is maintainable?

According to the learned counsel for the respondents, the revision itself is not maintainable. Before that this Court has to decide whether the endorsement made in the stamp papers require registration? It would be appropriate to consider whether the document is conveyance as defined under Section 2(10) of the Indian Stamp Act, which reads as follows:

"Conveyance.-"Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I;

Sale agreement, General Power of Attorney or Will transactions do not convey any title nor they create any interest in the immovable property, since an immovable property can be legally transferred only by a deed of conveyance."

It shows that the sale agreement is not a conveyance. Further, on 05.05.2010, only assignment of right has been made on the sale agreement dated 20.02.2010. In such circumstances, I am of the view, the document itself is not a conveyance as per Section 2(10) of the Indian Stamp Act.

According to the plaintiff, in pursuance of the sale agreement, property has not been handed over to him. As per Section 53-A of the Transfer of Property Act, the property can be handed over to the plaintiff as part performance in respect of the sale agreement, if it is so, that sale agreement requires registration as per Section 17(1-A) of the Registration Act (after amendment for Registration Act came into effect in the year 2001). So it would be appropriate to extract 17(1-A) of the Registration Act, which is as follows:

"The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said Section 53-A."

The above extract would show that which documents require compulsory registration. Now Section 17(2)(v) of the Registration Act is extracted hereunder:

"17(2) Nothing in clauses (b) and (c ) of sub-Section (1) applies to -

(v) any document other than the documents specified in sub-section (1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; "

The above extract would clearly show that the assignment/endorsement on the sale agreement need not be registered.

At this juncture, it would be appropriate to consider the following decisions relied upon by the learned counsel for the revision petitioners:

(i) In AIR 1934 Madras 615 (R. Rajagopala Ayyangar and others v. Ranganatha Ayyangar and another), in para-2, it was specifically mentioned as follows:

"That was a case arising under another subsection of the same section, namely, Section 55(6)(b). The facts there were that there was a document which was not registered but which purported to be an agreement for the sale and purchase of land for Rs. 10,000. The purchaser has paid Rs.1,000 as earnest money and completion was to take place within forty days. The vendor eventually, notwithstanding the purchaser''s constant requests, refused to complete and, beingsued for specific performance, pleaded that the document, not having been registered under Section 49 of the Registration Act, was inadmissible in evidence. It was held by the Privy Council that the agreement in question which gave to the buyer the rights which accrued to him under Section 55(6)(b) was one which created an "interest in property", within the meaning of Section 17(2)(v) or rather it was not within the exception of Section 17(2)(v) of the Registration Act and that it was, therefore, within Section 17(1)(b) of the Registration Act and required registration. This is a direct decision at any rate that the charge which is given to a buyer under Section 55(6)(b) of the Transfer of property Act is one which, when it is created by an instrument, requires that instrument to be registered. Therefore, when once it is apparent that Ex. B does create the charge which is given to the seller in Section 55(4)(b) of the Transfer of Property Act, then it appears to me that document requires registration and that any other document which assigns the rights under that document also requires registration."

But the above decision is not applicable to the facts of the present case. Because, Section 55(4)(b) deals with charge created for unpaid purchase amount and that the document requires registration. In the case on hand, assignment on the unregistered sale agreement has been made over/endorsed in favour of the plaintiff. So it does not require registration.

(ii) In AIR 1933 Madras 181 (Ranganatha Ayyangar v. R. Rajagopala Ayyangar and others), in which, it has drawn decision of the Privy Council in Dayal Singh v. Indar Singh, AIR 1926 PC 94 wherein it was held as follows:

"In that case it was held assuming that the document under construction was an agreement for sale and not a conveyance, as the buyer had paid the earnest money and had been pressing for completion which the vendor refused, the document created, under Section 55, Clause 6(b), T.P. Act, "an interest in the property" within the meaning of Section 17, Registration Act, and was accordingly compulsorily registrable. If the right which the buyer has under Section 55, Clause 6(b), T.P. Act, can be described to be an interest in the property, I think the "lien" which the seller under Section 55(4) has, may also be described as an interest in property. If so it must follow that Ex. B-1 containing as it does an assignment of such a right in property worth more than Rs. 100 must be held to be compulsorily registrable under Section 17Clause 1(b), Registration Act."

Therefore, I am of the view, assignment made over/endorsed on the unregistered sale agreement need not require registration and it is not a conveyance as defined under Section 2(10) of the Indian Stamp Act.

Framing of Additional Issue:

It would be appropriate to extract Order 14 Rule 5 of C.P.C., which runs as follows:

"5. Power to amend, and strike out, issues. (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced."

The Court can amend or frame additional issues before passing of any decree at any point of time. But on the basis of pleadings in the plaint, issues were framed by the trial Court. The defence raised by the revision petitioners is also raised in the written statement itself.

Learned counsel for the revision petitioners relied upon the following decisions:

(i) In 2012 (3) CTC 48 (P.B. Kasee Sah v. P.T. Hiru Sah), in para-11, it was held as follows:

"11. In the Written Statement in Tr.C.S. No.948 of 2007, Appellant has raised the specific plea that without seeking for declaration of his exclusive title to the suit "A" Schedule Property, the Suit for mandatory injunction for possession of "B" Schedule property is not maintainable. When such specific plea was raised, relevant issue ought to have been framed. The object of an issue is to bring down the evidence, arguments and decision to a particular question so that there may be no doubt as to what the dispute is. Issues are framed for arriving at right decision of the case and to pinpoint the real and substantial points of difference. When specific plea was raised regarding maintainability of Suit for mandatory injunction for possession, additional issue should reflect the pleadings so raised. By a perusal of the additional issues framed, we find they do not reflect the pleadings raised by the Appellant."

But the above decision is not applicable to the facts of the present case. In the case on hand, this Court has already held that since it is a suit for specific performance, the assignment made over on the sale agreement does not require registration, since no conveyance of right has been transferred in the immovable property. As already stated that the main issue is whether the plaintiff is entitled to the decree of specific performance and it will cover all the points.

(ii)In CRP.(PD)No.1836 of 2001, dated 27.07.2005 (A. Dhanasekaran v. V.K.O. Ramanathan Chettiyar and R. Vijayalakshmi), in para-17 it is held as follows:

"17. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties, specifically emerging out of the pleadings. The object of framing the issue is to bring the evidence, arguments and the decision to a particular question so that there would be no doubt as to what is the dispute. The correct decision of the civil litigation largely depends upon the correct framing of issues. On the importance of framing correct issues, in (Makhan Lal Bangal v. Manas Bhunia), the Supreme Court has held thus :

"An obligation is cast on the Court to read the plaint/petition and the Written Statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material proposition of fact or law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The Judgment, then proceeding issues-wise would be able to tell precisely how the dispute was decided".

(iii) In AIR 2001 SC 490 (Makhan Lal Bangal v. Manas Bhunia and others), in para-19, it is held as follows:

"19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Civil Procedure Code dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."

As already discussed above, as per Order 14 of C.P.C, it deals with settlement of issues and as per Order 14 Rule 5 of C.P.C., it deals with power to amend and strike out the issues. In the case on hand, it is a suit for specific performance and issues were framed by the trial Court.

At this juncture, it is appropriate to consider the decision of the Karnataka High Court relied upon by the learned counsel for the respondents reported in 2000 AIHC 3256 (Smt. Kamalakshi and others v. Sri Manappa Gowda and others), wherein it was held that settlement of issues is only the discretion of the trial Court and it cannot be interfered with by the high Court in exercising of its revisional power. In para-3 and 4, it is held as follows:

"3. .. .. Learned counsel for the respondent has argued that substantial justice having been done the failure to frame an issue should be overlooked. I do not agree with him. An act which is obligatory under the statue must be done and the omission to do it cannot be condoned by the fact that substantial justice has been done. I therefore hold that the two Courts below have committed a material irregularity in deciding the case without framing an issue. .. ..

.. .. deciding the issues and conducting the trial are fully within the discretion of the Court below. Merely because one of the parties is displeased with the procedure adopted by the Court, the High Court may not likely interfere under Section 115. "

Since the settlement of issues is the discretion of the trial Court, it cannot be interfered under Section 151 of C.P.C. or by invoking Article 227 of the Constitution of India. The trial Court has correctly held that there is no need for framing of additional issues since it is a suit for specific performance. It is the duty of the plaintiff to prove that he is entitled to decree of specific performance.

It is appropriate to consider the following decisions relied upon by the learned counsel for the petitioners:

(i) In 2003 (6) SCC 675 (Surya Dev Rai v. Ram Chander Rai and others), in para-39, it is held as follows:

"39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene,the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where ''a stitch in time would save nine''. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge."

(ii) In 1999 (1) CTC 92 (Sundaram v. Vadivelu), in para- 31, it is held as follows:

"31. Finally, an argument was advanced by learned counsel for election petitioner that I should not invoke Article 227 of the Constitution of India. I do not think that the said submission also could be accepted. Learned Counsel relied on my decision in Valli v. Gandhimathi, C.R.P.No. 1536 of 1998 (Order dated 11.9.1998). Article 227 of the Constitution of India which deals with judicial supervisory jurisdiction enables this Court to see that the Tribunals act within their jurisdiction. If the Tribunal ignores the provisions of a Statute and also ignores the law declared by the Honourable Supreme Court, and if the same is patently illegal, such decisions are liable to be interfered with under Article 227 of the Constitution of India. When recounting could be ordered only on satisfaction of certain conditions, naturally it follows that any order for recounting which does not satisfy the statutory requirements will be one without jurisdiction, and that will be a fit case to exercise the power under Article 227 of the Constitution of India. It is not a case of appreciation of evidence, and in this case, the entire decision depends only upon the question of law, how far the Tribunal below acted in its jurisdiction. There is no disputed question of fact, as was the case in C.R.P. No. 1536 of 1998 (referred to supra). Therefore, I do not think that there can be any bar for invoking the jurisdiction under Article 227 of the Constitution of India, in this case."

Learned counsel for the petitioner relied upon the above decisions and submitted that the revision is maintainable. There is no quarrel over the proposition. But Article 227 of Constitution of India has been invoked, if error in jurisdiction and any material irregularity committed by the trial Court. As already held in the previous paragraphs that the order passed by the trial Court has not suffered any material irregularity or error in jurisdiction. In such circumstances, I am of the view, the revision itself is not maintainable.

As already stated that Article 227 of Constitution of India has been invoked, when there is an error in jurisdiction or the trial Court committed any material irregularity while passing order. I am of the considered opinion, in the case on hand, the trial Court has given well reasoning order and that the trial Court has not committed any material irregularity. Therefore, the order passed by the trial Court does not warrant any interference. Hence, I am of the view, the revision petition itself is not maintainable.

Accordingly, the Civil Revision Petition is dismissed as not maintainable. No costs. Consequently, connected Miscellaneous Petition is closed.