Kanraj C. Shah vs R. Thangaraj and another

S.S. Subramani, J.—Plaintiff in O.S.651 of 1993 on the file of II Additional District Munsif Court, Dindugul is the Revision Petitioner herein.

The suit was filed for declaration of title. Plaintiff is the owner of ''A'' Schedule properties. Plaintiff also sought for consequential relief of permanent

injunction restraining defendants, their men and servants from in any way interfering with the peaceful possession and enjoyment of plaintiff over the

suit property and for mandatory injunction directing first defendant to remove the superstructures over the suit ''B'' Schedule property and for other

reliefs.

According to the petitioner, he has obtained title to the ''A'' Schedule properties as per Sale Deed dated 7.11.1977 and ever since, he is in

absolute possession and enjoyment of the properties. Patta is also transferred in his name and he is paying property tax also. According to

petitioner, his properties are managed by his power agent one Dhanraj Shah. Since there was mismanagement by him, petitioner has cancelled the

said power as per document dated 23.6.1986 and plaintiff is looking after the properties through another agent K.A. Perumalsamy. It is said that

with the connivance of the ex-power agent, first respondent made encroachments in a portion of the suit properties and put up constructions

thereon. Plaintiff came to know about the encroachment and construction and demanded first respondent to vacate ''B'' Schedule property and to

hand over possession after removing the structure. He did not do so which necessitated filing of the suit.

In the written statement filed by defendant, he said that ''A'' and ''B'' Schedule properties were obtained by him as per Sale Deed dated

30.1.1981 and the same is duly registered with the concerned Sub-Registrar''s office. Ever since the date of Sale deed, he is in possession and

enjoyment of the properties and plaintiff is not entitled to claim any portion of the property.

The petitioner is aggrieved by the order passed by lower Court. During the examination of defendant, he wanted to mark the sale deed dated

30.1.1981 which according to him is registered sale deed for Rs. 40,000/-. When he was examined in chief, he said that he had purchased the

property as per Ex.B.1. An objection was raised at that time that the document has not been registered and therefore, inadmissible in evidence.

When the parties raised objection regarding admissibility of the document, lower Court passed separate order on the same and allowed the

document to be marked. The same is challenged under Article 227 of the Constitution of India.

When the matter came up for admission, I ordered notice of motion and further proceedings in the lower Court was stayed. After respondent

entered appearance, entire matter was heard.

A Counter affidavit has been filed by the respondent wherein it is said that he has taken two sale deeds from the power agent of the Plaintiff on

30.1.1981 for Rs. 45,000/- and Rs. 40,000/- and as per the recitals in the documents possession was also handed over to him. It is also stated

that he had built a house spending more than a lakh of rupees and sale deed was also duly executed after receiving power of attorney. The

document is also attested by the Sub-Registrar. The document was returned solely due to the fact that the provisions of Section 230A of the

income tax Act regarding Income Tax clearance was not obtained by the Vendor''s power agent who promised to produce the same but not

produced it. Only because of the fraud committed by the Plaintiffs agent the document could not be registered. When plaintiffs agent has received

the consideration and also handed over possession he cannot repudiate the transaction and to prove the factum of possession document can be

marked. That is only for collateral purposes and not to prove the sale itself. It is said that in the impugned order all these aspects were considered

and there is no ground for interference under Article 227 of the Constitution of India.

Learned Counsel relied on a decision rendered by me inV Ruckmangathan Vs. Ramalingam, wherein I have held, ''when the defendant has a

definite case that possession passed on the basis of the sale deed and if the sale could not be proved to make use of the document (unregistered

sale deed) for the purpose of possession cannot be said as collateral purpose''. In that case, I have considered the question, what is meant by

collateral purpose? In that case, I have taken into consideration the decision of this Court reported in 1957 (I) M.L.J. 304 (Panchapagesa v.

Kalyana Sundaram) rendered by a Division Bench. The relevant portion of the Judgment, read thus,

To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the

concluding words of the new proviso to Sec. 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible

in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to

immovable property. The expression ''collateral purpose'' is no doubt a very vague one and the Court must decide in each case whether the

purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property

sought to be conveyed by the document. But by the simple devise of calling it a ''collateral purpose'' a party cannot use the unregistered document

in any legal proceedings to bring about indirectly the effect which it would have had if registered"".

(Emphasis supplied)

In that case I have also held, ''Unregistered sale deeds would also be admissible under the proviso to Sec. 49, Registration Act, to prove that

performance under Sec. 53-A, Transfer of Property Act, besides being admissible for the collateral and enjoyment.''

In Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., it is held thus,

The expression ''collateral'' transaction in the proviso to Sec. 49, Registration Act, is not used in the sense of an ancillary or a subsidiary

transaction to a main or principal transaction. The transaction as recorded could be a particular or specific transaction. Hut it would be possible to

read in that transaction what may be called the purpose of transaction and what may be called a collateral purpose, the fulfilment of that collateral

purpose would bring into a existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but

nonetheless a transaction which runs together with or on parallel lines with the same"".

(Emphasis supplied)

Following these decisions and on going by the Written statement, I feel that the impugned order is liable to be interfered with. The definite case

that is put forward by the respondent is on the basis of document dated 30.1.1981, he has obtained title to the property and consequently he had

obtained possession also. He has also a case of adverse possession. The case of adverse possession may stand since within 12 years suit is not

filed.

The marking of the document by the lower Court is therefore not proper.

I am taking this view only because in the Written statement as on date there is no pleading either u/s 53-A of Transfer of Property Act or to

treat the document dated 30.1.1981 as agreement for sale. It is the Vendor''s duty to produce income tax Clearance Certificate, and if the

purchaser has paid entire consideration, Vendor must discharge his obligation and see that the document is registered. In such cases, the Vendee

will be justified in continuing with possession of the property and defend his possession and also put forward a contention that the owner is not

entitled to recover the property since he has committed breach. Such a defence is available u/s 53A of the Transfer of Property Act.

Since there is no pleading in the case, I am constrained to set aside the impugned order. It is for the respondent take necessary plea u/s 53A

and if any such amendment application is filed, the question whether the document could be marked or not must be considered afresh. This order

will not stand in the way of agitating the matter afresh. The Civil Revision Petition is allowed with the above observations. No costs. Consequently,

C.M.P. No. 17177 of 1998 is closed.