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Sakari Poshetty and ... vs Counsel for the Petitioner Sri ...

Sakari Poshetty and ... vs Counsel for the Petitioner Sri ...

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Judgment
Judgment

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Published by: Knowledge Guru on Jan 10, 2014
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Andhra High CourtAndhra High CourtSakari Poshetty And ... vs Counsel For The Petitioner:Sri ...C.R.P.No.3374 of 2013dated:20-08-2013Golla Dharmanna....PetitionerSakari Poshetty and others.....Respondents.Counsel for the petitioner:Sri K.Ram Subba RaoCounsel for the respondents: --<GIST:>HEAD NOTE:?Cases referred1 AIR 2008 SCW 48292 (2003) 6 SCC 6413 2004 (4) ALD 824 (2001) 3 SCC 15 (2003) 8 SCC 7526 (2010) 8 SCC 423THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAOC.R.P.No.3374 of 2013ORDER :This revision is filed challenging the Docket order dt.07.06.2013 in OS.No.41 of 2011 on the file of the SeniorCivil Judge, Adilabad.2. The petitioner is the plaintiff in the suit. The suit was filed by petitioner seeking a declaration of his title inrespect of an extent of Acs.7.38 gts. in Sy.No.51/A at Buddikonda Shivar Mandal, Neredigonda District,Adilabad, for a perpetual injunction restraining the respondents/defendants from interfering with the allegedpeaceful possession and enjoyment of the plaintiff in respect of the above land; for correction of the entry inRevenue records relating to the Pattadar column by deleting the name of one Ramulu and substituting thename of the plaintiff; and costs.3. The defendant Nos.1 to 3 filed a written statement opposing the claim of the plaintiff. Issues were framedand trial commenced. The affidavit of PW1 in lieu of chief-examination was filed; he entered the witness boxand confirmed the said affidavit as true. He also marked Exs.A.1 to A.33. He also sought to mark a document
Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...Indian Kanoon - http://indiankanoon.org/doc/123040904/1
 
filed as Kharidnama dt.19.07.1974.4. The marking of this document was objected to by counsel for respondents on the ground that the saiddocument is a compulsorily registrable document under Section 17 of the Indian Registration Act, 1908, as itextinguishes the title of the executant in respect of property of value more than Rs.100/-. The petitioner'scounsel requested the Court below to mark the document subject to objection.5. However, by docket order dt.07.06.2013, the Court below held that the said document required registrationand therefore, it cannot be admitted and marked in evidence. It followed the decision of the Supreme Court inK.B. Sana and Sons Pvt. Ltd. v. Development Consultant Ltd.1. It thus sustained the objection of therespondents and rejected the request of the counsel for petitioner.6. Challenging the same this revision is filed. Heard Sri K. Rama Subba Rao - counsel for the petitioner at thestage of admission.7. The counsel for petitioner contended that the impugned order is contrary to law; that the document inquestion is a sale deed dt.19.07.1974 which had already been impounded by the Trial Court and penalty wascollected by it; therefore, under Section 35 (a) of the Indian Stamp Act, 1899, it is admissible in evidence andthe Trial Court ought not to have refused to admit/mark the document; the judgment in K.B. Sana (1 supra),relied upon by the counsel for respondents before the Trial Court is inapplicable as it was a case of non-registration of a lease deed and not of case relating to a sale deed or other conveyance; and that the effect of non-registration of the above document can be gone into during the course of trial and need not be consideredat the stage of marking the above document in view of Section 35 (a) of the Indian Stamp Act, 1899. Thecounsel also relied upon the decision of the Supreme Court in State, through Special Cell, New Delhi v.Navjot Sandhu @ Afshan Guru and others2 and Mulla Alamsabgari Dastigiri, Kurnool v. B. Pullamma andothers3.8. Section 17(1) (b) of the Registration Act,1908 states : "17.(1)....The followings shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after thedate on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the IndianRegistration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came orcomes into force, namely :(a) Instruments of gift of immovable property ;(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguishwhether in present or in future, any right, title or interest whether vested or contingent, of the value of onehundred rupees and upwards, to or in immovable property;"9. A reading of the document filed by the petitioner dt.19.07.1974 indicates that it was a sale deed executed onthe said date by one Sakari Ramulu in favour of the petitioner transferring his right, title and interest in theabove land in favour of the petitioner after receiving Rs.3,000/- from the petitioner. Therefore, since the abovedocument creates in the petitioner, a right, title and interest in the property and extinguishes the title of thesaid Ramulu, it requires to be compulsorily registered in view of Section 17(1)(b) of the Registration Act,1908.10. Section 49 of the Registration Act, 1908, states : "49. Effect of non-registration of documentsrequired to be registered:- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall,(a) affect any immovable property comprised therein, or
Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...Indian Kanoon - http://indiankanoon.org/doc/123040904/2
 
(b) confer any power to adopt; or(c) be received as evidence of any transaction affecting such property or conferring such power,unless it has been registered :Provided that an unregistered document affecting immovable property and required by this Act, or theTransfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specificperformance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction notrequired to be effected by registered instrument."11. In K.B. Sana (1 supra), the Supreme Court considered the effect of this provision in the case of a lease andheld:"21. From the principles laid down in the various decisions of this Court and the High Courts, asreferred to hereinabove, it is evident that :-1. A document required to be registered is not admissible into evidence under Section 49 of the RegistrationAct.2. Such unregistered document can however be used as an evidence of collateral purpose as provided in theProviso to Section 49 of the Registration Act.3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the lawrequired registration.4. A collateral transaction must be a transaction not itself required to be effected by a registered document,that is, a transaction creating, etc, any right, title or interest in immoveable property of the value of onehundred rupees and upwards.5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted inevidence and that to use a document for the purpose of proving an important clause would not be using it as acollateral purpose."Therefore, I am of the view that the Trial Court has rightly held that the document in question is notadmissible in evidence as it is a document which is compulsorily registrable under the Registration Act, 1908.12. I am also unable to accept the contention of the counsel for petitioner that because the requisite stamp dutyand penalty has been paid by petitioner, in view of Section 35 (a) of the Indian Stamp Act, 1899, the saiddocument should have been admitted in evidence by the Trial Court. This contention of the petitioner ismisconceived because an objection as to the admissibility of a document on the ground that it is not stampedor not properly stamped in accordance with provisions of the Indian Stamp Act, 1899 is differentfundamentally from an objection to the admissibility of a document on the ground that it is unregistered.Merely because stamp duty and penalty have been paid and the provisions of the Indian Stamp Act, 1899 havebeen complied with, it would not automatically make the said document admissible in evidence, if as per law,the said document is also required to be registered.13. The counsel for petitioner also contended that it was open for the Trial Court to tentatively mark thedocument and decide about its admissibility at the stage before delivering judgment. He relied upon the judgment in Mulla Alamsabgari Dastigiri (3 supra), wherein the judgment in Navjot Sandhu (2 supra) wasfollowed. In Navjot Sandhu (2 supra) the Supreme Court was considering the question of admissibility of copies of transcripts of intercepted conversations in a case arising under the provisions of Prevention of 
Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...Indian Kanoon - http://indiankanoon.org/doc/123040904/3

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