the material contradictions in the evidence of P.ws.1 to 3 on the crucial aspects of time and the date of incidents and the alleged demand for additional dowry. The trial Court has failed to consider the contradictions in the evidence of P.w.5 on one hand and the evidence of P.ws.1 to 3 on the other, with regard to the galata for additional dowry and that therefore, framing of charge under the provisions of Dowry Prohibition Act, is without any basis of material evidence. Hence, the accused are liable to be acquitted for the charges leveled against them.- convicting the appellants and sentenced them to undergo R.I. for (7) years each and to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence under section 304-B IPC and further convicted and sentenced to undergo R.I. for a period of two (2) years each and to pay a fine of Rs.500/- in default to suffer S.I. for 1 (1) month for the offence under section 498-A I.P.C and further convicted and sentenced to undergo R.I. for two (2) years each and sentenced to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence under section 4 of Dowry Prohibition Act and further convicted and sentenced to undergo R.I. for five (5) years and to pay a fine of Rs.5,000/- each in default to suffer S.I. for one (1) month for the offence under section 306 I.P.C., the present appeal is filed by the appellants.- the prosecution has miserably failed to prove the charges, which are very vague and ambiguous, against the accused and consequently, the accused are found not guilty for the charges leveled against them and they are entitled to be acquitted and hence they are acquitted.

THE HONOURABLE SRI JUSTICE K.S.APPARAO          

CRIMINAL APPEAL NO:1342 OF 2005      

23-07-2012

DONTHARABOINA SADANANDAM & OTHERS            

STATE REP BY THE SUB DIVISIONAL POLICE OFFICER & ANOTHER            

Counsel for the Petitioners: Sri T.K. Sridhar

Counsel for the Respondents: PUBLIC PROSECUTOR.    

<GIST:

> HEAD NOTE:  

? Cases referred

1) (2006) 9 SCC 467.

ORDER:

Aggrieved by the judgment, dated 12.8.2005 passed by the learned 1st Additional
Sessions Judge, Karimnagar in S.C.No:308 of 2005 convicting the appellants and
sentenced them to undergo R.I. for (7) years each and to pay a fine of
Rs.1,000/- each in default to suffer S.I. for two (2) months for the offence
under section 304-B IPC and further convicted and sentenced to undergo R.I. for
a period of two (2) years each and to pay a fine of Rs.500/- in default to
suffer S.I. for 1 (1) month for the offence under section 498-A I.P.C and
further convicted and sentenced to undergo R.I. for two (2) years each and
sentenced to pay a fine of Rs.1,000/- each in default to suffer S.I. for two (2)
months for the offence under section 4 of Dowry Prohibition Act and further
convicted and sentenced to undergo R.I. for five (5) years and to pay a fine of
Rs.5,000/- each in default to suffer S.I. for one (1) month for the offence
under section 306 I.P.C., the present appeal is filed by the appellants.
The appellants are accused-1 to 3 and the respondents are the State represented
by the Public Prosecutor.
The case of the prosecution in short is that on 30.4.2004, P.w.1 gave a report
to the police stating that he performed the marriage of his daughter (for short
deceased) with A1 who is no other than the son of his elder sister.    He gave a
dowry of Rs.50,000/- and the coupled led happy marital life for one year.   The
marriage of the younger brother of A1 was performed and they are blessed with a
son and since then, the husband and the in laws of the deceased started
harassing her.   They also demanded her to bring additional dowry of Rs.20,000/-
and sent a word to her parents about three months back.    P.w.1 could not pay
the amount due to the financial problem.   Due to the said harassment made by
the husband and in laws of the deceased, she stayed in the house of P.w.1 for
one month.   18 days prior to the incident, a festival was celebrated at the
house of P.w.1 and the husband and in laws of the deceased attended the said
festival.     On the next day, they picked up a quarrel demanding additional
dowry of Rs.20,000/- and they also beat her in that regard.    The relatives of
P.w.1 consoled them and asked them to have consultation with a Doctor.    3 days
prior to her death, the deceased made a phone call to P.w.1 and informed him
that her husband and in laws were harassing her for dowry.     On that, when
P.w.1 sent his son to the house of the deceased, he went there and returned to
the house informing that the in-laws of the deceased drove him away while
instructing him to send his father with dowry.    On 29.4.2004, P.w.1 received
informed that the deceased handed herself and died in front of their house.
They saw contusion on the neck of his daughter.    Basing on the report of
P.w.1, a case in Cr.No:43 of 2004 for the offence under section 304-B IPC was
registered and after completion of the investigation, charge sheet was filed.
Before the trial Court, as many as 15 witnesses were examined as P.ws.1 to 15
and Exs.P1 to P8 were marked.    No oral evidence was adduced on behalf of the
accused.   But, Ex.D1 to D5 contradictions were marked on their behalf.     The
trial Court after evaluating the evidence on record and after finding the
accused guilty, convicted them as stated supra.     Having aggrieved by the
same, the present appeal is filed by the accused-appellants.
The learned counsel appearing for the appellants mainly argued that the trial
Court erred in convicting the appellants for both the offences under sections
306 and 304-B IPC in the absence of any evidence to show that there was abetment
to commit suicide and therefore, the conviction for the offence under section
306 IPC is unsustainable.      The trial Court has also failed to take into
consideration the contradictions in the evidence of P.ws.1 to 3 on the crucial
aspects of time and the date of incidents and the alleged demand for additional
dowry.    The trial Court has failed to consider the contradictions in the
evidence of P.w.5 on one hand and the evidence of P.ws.1 to 3 on the other, with
regard to the galata for additional dowry and that therefore, framing of charge
under the provisions of Dowry Prohibition Act, is without any basis of material
evidence.   Hence, the accused are liable to be acquitted for the charges
leveled against them.
The learned Public Prosecutor appearing for the State while supporting the
judgment impugned, sought for dismissal of the appeal.
The point for consideration is whether the prosecution proved the guilty of the
accused for the charges leveled against them and whether the judgment of the
trial Court is sustainable.
Before going into the merits of the case, it is relevant to go through the
charges framed against the accused, which read in the same verbatim as under:
"Firstly, that you A1 to A3 being the husband and parents in law of the
deceased-Dontharaboina Sujatha aged 24 years subjected her to cruelty and 
harassment with a demand to bring a motor cycle or an amount of Rs.20,000/- as
additional dowry after the birth of a child aged about 5 months and thereby
committed an offence punishable under section 498-A IPC and within my 
cognizance. 
Secondly, that you all on the 29th day of April, 2004 at about 1500 hours at her
in law's house at Mulkanoor village caused the death of the aforesaid
Dontharaboina Sujatha within 7 years of her marriage by subjecting her to
cruelty or harassing her soon before her death in connection with a demand to
bring additional dowry and that you thereby committed an offence punishable
under section 304-B IPC and within my cognizance. 
Thirdly, that you all on the same day, time and place as mentioned in charge
No:2 and during the course of same transaction, Dontharaboina Sujatha committed 
suicide by hanging and that you thereby committed an offence punishable under
section 306 IPC and within my cognizance. 
Fourthly, that since three months prior to 30.4.2004 you all demanded motor
cycle or Rs.20,000/- as additional dowry from the parents of the deceased
Dontharaboina Sujatha and thereby committed an offence punishable under section 
4 of Dowry Prohibition Act and within my cognizance."

After the answer to the plea of the charges denying the same, the signature of
A1 and two mere thumb impressions were found.   Likewise, on the depositions of
P.ws.1 to 9, mere thumb impressions appear to have been taken.     Except the
bald thumb impressions, they do not indicate the name of the person who put the
thumb impression.      In the absence of mentioning name against the respective
thumb impressions, it is much difficult to conclude whether such thumb
impression belongs to a particular person who contributed the said thumb
impression.
This sort of attitude in obtaining mere thumb impressions on the charges as well
as the depositions, amounts to infer the callousness and negligence on the part
of the Presiding Officer who conducted the trial.
Apart from that, the very framing of the charges against the accused is
ambiguous and vague for the following reasons:
As per the allegations in the chargesheet, the trouble started between the
deceased and the accused when the accused demanded for Rs.20,000/- towards  
additional dowry and that when the brother of A1 was blessed with a son, all the
accused starting harassing the deceased on the ground that she did not beget
children.
As a matter of fact, there is no whisper as to the demand of motor cycle and
also as to the birth of a child, aged about 5 months to the deceased in the
chargesheet.    It is not known as to how the 1st charge was framed basing on
such allegations, which are not found in the charge sheet.
Now coming to charge No:3 pertaining to abetment to commit suicide punishable
under section 306 IPC., except baldly framing the said charge, there is no such
whisper as to the abetment by the accused to the deceased to commit suicide.
In so far as charge No:4 is concerned, the same is with regard to demand of
motor cycle or Rs.20,000/- by the accused since three months prior to 30.3.2004.
As already stated, there is no such whisper as to the demand of a motor cycle in
the charge sheet.
When inherently, the above charges that were framed against the accused, are
beyond the allegations in the charge sheet, the conviction recorded for the said
charges, in my view, is nothing but amounting to non application of mind by the
trial Court and apart from that, it also amounts to convict the accused on the
baseless charges. 
There is no other go except to observe that the learned Presiding Officer had
functioned as a silent spectator although from the stage of framing the charges
till the recording of the depositions, without taking any proper care and
caution.     As such, the conduct on the part of the Presiding Officer who
examined the accused before framing the charges and who obtained the thumb  
impressions on the charges and the depositions without indicating the names of
the relevant person against the said thumb impressions, is very much
questionable and the same is self explanatory.
All my above observations are regrettable, but in the circumstances, inevitable.
Now coming to the merits of the case, it has to be examined whether the
prosecution proved the guilty of the accused for the charges leveled against
them.
Out of the prosecution witnesses, the deceased is the daughter of P.ws.1 and 2
and sister of P.w.3.   P.w.4 is a child witness who is the sister of A1.
P.w.5, Sarpanch of the village, is the neighbour of P.w.1.     P.w.6 is kthe
R.M.P Doctor.   P.w.7 is the Photographer.   P.w.8 is the inquestdar.   The
deceased is a grand daughter of P.w.9 by curtesy and P.w.10 is the neighbour of
P.w.1.   P.w.11 is the S.I. of Police.    P.w.12 is one of lthe inquestdars.
P.w.13 is the Civil Assistant Surgeon and P.w.14 is the Mandal Revenue Officer.
P.w.15 is the Sub Divisional Police Officer who took up further investigation.
At this stage, in support of contention that the conduct of the family members
of the deceased is relevant for considering the charges leveled against the
accused and there was no such conclusion as to the death of the deceased at the
time of conducting the inquest and that mere lodging a report against accused
does lead to a conclusion that the accused committed the offence, the learned
counsel for the accused relied on a judgment of the Apex Court reported in
T.ARUNPERUNJOTHI VS. STATE THROUGH S.H.O. PONDICHERRY (1)            
Now, in the light of the principles laid by the Apex Court, let us examine the
veracity of the testimonies of the prosecution witnesses.
According to P.w.1, the deceased is his daughter and she was married to A1 about
2 years back and they gave Rs.50,000/- towards dowry.    They lived happily for
2 years and thereafter, the accused started harassing the deceased for
additional dowry.    Having come to know about the death of his daughter, he
went to her in laws' house and found the dead body of the deceased and on
suspicion against all the accused, he lodged Ex.P1 report to the police.
During the course of cross examination, P.w.1 admitted that the marriage between
A1 and the deceased was proposed long back i.e., from their childhood and the
marriage was as such performed.     He denied the suggestion that he stated to
the police that the accused and the deceased lived happily for one year as in
Ex.D2.     He volunteered that the demand of dowry was firstly made one month
prior to the death of the deceased and he did not inform to any of the caste
elders or to the police about the demand of the dowry by the accused and no
panchayats were convened.    He further volunteered that he only informed to the
police for the first time as to the harassment for dowry, after the death of the
deceased.        He denied the suggestion that he did not state before the
police that the accused visited his house for the festival 15 days after the
demand of dowry and he expressed his inability to give the additional dowry on
the ground that his financial condition was not good.
A perusal of the evidence of P.w.1 makes it crystal clear that A1 is no other
than the son of the sister of P.w.1 and the marriage of A1 and his daughter was
settled even in the childhood itself and the accused started harassing the
deceased for additional dowry from two months prior to the death of the deceased
and that the alleged demand of additional dowry was not reported to anybody by
P.w.1.     Therefore, it can be said that by the date of giving Ex.P1, there was
no such complaint by P.w.1 against any of the accused for the alleged demand of
additional dowry of Rs.20,000/-.
Now, coming to the evidence of P.w.2 who is the mother deceased, she stated that
the marriage of the deceased with A1 was performed two years back and an amount
of Rs.40,000/- was given prior to the marriage towards the dowry and an amount
of Rs.20,000/- was given at the time of marriage and they lived happily for
about 4 months.   From then, A1 was harassing the deceased for bringing the
amount so as to prosecute his studies.     About 8 months after the marriage,
they celebrated a festival.   But, A2 and A3 did not attend the festival.    A1
refused to eat non-vegetarian food and he insisted for preparing vegetarian
dishes and that he did not have his dinner and quarreled with the deceased.
After making a big issue, he went to his house.     After one month, A2 and A3
came to their house and the deceased was at their house by that time and both of
them abused her in filthy language.    They sent the deceased along with them.
After 7 days, he received a phone call from the deceased to send her brother to
her house.    On that, she sent L.w.3 to her house and that L.w.3 returned and
informed that herself and P.w.1 should go to the house of the deceased.
Subsequently, they came to know about the death of the deceased.
During her cross examination, she admitted that she did not state the details as
stated by her in the chief examination, to the police.   It is also admitted
that after they reached the house of the deceased, she along with the accused
took her to the hospital.
A scrutiny of the evidence of P.w.2, the same is entirely different to that of
P.w.1, her husband on all material aspects.     Nowhere, she stated that the
accused demand additional dowry of Rs.20,000/-.    But, she gave a different
version with regard to the alleged dowry.    She had also given a different
version to the effect that A1 was harassing the deceased for bringing the amount
so as to prosecute his studies.     According to P.w.1, he signed Ex.P1 along
with P.w.2 whereas P.w.2 did not state that she signed Ex.P1 on the next day of
the alleged incident.
P.w.3 is the brother of the deceased and the son of P.ws.1 and 2.   According to
him, the deceased was married to A1 about 2 years back and Rs.50,000/- was given
as dowry at the time of marriage and they lived happily for about one year.
After the birth of son to the wife of the brother of A1, disputes arose between
A1 and the deceased on the ground that the deceased did not beget children and
also on the ground of additional dowry.    He further added that the deceased
came to their house after the disputes with A1 and stayed for one month and that
in connection with the festival celebrating in their house, they invited all the
accused and all the accused came to their house.   The daughter of A2 and A3
also came to their house and later they left their house and subsequently, A1
and the deceased left their house.   Prior to that, there was a small galata in
their house.    After 15 days, he received a phone call from the deceased
informing that there were disputes.   Thereafter, they came to know about the
death of the deceased.
During the cross examination, he stated that he along with P.w.2, personally
handed over Rs.50,000/- to the accused.    It is strange to note that neither
P.w.1 nor P.w.2 stated that the said dowry amount of Rs.50,000/- was paid
through P.w.3.    The evidence of P.w.3 on that count, is nothing but an
improvement.        During the cross examination, he volunteered that A1 to A3
and L.w.4 stayed for one day during their visit and the festival was celebrated
by all of them together and that the deceased was happy while leaving their
house.
Thus, P.ws.1 to 3 did not state that the deceased was unhappy at the time of
leaving their house after celebrating the festival in their house.    The
evidence of P.ws.1 to 3 is inconsistent with regard to the quantum of dowry and
also with regard to the mode of payment to the accused.   Thus, the evidence of
P.ws.1 to 3 suffers from contradictions, improvements and inconsistencies, which
were falsified by the evidence of the Investigating Officer, P.w.15 as per
Exs.D1 to D3.  Exs.D1 to D3 are the material contradictions and if the same are
taking into consideration, they create a doubt crept in the mind of the Court as
to the veracity of the testimonies of P.ws.1 to 3.
The judgment relied on by the learned counsel for the accused, as stated supra
lends support to the defence taken by the accused that the conduct of the family
members of the deceased suffers from suspicious circumstances.
Coming to the evidence of P.w.4, a child witness who is the sister of A1, she
stated that the deceased died by hanging herself on the ground that she disliked
A1.On the date of incident, all the accused and herself went to attend their
work and after returning, they found deceased died and they forcibly opened the
doors of the room and A2 cut the rope with which the deceased hanged herself.
She was not cross examined in this regard.    If the evidence of this child
witness is taken into consideration, it can easily be said that at the time of
the alleged suicide, A1 to A3 including the child witness were not present in
the house.
At this juncture, the case of the Investigating Officer as narrated in the
remand, plays a vital role.    According to the investigation, on 29.4.2004 at
about 3 P.M. while A1 to A3 were in the fields,  the deceased who disgusted with
the harassment made to her, sent P.w.4 to have a chacklet and hanged with the
rope already tied to the hook of the fan.   P.w.4 who found the door bolted from
inside, noticed the dead body of the deceased through the window and rushed to
the accused and informed them and they came and broke opened the doors and A2  
cut the plastic rope and relieved the deceased.
Even if the investigation done by P.w.15, is taken into consideration, there is
no tangible evidence suspecting the involvement of the accused in this crime for
the reason that at the time of the suicide, A1 to A3 went to attend their work
in the fields and P.w.4, the child witness was sent for buying a chacklet by the
deceased and by the time, A1 to A3 came to the house on intimation by P.w.4
about the hanging of the deceased, the doors were found locked from inside and
therefore, they were broke opened by the accused and A2 cut the rope and laid
the deceased on the ground.    From these circumstances, it can be inferred that
the conduct of the accused in breaking opened the doors and cutting the rope and
laying the deceased on the ground and sending for a Doctor, shows their anxiety
to survive the deceased and the said attitude and the conduct of the accused,
appears to be a bonafide one in the ordinary course of life of a person.
The case of the prosecution rests on the following: The alleged harassment
according to the prosecution version is that trouble started on the ground that
the deceased did not beget children and she did not bring additional demand of
dowry of Rs.20,000/-.     In this regard, the framing of the charge, which is
framed on the allegations that are not found in the chargesheet, is very vague.
With regard to the demand for additional dowry of Rs.20,000/-, the evidence of
the witnesses is not consistent as to the quantum of dowry, the mode of payment
and as to the demand for additional dowry.    Admittedly, the factum of demand
of additional dowry has not been reported to any of the elders.    On a perusal
of the evidence, the fact that remains undisputed is that P.w.1 is no other than
the brother of the mother of the deceased and the deceased is his niece and the
marriage between A1 and the deceased was fixed even from their childhood.   In
this background of the matter, it gives rise to a doubt in the mind of the Court
as to the veracity of the testimonies of the prosecution witnesses as to the
dowry and the demand for additional dowry and the alleged harassment.
P.w.5 who is the sarpanch of the village is a neighbour to P.ws.1 and 2.   He
deposed that he was not informed about any disputes and about 20 days prior to
the death of the deceased, there was a galata near the house of P.w.1 and when
he enquired, P.w.1 informed him that the accused demanded Rs.20,000/- as
additional dowry.
According to him, he did not know any disputes.    If there were really
disputes in the family of his daughter, the silence on the part of P.w.1 without
intimating the same to P.w.5, being neighbour who is a sarpanch and elder of the
village, appears to be quite unnatural and apart from that, the silence on the
part of P.w.1 leads to draw an adverse inference against the case of the
prosecution.  However, the evidence of P.w.5 is falsified due to the
contradiction marked as Ex.D5.
P.w.6 is a R.M.P. Doctor by profession.   He deposed that about a year back, A2
came to him and informed that the deceased hanged herself and that she was
struggling for life and thereby, requested him to examine her.   Therefore, he
went to his house and on examination, advised them to take her to Dr.Sudhakar
who is a M.B.B.S Doctor.
P.w.8, one of the inquestdars deposed that the issue of dowry death did not
arise at the time of inquest and the said fact was not stated by any of the
witnesses examined at the time of inquest.   He postulated that the contents of
panchanama were not read over to him.
It is to be noted that in spite of the above deposition, this witness has not
lbeen declared as hostile and thereby, his evidence remains unrebutted.   If
this piece of evidence is taken into consideration, no motive has been gathered
at the time of even conducting panchanama on the death of the deceased i.e.,
with regard to the alleged harassment or the additional dowry.
P.w.9 is the grand mother of the deceased by curtesy.   She gave a different
version that one year back, A1 to A3 came to the house of P.w.1 and there was a
quarrel in their house and in that quarrel, A3 got enraged and took a broom
stick and a chappal and scolded P.ws.1 to 3.   But, at this stage, it is strange
to note that none of the prosecution witnesses have stated these facts either in
their chief examination or in the cross examination or in their 161 Cr.P.C
statements.
However, this witness turned hostile and did not support the case of the
prosecution.
P.w.10 who is a neighbour of P.w.1 stated that on behalf of P.w.1, he paid
Rs.40,000/- which was raised through a sale of the land by P.w.1, to A-2 and A3.
But, it is neither the case of the prosecution witnesses nor the case of the
prosecution and apart from that, the evidence of this witness, falsifies the
evidence of P.w.3 who stated in his cross examination that he personally handed
over Rs.50,000/- to the accused.    P.w.3 also stated that he was not aware of
the alleged harassment and he was not present at the time of conversation
between the deceased and the accused.
P.w.11, the S.I. of Police stated that he registered Ex.P.6 F.I.R and arrested
the accused.    He stated that P.w.1 gave Ex.P1 report and the said report was
already drafted.     According to P.w.1, Ex.P1 was written in the police station
and himself and P.w.2 signed in the document.
A perusal of Ex.P1, it does not contain the signature of P.w.2 except P.w.1.
Thus, there are inconsistencies as to the presentation of Ex.P1 and it goes a
long way to infer against the case of the prosecution.
P.w.12, one of the inquestdars stated that he was present at the time of inquest
conducted over the dead body of the deceased on 30.4.2004 at the house of the
accused.   In his cross examination, he stated that the details of the
examination of the witnesses and regarding the relations between the deceased
and A1 were not mentioned in Ex.P6 and he affixed signatures on 3 pages of the
inquest report and he did not know the contentions of Ex.P6.    For the reasons
best known, the prosecution did not make any efforts to get the witness turned
hostile.
P.w.14 is the Mandal Revenue Officer.    According to him, he prepared Ex.P3
inquest report on the requisition given by the S.I. of Police.   In the cross
examination, he admitted that he did not remember the scribe and he did not
obtain the signatures of the scribe on Ex.P3.
In view of the failure to obtain the signatures of the scribe on Ex.P3 and apart
from that, in view of the failure to examine the scribe, the same is fatal to
the case of the prosecution.
P.w.15 is the Sub Divisional Police Officer who took up the investigation in
this case.    During his cross examination, he stated that the statements of the
witnesses were scribed by P.C.1467.   But, he was not cited as a witness.
If the contradictions under Exs.D1 to D5 are taken into consideration, the
evidence of P.ws.1 to 5 has no legs to stand in support of the case of the
prosecution.
But, the trial Court without appreciating all these aspects and the evidence on
record in a proper perspective, simply carried away with the arguments of the
learned Public Prosecutor and convicted the accused without any positive,
cogent, convincing and trustworthy evidence.    In any view of the matter, in my
considered opinion, the prosecution has miserably failed to prove the charges,
which are very vague and ambiguous, against the accused and consequently, the 
accused are found not guilty for the charges leveled against them and they are
entitled to be acquitted and hence they are acquitted.
 Accordingly, the appeal is allowed setting aside the conviction and sentenced
imposed by the trial Court in S.C.No:308 of 2005, dated 12.8.2005.
The bail bonds of the accused, if any shall stand cancelled and the fine amount
paid, if any shall be refunded to the accused after the expiry of the staturoy
period.

__________________  
Justice K.S.Apparao
Date:24.07.2012

The question, which quite often vexes the Bar and the Bench alike, arises in this case. The question is whether the unregistered sale deed dated 23.01.1976 sought to be produced by the plaintiff in evidence in a suit for permanent injunction could be marked for a "collateral purposes"? I am of the opinion that the unregistered sale deed is admissible in evidence for the collateral purpose to the limited extent of showing possession of the plaintiff. As discussed hereinabove, the Courts have been consistently holding that in a document of sale, possession is treated as collateral to the main transaction affecting the immovable property. Therefore, I am of the considered opinion that for the limited purpose of proving the petitioner's possession, the unregistered document, which is impounded, is admissible in evidence. The order of the lower Court is accordingly set aside, and the Civil Revision Petition is allowed.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1623 of 2012

27.07.2012

K. Ramamoorthi

C. Surendranatha Reddy        

<GIST:

>HEAD NOTE:  

 Counsel for the petitioner     : Mr. R. Dheeraj Singh

Counsel for the respondent      : Mr. Sharad Sanghi
       
?CASES REFERRED:    

1. 2006 (6) ALT 292
2. AIR (29) 1942 Sind 27
3. CDJ 2012 APHC 499  
4. 43 Madras 244 (PC)
5. 17 Madras 456
6. 35 Madras 63
7. 46 Madras 349
8. (2008) 8 SCC 564
9. AIR 1932 Cal 83(2)
10. AIR 1980 All 180
11. AIR 1989 SC 1806
12. 1969 (1) UJ 86 (SC)
13. AIR 1984 SC 143
14. 2011 AIR SCW 4484  
15. AIR 2003 SC 1905 : (2003) 4 SCC 161
16. 2004 (3) ALD 817 (DB)
17. 2011 (2) ALT 373
18. 2009 (2) ALT 19 (SC) : 2009 (2) SCJ 156
19. AIR 2004 AP 243
20. ('92) 15 Mad. 253
21. ('09) 32 Mad. 410
22. ('96) 20 Bom. 553
23. ('19) 6 AIR 1919 Bom. 38 : 21 Bom. L.R.716

JUDGMENT:  
The question, which quite often vexes the Bar and the Bench alike, arises in
this case.  The question is whether the unregistered sale deed dated 23.01.1976
sought to be produced by the plaintiff in evidence in a suit for permanent
injunction could be marked for a "collateral purposes"? The lower Court has
sustained the objection raised by the defendant that as the sale deed pertains
to an immovable property, which requires compulsory registration, and the same
is not registered, it cannot be admitted in evidence even for the purpose of
proving the plaintiff's possession.
Before delving into the legal position governing the issue, it is necessary to
briefly refer to the facts of the case. The petitioner herein filed O.S.No.169
of 2005 for permanent injunction restraining the respondent herein and the
persons claiming through him from interfering with his peaceful possession of
the plaint schedule property comprising Ac.0.20 cents or 0.081 hectares out of
Ac.1.87 cents in survey No.649/1 of Chittoor Municipality. It is the pleaded
case of the petitioner that his brother K.Gopalan was the absolute owner of the
plaint schedule property, that out of love and affection towards him, his
brother has gifted the plaint schedule property to him on 22.02.2001 under a
registered gift settlement deed, that on the date of execution of the gift
settlement deed, his brother has inducted him in possession, that since then he
has been in continuous possession of the same, and that as the respondent sought
to interfere with his possession, he has filed the suit.
The respondent has filed O.S.No.287 of 2004 in the Court of the learned
Principal Senior Civil Judge, Chittoor for declaration of title and permanent
injunction against the petitioner. On a transfer application, both these suits
were clubbed together for disposal by the learned Principal Junior Civil Judge,
Chittoor. The said suit filed by the respondent is mainly based on the
registered sale deed dated 30.11.2004 executed by the wife and children of
Balasubrahmanyam Pillai in favour of the respondent.
During the trial, the petitioner sought to produce the above-mentioned
unregistered sale deed dated 23.01.1976 stated to have been executed by
Balasubrahmanyam Pillai in favour of K.Gopalan, the brother of the petitioner
who executed Ex.A.1-gift deed in favour of the petitioner. As the said sale deed
was neither properly stamped nor registered, the petitioner got the same
impounded by paying the stamp duty and penalty. The schedule property in
O.S.No.169 of 2005 forms part of the schedule property in O.S.No.287 of 2004.
The petitioner sought to mark the impounded but unregistered sale deed dated
23.01.1976 for a purported collateral purpose, namely, to prove possession of
the property.  But the Court below declined permission to mark the document.
The reason assigned by the lower Court for this refusal is that if the
respondent, who filed O.S.No.287 of 2004, succeeds in getting his title
declared, the petitioner will not be entitled for the grant of permanent
injunction and that, therefore, the unregistered sale deed cannot be marked. The
lower Court further reasoned that since the sale Deed is compulsorily
registerable as per Section 17 of the Registration Act, 1908, the same is not
admissible in evidence even though it is impounded. The lower Court cited the
judgment in Rayadurgam Pedda Reddeppa (died) and others v. Rayadurgam Narasimha    
Reddy (died) and others1. It needs to be observed that the lower Court has not
dealt with the issue as it ought to have. It has not undertaken any discussion
as to whether the document cannot be admitted into evidence for a collateral
purpose if not for proving the title. Therefore, I would like to examine these
aspects.
Before adverting to the case law, I would like to give a brief prelude to the
issue.  The plain dictionary meaning of the phrase "collateral" is "additional
but subordinate, secondary" (Oxford Dictionary, Thesaurus & Word Power Guide,
Indian Edition 2007).  An area which often creates a doubt is whether the word
"collateral" should be applied qua the transaction or the relief claimed in the
suit?  The proviso to Section 49 of the Registration Act makes it evident that
it is only with reference to the transaction affecting the immovable property.
For example, in a suit for injunction, the main purpose is to prove possession.
The possession in a sale deed is collateral to the transaction.  The case law
discussed below would show that the phrase 'collateral purpose' is qua the
transaction and not with reference to the relief claimed in the suit.  Equally
important area where the Courts often face the problem is in understanding the
purport of the phrases 'collateral transaction' and 'collateral purpose'.
The spate of precedents on the above aspects for almost a century
notwithstanding, the difficulty for the Courts to understand the true purport of
these aspects is continuing. In this context, I would like to recall the
statement of Davis C.J. In Radhomal Alumal v K.B. Allah Baksh Khan Haji Muhammad  
Umar and another 2 herein below:
 "In this case, as in other cases, it is easier to state the law than to apply
it".

Indeed, without noticing this judgment, feeling the same difficulty, I have
myself made the following observation on similar lines in Doma Govinda Raju and
another v Vanimisetti Papa Rao and others3:
"While the legal principles do not admit of divergent opinion, the whole problem
arises in their application."

In the present case, I have, therefore, tried to make an endeavour to explain
these aspects in the light of the various judicial precedents.
        Section 17 of the Registration Act specified the documents, whose
registration is compulsory. Under clause (b) of sub-section (1) thereof, other
non-testamentary instruments which purport or operate 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, are included. A sale deed purporting to
convey right and title in the property undoubtedly falls in this category of
instruments. Section 49 of the Registration Act laid down the effect of non-
registration of documents required to be registered. For proper and better
appreciation, this provision is reproduced hereunder:
"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
(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 the Transfer of Property Act, 1882 to be registered may
be received as evidence of a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral
transaction not required to be effected by registered instrument." (Emphasis is
mine)

The proviso to Section 49 of the Registration Act, which is relevant for the
present purpose, carved out an exception to the rule contained in the main
provision as regards the effect of an unregistered document requiring
registration and receiving of such document as evidence of any transaction. The
proviso permits such document to be received as evidence under two
contingencies, namely (1) as a piece of evidence of a contract in a suit for
specific performance in Chapter II of the Specific Relief Act, 1877 and (2) as
evidence of any collateral transaction not required to be effected by registered
document.
        As noted hereinbefore, the proviso to Section 49 of the Registration Act
is a subject matter of debate and discussion in a plethora of judgments of
different Courts. In Radhomal Alumal (2 supra), Davis C.J. in his leading
opinion has made a studious reference to the case law and pithily culled out the
opinion of various judgments of Bombay High Court. The learned Chief Justice
observed as under:

"The use of such document in evidence, and the fact that an unregistered
document may be used in evidence but not as evidence has been held to permit the
use in evidence of an unregistered document, though that document affects
immovable property, if the purpose of its use is for any purpose other than that
of creating, declaring, assigning limiting or extinguishing a right to immovable
property: 9 Bombay Law Reporter 393, 13 Bombay Law Reporter 162, 34 Bombay Law    
Reporter 415. These words are wide and the term "collateral purpose" is easier
to illustrate than to define."

Davis C.J. further noticed that the High Courts generally have held that a
document which requires registration under Section 17 and is not admissible for
want of registration to prove a gift, or mortgage or sale or lease of land is
nevertheless admissible to prove the possession of the person who holds it.
The learned Chief Justice has referred to a judgment of the Privy Council in
Varada Pillai v Jeevaratnammal4 as an illustration for the point wherein an
unregistered deed of gift requiring registration under Section 17 was admitted
in evidence not to prove the gift but to explain by reference to it the
character of the possession of the lady who held the land and who claimed it,
not by virtue of her deed of gift but on another title, that of adverse
possession. He described the collateral transaction as under:
        "A collateral transaction means, I think, a transaction other than the
transaction affecting the immovable property but which is in some way connected
with it."


The question, which arose in Radhomal Alumal (2-supra) was whether the deed of
partnership relating to immovable property requiring registration but not
registered was admissible in evidence for proving the existence of partnership.
The objection to the admissibility of a document was that the deed contained
recitals relating to transfer of interests in immovable property which required
registration. However, the propounder of the deed sought to rely on the said
document for the purpose of proving partnership. While holding that the said
document could be used for the collateral purpose of proving partnership, Davis
C.J., held as under:
"It is difficult in this case to say that what is sued for is something that
affects immovable property. The share of defendant in the lease does not concern
in any way the taking of accounts, and the division of the proceeds. There is no
attempt here to enforce the transfer of the share in the leases, it is quite
immaterial to the relief sought, which can be ascertained and given
independently of whether an interest in the leases was or was not transferred to
defendant. It is sought to bring the unregistered deed upon the record not to
prove a transaction affecting immovable property but as evidence to prove a
collateral transaction, that is not a transaction creating, declaring,
assigning, limiting or extinguishing a right to immovable property, (Bai
Gulabbai v. Shri Datgarji - ('07) 9 Bombay Law Reporter 393), but to prove the
partnership and profits and losses arising from the same."

I may revert to this judgment a little later.
        A Larger Bench of the Madras High Court headed by
Rajamannar, C.J., considered the whole gamut of the subject on a copious
reference of the case law on the subject.  Two conflicting opinions were
rendered by Satyanarayana Rao, J and Panchapagesa Sastry, J.   Rajamannar, C.J.,
agreed with the opinion of Satyanarayana Rao, J, by a short separate opinion of
his own.  The document, which fell for consideration of the Court, was a
purported agreement whereunder Acs.4-00 of property was leased out on an yearly
rent of Rs.600/-.  The two lower Courts have declined to admit the document into
evidence as it was unregistered.  Before the High Court, it was argued that even
if the said document required registration and was not admissible in evidence,
still it could be used for the collateral purpose of proving the anterior oral
agreement which would, nonetheless, be valid because of the agreement being
oral.  Satyanarayana Rao, J, who rendered leading opinion, referred to a slew of
judgments notable among them being the Judgment of a Five Judge Bench of Madras  
High Court in Rajah of Venkatagiri v Narayana Reddi5.   In a Full Bench judgment
of three Judges in Narayanan Chetty v  Muthiah Servai6,  his Lordship has
noticed the conflict between these two judgments.  While dealing with Section 49
of the Registration Act, the learned Judge observed that the prohibition against
admissibility enacted by the said provision is not an absolute one, but the
section renders the unregistered document inadmissible only for the two limited
purposes specified in the section, i.e., clauses (a) and (c) thereof and leaves
it available to be used in evidence for other purposes; that under clause (a) of
S.49, the document required to be registered, but unregistered, is wholly
inoperative and ineffectual to create, declare, assign, limit or extinguish any
right, title or interest in immoveable property and that under-sub clause (c),
an unregistered document cannot be relied upon for proving a transaction
affecting immovable property.  While dealing with clause (a), the learned Judge
relied on the following famous observation in Saraswathamma v.  Paddayya7:
        "What is prohibited by the section is receiving a document as evidence of
a transaction, not merely receiving it in evidence, i.e., as a piece of evidence
having a bearing on the question to be ultimately decided."

In other words, the learned Judge held that the prohibition was to prevent a
person from establishing the use of the document in evidence "transaction
affecting immoveable property" and that a person should not be permitted to
establish indirectly by use of the document what he is prevented from doing
directly under clause (a). While dealing with clause (c), the learned Judge held
as under:
"What one has to see under the clause is to consider what is it that he is
seeking to establish in evidence by using the document.  Is he attempting to
prove by the document a "transaction affecting immoveable property".  In other
words is he seeking to prove a present demise of the property, or a lease of the
property ?".   That is not the object of the plaintiff in the present case.  The
object is to establish an agreement to lease the property, which was broken by
the defendant.  He is in no way attempting to show that an interest in
immoveable property is created by a present demise of the land.  Proof of a mere
agreement to lease, if one remembers the distinction drawn by the Privy Council
in Hemantha Kumari's case, (47 Cal. 485) : (AIR (6) 1919 P.C. 79) between
agreements, which merely enable a person to obtain a lease in future, and
agreements, which operate to create a present demise, or an immediate interest
in land, is not prohibited.  The former agreement is not a transaction affecting
immoveable property.    The agreement, therefore, in such a case is not hit at
by cl. (c) of S.49, as a mere agreement to lease without more does not create
any interest in immoveable property.....".

The learned Judge concluded by holding as under:
        "The restriction imposed by this section is confined to the use of the
document to affect immoveable property and to use the document as evidence of a
transaction affecting immoveable property and no more.  If the object in putting
the document in evidence does not fall within any of these two purposes, there
is no reason for excluding the document from evidence altogether.  The scope of
the restriction or of the disability imposed cannot be extended beyond the
limits imposed by the section."

        On a painstaking effort of analyzing innumerable judgments, the learned
Judge has held that the judgment in Rajah of Venkatagiri (5 supra) has laid down
the law correctly and has, accordingly, overruled the judgment in Narayanan
Chetty (6 supra).
In K.B.Saha & Sons Pvt. Ltd. v Development Consultant Ltd.8, the Supreme Court
has considered the true meaning and purport of "collateral fact/collateral
purpose" with reference to the decided case law.  The question that arose before
the Supreme Court was, whether the memorandum of agreement whereunder the suit  
property was leased out was admissible in evidence, as the same was not
registered.  The further question considered by the Supreme Court was, whether
Clause 9 of the lease agreement which constituted an important term of the lease
agreement could be used as evidence of any collateral transaction not required
to be affected by registered instrument.
After considering the judgments in Haran Chandra Chakrvarti v Kaliprasanna
Sarkar9, Ratan Lai & others v Harisankar & others10, Bajaj Auto Limited v Behari
Lal Kohli11 and Rana Vidya Bhushan Singh v Ratiram12, in paragraph 34 the
Supreme Court deduced the following principles:
"From the principles laid down in the various decisions of this Court and the
High Courts, as referred to hereinabove, it is evident that:-

1.      A document required to be registered is not admissible into evidence under
Section 49 of the Registration Act.

2.      Such unregistered document can however be used as an evidence of
collateral purpose as provided in the Proviso to Section 49 of the Registration
Act.

3.      A collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required 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 one hundred
rupees and upwards.

5.      If a document is inadmissible in evidence for want of registration, none
of its terms can be admitted in evidence and that to use a document for the
purpose of providing an important clause would not be using it as a collateral
purpose."


        On the above legal principles the Supreme Court held that Clause 9 cannot
be looked into for collateral purpose as it constitutes an important term of the
agreement.
          In Satish Chand Makhan and others v Govardhan Das Byas and others13, a
registered indenture of lease dated 08.01.1965 was entered between the parties
for a period of five years, on a monthly rent of Rs.311/-.  The lessee, acting
upon the lease put up a structure worth more than rupees one lakh and carried on
the business of running a hotel from the demised premises.  After the expiry of
five years period, the parties entered into an agreement to renew the monthly
lease for a further period of nine years with effect from 01.06.1971, and they
have accordingly prepared a draft lease agreement which remained unregistered as
required under Section 17(1)(d) of the Registration Act.  Clause 9 of the
agreement provided that the lessee shall restore the possession of the demised
premises to the lessors after removing all the superstructure built upon the
land.  It has further stipulated that on his failure to comply with the said
condition, the lessor's father would be entitled to recover possession of the
plot with mesne profits.  Thereafter, the lessors filed suit for ejectment and
mesne profits.  One of the pleas of the defendant was that the unregistered
draft lease agreement was inadmissible for want of registration under Section 49
of the Registration Act.  The trial Court has admitted the document into
evidence by marking the same as Ex.B.2 for being used by the plaintiff for the
collateral purpose of proving the term of the subsequent lease under proviso to
Section 49 of the Registration Act.  This view of the trial Court was confirmed
by the High Court.  Reversing this view taken by the trial Court and the High
Court, the Supreme Court held as under:
        "...The unregistered draft lease agreement Ex. B-2 was clearly
inadmissible in evidence under Section 49 of the Registration Act, except for
the collateral purpose of proving the nature and character of possession of the
defendants. The document Ex. B-2 was admissible under the proviso to Section 49
only for a collateral purpose of showing the nature and character of possession
of the defendants. The proviso to Section 49 was however not applicable in the
present case inasmuch as the terms of a lease are not a "collateral purpose"
within its meaning. It follows that the unregistered draft lease agreement Ex.
B-2 was inadmissible in evidence to prove the transaction of lease. It was also
ineffectual to create a valid lease for a renewed term of nine years for want of
registration as required under Section 17(1)(d) of the Registration Act."
(Emphasis supplied)

In M/s.Sms Tea Estates P.Ltd v M/s.Chandmari Tea Co.P.Ltd.14, a lease deed was  
entered into between the parties for grant of a long term lease in respect of
two Tea Estates.  Clause 35 of the lease deed provided for settlement of
disputes between the parties by arbitration.  One of the parties issued a notice
to the other party to refer the disputes to arbitration under Clause 35 of the
lease deed.  As the said request was not accepted by the other party, the
aggrieved party filed an arbitration application in the Guwahati High Court
under the Arbitration and Conciliation Act, 1996.  The Chief Justice of the
Guwahati High Court dismissed the application by holding that the lease deed was
compulsorily registrable under Section 17 of the Registration Act and Section
106 of the Transfer of Property Act, and that as the lease deed was not
registered, no term in the lease deed could be relied upon for any purpose, and
consequently Clause 35 could not be relied upon for seeking reference to
arbitration.  Reversing this view, R.V.Raveendran, J, speaking for the Supreme
Court held as under:
"...Section 49 makes it clear that a document which is compulsorily registrable,
if not registered, will not affect the immovable property comprised therein in
any manner. It will also not be received as evidence of any transaction
affecting such property, except for two limited purposes. First is as evidence
of a contract in a suit for specific performance. Second is as evidence of any
collateral transaction which by itself is not required to be effected by
registered instrument. A collateral transaction is not the transaction affecting
the immovable property, but a transaction which is incidentally connected with
that transaction. The question is whether a provision for arbitration in an
unregistered document (which is compulsorily registrable) is a collateral
transaction, in respect of which such unregistered document can be received as
evidence under the proviso to section 49 of the Registration Act." (Emphasis
supplied)

On analyzing the lease deed, the Supreme Court concluded that when a contract
contains an arbitration agreement, it is a collateral term relating to the
resolution of disputes, unrelated to the performance of the contract, that it is
as if two contracts - one in regard to the substantive terms of the main
contract and the other relating to resolution of disputes - rolled into one, for
purposes of convenience and that an arbitration clause is therefore an agreement
independent of the other terms of the contract or the instrument and
resultantly, even if the contract or its performance is terminated or comes to
an end on account of repudiation, frustration or breach of contract, the
arbitration agreement would survive for the purpose of resolution of disputes
arising under or in connection with the contract.   The Supreme Court further
held that similarly, when an instrument or deed of transfer (or a document
affecting immovable property) contains an arbitration agreement, it is a
collateral term relating to resolution of disputes, unrelated to the transfer or
transaction affecting the immovable property.  Another important question which
was considered by the Supreme Court was apart from the purpose of existence of
arbitration, whether the unregistered sale deed can be relied upon for proving
possession.  The Supreme Court answered this question in the affirmative by
holding as under:
       
"Where a lease deed is for a term of thirty years and is unregistered, the terms
of such a deed cannot be relied upon to claim or enforce any right under or in
respect of such lease. It can be relied upon for the limited purposes of showing
that the possession of the lessee is lawful possession or as evidence of some
collateral transaction. Even if an arbitrator is appointed, he cannot rely upon
or enforce any term of the unregistered lease deed. Where the arbitration
agreement is not wide and does not provide for arbitration in regard to all and
whatsoever disputes, but provides only for settlement of disputes and
differences arising in relation to the lease deed, the arbitration clause though
available in theory is of little practical assistance, as it cannot be used for
deciding any dispute or difference with reference to the unregistered deed."
(Emphasis supplied)

In Bondar Singh and others v Nihal Singh and others15, a suit was filed for
declaration of title on the basis of the plea that the plaintiffs have become
the owners of the suit schedule property by adverse possession.  It was the
pleaded case of the plaintiffs that, one Fakir Chand, the predecessor in
interest of the defendants, sold the land to Tola Singh, the predecessor in
interest of the plaintiffs, under an unstamped and unregistered sale deed dated
09.05.1931.  The plaintiffs claimed to have entered into possession of the land
on the basis of the said sale deed and they claimed to be continuously in
possession since then.  When the defendants tried to dispossess the plaintiffs,
the latter have filed the suit.  In order to show that possession of the
plaintiffs was hostile and continuous by virtue of which the plaintiffs have
perfected their title by adverse possession, they have sought to rely upon
unregistered sale deed dated 09.05.1931 executed by Fakir Chand.  The said
document was admitted into evidence and the suit was decreed.  While affirming
the judgment of the trial Court and the High Court, the Supreme Court has held:
"Under the law a sale deed is required to be properly stamped and registered
before it can convey title to the vendee. However, legal position is clear law
(sic) that a document like the sale deed in the present case, even though not
admissible in evidence, can be looked into for collateral purposes. In the
present case the collateral purpose to be seen is the nature of possession of
the plaintiffs over the suit land. The sale deed in question at least shows that
initial possession of the plaintiffs over the suit land was not illegal or
unauthorized. It is significant to note that the sale deed is dated 9.5.1931 and
Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand
never disputed plaintiffs' title or possession of the suit land". (Emphasis
added)


A Division Bench of this Court in A.Kishore @ Kantha Rao v G.Srinivasulu16
considering the judgments in Satish Chand Makhan (13 supra) and Rana Vidya
Bhushan Singh (12 supra), repelled the submission of the respondent before the
Court based on a distinction between an unregistered lease deed and an
unregistered sale deed for considering the documents for collateral purpose.
The argument was that while in a sale deed the title is the main purpose and
possession is collateral purpose, in a lease deed transfer of possession being
main purpose, such a lease deed cannot be looked into even for collateral
purpose.  The Division Bench considering the above mentioned judgments of the
Supreme Court held as under:
"Therefore, there is no judgment as such from the Apex Court, which in our view,
lays down that an unregistered lease deed which is compulsorily registerable,
cannot be admitted in evidence even for the purpose of proving the nature of
possession. True, such lease deeds cannot be used for the purpose of providing
the terms of such lease or the lease itself, but they can certainly be used for
the purpose of proving the nature of possession." (Emphasis added)

       
In Anga Bhuloka Rao v Noorjahan Begum17 a learned single Judge of this Court
placing reliance on the decision of the Supreme Court in Avinash Kumar Chauhan v
Vijay Krishna Mishra18 held that an unregistered sale deed is admissible in
evidence to show the character of possession, which is a collateral purpose.
        A case involving the facts identical to the present one was dealt with by
a learned single Judge of this Court in P.M.Anand Babu and others v Mir Akbar
Ali Khan and another19.  In that case also a suit was filed for injunction
simplicitor.  The plaintiffs relied upon unregistered sale deeds dated
17.09.1953 and 24.04.1971 to prove their possession.  The learned Judge has
discussed the phrases "collateral purpose" and "collateral transaction", and
observed that 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 of which it would have had if registered and similarly the
expression "collateral transaction" in the proviso to Section 49 of the
Registration Act is not to be used in the sense of ancillary or a subsidiary
transaction to a main or principal transaction.  The learned Judge held, "the
transaction as recorded could be a particular or specific transaction, but 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 fulfillment of that
collateral purpose would bring into existence a collateral transaction, a
transaction which may be said to be a part and parcel of a transaction but
nonetheless a transaction which runs together with or on parallel lines with the
same".  Upon placing reliance on the judgment of the Supreme Court in Bondar
Singh and others (15 supra), the learned Judge held as under:
"Since the suit filed by the petitioners/plaintiffs is injunction simplicitor
and the unregistered sale deeds sought to be relied on is only to prove their
possession over the property, they can be admitted into evidence under the third
proviso to Section 49 of Registration Act."
       
On a compendious reference of the case law discussed above, the followings
conclusions emerge:
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.
Having culled out the legal propositions, the discussion on this issue will be
incomplete if a few illustrations as to what constitutes collateral transaction
are not enumerated as given out in Radhomal Alumal (2 supra) and other
Judgments.  They are as under:
a)  If a lessor sues his lessee for rent on an unregistered lease which has
expired at the date of the suit, he cannot succeed for two reasons, namely, that
the lease which is registrable is unregistered and that the period of lease has
expired on the date of filing of the suit.  However, such a lease deed can be
relied upon by the plaintiff in a suit for possession filed after expiry of the
lease to prove the nature of the defendant's possession.
b)  An unregistered mortgage deed requiring registration may be received as
evidence to prove the money debt, provided, the mortgage deed contains a
personal covenant by the mortgagor to pay (See: Queen-Empress v Rama Tevan20,   
P.V.M.Kunhu Moidu v T.Madhava Menon21 and Vani v Bani22).    

c)  In an unregistered agreement dealing with the right to share in certain
lands and also to a share in a cash allowance, the party is entitled to sue on
the document in respect of movable property (Hanmantapparao v Ramabai  
Hanmant23). 
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 (Varada Pillai (4 supra)).
(e) A sale deed of immovable property requiring registration but not registered
can be used to show nature of possession (Radhomal Alumal (2-supra), Bondar 
Singh (15-supra) and A.Kishore (16-supra).
The above instances are only illustrative and not exhaustive.  There may be many
more situations where a transaction can be collateral to the transaction which
affects the immovable property.  The Courts will have to carefully decide on a
case to case basis in the light of the legal principles contained in the above
discussed and various other judgments holding the field.
When we apply the above crystallized legal position to the facts of the case, I
am of the opinion that the unregistered sale deed is admissible in evidence for
the collateral purpose to the limited extent of showing possession of the
plaintiff.  As discussed hereinabove, the Courts have been consistently holding
that in a document of sale, possession is treated as collateral to the main
transaction affecting the immovable property.  Therefore, I am of the considered
opinion that for the limited purpose of proving the petitioner's possession, the
unregistered document, which is impounded, is admissible in evidence.
The order of the lower Court is accordingly set aside, and the Civil Revision
Petition is allowed.
As a sequel, the interlocutory applications, pending if any, shall stand
disposed of.  There shall be no order as to costs.
Before parting with the case, I place on record my appreciation for Sri R.
Dheeraj Singh and Sri Sharad Sanghi, learned counsel for the parties, for the
assistance rendered by them and also Sri J.C. Francis, the learned counsel, for
placing relevant case law before the Court.
______________________________    
        (C.V.NAGARJUNA REDDY, J)    
27th July, 2012

Unless the petition schedule property is declared as a private Trust and not a religious endowment, the District Court has no jurisdiction to render its advice or opinion or give any direction on the questions raised before it.

HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.Nos.5784 of 2010 and 394 of 2012

20-3-2012

Sri Bhaktanjaneya Swamy Vari Devalayam Trust, Tekulapalli,Khammam District,  
represented by its Chairman Sri Bondili Dharma Singh

 1) To whom so ever it may concern 2) Vakadani Ramanarayana and others                

Counsel for petitioner : Sri Vedula Venkataramana, Senior Counsel
                               Sri V.L.N. Gopalakrishna Murthy
                       
 Counsel for respondent No.1 : --
   Counsel for respondent No.2 : Sri M.V.S. Suresh Kumar
   Counsel for respondent No.3 : --
   Counsel for respondent No.4 : Sri G.M. Mohiuddin
   Counsel for respondent No.5 : Sri A.S.C. Bose
? CASES REFERRED:    
1. AIR 2000 S.C. 1802
2. AIR 1981 A.P. 340 (DB)
3. AIR 1989 A.P. 68 (DB)
4. AIR 1999 A.P. 11
5. AIR 1966 S.C. 653
6. AIR 1974 S.C. 1084
7. AIR 1957 S.C. 797
8. AIR 1969 S.C. 823

COMMON JUDGMENT:      
        As the subject matter of the dispute is common, both these Civil Revision
Petitions are heard and being disposed of together.
        For convenience, the parties are referred as they are arrayed in
C.R.P.No.5784/2010.
        C.R.P.No.5784/2010, arises out of order dated 31-8-2010 in
T.O.P.No.193/2007 whereby the learned District Judge, Khammam dismissed the said  
T.O.P. filed by the petitioner under Section 34 of the Indian Trusts Act, 1882
(for short "the Trusts Act") seeking permission to proceed with the sale of the
petition schedule property. C.R.P.No.394/2012 is filed by respondent No.2
assailing the findings rendered by the learned District Judge in the above
mentioned O.P. with respect to the nature of the Trust in question and the
petition schedule property.
        The facts leading to the filing of this Civil Revision Petition are
briefly stated hereunder:
        A person by name Kannaiah Lal Singh and Smt. Bondali Krishna Bai, the
widow late Mohan Singh, who was the brother of Kannaiah Lal Singh, for attaining
salvation ('Satgathulu') jointly executed Ex.A-1-gift deed on 16-6-1966, which
was registered as document No.3281/1966, in respect of an extent of Hc.1-31,
equivalent to Ac.3-10 guntas, comprised in Sy.No.504 of Velugumatla village,
Khammam District (petition schedule property), jointly owned by the said two
persons.  It is recited in the said gift deed that the petition schedule
property cannot be encumbered in any manner in favour of third parties except by
way of lease and that from out of the income derived from the petition schedule
property, the deity-Bhakthanjaneya Swamy, shall be worshipped on every Saturday
and after defraying towards the land cist, the balance income shall be paid to
the archakas of the deity, under receipts.  The gift deed also contains a
covenant as to how succession with regard to the Trustees shall take place.  It
is further recited in the gift deed that if any differences arise during the
lifetime of the two donors, on the application filed by either of the two
persons, the Endowment Board shall take over the petition schedule property and
manage the same.
On 22-5-2006, a new Trust was registered in the name of "Sri Bhakthanjaneya
Swami Vari Devalayam Abhivruddi & Nirvahana Trust Board" (for short "the
petitioner-Trust Board"), comprising the legal heirs of the donors and some
others selected by them.  The petitioner-Trust Board passed an unanimous
resolution on 9-7-2006 for reconstruction of the dilapidated temple and
providing better facilities to the devotees out of the income from the petition
schedule property.  On 10-7-2006, the petitioner-Trust Board entered into an
agreement with one Telaprolu Ramaprasad, who has got himself impleaded as
respondent No.4 in the C.R.P.No.5784/2010, whereunder it was agreed to sell the
petition schedule property to him for a sum of Rs.1,25,00,000/-.  In pursuance
of the said agreement of sale, respondent No.4 has deposited a sum of
Rs.3,00,000/- as part sale consideration in Karur Vysya Bank, Khammam and the
said amount is lying therein.
On 23-1-2007, the petitioner-Trust Board filed the above mentioned T.O.P. in the
Court of the learned Principal District Judge, Khammam, under Section 34 of the
Trusts Act seeking permission to sell the petition schedule property.  The main
grounds on which the permission to sell the petition schedule property was
sought were that the petition schedule property is a dry and barren land and the
same is not fetching any income; that as the petitioner-Trust Board is not
collecting any offerings, donations and gifts from the devotees, it is not
possible to meet the expenses for maintaining the Temple and its development and
for performing nitya poojas, naivaidyam and other rituals to the deity; that
they intend to reconstruct the Temple which is in a dilapidated condition and
improve the facilities; and that the amount will be spent towards meeting the
expenditure towards salaries to the archakas and the sweeper and expenses
towards nitya sevas, poojas etc.
The learned District Judge ordered publication of notice in the T.O.P. in two
daily newspapers on 13-2-2007 calling for objections from the general public.
After publication of the said notice, the Assistant Commissioner, Endowments,
Khammam, registered the property under Section 47 of the A.P. Charitable and
Hindu Religious Institutions and Endowments Act, 1987 (for short "the Endowments
Act").  By order dated 1-3-2007, the Assistant Commissioner appointed a Single
Trustee.  The said order was challenged by the petitioner-Trust Board before the
Regional Joint Commissioner, Multi Zone-III, Hyderabad and by order dated 21-8-
2008 the latter has set-aside the appointment of the Single Trustee.  Subsequent
thereto, the Commissioner, Endowments Department, appointed an Executive Officer
to the Temple on the recommendations of the Assistant Commissioner.  This order
was questioned by the petitioner-Trust Board in W.P.No.23179/2008 and this Court
by order dated 23-10-2008 suspended the appointment of the Executive Officer
subject to the condition that the petition schedule property shall not be
alienated to third parties.  By order dated 18-3-2009, this Court permitted the
petitioner-Trust Board to deposit the balance sale consideration paid by
respondent No.4 to the credit of the T.O.P.No.193/2007 and the same was
accordingly deposited.
After a detailed hearing of the case, the learned District Judge, Khammam, as
noted supra, disposed of the above mentioned T.O.P. by order dated 31-8-2010
whereby he has declined permission to the petitioner-Trust Board to sell the
petition schedule property.  The learned District Judge however rendered
findings that the petition schedule property belongs to a private Trust; that
the gift under Ex.A-1 was a conditional one to the Temple for performing
Saturday poojas and that the petition schedule property does not vest with the
Endowments Department.  As noted above, feeling aggrieved to the extent of
rejection of permission to sell the petition schedule property, the petitioner-
Trust Board filed C.R.P.No.5784/2010 and assailing the findings rendered by the
learned District Judge with respect to the nature of the Trust and the petition
schedule property, respondent No.2 filed C.R.P.No.394/2012, both under Article
227 of the Constitution of India.
        Extensive arguments have been advanced by Sri Vedula Venkataramana,  
learned Senior Counsel and Sri V.L.N. Gopalakrishna Murthy, learned counsel
appearing for the petitioner in C.R.P.No.5784/2010 who is respondent No.1 in
C.R.P.No.394/2012 and Sri M.V.S. Suresh Kumar, learned counsel appearing for
respondent No.2 in C.R.P.No.5784/2010 who is the petitioner in
C.R.P.No.394/2012.  Sri G.M. Mohiuddin, learned counsel for respondent No.4 and
Sri A.S.C. Bose, learned counsel appearing for respondent No.5-Board of Trustees
constituted by the Commissioner of Endowments, also made their submissions.
        Sri Vedula Venkataramana, the learned Senior Counsel, submitted that the
Temple and the Trust in question are two different entities; that the Temple was
in existence much prior to the coming into existence of the Trust under Ex.A-1-
gift deed and that Ex.A-1-gift deed does not divest title of the donors over the
petition schedule property.  He further argued that even if there is a specific
endowment, the right of the contesting respondent is only to approach the
competent authorities under the Endowments Act and that the scope of Section 34
of the Trusts Act being narrow and the jurisdiction of the District Court being
summary, neither the contesting respondent is entitled to raise the disputed
questions nor the District Court can embark upon adjudication of such questions
without confining itself to the question as to whether under the circumstances,
the request of the petitioner-Trust Board for granting permission to sell the
petition schedule property was reasonable and justifiable or not?  The learned
Senior Counsel argued that under Section 34 of the Trusts Act, the jurisdiction
of the District Court is advisory and not adjudicatory and that the same cannot
be equated with the jurisdiction of the Civil Court under Section 92 of the Code
of Civil Procedure, 1908 whereunder the Civil Court has jurisdiction to frame a
scheme.  In support of his submissions, the learned Senior Counsel relied upon
the Judgments of the Supreme Court in Trustees of HEH the Nizam's Pilgrimage
Money Trust, Hyderabad Vs. Commissioner of Income-tax1, Sahebzadi Amina Marzia    
Vs. Syed Mohd. Hussain and others2, Prince Muffakham Jah Bahadur Vs. H.E.H.  
Nawab Mir Barkat Ali Khan Bahadur Price Mukarram Jah3, Hasan Bin Mubarak Vs.  
Chief Judge, City Civil Court, Hyderabad4 and M.R. Goda Rao Sahib Vs. The State
of Madras5.
        Pursuing the same line of argument, Sri V.L.N. Gopalakrishna Murthy,
learned counsel who also appeared for the petitioner-Trust Board, submitted that
the learned District Judge has committed a serious error in far too exceeding
his jurisdiction under Section 34 of the Trusts Act.  The donors under the
Trust, argued the learned counsel, are the beneficiaries themselves as the
object of the Trust was to attain salvation ('Satgathulu') in furtherance of
which a provision was made for the purpose of Saturday poojas and payment to
archakas for performing such poojas.  The learned counsel further argued that as
Ex.A-1-gift deed prohibited transfer of the petition schedule property in any
manner other than by way of lease and as the said property cannot be put to
agricultural use as the same has become barren and uncultivable, the object of
the Trust itself got frustrated and thereby the provisions of Section 83 of the
Trusts Act got attracted.  The learned counsel has canvassed the theory of
"resultant Trust" with the frustration of the object of the Trust created under
Ex.A-1 and consequently the vesting of the property absolutely in the legal
heirs of the donors under the said provision.  The learned counsel placed
reliance on the Judgment of the Supreme Court in State of Uttar Pradesh Vs.
Bansi Dhar6 in support of his submissions.  The learned counsel also submitted
that the Civil Revision Petition filed by respondent No.2 suffers from laches
and that it is a pure afterthought as it was filed at the stage of arguments of
C.R.P.No.5784/2010.
        Opposing the above submissions, Sri M.V.S. Suresh Kumar, learned counsel
for respondent No.2, submitted that with the registration of the petition
schedule property under Section 43 of the Endowments Act, it has become a
religious endowment, as a consequence of which the subject matter falls outside
the scope of the provisions of the Trusts Act and that under Section 46(3) of
the Endowments Act, until the contrary is established, it shall be presumed that
all the particulars entered in the register maintained under Section 43 thereof
are genuine.  The learned counsel placed reliance on Section 1 of the Trusts Act
in support of his submission.  He has further submitted that there is a complete
dedication in favour of the deity under Ex.A-1-gift deed and that therefore
there can be no question of the petition schedule property being dealt with by
the Trustees in contravention of the specific recitals of Ex.A-1-gift deed.  The
learned counsel further submitted that as the property has become an endowment
property, it is governed by the provisions of the Endowments Act and thereby the
learned District Judge is divested of the jurisdiction and that the property
needs to be dealt with in accordance with the various provisions of the
Endowments Act alone.  The learned counsel further argued that the learned
District Judge has completely misinterpreted the recitals of Ex.A-1-gift deed
and also committed a serious error in holding that the petition schedule
property belongs to a private Trust.  He has also argued that the petition
schedule property which is worth more than Rs.20 crores is sought to be sold for
a pittance i.e., for Rs.1,25,00,000/- crores and thereby public interest is
sought to be seriously jeopardized.  The learned counsel placed reliance on the
Judgment of the Supreme Court in Menakuru Dasaratharami Reddi Vs. Duddukudru  
Subba Rao7 in support of his submissions.  He has also sought to justify the
delayed filing of the revision petition by respondent No.2.
        Before dealing with the various submissions advanced by the learned
counsel on merits, the objection to the delayed filing of C.R.P.No.394/2012
needs to be considered.  It is the submission of the learned counsel for the
parties that filing of the said C.R.P. is a pure afterthought and that the same
suffers from laches.  The learned counsel for respondent No.2 submitted that his
client has given convincing reasons for not filing the C.R.P. earlier.  He has
drawn the Court's attention to para-2 of the affidavit filed in
C.R.P.M.P.No.552/2012, wherein it is averred, as under :
"At the outset, it is humbly submitted that questioning the impugned order
dismissing the petition filed under Section 34 of the Indian Trusts Act, the 1st
respondent herein filed C.R.P.No.5784/2010 and the same is pending admission
before this Hon'ble Court.  As the matter is likely to be listed in due course,
while going through the order of the trial court, my counsel stated that though
the T.O.P.No.193/2007 filed by the 1st respondent herein was dismissed by the
District Judge, Khammam by order dated 31-8-2010, certain findings have been
rendered by the trial court which are erroneous and that it is advisable to file
an independent revision petition questioning the findings of the learned Judge
to the extent of holding the subject property as constituting a private trust.
It is submitted that the requirement to file a separate revision petition arose
only when my counsel in the High Court was studying the matter so as to get
ready with the hearing C.R.P.No.5784/2010.  It is submitted that the matter
involves grant of permission to alienate property endowed to the deity of a
temple in Khammam and the 1st respondent in O.P.No.193/2007 was shown to be "to  
whomsoever it may concern".  It is humbly submitted that I got impleaded in
T.O.P.No.193/2007 on devotee of the temple when a public notification was
issued.  It is humbly submitted that as it is a matter concerning the public,
this Hon'ble Court may be pleased to consider the circumstances that led me in
approaching this Hon'ble Court at this point of time by way of this independent
revision petition.  I submit that the delay in approaching this Hon'ble Court is
neither willful nor wanton but bonafide."

There is no gainsaying that C.R.P.No.394/2012 was filed when C.R.P.No.5784/2010
was ripe for hearing.  Even though no limitation is prescribed for filing a
revision under Article 227 of the Condition, still a party cannot be permitted
to invoke this remedy at his leisure.  In this case, the T.O.P. filed by the
petitioner was dismissed by the learned District Judge.  However, respondent
No.2 felt aggrieved by certain findings rendered by the learned Judge while
dismissing the T.O.P.  The purpose of respondent No.2 in filing the C.R.P. is to
question those findings.  Since the proceedings before this Court being in the
nature of revision, he cannot obviously attack those findings on the analogy of
a respondent in an appeal by invoking the provisions of Order XLI Rule 22 of the
Code without independently filing a revision.  Obviously respondent No.2 did not
feel the necessity of filing a separate C.R.P. as the T.O.P. was dismissed
without any relief being granted to the petitioner, till he was advised by his
Counsel while preparing for C.R.P.No.5784/2010.  From these facts, it is
reasonable to presume that the belated filing of C.R.P.No.394/2012 by respondent
No.2 is for bonafide reasons.  At any rate, even in the absence of the revision
petition filed by respondent No.2, this Court while exercising its supervisory
jurisdiction under Article 227 of the Constitution, is not precluded from
examining the correctness or otherwise of the findings rendered by the learned
District Judge and render its opinion to completely and effectively adjudicate
the issues involved in this case.  Hence, the objection raised by the petitioner
is rejected.
        In order to consider the various submissions advanced by the learned
counsel for the parties, it is necessary to consider the width and ambit of
Section 34 of the Trusts Act.  The heading of the said provision reads : "Right
to apply to Court for opinion in management of trust property."  Under this
provision, any trustee may, without instituting a suit, apply by petition to a
Principal Civil Court of original jurisdiction for its opinion, advice or
direction on any presented questions respecting the management or administration
of the trust property other than questions of detail, difficulty or importance,
not proper in the opinion of the Court for summary disposal.
This provision fell for consideration of the Supreme Court in many a case.  One
such case is the Official Trustee, West Bengal Vs. Cachindra Nath Chatterjee8
wherein the Apex Court, while dealing with the power of the Court to give
opinion as to whether the buildings require repairs and whether the amounts
would be properly used for the purpose of repairing the buildings, held that
under Section 34 of the Trusts Act, the Court could have given opinion, advice
or direction on any presented questions respecting the management or
administration of the Trust property and not on any other matters; that the
jurisdiction of the Court under Section 34 is limited jurisdiction under which
it has not been conferred with the over all jurisdiction in matters arising
under a trust deed; that the statute has prescribed what the Court can do and
inferentially what it cannot do and that from the fact that the Court has been
conferred power to grant only certain reliefs, it follows as a matter of law
that the Court has been prohibited from granting any other relief.  The Apex
Court further held that the jurisdiction of the Court is circumscribed by the
provisions of Section 34 of the Trusts Act and that it has no jurisdiction to
pronounce on the pleas put forward by the settlor.  On the strength of the said
ratio, the Supreme Court held that on facts, the said case did not come within
the scope of Section 34 of the Trusts Act and that the relief granted by the
learned Judge was beyond his competence under the said provision.
        A perusal of the order of the lower Court, in the present case, would show
that it has framed a solitary point, viz., whether the petitioner-Trust Board is
competent to seek permission of the court to sell the schedule lands and whether
such permission can be accorded?  However, the lower Court has expanded the
scope of the inquiry into the petition as evident from para-13 of its order
wherein it has embarked upon the question whether the petition schedule property
is a private Trust or a public Trust and if it is a private Trust whether the
petitioner-Trust Board being the trustee, can be permitted to sell the petition
schedule property for securing the objects of the Trust created by its
predecessors-in-title.  The lower Court thereupon proceeded to consider various
covenants of Ex.A-1-gift deed and adjudicated on the nature of endowment while
holding that the property under Ex.A-1-gift deed is not endowed for the purpose
of any service or charity of public nature and that the gift deed has been
executed for the religious benefit of the executants and their family members by
performing poojas on every Saturday.  The lower Court further held that the
petition schedule property does not vest with the Endowments Department and that
it was a conditional gift made in favour of the presiding deity for the
salvation of the executants of Ex.A-1-gift deed and their descendents.  A
further finding was rendered that since the property is a private Trust, the
provisions of the Trusts Act are attracted.  The lower Court however declined to
grant permission to sell the plaint schedule property on the ground that the
same is contrary to the object for which the Trust in question has been created.
        As rightly submitted by the learned Senior Counsel, the jurisdiction of
the District Court under Section 34 of the Trusts Act is advisory and not
adjudicatory.  The Judgment of the Apex Court in Official Trustee (1-supra)
leaves no room for doubt on this aspect.  The limited jurisdiction of the lower
Court is to hold a summary inquiry for the purpose of giving opinion, advice or
direction on any presented questions respecting the management or administration
of the Trust property.  Such questions do not include the questions of details,
difficulty or importance which cannot be disposed of summarily.  In short, the
questions that fall within the ambit of Section 34 of the Trusts Act in the
present case are (i) whether as per the terms of Ex.A-1-gift deed, alienation of
the petition schedule property was permissible? (ii) if not, in order to sustain
the objects for which the Trust was created, the terms of Ex.A-1-gift deed have
to be deviated from? and (iii) if so, to what extent such deviation is
permissible?  While giving its opinion, advice or direction on these aspects, if
the Court felt that those questions cannot be decided in a summary manner, it
should refrain from granting any relief under Section 34 of the Trusts Act.
        The facts of the case created a situation where the case is taken out of
the jurisdiction of the District Court for more reasons than one.  It is an
admitted fact that the petition schedule property was registered as a religious
endowment under Section 43 of the Endowments Act, vide R.Dis.No.B/349/2007,  
dated 6-2-2007 of the Assistant Commissioner, Endowments Department.  As noted  
above, under Section 46(3) of the Endowments Act, until the contrary is
established, it shall be presumed that all the particulars entered in the
register maintained under Section 43 thereof are genuine.  The 'Savings' clause
in Section 1 of the Trusts Act saved public or private religious or charitable
endowments from being affected by the provisions of the Trusts Act.  Once the
property is registered under Section 43 of the Endowments Act, it becomes the
religious endowment and consequently it falls outside the scope of the Trusts
Act.   The remedy left to the aggrieved person is to apply to the Endowments
Tribunal for modification or annulment of the entry and where such application
relates to the right claimed by the applicant in support of such entry or
omission, the same shall be decided as if it were a dispute within the meaning
of Section 87 of the Endowments Act.
Unless the petition schedule property is declared as a private Trust and not a
religious endowment, the District Court has no jurisdiction to render its advice
or opinion or give any direction on the questions raised before it.  Both the
learned counsel appearing for the petitioner submitted that as the Trust is
created under Ex.A-1-gift deed, the contesting respondent who is claiming to
espouse the public cause, ought to have approached the Endowments Tribunal under
Section 87 of the Endowments Act and that till a declaration is obtained that
the property covered by Ex.A-1-gift deed is a religious endowment, he cannot
raise any objection before the District Court under the provisions of the Trusts
Act.
This submission, in my considered opinion, is without any merit.  From the
provisions of the Endowments Act discussed above, with the registration of the
petition schedule property as the endowment property, it is not possible to
treat the same as the Trust property.  Until the contrary is established, the
entry relating to the property in question, in the register maintained under
Section 43 of the Endowments Act, shall be treated as genuine.  If the
petitioner or any of its members is aggrieved by the registration of the
petition schedule property under Section 43 of the Endowments Act, it is for
them to approach the Endowments Tribunal under Section 45 of the Endowments Act  
for annulment of the entry.  Till an order on such application is made by the
Endowments Tribunal, the petition schedule property cannot be dealt with under
the provisions of the Trusts Act.  The learned District Judge has committed a
serious error in not examining these aspects and instead delving into various
aspects as noted above which completely fall outside the scope of Section 34 of
the Trusts Act.
With regard to the submission of Sri V.L.N. Gopalakrishna Murthy, on Section 83
of the Trusts Act, having regard to the facts pleaded, the questions whether the
Trust was created for the benefit of the donors and their descendents or of the
deity and whether Ex.A-1 is rendered incapable of being executed and thereby a
"resultant Trust" has got created for the benefit of the creator of the Trust or
their legal representatives, are issues which fall completely outside the narrow
confines of Section 34 of the Trusts Act.  These questions, which will be
germane for consideration after determination of the questions by the Endowments
Tribunal on the legality or otherwise of the entry in the register maintained
under Section 43 of the Endowments Act, can only be decided by the Civil Court
in a regularly constituted suit.
In the light of the above findings, it has become unnecessary for this Court to
deal with the various other contentions raised and the Judgments cited in
support thereof, by the learned counsel for the parties.  Since this court is of
the opinion that the lower Court, instead of disposing of the T.O.P. through
adjudicatory process and rendering various findings in the process for and
against the petitioner-Trust, ought to have simply dismissed the same by
relegating the parties to the remedy under the provisions of the Endowments Act.
On the analysis as above, while not interfering with the rejection of the T.O.P.
by the lower Court, the findings rendered by it are declared to have no effect
in law and that they do not bind the parties.  The parties are left free to
avail appropriate remedies in the light of the observations made and the
findings rendered hereinabove.  Respondent No.4 shall be free to make an
appropriate application in W.P.No.23179/2008 for taking return of the deposit of
the purported sale consideration made to the credit of T.O.P.No.197/2007.
In the result, C.R.P.No.5784/2010 is dismissed and C.R.P.No.394/2012 is disposed
of.
As a sequel, C.R.P.M.P.No.7708/2010 in C.R.P.No.5784/2010 and  
C.R.P.M.P.No.552/2012 in C.R.P.No.394/2012 are disposed of as infructuous.
________________________  
Justice C.V. Nagarjuna Reddy
Date : 20-3-2012

unregistered sale deed, -One of the pleas raised by the plaintiffs is that their ancestor, Vanimisetti Chakrapani Rao, has purchased the suit property through unregistered sale deed, dated 30.06.1960, and that since then, he and thereafter, they were in uninterrupted possession of the same and thereby perfected their title through adverse possession. It is their further plea that defendant Nos.1 and 2 i.e., State of Andhra Pradesh and the Tahsildar, ought not to have granted assignment in favour of defendant Nos.3 and 4. During the course of evidence, the plaintiffs sought to introduce the unregistered sale deed, dated 30.06.1960, in evidence. This was opposed by defendant Nos.3 and 4 on the ground that the said document, which is in the nature of sale deed, is unregistered and hence, the same is not admissible in evidence. The lower Court rejected the said objection

THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Civil Revision Petition No.176 of 2012

13.03.2012

 Doma Govinda Raju and another

Vanimisetti Papa Rao and others

^Counsel for the Petitioners:  Sri P.Govind Reddy
                                                                     
!Counsel for respondent No.2: Sri S.Subba Reddy

Cases referred?

1 (2008) 8 SCC 564
2 2006 (1) ALT 76
3 AIR 1942 Bombay 268
4 (2003) 4 SCC 161


ORDER:
This civil revision petition arises out of order, dated 18.07.2011, in
O.S.No.108 of 2008, on the file of the learned XI Additional District Judge
(Fast Track Court), Kakinada.
Respondent Nos.1 to 13 filed the above-mentioned suit for declaration of title
and for recovery of possession.  The petitioners are defendant Nos.3 and 4 in
the said suit.  For convenience, the parties are referred to as they are arrayed
in the suit.
One of the pleas raised by the plaintiffs is that their ancestor, Vanimisetti
Chakrapani Rao, has purchased the suit property through unregistered sale deed,
dated 30.06.1960, and that since then, he and thereafter, they were in
uninterrupted possession of the same and thereby perfected their title through
adverse possession.  It is their further plea that defendant Nos.1 and 2 i.e.,
State of Andhra Pradesh and the Tahsildar, ought not to have granted assignment
in favour of defendant Nos.3 and 4.  During the course of evidence, the
plaintiffs sought to introduce the unregistered sale deed, dated 30.06.1960, in
evidence.  This was opposed by defendant Nos.3 and 4 on the ground that the said
document, which is in the nature of sale deed, is unregistered and hence, the
same is not admissible in evidence.  The lower Court rejected the said objection
by holding that under proviso to Section 49 of the Registration Act, 1908 (for
short 'the Act'), even an unregistered document affecting the immovable property
can be received for collateral purpose.  Feeling aggrieved by the said order,
the present civil revision petition is filed by defendant Nos.3 and 4.
At the hearing, Sri P.Govinda Reddy, learned counsel for the petitioners, placed
reliance on the judgment of the Supreme Court K.B.Saha and Sons Private Limited
v. Development Consultant Limited1, the judgment of this Court in Netrambaka
Krishnaiah v. Nellore Audinarayana2, and also the judgment of the Bombay High
Court in V.H.Deshpande v. R.D.Deshpande3.
Opposing the above submissions, Sri S.Subba Reddy, learned counsel for
respondent No.2, relied upon the judgment of the Supreme Court in Bondar Singh &
others v. Nihal Singh and others4.
I have carefully considered the respective submissions of the learned counsel
for the parties.
The plaintiffs have claimed two main reliefs in the suit which appeared to be
mutually contradictory, namely, declaration of title through adverse possession
and for recovery of possession.  They sought to rely upon the unregistered sale
deed referred to above for the purpose of establishing their possession
eventually to get their title declared through adverse possession.  Under
proviso to Section 49 of the Act, even an unregistered document is admissible in
evidence for collateral purpose.
The learned counsel for the petitioners stated that the purpose of respondent
Nos.1 to 13 to rely upon the unregistered sale deed is to establish their
possession, which in turn will help them to get their title declared through
adverse possession.  The learned counsel, therefore, submitted that the purpose
of placing reliance on the said document is for obtaining one of the main
reliefs in the suit and hence, the same cannot be said to be for collateral
purpose.
In K.B.Saha and Sons Private Limited (1 supra), the Supreme Court has deduced 
the principles as to what constitute "collateral purpose" as under:
"1. A document required to be registered, if unregistered is not admissible into
evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence for collateral
purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required 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 immovable property of the value of one hundred
rupees and upwards. 
5. If a document is inadmissible in evidence for want of registration, none of
its terms can be admitted in evidence and that to use a document for the purpose
of proving an important clause would not be using it as a collateral purpose."

In V.H.Deshpande (3 supra), the Bombay High Court explained the collateral
purpose referred to in proviso to Section 49 of the Act as any purpose other
than that of creating, declaring, assigning, limiting or extinguishing a right
to immovable property.  Referring to the said judgment, this Court Netrambaka
Krishnaiah (2 supra), held that if a document is purporting to create an
interest in the immovable property, it is inadmissible in evidence for want of
registration.
While the legal principles do not admit of divergent opinion, the whole problem
arises in their application.  Each one of the principles laid down by the Courts
needs to be carefully considered in order to segregate the main purpose from
collateral purpose.
In the instant case, the unregistered document was not pressed into service for
seeking declaration of the plaintiffs' title.  The same is sought to be relied
upon for the purpose of establishing possession of their ancestor.  This by
itself cannot be said to be the main purpose, which is directly relatable to the
main relief claimed by the plaintiffs.  It may be, as submitted by Sri.P.Govind
Reddy, learned counsel for the petitioners, that eventually establishment of
factum of possession on the strength of the said document may lead to the
plaintiffs succeeding in their suit for getting their title declared through
adverse possession.  In my opinion, that by itself would not constitute the main
purpose.  What is sought to be proved by the plaintiffs through the said
document was only the possession.  No other aspect arising out of the said
document, much less the title is sought to be relied upon by the plaintiffs.
In almost an identical case dealt with by the Supreme Court in Bondar Singh (4
supra), it has allowed such a document to be admitted in evidence for proving
possession.  That was also a case where a suit was filed for declaration
claiming that the plaintiffs have become owners of the suit land by adverse
possession and sought injunction restraining the defendants from interfering
with their possession.  The plaintiffs sought to rely upon the unregistered sale
deed, dated 09.05.1931, executed by the father of the defendants in favour of
their predecessor-in-interest in order to prove possession.  When the said
document was sought to be admitted in evidence, an objection similar to the one
which is raised in the present case as to its admissibility was raised.  While
dealing with the said objection, the Supreme Court held in para-5 as under:
"...Under the law a sale deed is required to be properly stamped and registered
before it can convey title to the vendee.  However, legal position is clear law
that a document like the sale deed in the present case, even though not
admissible in evidence, can be looked into for collateral purposes...."

The learned counsel for the petitioners sought to distinguish between the
present case and the one decided by the Supreme Court by stating that while in
the latter case, relief of permanent injunction was claimed, in the present
case, one of the reliefs claimed by the plaintiffs is recovery of possession.
In my opinion, the ratio laid down by the Supreme Court applies even though the
nature of one of the reliefs claimed in the present case is at variance with
that claimed in the case before the Supreme Court.  In both the cases, the
plaintiffs sought to establish their rights through adverse possession.  In
order to prove their possession, they wanted to rely upon the unregistered sale
deed.  Therefore, irrespective of whether the plaintiffs in the case on hand
sought for recovery of possession, obviously as an alternative relief, the ratio
laid down by the Supreme Court will still apply to the present case.
For the above-mentioned reasons, I do not find any error in the order of the
lower Court in admitting the unregistered sale deed in evidence.  Accordingly,
the civil revision petition is dismissed.
As a sequel to dismissal of the civil revision petition, interim order, dated
24.01.2012, shall stand vacated and C.R.P.M.P.No.242 of 2012 shall stand
disposed of as infructuous.

C.V.NAGARJUNA REDDY, J    
13th March, 2012

Stamp duty of 1% was paid. The 2nd respondent, however, took the view that 3% of stamp duty is payable. Accordingly he kept the document pending registration. On 15-03-2008 he issued a notice requiring the petitioner to pay the deficit stamp duty of Rs.3,25,678/- treating the document as a sale deed.- even if the release of the share in a property by a co-owner is for consideration, its character does not change. Similarly, it is not necessary that the release must be in favour of rest of the co-owners. As long as the undivided share in a property is not in favour of a stranger, but is in favour of another co-owner, it would remain the one of 'release' and not a 'sale'.

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

WRIT PETITION No.14963 OF 2009  
       
21.02.2012

G.Dayanand

The District Registrar and other.

Counsel for petitioner: Sri Domar Mundra

Counsel for Respondents :  GP for Revenue

? Cases referred

AIR 1973 AP 275 (SB)

ORDER:
       
        The mother of the petitioner owned property, bearing
Nos.9-4-65 to 68, 9-4-64/12 to 25 and 9-4-117, with cellar, ground and first
floors, constructed over 513 sq. yards at Tolichowki, Hyderabad.  It is stated
that after the death of the mother of the petitioner, himself and his two
brothers - G. Subhash and G. Satyanarayana, succeeded to it.  The two brothers
of the petitioner also died and the property is now owned jointly by the
petitioner and the legal representatives of his brothers.

The petitioner submits that recently the widow of one of his brothers, by name,
G. Rajasree, expressed her willingness to release 1/3rd share in the property,
in case she is paid Rs.20 lakhs.  The petitioner is said to have agreed for
that, and accordingly, a release deed was executed by the said Rajasree, in
favour of the petitioner.  The document was presented before the Sub-Registrar,
S.R.O., Golconda, the
2nd respondent herein, on 18-01-2008, for registration.  Stamp duty of 1% was
paid.  The 2nd respondent, however, took the view that 3% of stamp duty is
payable.  Accordingly he kept the document pending registration.  On 15-03-2008
he issued a notice requiring the petitioner to pay the deficit stamp duty of
Rs.3,25,678/- treating the document as a sale deed.  On the request made by the
petitioner, the matter was referred to the 1st respondent.  Through a final
order dated 07-07-2009, the 1st respondent took the view that the stamp duty is
payable, as provided for under Article 47-A of Schedule 1-A to the Indian Stamp
Act, 1899 (for short 'the Act'), thereby reiterating the view taken by the 2nd
respondent.  The petitioner challenges the same.

The petitioner states that the transaction that has taken place through the
document in question is the one of release of the joint ownership of one co-
owner in favour of another co-owner, and that no element of sale is involved.
He contends that mere payment of consideration for such release, does not amount
to sale.

On behalf of the respondents, a counter-affidavit is filed. It is stated that
the deed presented by the petitioner evidences transaction of sale of share of
the executant for valuable consideration of Rs.20,00,000/- and accordingly,
deserves to be treated as a sale deed.  It is further stated that the so-called
release is not in favour of the rest of the
co-owners, but is in favour of only one of the co-owners, and in that view of
the matter, the stamp duty payable on the document is a sale deed.

        Sri Damodar Mundra, learned counsel for the petitioner, submits that both
the parties to the document are co-owners and the mere fact that one of the co-
owners get herself released from the rights and obligations vis--vis the
property, does not amount to transaction of sale.  He contends that it is only
when a person holding absolute title vis--vis an item of immovable property
executes a sale deed in favour of another person who is a stranger to the
property, that a transaction of sale comes into existence.  Learned counsel
submits that till partition is affected, each co-owner of the property holds
rights, in respect of every part of it and the question of one co-owner
purchasing the same property from another      co-owner, does not arise.

        Learned Government Pleader for Revenue submits that though the petitioner
is a co-owner of the property, the fact that he is acquiring rights vis--vis
the same by paying consideration would certainly attract Article 47-A of the
Act.  He places reliance upon a judgment rendered by a Division Bench of this
Court in Board of Revenue, Hyderabad v. Valivety Rama Krishnaiah1.  It is
further pleaded that even when undivided share is transferred for consideration,
the transaction would be nothing but one, of sale.

        The petitioner had two brothers, by name Subhash and another.  All of them
inherited the premises mentioned above that was owned by their mother.  Even
before partition has taken place, the two brothers of the petitioner died.  The
widow of one of the brothers intended to part with the share that accrued to her
husband, may be by receiving consideration.  The petitioner came forward to take
the same, on payment of consideration of Rs.20 lakhs.  A document named as
'release deed' was executed and it was presented for registration.  The
respondents took the view that the transaction evidenced by the document is sale
and insisted on payment of stamp duty, registration charges on that basis.

        Therefore, it becomes necessary to take note of the distinction between
the transactions of 'sale' and 'release'.

        It is too well-known that 'sale' as defined under Section 54 of the
Transfer of Property Act (for short 'the TP Act'), takes place, when a person
holding title in an item of immovable property, conveys his title to another,
for consideration.  It is also permissible for a co-owner of an item of
immovable property, to transfer the same for consideration in favour of third
party.   In such a case also, the transaction would be the one of sale. Delivery
of the possession of tangible property, is an essential part of the transaction.

        The word 'release' is not defined either under the TP Act or under any
other enactment, including the Stamp Act.  However, its connotation is that, one
of the owners of an item of property, releases himself of the legal rights and
obligations in favour of the rest of the co-owners, or some of them, such
release can be with or without any consideration.  Though a sale and release
resemble each other in the context of loss of title of the transferor or rights
in favour of others, what differentiates the one for the other is that, the
transferee under a sale is an altogether stranger, whereas in the case of
release, he happens to be an existing co-owner.  It would be a fresh and new
acquisition of property by a purchaser under a sale, whereas in the case of
release it would only result in the change of the extent of shares, held by the
co-owners or joint owners.

Another aspect is that delivery of possession, which is sine qua non in a sale,
does not take place in the case of release, since each co-owner is in possession
of every bit of the entire property.
To a large extent, release resembles the one of partition, wherein the shares of
the existing co-owners or joint owners are determined with an element of
clarity, notwithstanding the fact that the release by itself may not bring about
partition.  If one takes into account the fact that one of the steps in the
partition is determination of the shares of respective parties, an act of
release would promote such a step.

        On a reference made under Section 57 of the Act, the Division Bench
determined the basic characteristics of 'release' in Valivety Rama Krishnaiah's
case (supra).  On a perusal of the same, it becomes clear that even if the
release of the share in a property by a co-owner is for consideration, its
character does not change.  Similarly, it is not necessary that the release must
be in favour of rest of the co-owners.  As long as the undivided share in a
property is not in favour of a stranger, but is in favour of another co-owner,
it would remain the one of 'release' and not a 'sale'.

        Hence, the writ petition is allowed and the impugned order is set aside.
       
 The miscellaneous petition filed in this writ petition also stands disposed of.

        There shall be no order as to costs.
____________________  
L.NARASIMHA REDDY, J.    
Dated:21.02.2012