LawforAll

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Showing posts with label REgistration act. Show all posts
Showing posts with label REgistration act. Show all posts
Friday, May 3, 2013

whether the registering authority under the Registration Act, 1908 is bound by the assessment of stamp duty made by the court as per suit valuation, is the question arising for consideration in this case.- Market value for the purpose of Indian Stamp Act, 1899 is not the same as suit valuation for the purpose of jurisdiction and court fee. - The learned Civil Judge has, thus, clearly erred in directing the registration to be done on the basis of suit valuation. The Sheristadar made a mechanical assessment of stamp duty on 1/4th share of the suit property as per the compromise and fixed the stamp duty accordingly for Rs.12,50,000/-. That does not meet the requirement under law. The Suits Valuation Act, 1887 and The Indian Stamp Act, 1899 operate in different fields. = where the registering authority has any difference of opinion as to assessment on the stamp duty of the instrument presented for registration on the orders of the court, it will only be appropriate that Registrar makes a back reference to the court concerned and the court undertakes a fresh exercise after affording an opportunity of hearing to the registering authority with regard to the proper value of the instrument for registration. The registering authority cannot be compelled to follow invariably the value fixed by the court for the purpose of suit valuation.- Accordingly, we set aside the impugned order dated 02.09.2010 of the High Court of Calcutta and order dated 30.03.2001 of the learned Civil Judge, Siliguri and order dated 27.08.2007 of Civil Judge (Senior Division), Siliguri. The court of the learned Civil Judge (Senior Division), Siliguri shall consider afresh the matter after affording an opportunity for hearing to the petitioner and pass appropriate orders with regard to the stamp duty for the purpose of registration of the partition deed. This exercise should be completed within a period of three months from the date of receipt of this order. Appeal is allowed.

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'  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._4167_/2013 [Arising out of S.L.P.(Civil) No. 22263...
Sunday, December 18, 2011

Registration Act, 1908: s.49, proviso - Unregistered sale deed is admissible in evidence in a suit for specific performance of the contract - Evidence Act, 1872 - Specific performance - Transfer of property Act, 1882. The question which arose for consideration in the present appeal was whether the courts below erred in holding that an unregistered sale deed was not admissible in evidence in a suit for specific performance of the contract. =Allowing the appeal, the Court HELD: The Trial Court erred in not admitting the unregistered sale deed in evidence in view of the proviso to Section 49 of the Registration Act, 1908 and the High Court ought to have corrected the said error by setting aside the order of the trial court. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act. [Paras 8, 11, 16] [519-C-D; 521-A-E; 525-B] K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564, relied on. Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy (1999) 7 SCC 114, referred to. Case Law Reference: (2008) 8 SCC 564 relied on Para 12 (1999) 7 SCC 114 referred to Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3192 of 2010. From the Judgment & Order dated 13.11.2008 of the High Court of Judicature at Madras in C.R.P.(PD) No. 261 of 2008. K.V. Vishwanathan, B. Rajunath, Vijay Kumar for the Appellant. T.S.R. Venkatramana, G.S. Mani, R. Satish for the Respondents.

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                                                    REPORTABLE                 IN THE SUPREME COURT OF INDIA                  CIVIL...

Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past events-Registration whether necessary- Whether admissible in evidence to prove factum of partition. % = The parties are decendants of a common ancestor, who had two sons. These two branches of the family had joint properties, both agricultural and residential. The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, ghers, ghetwars etc. The factum of partition was embodied in the memorandum of partition Exh. B-12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh. P-1 written in the presence of a number of villagers. A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share. In proceedings under s. 145 Cr. P.C., 1898, the Sub-Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land. In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate. On further revision the High Court affirmed the findings reached by the courts below. In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971. He construed the document Exh. p-12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act for a collateral purpose of showing nature of possession. In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge. In the appeal by special leave, it was contended for the appellants that the document Exh. P-12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. It, therefore, required registration under s. 17 of the Registration Act. Dismissing the appeal, ^ HELD: 1. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. [1115B- C] 2. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. [1116C-E] Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84 refereed to. In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The opening words of the document are: 'Today after discussion it has been mutually agreed and decided that ...' what follows is a list of properties allotted to the respective parties. From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. It cannot, therefore, be construed to be an instrument of partition. [1116F-G; 1114C-D] Section 17(1)(b) of the Registration Act lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property. Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document. [1113H; 1114A] Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai v. Gita Bai, AIR (1958) SC 706 referred to. 3. A document though unregistered can, however, be looked into under the proviso to s. 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. [1116G-H; 1117A] Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 referred to. 4. In any view, the document Exh. P-12 is a mere list of properties allotted to the shares of the parties. It merely contains the recital of past events. It is, therefore, admissible in evidence. [1117B] Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604; Bageshwari Charan Singh v. Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian v. Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR 1109 (1942) Nag. 73 and Mulla's Registration Act, 8th Edn. pp. 54-57 referred to. =1988 AIR 881, 1988( 2 )SCR1106, , 1988( 1 )SCALE391 ,

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PETITIONER: ROSHAN SINGH & ORS. Vs. RESPONDENT: ZILE SINGH & ORS. DATE OF JUDGMENT24/02/1988 BENCH: SEN, A.P. (J) BEN...