Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...

Andhra High Court Andhra High Court Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ... C.R.P.No.3374 of 2013 dated:20-08-2013 Golla Dharmanna....Petitioner Sakari Poshetty and others.....Respondents. Counsel for the petitioner:Sri K.Ram Subba Rao Counsel for the respondents: -<GIST: >HEAD NOTE: ?Cases referred 1 AIR 2008 SCW 4829 2 (2003) 6 SCC 641 3 2004 (4) ALD 82 4 (2001) 3 SCC 1 5 (2003) 8 SCC 752 6 (2010) 8 SCC 423 THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO C.R.P.No.3374 of 2013 ORDER : This revision is filed challenging the Docket order dt.07.06.2013 in OS.No.41 of 2011 on the file of the Senior Civil Judge, Adilabad. 2. The petitioner is the plaintiff in the suit. The suit was filed by petitioner seeking a declaration of his title in respect of an extent of Acs.7.38 gts. in Sy.No.51/A at Buddikonda Shivar Mandal, Neredigonda District, Adilabad, for a perpetual injunction restraining the respondents/defendants from interfering with the alleged peaceful possession and enjoyment of the plaintiff in respect of the above land; for correction of the entry in Revenue records relating to the Pattadar column by deleting the name of one Ramulu and substituting the name of the plaintiff; and costs. 3. The defendant Nos.1 to 3 filed a written statement opposing the claim of the plaintiff. Issues were framed and trial commenced. The affidavit of PW1 in lieu of chief-examination was filed; he entered the witness box and confirmed the said affidavit as true. He also marked Exs.A.1 to A.33. He also sought to mark a document
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Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...

filed as Kharidnama dt.19.07.1974. 4. The marking of this document was objected to by counsel for respondents on the ground that the said document is a compulsorily registrable document under Section 17 of the Indian Registration Act, 1908, as it extinguishes the title of the executant in respect of property of value more than Rs.100/-. The petitioner's counsel requested the Court below to mark the document subject to objection. 5. However, by docket order dt.07.06.2013, the Court below held that the said document required registration and therefore, it cannot be admitted and marked in evidence. It followed the decision of the Supreme Court in K.B. Sana and Sons Pvt. Ltd. v. Development Consultant Ltd.1. It thus sustained the objection of the respondents and rejected the request of the counsel for petitioner. 6. Challenging the same this revision is filed. Heard Sri K. Rama Subba Rao - counsel for the petitioner at the stage of admission. 7. The counsel for petitioner contended that the impugned order is contrary to law; that the document in question is a sale deed dt.19.07.1974 which had already been impounded by the Trial Court and penalty was collected by it; therefore, under Section 35 (a) of the Indian Stamp Act, 1899, it is admissible in evidence and the Trial Court ought not to have refused to admit/mark the document; the judgment in K.B. Sana (1 supra), relied upon by the counsel for respondents before the Trial Court is inapplicable as it was a case of nonregistration of a lease deed and not of case relating to a sale deed or other conveyance; and that the effect of non-registration of the above document can be gone into during the course of trial and need not be considered at the stage of marking the above document in view of Section 35 (a) of the Indian Stamp Act, 1899. The counsel also relied upon the decision of the Supreme Court in State, through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and others2 and Mulla Alamsabgari Dastigiri, Kurnool v. B. Pullamma and others3. 8. Section 17(1) (b) of the Registration Act,1908 states : "17.(1)....The followings shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely : (a) Instruments of gift of immovable property ; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or 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;" 9. A reading of the document filed by the petitioner dt.19.07.1974 indicates that it was a sale deed executed on the said date by one Sakari Ramulu in favour of the petitioner transferring his right, title and interest in the above land in favour of the petitioner after receiving Rs.3,000/- from the petitioner. Therefore, since the above document creates in the petitioner, a right, title and interest in the property and extinguishes the title of the said Ramulu, it requires to be compulsorily registered in view of Section 17(1)(b) of the Registration Act, 1908. 10. Section 49 of the Registration Act, 1908, states : "49. Effect of non-registration of documents required to be registered:- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall, (a) affect any immovable property comprised therein, or
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Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...

(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." 11. In K.B. Sana (1 supra), the Supreme Court considered the effect of this provision in the case of a lease and held: "21. 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 proving an important clause would not be using it as a collateral purpose." Therefore, I am of the view that the Trial Court has rightly held that the document in question is not admissible in evidence as it is a document which is compulsorily registrable under the Registration Act, 1908. 12. I am also unable to accept the contention of the counsel for petitioner that because the requisite stamp duty and penalty has been paid by petitioner, in view of Section 35 (a) of the Indian Stamp Act, 1899, the said document should have been admitted in evidence by the Trial Court. This contention of the petitioner is misconceived because an objection as to the admissibility of a document on the ground that it is not stamped or not properly stamped in accordance with provisions of the Indian Stamp Act, 1899 is different fundamentally from an objection to the admissibility of a document on the ground that it is unregistered. Merely because stamp duty and penalty have been paid and the provisions of the Indian Stamp Act, 1899 have been complied with, it would not automatically make the said document admissible in evidence, if as per law, the said document is also required to be registered. 13. The counsel for petitioner also contended that it was open for the Trial Court to tentatively mark the document and decide about its admissibility at the stage before delivering judgment. He relied upon the judgment in Mulla Alamsabgari Dastigiri (3 supra), wherein the judgment in Navjot Sandhu (2 supra) was followed. In Navjot Sandhu (2 supra) the Supreme Court was considering the question of admissibility of copies of transcripts of intercepted conversations in a case arising under the provisions of Prevention of
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Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...

Terrorism Act, 2002. In the said case, the Supreme Court referred to the observations made by it in Bipin Shantilal Panchal v. State of Gujarat and another4 in the context of NDPS Act, 1985 and in relation to right of an under trial prisoner for a speedy trial to the following effect : "14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence." 14. However, the Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple5 observed: "20. ... The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
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Sakari Poshetty And ... vs Counsel For The Petitioner:Sri ...

15. In Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others6 held that the issue of admissibility of documents cannot be left open and hanging by the Trial Court and should be decided as and when such objection is raised. It observed : "15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded." 16. It quoted with approval the judgment of the Supreme Court in R.V.E.Venkatachal Gounder (5 supra). 17. In the present case, I am of the opinion that the Trial Court had rightly refused to admit the document dt.19.07.1974 filed by plaintiff in evidence on the ground that it was not registered under the provisions of the Indian Registration Act, 1908. In fact, the counsel for petitioner has also not disputed that the said document is a compulsorily registrable document under the provisions of the Indian Registration Act, 1908. This being so, there was no necessity for the Trial Court to keep the issue hanging till the final stage of the suit and decide the issue of admissibility of the document just prior to delivery of judgment by it. In view of the judgments of the Supreme Court in Shalimar Chemical Works (6 supra) and R.V.E. Venkatachala Gounder (5 supra), the decision of the Trial Court cannot be found fault with. I am of the view that the judgment in Navjot Sandhu (2 supra) following the observations in Bipin Shantilal Panchal (4 supra), the Supreme Court only indicated that there is no illegality if objection as to admissibility is postponed to a final stage but the Court did hold, as a matter of law, that in all cases where objections as to admissibility are raised, they should be decided at the final stage and cannot be decided as and when they are raised. 18. Therefore, I find no error of jurisdiction in the order passed by the court below. Accordingly, the Civil Revision Petition is dismissed at the stage of admission. __________________________________ JUSTICE M.S. RAMACHANDRA RAO

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