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Docid # IndiaLawLib/1481598
(2020) 1 Current Tamil Nadu Cases 246 : (2020) 1 Madras Law
Journal 312
MADRAS HIGH COURT
SINGLE BENCH
( Before : R. Subramanian, J. )
K. KASINATHAN — Appellant

Vs.

N. UMASANKAR — Respondent
Second Appeal No. 389 of 2014; Miscellaneous Petition No. 1 of 2014, 2 of
2014
Decided on : 20-11-2019

Cases Referred

l Kuppuswami Vs Chinnaswami, (1928) AIR(Mad) 546

l Raghunath -Vs-Kedarnath, (1969) AIR(SC) 1316
l Ravinder Kaur Grewal vs. Manjit Kaur, (2019) 4 CTC 936
l Rukmani -vs- Gopalaswamy, (1993) 2 MadLJ 598
l V.S. Meenakshisundram and others vs. Kaliyaperumal and others, 98
LW 906
l Venkatasubramania - versus - Sivagurunatha, (1938) AIR(Mad) 60
l Viswalingam @ Mayavel and others vs. Balasubramaniam, (2013) 5
MadLJ 785
Counsel for Appearing Parties
D. Ravichander, Advocate, R. Muralidharan, Advocate
JUDGMENT/ORDER
R Subramanian, J. - The plaintiffs in O.S.No: 261 of 2009 on the
file of the District Munsif, Cuddlore who succeeded in obtaining a
decree for declaration of title of the first plaintiff to the first item of the
suit properties and that of the second plaintiff to the second item of the
suit properties and for a permanent injunction on the said decree being
reversed by the Appellate court in A.S.No: 21 of 2012 have come up
with this second appeal.

2. The case of the plaintiffs is that the suit properties measuring about
2.50 acres in new survey number 79/3 of Sandoorpalayam village,
Cuddalore district belonged to one Kunjan. He had sold the said
property for a sum of Rs.90/- on 8/8 /1966 under a unregistered sale
deed and delivered possession to the purchaser namely A.Dhandapani.
According to the plaintiffs ever since the date of purchase the said
Dhandapani was in possession and enjoyment of the suit property
openly, uninterruptedly, peacefully and adverse to the interest of anyone
else and he had also prescribed title by adverse possession. It is the
further claim of the plaintiffs that the said Dhandapani died on 26/02/
2002 leaving behind the second plaintiff Thiyageswari and his children
to succeed to the said property. It is claimed that the children of the
second plaintiff relinquished their interest to her and the second plaintiff
has been in enjoyment of the entirety of the property absolutely. With
the consent of the children the patta was also changed in her name. The
plaintiffs would further contend that the second plaintiff and one of her
daughters Gayathri had entered into an agreement of sale on 20/11/2007
and thereafter sold and an extent of 2 acres and 10 cents out of 2 acres
50 cents under a registered sale deed dated 11/2/2008. Upon such sale
the first plaintiff has been in possession of the property conveyed to him
and the second plaintiff has been in possession of the remaining 40

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cents of land. Claiming that the defendant attempted to interfere with

the posssession of the plaintiffs setting up a claim of title under a sale
deed said to have been executed by the heirs of Kunjan, the plaintiffs
sought for the reliefs of declaration and injunction.

3. The suit was resisted by the defendant contending that the sale by
Kunjan in favour of Dhandapani dated 8/8/1966 is not valid. The said
sale being unregistered cannot confer any title on the plaintiff's
predecessor in interest, Dhandapani. The claim based on adverse
possession was also denied. It was his further claim that the assignment
was made in favour of Kunjan in 1962 subject to the condition that he
should not alienate the property within 10 years of the assignment. The
sale dated 8/8/1966 having taken place within 10 years of the said
assignment, according to the defendant, is invalid. This defence was
however not canvassed seriously at trial. The defendant would further
claim that Kunjan died about 20 years prior to the suit and after his
death his wife and his daughter have been in possession and enjoyment
of the property as absolute owners. Visalakshi wife of Kunjan executed
a general power dated 4/12/2003 in favour of Amaravathi and the said
Amaravathi sold the suit property under a sale deed dated 1/2/2008 in
favour of the defendant for valid consideration. Therefore according to
the defendant he alone is entitled to the suit property.

4. At trial the first plaintiff was examined as PW-1, the second

plaintiff was examined as PW-2 and three other witnesses were
examined on the side of the plaintiffs. ExibitsA1 to A28 were
marked.The first defendant was examined as DW-1 and Visalakshi wife
of Kunjan was examined as DW-2. Exhibits B 1to B 16 were marked.
On a consideration of the evidence on record the learned trial Judge
found that the plaintiffs have proved their title. The learned trial Judge
concluded that Exhibit A 1 sale deed dated 8/8/1966 being for a value
of less than Rs.100/-, the same does not require registration. The learned
trial Judge also found that the plaintiffs have been in continuous
possession and enjoyment of the property right from the date of Exhibit
A 1 and as such they have perfected title by adverse possession. It was
also the conclusion of the learned trial Judge that the sale deed dated
01/02/2008 executed by Visalakshi in favour of the first defendant is
invalid since she did not possess title to convey on the date of the said
sale. On the aforesaid findings the learned trial Judge decreed the suit.

5. Aggrieved the defendant preferred an appeal in A.S.No: 21 of 2012

on the file of the principal Sub-Court, Cuddalore. The learned
Subordinate Judge on a reconsideration of the evidence on record
concluded that there are certain corrections in the contents of Exhibit A
1 which led him to believe that Exhibit A 1 is not a genuine document.
On the said finding, the learned Appellate Judge concluded that the
plaintiffs have not made out their claim of adverse possession also. On
the above conclusions the learned subordinate Judge allowed the appeal
dismissed the suit. Aggrieved the plaintiffs have come up with the
above second appeal.

6. The following substantial questions of law were framed at the time

of admission

1) Is the sub- Judge right and reversing the judgment of the trial
court on the simple ground that the second plaintiff was not the
manager of the family of Dhandapani when such issue is not vital
for deciding the suit?

2) The alleged suspicion with respect to the representation to the

family of Dhandapani can be treated as a ground for non-suiting
the plaintiffs, despite the fact that the plaintiffs having established
their case by filing all parent documents of title?

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Upon hearing the counsel for the parties the following additional
questions of law were framed for determination in this appeal:

1) Whether the finding of the lower appellate court that the

plaintiffs have not perfected title by adverse possession is
justified?

2) Whether Exhibit A 1 sale deed can be said to be valid in the

absence of registration?

The counsel for the parties were heard on the additional questions
of law framed in the appeal.

7. I shall first deal with the second additional question of law framed
since it assumes significance and the decision on the appeal would
depend on the answer to the second additional question of law.

8. A perusal of Exhibit A 1 sale deed shows that it effects transfer of

title in presenti. Mr.D.Ravichandar learned counsel appearing for the
appellant would vehemently contend that Exhibit A 1 sale deed which
creates a transfer of interest in immovable property value of less than
Rs.100/- the same need not be registered. I am unable to countenance
his submissions in this regard for the following reasons; Section 54 of
the Transfer of Property Act defines "sale" and it reads as follows:

Section 54. "Sale" defined.- "Sale" is a transfer of ownership in

exchange for a price paid or promissed or part-paid and part-
promised.

Sale how made.- Such transfer, in the case of tangible immovable

property of the value of one hundred rupees and upwards, or in
the case of a reversion or other intangible thing, can be made only
by a registered instrument.

"In the case of tangible immovable property of a value less than

one hundred rupees, such transfer may be made either by a
registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the

seller places the buyer, or such person as he directs, in possession
of the property.

Contract for Sale._ A contract for the sale of immovable property

is a contract that a sale of such property shall take place on terms
settled between the parties.

It does not, of itself, create any interest in or charge on such

property.

9. A perusal of Section 54 extracted above would show that the law

contemplates only two modes of transfer of interest in immovable
property. It can either be by a registered instrument in case of
immovable property of value of more than Rs.100/- or by way of
delivery of possession in case of immovable property of value less than
Rs.100/-. A third method namely a transfer by way of an unregistered
instrument is not contemplated. This court in V.S. Meenakshisundram
and others v. Kaliyaperumal and others, 98 LW 906, has considered
the admissibility of an unregistered sale deed of immovable property for
value below Rs.100/- and has held as follows:

"In dealing with Section 49 of the Registration Act, the Supreme

Court, in Raghunath v. Kedarnath , pointed out that by the
enactment of Act XXI of 1929 which, by inserting in Section 49

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of the Registration Act the words, "or by any provision of the

Transfer of Property Act, 1882, 'has made it clear that the
documents in the supplemental list, that is, the documents of
which registration is necessary under the Transfer of Property
Act, but not under the Registration Act, fall within the scope of
Section 49 of the Registration Act and if not registered, are not
admissible as evidence of any transaction affecting any
immovable property comprised therein, and do not affect any
such immovable property. Therefore, it is obvious that these
documents, viz., Exhibits A-4 to A-8 and A-10 which are
unregistered sale deeds and Exhibit A-9, an unregistered
exchange deed, are inadmissible in evidence. That disposes of
the substantial question of law formulated in the second appeal.

10. In doing so this court had relied upon a division bench judgment
of this court Kuppuswami Vs Chinnaswami, (1928) AIR Madras 546
wherein it was held that a transaction of sale if in writing, even if it is
for a value of less than Rs.100/-, has to be registered. No doubt
Mr.D.Ravichandar counsel appearing for the appellant would draw my
attention to Section 17 of the Registration Act to contend that a sale
deed of immovable property for a value less than Rs.100/- is not
compulsorily registrable. This submission of the learned counsel
overlooks an important amendment brought to Section 49 of the
Registration Act by the Transfer of Property Amendment Act 1929,
wherein, the words "or by any provision of Transfer of Property Act"
were included in Section 49 of the Registration Act. Therefore as on
date in view of Section 49 of the Registration Act a sale deed for a
value less than Rs.100/-, if it is reduced to writing, is required to be
registered in accordance with law. The resultant position is an
unregistered instrument of sale for whatever value be it, relating to
immovable property cannot be looked in to as a source of title to the
property conveyed. Section 54 of the Transfer of Property Act does not
contemplate sale of immovable property by an unregistered instrument
in writing which conveys an interest in immovable property by itself.
Mr.D.Ravichandar would draw my attention to the judgment of this
court in Viswalingam @ Mayavel and others v. Balasubramaniam,
(2013) 5 MadLJ 785 to contend that a sale deed for value less than
Rs.100/- need not be registered. He would draw my attention to
paragraph 11 of the said judgment which reads as follows:

"11. At this juncture, it is just and proper to refer to a very

important law point which is more often than not lost sight of by
many. The trial Court in fact was carried away by the
misconception that an immovable property worth less than
Rs.100/-, could be transferred without any registered deed. Such a
proposition is basically and fundamentally wrong. If a sale deed
is executed relating to a property worth less than Rs.100/-, then
only no registration is required. But in respect of a settlement
deed even if it relates to a property less than Rs.100, it requires
registration compulsorily. This aspect has not been considered at
all by the Courts below. "

11. After saying so the Hon'ble Judge who decided Viswalingam @

Mayavel and others v. Balasubramaniam extracts Section 54 of the
Transfer of Property Act and has this to say:

"13. As such, in the second paragraph cited supra, the portion

emphasized would indicate and exemplify that in the case of sale
of an immovable property worth less than Rs.100/-, registration is
not compulsoriy. ..."

I must point out that the attention of the learned Judge who
decided Viswalingam @ Mayavel and others v. Balasubramaniam
was not drawn to Section 49 of the Registration Act. The earlier

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judgment of this court reported in 98 Law Weekly 906 was also

not brought to the notice of the Honourable Judge who decided
Viswalingam @ Mayavel and others v. Balasubramaniam. The
Honourable Supreme Court in Raghunath -Vs-Kedarnath,
(1969) AIR SC 1316 had held that the enactment of Act XXI of
1929 namely the Transfer of Property Amendment Act inserting
in Section 49 of the Registration Act the words "or by any
provision of the Transfer of Property Act 1882" has made it clear
that the documents in the supplemental list, that is the documents
of which registration is necessary under the Transfer of Property
Act, but not under the Registration Act, fall within the scope of
Section 49 of the Registration Act and if not registered, are not
admissible as evidence of any transaction affecting any
immovable property comprised therein and do not affect such
immovable property. The above observation of the Honourable
Supreme Court and the Judgment of this court in Kuppuswami Vs
Chinnaswami, referred to supra, makes it clear that a unregistered
sale deed affecting transfer of immovable property of whatever
value is not admissible in evidence as proof of any transaction
affecting any immovable property comprised therein. Therefore I
have no hesitation in concluding that Exhibit A 1 sale deed dated
8-8-1966 being an unregistered instrument is not admissible in
evidence as a transaction affecting any immovable property
comprised therein. Therefore the additional question of law
number two is answered against the appellant to the effect that
Exhibit A 1 being unregistered cannot be relied upon to prove the
title of the plaintiff's predecessor in interest.

12. Realising the difficulty in claiming title under Exhibit A 1

Mr.D.Ravichandar learned counsel appearing for the appellant would
alternatively submit that the plaintiffs have pleaded adverse possession
and even if this court is to come to the conclusion that Exhibit A 1 will
not confer valid title on the plaintiffs and their predecessor in interest
having been in possession of the property right from the date of
execution of Exhibit A 1 namely 8-8-1966 have perfected the title by
adverse possession since their title is referable to an inchoate
instrument or an invalid instrument of sale. In doing so the learned
counsel would draw my attention to the pleadings in paragraph 3 of the
plaint which reads as follows: 'Ever since the date of purchase the said
Dhandapani was in possession and enjoyment of the same openly,
uninterruptedly, peacefully and adverse to the interest of anyone else
and he had also prescribed title by adverse possession'. Relying upon
the above pleading and the long uninterrupted possession of the suit
property by Dhandapani and his successors, the plaintiffs, the learned
counsel would contend that the plaintiff's title should be upheld on the
ground of adverse possession. He would also rely upon the Judgment
of the Honourable Supreme Court in Ravinder Kaur Grewal v.
Manjit Kaur, (2019) 4 CTC 936 in support of his submission. While
answering the question "Whether a person claiming title by adverse
possession can maintain a suit for declaration of title and permanent
injunction?" a three-Judge bench of the Honourable supreme had
observed as follows:

59. Possession is the root of title and is right like the property. As
ownership is also of different kinds of viz. sole ownership,
contingent ownership, corporeal ownership, and legal equitable
ownership. Limited ownership or limited right to property may be
enjoyed by a holder. What can be prescribable against is limited
to the rights of the holder. Possession confers enforceable right
under Section 6 of the Specific Relief Act. It has to be looked into
what kind of possession is enjoyed viz. de facto i.e., actual, "de
jure possession", constructive possession, concurrent possession
over a small portion of the property. In case the owner is in
symbolic possession, there is no dispossession, there can be

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formal, exclusive or joint possession. The joint possessor/co-

owner possession is not presumed to be adverse. Personal law
also plays a role to construe nature of possession.

13. He would also buttress the submission by relying upon the

judgment of the Division Bench of this court Rukmani -vs-
Gopalaswamy, (1993) 2 MadLJ 598, wherein it was held that a person
in open continuous and uninterrupted possession on the basis of a void
sale deed can acquire title by adverse possession. A perusal of the said
judgment of the Division Bench shows that the Division Bench had
actually approved a claim of title by adverse possession by the
purchaser under a invalid instrument observing as follows:

"Even if it is assumed that Exhibit B 2 sale deed is void, in view

of the evidence showing that the vendors are in open continuous
and uninterrupted possession and enjoyment of the land since
1954, they have acquired title by adverse possession. In
Venkatasubramania - versus - Sivagurunatha, (1938) AIR
Madras 60 a Division Bench of this court has held that adverse
possession of an alienee dates from the moment the alienee is
without lawful title. That time is, in case of a void transfer, the
date of transfer."

14. Countering the said submissions, Mr.R.Muralidharan, learned

counsel appearing for the respondent would submit that the plaintiffs
having claimed title under the unregistered Sale Deed cannot be allowed
the rest their claim on adverse possession. He would also point out that
a claim of title and adverse possession cannot go together.
Mr.R.Muralidharan, would further point out that the plaintiffs have not
proved uninterrupted possession for over the statutory period so that the
Court could grant them a relief on the basis of adverse possession.

15. In the case on hand the Trial Court had categorically found that
the plaintiffs and their predecessor in interest Dhandapani have been in
possession and enjoyment of the property right from the date of Exhibit
A 1 sale. This is also demonstrated by Exhibits A3 and A6 to A20 of
which Exhibits A 7 to 18 of are adangal extracts for over 12 years. The
evidence of DW-2 assumes significance in this regard. The said witness
who is the wife of Kunjan had in fact admitted that Kunjan had sold the
property to Dhandapani under Exhibit A 1 the relevant portion of her
evidence reads as follows:

img

16. Even the defendant in his oral evidence has admitted that the
revenue records stand in the name of the Dhandapani. He would further
admit that all the revenue records produced by him are subsequent to
the suit. The above evidence would show that the plaintiffs and their
predecessor Dhandapani are in continuous possession and enjoyment of
the property right from the date of Exhibit A1 namely 8-8-1966 and that
they have perfected title by adverse possession. No doubt the learned
appellate Judge has disbelieved Exhibit A 1 on the ground that there has
been some correction in the name of the person in whose name the
stamp paper was purchased. I have already extracted the admission of
Vislakshi wife of Kunjan as DW 2 wherein she had admitted the
execution of Exhibit A 1 by her husband. Exhibit A1 is also more than
30 years old and has been produced from proper custody. Hence it is
entitled to the presumption available under Section 90 of the Evidence
Act. The so-called discrepancy pointed out by the lower appellate court
would not have the effect of invalidating Exhibit A 1 as evidence of
possession. For the foregoing reasons the additional question of law
number 1 is answered in favour of the appellants concluding that the
plaintiffs have perfected title to the suit property by adverse
possession.

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17. This takes us to the two other questions of law framed at the time
of admission of the appeal. As far as the first question of law is
concerned there is a clear pleading in the plaint itself that the other legal
hairs of Dhandapani have given up their right in the suit property and
only upon their no objection the revenue records have been mutated in
the name of the second plaintiff. The second plaintiff along with her
daughter Gayathri had sold the property to the first plaintiff under a
registered sale deed dated 11-2-2008. A decree for declaration of title is
not one in rem but it is in personam. It would only bind the parties to
the suit. Any decree granted in this suit would not be binding on the
other hairs of Dhandapani who have not joined the execution of the sale
deed in favour of the first plaintiff. Similarly the decree declaring the
title of the second plaintiff to the remaining extent of 40 cents would
only operate against defendant in this suit. Therefore the lower appellate
court was not right in dismissing the suit on the non-existent grounds
namely the capacity of the second plaintiff to alienate the property and
the claim of the second plaintiff that she represents the family as its
manager. Therefore the questions of law framed at the time of
admission are also answered in favour of the appellants against the
respondent.

18. In view of the above answers to the questions of law framed the
Second Appeal is allowed. The judgment and decree of the lower
appellate court are set aside and that of the trial court are restored.
However in the circumstances of the case there will be no order as to
costs. Consequently, the connected miscellaneous petitions are closed.

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