A PARVATHI Vs. P CHANTI ALIAS CHINNAMMAYI

JUDGEMENT

(1.) The petitioner challenges the validity of the order dated August 29,1988 in E.A.No.127 of 1982 inE.P.No.7 of 1982 on the file of the Munsif Magistrate, Tuni. By the said order, the learned Munsif Magistrate declined to admit the document in evidence.

(2.) Sri M.V. Suresh, the learned counsel for the petitioner contends that the document records gift by way of 'Pasupu Kumkuma' which has been recognised as valid under the ceiling law and, therefore, that principle ought to have been extended by the executing court and the document ought to have been admitted in evidence. He further contends that, even though under Section 49 of the Indian Registration Act the document is inadmissible in evidence yet for collateral purpose it can be admitted in evidence. Sri Balasubrahmanyam, the learned counsel for the first respondent, on the other hand, contends that the document is inadmissible in evidence both under Section 49 of the Indian Registration Act as well as under Section 35 of the Indian Stamp Act. Therefore, the executing court was right in not admitting it in evidence.

(3.) To appreciate the contentions of the learned counsel, it would be necessary to refer to the relevant facts. The first respondent obtained a money decree against respondents 2 to 4 in O.S.No.113 of 1974 on the file of the Munsif Magistrate, Tuni. He filed EP for execution of the said decree against respondents 2. to 4 by sale of an extent of Acs. 5.75 in S.No. 22 of Tondangi village. The petitioner who is the daughter of the second respondent, filed EA No.127 of 1982, under Order XXI Rule 58 C.P.C. for raising of attachment over the said land on the ground that an extent of two acres was given to her by way of 'Pasupu Kumkuma' at the time of her marriage. In support of her case, she relied on an un-registered gift deed. By order dated 29-8-1988 the executing court did not admit in evidence. The contention raised before the executing court was that it was an agreement for execution of a gift deed but not a gift deed. The executing court came to the conclusion that the document is a gift deed and that, under it, the property in question was given as gift on the date of its execution and it is not an agreement. It may he relevant to point out that under Section 123 of the Transfer of Property Act transfer by way of gift has to be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Admittedly, the document in question is not a registered deed. By virtue of the provisions of Section 17 (1) (a) of the Indian Registration Act, an instrument of gift of immovable property is compulsorily required to be registered. Section 49 of the Indian Registration Act inter alia provides that no document required by Section 17 of that Act or any of the provisions of the Transfer of Property Act to be registered shall affect any immoveable property comprised thereunder or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The proviso to Section 49, no doubt, saves the documents which are so required to be registered in the circumstances enumerated therein and says that they 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 part- performance of a contract for the purpose of Sec.53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by a registered instrument. Though the learned counsel submits that the document can be admitted in evidence for collateral purpose, he has not stated as to what is the collateral transaction which is not required to be effected by registered instrument for which he seeks to have the document admitted in evidence. Admittedly the document does not fall in any of the other transactions mentioned above.