IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 20.10.2009 CORAM: THE HONOURABLE MR. JUSTICE M.JEYAPAUL Second Appeal No.1405 of 1995 K.Subramanian ... Appellant /Plaintiff Vs. Ramachandra Naidu ... Respondent/Defendant Prayer:The Second Appeal filed under Section 100 of the Code of Civil Procedure judgment and decree of the learned Subordinate Judge, Thiruvannamalai Sambuvarayar District made in A.S.No.65 of 1994 dated 27.01.1995 in confirming the judgment and the decree of the learned District Munsif, Thiruvannamalai passed in O.S.No.825 of 1982 dated 14.02.1994. For Appellant : Mr.N.Raghupathi For Respondent : Mr.T.R.Rajaraman J U D G M E N T The unsuccessful plaintiff before both the Courts below is the appellant herein. 2. This suit was filed for declaration of title and recovery of possession. The plaintiff would contend that Kuppu Mudaliar got the suit property under Partition Deed dated 11.06.1962. By way of an unregistered Settlement Deed dated 20.12.1963, he settled the suit property in favour of his first wife Navaneethammal towards her maintenance. As the said document was not duly stamped, it was impounded by the Revenue Divisional Officer and the stamped duty and penalty was paid by Navaneethammal. Thereafter, the plaintiff purchased the said property under the Sale Deed dated 17.12.1981, from the said Navaneethammal. Claiming to be the rightful owner of the suit property under the aforesaid Sale Deed dated 17.12.1981, the suit was laid by the plaintiff not only for declaration of title, but also for recovery of possession. 3. The defendant set up a plea in the written statement that he purchased the suit property from the original owner Kuppu Mudaliar by virtue of the Sale Deed dated 29.10.1971. It is contended by the defendant that the Settlement Deed dated 20.12.1963, is an anti- dated, forged and fabricated document. Old stamp paper was used with the ulterior motive to grab the suit property. It is the contention of the defendant that the Settlement Deed dated 20.12.1963, does not convey right and title with respect to the suit property and therefore, the plaintiff cannot claim title to the suit property. 4. Both the Courts below returned a finding that the Settlement Deed dated 20.12.1963, is an anti-dated, forged and fabricated https://hcservices.ecourts.gov.in/hcservices/ document and therefore, it cannot be used even for any collateral purpose. 5. The following substantial questions of law were framed at the time of admission of the Second Appeal: 1.Whether the Courts below are justified in not believing the Maintenance Deed Ex.A-3 executed on 20.12.1963 which is admitted by the defendant. 2.Whether the Courts are justified in not considering that the Sale Deed Ex.A2 said to have been executed by Navaneethammal is not supported by valid and proper consideration. 3.Whether the Courts below erred in not considering that the plaintiff is the bona fide purchaser of suit property without notice of encumbrances and charge over the property. 4.Whether the Courts below have correctly decided the question of estoppel against the defendant having knowledge about the prior execution of Maintenance Deed and charge over the suit property. 6. On a thorough perusal of the judgments of the Trial Court and the First Appellate Court and the points urged across the bar, the substantial questions of law arisen in this Second Appeal are recast as follows: 1.Whether the Settlement Deed dated 20.12.1963 being an unregistered document could convey any right or title with respect to the suit property? 2.Whether the defendant was estopped from claiming right and title to the suit property when he had the knowledge of the prior execution of Maintenance Deed by his vendor in favour of his wife Navaneethammal. 7. The learned counsel appearing for the appellant drawing the attention of this Court to the discussion embarked by the Trial Court as well as the First Appellate Court would submit that uncharitable comments have been made by the Courts below on the Settlement Deed Ex.A.3, which was executed by Kuppu Mudaliar in favour of his wife Navaneethammal. The Trial Court as well as the First Appellate Court failed to consider Ex.A.3 for collateral purpose quite against the spirit of proviso (a) to Section 35 of the Indian Stamp Act, 1899 even when the stamp duty was duly paid in the impounding proceedings taken by the Revenue Divisional Officer, long prior to the litigation emanated between the parties. The Settlement Deed Ex.A.3 can very well be looked into for the collateral purpose of establishing the nature of right enjoyed by the plaintiff, he would submit. It is his further submission that the defendant who was aware of the existence of the Settlement Deed Ex.A.3 had been docile without taking any action, even after the plaintiff purchased the suit property on the strength of the Settlement Deed Ex.A.3 executed by Kuppu Mudaliar in favour of his wife Navaneethammal. Therefore, he would submit that the judgment of the Courts below warrants interference. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel appearing for the respondent would strenuously submit that the Settlement Deed Ex.A.3 has been factually established that it is an anti-dated, forged and fabricated document before the Trial Court. Such a factual finding cannot be upset at the Second Appellate stage. Even assuming for the sake of argument that Ex.A.3 was really executed by Kuppu Mudaliar in favour of his wife Navaneethammal, the said document being an unregistered document would not convey any right or title in favour of the settlee under the document. The settlor cannot convey right or title which he did not possess under the Deed of conveyance. It is his further submission that the appellant/plaintiff being the very brother of Kuppu Mudaliar has virtually purchased litigation by concocting a document as though title had flowed to him through Navaneethammal, who had no title to the suit property. The Principle of Estoppel does not operate as it has been established that the defendant has been in continuous possession and enjoyment of the suit property ever since his purchase from the original owner Kuppu Mudaliar. 9. On a thorough perusal of the evidence let in by either of the parties, the Trial Court as well as the First Appellate Court returned a finding that Ex.A.3, the alleged Settlement Deed is an anti-dated and fabricated document. It is the admitted case that the beneficiary under the said Settlement Deed namely Navaneethammal was very much alive during the course of trial. The settlor Kuppu Mudaliar was also alive at that point of time. When there is a controversy shrouding the subject Settlement Deed, in all fairness, the plaintiff should have summoned the settlor and the settllee before the Court to establish the execution of the controversial document Ex.A.3 Settlement Deed. Both the Courts below have rightly pointed out that the date of execution has been introduced at a later point of time. In view of the facts and circumstances, the Court is not inclined to upset the factual finding arrived at by the Courts below that Ex.A.3 was an anti-dated and fabricated document. Such a document cannot be made use of for any purpose before the Court of law. 10. Even assuming for the sake of argument that Ex.A.3 was really executed in favour of Navaneethammal, the fact remains that the said document was not registered. Going by the tenor of the document, I find that it conveyed the right and title to the property to the settlee thereunder. AS per Section 17 of the Registration Act, 1908 such a document shall be compulsorily registered. The consequence thereof is adumbrated under Section 49 of the said Act. A document which is required to be registered under Section 17 of the Registration Act, if not registered shall not, in any way, affect the immovable property comprised in the said document. In other words, Ex.A.3 is simply a trash without affecting the right and title of the suit property. Of course, as per provisio (a) to Section 35 of the Indian Stamp Act, an instrument chargeable with duty shall be admitted in evidence if the duty chargeable under the document has been duly paid. The fact remains that the Revenue Divisional Officer having impounded the Settlement Deed on 02.02.1976, has collected stamp duty and penalty. Such document can be admitted only for collateral purpose. Here is the case where the plaintiff has sought for declaration of title based on the Sale Deed in his favour, executed by the predecessor in title, on the strength of an https://hcservices.ecourts.gov.in/hcservices/ unregistered Settlement Deed Ex.A.3. Ex.A.3 cannot be banked on for the purpose of establishing the title to the property. Therefore, the first question of law framed by this Court is answered against the appellant/plaintiff. 11. Coming to the application of the principle of estoppel to the case on hand, it is found that the defendant having purchased the suit property from the rightful owner namely Kuppu Mudaliar on 29.10.1971 has been in possession and enjoyment of the suit property and asserted his domain over the same. There is no evidence to show that the defendant having come to know of the Settlement Deed executed by Kuppu Mudaliar in favour of his wife and the subsequent transaction between Navaneethammal and the plaintiff, slept over, giving scope for the plaintiff to assert his title over the suit property. The plaintiff got the Sale Deed executed on 17.10.1981 from Navaneethammal. Within a short span of time, the defendant had to counter the suit filed by the plaintiff. Therefore, the question of application of the principle of estoppel as against the defendant in the above facts and circumstances of the case does not arise for consideration. 12. The Courts below have rightly held that the plaintiff is not entitled for declaration of title and also for recovery of possession. There is no warrant for the interference with the judgments of the Courts below. Therefore, confirming the judgments of the Courts below, the appeal stands dismissed. There is no order as to costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar va To 1.The Subordinate Judge, Thiruvannamalai, Sambuvarayar District. 2.TheDistrict Munsif, Thiruvannamalai. Copy to The Section Officer, V.R.Section, High Court, Madras +1 CC to Mr.T.R.Rajaraman, Advocate Sr.55612 S.A. No.1405 of 1995 PA (CO) SRA 30/10/2009 https://hcservices.ecourts.gov.in/hcservices/