HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P.Nos.2473, 3564, 3869 & 4147 OF 2010 DATE:21-10-2011 CIVIL REVISION PETITION No.2473 OF 2010 BETWEEN Golthi Satyavathi …Petitioner AND Golthi Anuradha …Respondent CIVIL REVISION PETITION No.3564 OF 2010 BETWEEN Golthi Vijaya Kumar and another …Petitioners AND Golthi Satyavathi …Respondent CIVIL REVISION PETITION No.3869 OF 2010 BETWEEN Golthi Satyavathi …Petitioner AND Golthi Vijaya Kumar …Respondent CIVIL REVISION PETITION No.4147 OF 2010 BETWEEN Golthi Satyavathi …Petitioner AND Golthi Vijaya Kumar and another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P.Nos.2473, 3564, 3869 & 4147 OF 2010 COMMON ORDER: The issue involved in all these revisions is one and the same and therefore, they are heard together and being disposed of by this common order. Smt. Satyavathi is the petitioner in C.R.P.Nos.3869 of 2010, 2473 of 2010 and 4147 of 2010, which are filed against the orders dated 26.7.2010, 9.4.2010 and 27.7.2010 made in I.A.No.255 of 2010 in O.S.No.778 of 2003; E.A.No.588 of 2008 in E.P.No.190 of 2008 in O.S.No.1466 of 2004; and I.A.No.594 of 2010 in O.S.No.1336 of 2003 respectively. Whereas, her brother-Golthi Vijaya Kumar, who is defendant in O.S.Nos.1336 of 2003 and 758 of 2003 filed C.R.P.No.3564 of 2010 against the orders dated 13.4.2010 dismissing I.A.No.758 of 2003 in O.S.No.1336 of 2003 filed by him to reject the plaint. Relevant facts that are necessary for disposal of these revisions are stated follows: Smt. Satyavathi-petitioner in C.R.P.Nos.3869 of 2010, 2473 of 2010 and 4147 of 2010 had three younger brothers viz., G.Vijay Kumar (defendant), Prem Kumar Sai, and Durga Prasad. According to her, during the life time of her father, her brother- Vijay Kumar executed an unregistered document styled as ‘Settlement deed/Gift deed dated 22.6.1999 which was attested by other two brothers namely, Prem Kumar Sai and Durga Prasad and scribed by her father transferring an extent of 238 sq.yds. out of 357 sq.yds. of the property along with construction area in her favour in recognition of her services to the family as she being the elder sister and served the family by remaining unmarried. Admittedly, the property to an extent of 357 sq.yds. was purchased by Vijay Kumar under a registered sale deed dated 9.2.1983. According to Satyavathi, by virtue of the unregistered Settlement deed/Gift deed dated 22.6.1999 she was put in possession of the said property. Basing on the said deed, the property was mutated in her name and since then she has been paying the taxes of water and electricity to the plaint schedule property. When the defendant-G.Vijay Kumar tried to interfere with her rights over the said property, she filed O.S.No.778 of 2003 on the file of VI Additional Junior Civil Judge, Vijayawada for permanent injunction and later the same was transferred to II Additional Junior Civil Judge, Vijayawada. She also filed O.S.No.1336 of 2003 on the file of IV Additional Junior Civil Judge, Vijayawada for specific performance of unregistered Settlement deed/Gift deed dated 22.6.1999. While so, wife of Vijay Kumar, who is the defendant in both the said suits, filed O.S.No.1466 of 2004 on the file of II Additional Junior Civil Judge, Vijayawada against her husband’s brother Prem Kumar Sai for eviction claiming that her husband-Vijay Kumar executed a registered gift deed in her favour gifting the suit schedule property and since the date of the said gift deed, she has been in enjoyment of the said property as absolute owner and obtained a decree as such. On decreeing the said suit, she filed E.P.No.190 of 2008 for execution of the decree. O.S.No.778 of 2003 and E.P.No.190 of 2008 are pending before II Additional Junior Civil Judge, Vijayawada. Whereas, O.S.No.1336 of 2003 is pending on the file of IV Additional Junior Civil Judge, Vijayawada. Petitioner-Satyavathi also obtained a temporary injunction in I.A.No.380 of 2003 in O.S.No.778 of 2003, which has been confirmed by this Court in C.R.P.(SR).No.29315 of 2006 recording a finding that in view of the tax receipt issued in favour of plaintiff-Satyavathi by the Municipal Corporation as well as the letter dated 11.12.2000, the lower appellate Court is justified in coming to the conclusion as to the prima facie possession of the plaintiff and therefore, there is no ground to interfere with the order of injunction granted in her favour and with regard to the merits of the case, the same should be adjudicated by the Court below on a full-fledged trial. While so, Satyavathi filed I.A.No.255 of 2010 in O.S.No.778 of 2003 to admit and mark the unregistered Settlement deed/Gift deed dated 22.6.1999 on her behalf. She also filed a claim petition in E.P.No.190 of 2008 and filed E.A.No.588 of 2008 for the similar relief i.e. for marking of unregistered Settlement deed/Gift deed dated 22.6.1999 on her behalf in the claim petition. Further she filed I.A.No.594 of 2010 in O.S.No.1336 of 2003 seeking amendment of the plaint for declaration of her title over the plaint ‘B’ schedule property, which was originally filed for specific performance of unregistered Settlement deed/Gift deed, and to declare that she is the absolute owner of the plaint ‘B’ schedule property and for consequential relief. The defendant-Vijay Kumar in O.S.No.1336 of 2003 filed I.A.No.758 of 2003 for rejection of the plaint contending that he being the absolute owner of the suit schedule property having purchased the same under a registered sale deed dated 9.2.1983 gifted the said property under a registered gift deed in favour of his wife-Smt.Anuradha, who in turn, filed O.S.No.1466 of 2004 for eviction of his brother-Prem Kumar Sai and the said suit was decreed in her favour and therefore, he is no more owner of the said property and hence, the plaint has to be rejected. On dismissal of all the I.As. and E.A., the present revisions are filed by the plaintiff and defendant. Sri Dr.Prabhakar, learned counsel appearing for the petitioner in C.R.P.Nos.3869 of 2010, 2473 of 2010 and 4147 of 2010 contends that Satyavathi-plaintiff in O.S.No.778 of 2003 was put in possession of the suit schedule property and her possession has been recognized by granting injunction in her favour and therefore, to prove her possession, unregistered Settlement deed/Gift deed executed by her brother-Vijay Kumar in her favour which has been attested by her other two brothers and scribed by her late father should be admitted in evidence for the collateral purpose. The said property was purchased by defendant-Vijay Kumar from the South Central Railway Employees Cooperative Housing Building Society Limited under registered sale deed dated 9.12.1983 vide document No.7248 of 1983. The recitals in Settlement deed/Gift deed show that whenever the petitioner-Satyavathi makes a request, defendant-Vijay Kumar has to register a gift deed in her favour and in the affidavit filed in E.A.No.588 of 2008, Satyavathi also asserted that she accepted the gift and she was put in possession and has been enjoying the suit schedule property since the date of unregistered Settlement deed/Gift deed. Later on Vijay Kumar addressing a letter to the South Central Railway Employees Cooperative Housing Building Society Limited, she paid a sum of Rs.25,240/- to Vijay Kumar regarding the house loan and she also paid another amount of Rs.54,396/- and later on, the property was mutated in her name, which clearly shows that she was put in possession of the property. To prove her possession, the said document i.e. Settlement deed/Gift deed should be marked in evidence on her behalf. It is further contended that when the suit itself is filed for specific performance of unregistered Settlement deed/Gift deed and in fact, when she is in possession of the suit schedule property under the unregistered Settlement deed/Gift deed, she can always claim the relief for declaration of her title and the lower Court is not justified in dismissing I.A.No.594 of 2010 in O.S.No.1336 of 2003 filed for amendment of the plaint and it ought to have allowed the said I.A. to avoid multiplicity of proceedings. Per contra, learned counsel for respondent-Vijay Kumar contends that once the petitioner-Satyavathi claims that she was put in possession of the suit schedule property under the unregistered Settlement deed/Gift deed, unless the said document is registered, the same cannot be marked as a document in evidence and the lower Court rightly dismissed I.A.No.255 of 2010 and E.A.No.588 of 2008 filed by her for marking of the said unregistered Settlement deed/Gift deed. Therefore, the impugned orders cannot be interfered with. He further contends that the property stands in the name of the defendant-Vijay Kumar and that he executed a registered gift deed in favour of his wife gifting the said property in her favour and in turn, she obtained a decree in O.S.No.1466 of 2004 for eviction of his another brother and therefore, the suit in O.S.No.1336 of 2003 filed by petitioner- Satyavathi for specific performance of unregistered Settlement deed/Gift deed is liable to be rejected in view of the subsequent event. Thus the lower Court committed an error in dismissing I.A.No.758 of 2003 filed by him under Order 7 Rule 11 C.P.C. to reject the plaint. The learned counsel for the respondent placed reliance on the decision of the Apex Court in Smt. Gomtibai (dead) through LRs. and others v. Mattulal (dead) through LRs. (AIR 1997 SC 127). Satyavathi-Plaintiff in O.S.No.778 of 2003, O.S.No.1336 of 2003 and claim petitioner in E.A. in E.P.No.190 of 2008 claims that she is the absolute owner of the property by virtue of unregistered Settlement deed/Gift deed dated 22.6.1999 executed by her brother-Vijay Kumar relinquishing his right over the said property from the date of the document and agreeing to execute a registered gift deed in her favour as and when she demands for such execution. Once the document itself is styled as a Settlement deed/Gift deed, the same is required to be registered as the value of the property is more than Rs.100/-. The case in Smt. Gomtibai (dead) through LRs. (referred to supra) arose out of a decree in partition suit, in which, a defence was set up by the defendant that the property was gifted to his cousin-sister, who has entrusted the property to him for cultivation. On dismissal of the suit accepting the said plea, the matter was carried in appeal and the District Judge allowed the appeal decreeing the suit, which was confirmed by the High Court in Second Appeal. The Supreme Court after referring to Section 122 of the Hyderabad Transfer of property Act, which is in pari material to the Transfer of Property Act, 1882 and analogous to Section 124, held that the gift of immovable property should be made only for transferring the right, title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument and holding so, the Apex Court confirmed the decree passed by the lower appellate Court as confirmed by the High Court. The issue that falls for consideration in C.R.P.Nos.3869 of 2010 and 2473 of 2004 pertains to the aspect whether the unregistered Settlement deed/Gift deed is to be admitted in evidence on behalf of the plaintiff or not? It is not in dispute that the document ‘Settlement deed/Gift deed’ has been impounded by the Registrar by collecting an amount of Rs.19,555/- towards stamp duty and penalty of Rs.30,445/-, totaling to Rs.50,000/-, by issuing a certificate by the Collector, Krishna District. Section 49 of the Registration Act prohibits receiving of a document which is required to be registered under Section 17 of the said Act. But proviso to Section 49 permits for reception of such document as evidence of a contract in suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877 ), or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 (4 of 1882 ), or as evidence of any collateral transaction not required to be effected by registered instrument. In view of the same, in both the proceedings initiated by the petitioner-Satyavathi i.e. O.S.No.778 of 2003 and claim petition in E.P.No.190 of 2008, the document ‘Settlement deed/Gift deed’ cannot be admitted in evidence in proof of her title/possession under the said document unless it is registered. But however, it can be received as evidence only in O.S.No.1336 of 2003 filed by the petitioner for specific performance namely, to enforce the registration of document ‘Settlement deed/Gift deed’ in favour of the petitioner as agreed thereunder. In that view of the matter, the orders passed by the lower Court in dismissing I.A.No.255 of 2010 in O.S.No.778 of 2003 and E.A.No.588 of 2008 in E.P.No.190 of 2008 for receiving the said document do not suffer from any illegality warranting interference by this Court. Thus both the revisions i.e. C.R.P.Nos.3869 of 2010 and 2473 of 2010 are liable to be dismissed. Inasmuch as O.S.No.1336 of 2003 is filed for specific performance of agreement namely, execution of registered gift deed in favour of the petitioner-plaintiff, the amendment now sought for to the plaint in I.A.No.594 of 2010 in O.S.No.1336 of 2003 to declare the plaintiff as absolute owner of the plaint ‘B’ schedule property cannot be granted and the relief claimed now is contrary to the main relief sought for in the suit and the plaintiff cannot take contradictory pleas by seeking amendment to the plaint. Therefore, the lower Court rightly dismissed I.A.No.594 of 2010 in O.S.No.1336 of 2003 which does not suffer from any illegality warranting interference by this Court and the revision in C.R.P.No.4147 of 2010 is liable to be dismissed. Now, I would like to deal with the revision filed by the defendant-Vijay Kumar i.e. C.R.P.No.3564 of 2010, which is subject-matter of dismissal of I.A.No.758 of 2003 filed by him for rejection of the plaint in O.S.No.1336 of 2003. When the plaintiff- Satyavathi seeks specific performance of agreement i.e., execution of the registered gift deed as agreed under unregistered Settlement deed/Gift deed executed by Vijay Kumar dated 22.6.1999, merely because Vijay Kumar-defendant (petitioner herein) transferred the property in favour of his wife by executing a registered gift deed will not affect the right of the plaintiff to seek the relief of specific performance and a reading of the plaint will not show that it is barred by any law or there is no cause of action for filing of the suit and also by limitation. Therefore, the plaint cannot be rejected only on execution of a registered gift deed on 19.8.2002 by defendant-Vijay Kumar in favour of his wife depriving the right of the plaintiff for specific performance in O.S.No.1336 of 2003. Further as per the plaint averments, the suit is filed within the period of limitation. Further the grounds mentioned for rejection of the plaint is that I.A.No.380 of 2003 filed for temporary injunction was dismissed and that the plaint is barred by limitation and should be rejected. The cause of action which arose for institution of the suit will be taken into consideration and whether the suit is barred by limitation or not is a matter which requires to be decided by the lower Court on the basis of pleadings and evidence to be adduced by the parties. In that view of the matter, the impugned order dismissing I.A.No.758 of 2003 filed for rejection of the plaint in O.S.No.1336 of 2003 does not suffer from any illegality warranting interference by this Court and thus the revision in C.R.P.No.3564 of 2010 is also liable to be dismissed. For the foregoing reasons, all the revisions are dismissed. Since the subject-matter of property involved in all the suits is one and the same, to avoid conflicting decisions, this Court feels that all the suits should be tried and heard together. Therefore, the suit in O.S.No.1336 of 2003 is withdrawn from the Court of IV Additional Junior Civil Judge, Vijayawada and made over to II Additional Junior Civil Judge, Vijayawada to be tried and disposed of along with O.S.No.778 of 2003 and E.P.No.190 of 2008 pending on its file. There shall be no order as to costs. _______________ A. GOPAL REDDY, J. OCTOBER 21, 2011 Tsr.