TaxTMI 
TaxTMI 
2018 (7) TMI 2354
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....Respondent Nos. 1 & 2 herein (Defendant Nos. 3 & 4) were brought on record as his heirs and legal representatives. It was asserted in the suit that the original Defendant No. 1 was the absolute owner of 4.80 acres of land in Survey No. H-48A in R.S. No. 332/1 of Coonoor Rural Village. He had entered into an agreement of sale with Respondent No. 3 (Defendant No. 2) on 12th November, 1995 agreeing to sell the said property either to the second Defendant or its nominees. It is further asserted by the Appellant (Plaintiff) that in furtherance of the said agreement to sell the second Defendant was put in possession of the property agreed to be sold, in part performance of the agreement of sale and that fact has been recited in the agreement of sale itself. The agreement also authorized the second Defendant, at its discretion, to develop the property by constructing dwelling units thereon for which the predecessor in title of Respondent Nos. 1 & 2 (namely the original 1st Defendant) was to cooperate and give consent, whenever and wherever necessary, for the unhindered development of the property. It was then asserted by the Appellant (Plaintiff) that to effectuate the stated agreement to....
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....ecessor in title of Respondent Nos. 1 & 2) has been cancelled on 2nd January, 2002. As a result, Respondent No. 3 (Defendant No. 2) could not have executed the agreement to sell in favour of the Appellant (Plaintiff) on 9th July, 2003. 5. Be that as it may, Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4) moved a formal application for deciding the admissibility of unregistered agreements to sell and also to impound the Power of Attorney for having been executed upon payment of insufficient stamp duty and to impose suitable penalty before proceeding with the trial. That application was rejected by the Trial Court on 20th June, 2011 against which the original Defendant No. 1 and Defendant No. 3 (Respondent No. 1) filed a revision petition before the High Court of Judicature at Madras, being CRP (MD) No. 3422/2011. They were unsuccessful as the High Court dismissed the revision petition on 30th September, 2011 holding that the question of payment of stamp duty or the admissibility of the document could be decided only when the stated documents were sought to be marked through witnesses and not at that stage. Therefore, after the Plaintiff filed an affidavit of evidence and sought to rel....
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....r short, "1899 Act") and 1882 Act. The documents were marked and merely exhibited subject to proof and relevancy. 6. Being aggrieved by the said decision, Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4) preferred a civil revision petition before the High Court of Judicature at Madras being CRP (P.D.) No. 1700/2016. The High Court reversed the decision of the Trial Court. The High Court interpreted the General Power of Attorney dated 2nd May, 1996 and construed it as having been given for consideration in furtherance of the agreement to sell dated 12th November, 1995. The High Court noted that since the said General Power of Attorney refers to the agreement to sell dated 12th November, 1995, the terms and conditions specified in the latter document would get incorporated into the Power of Attorney, meaning thereby it was given for consideration, and therefore, it would attract stamp duty applicable to a deed of conveyance. It could not have been executed on the stamp paper of Rs. 100/-. Hence, the document was inadmissible and could not be received as evidence. As regards the agreement to sell dated 9th July, 2003, the High Court opined that the same was required to be registered comp....
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....ct, 1877, or this Act came or comes into force, namely: XXX XXX XXX (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A. XXX XXX XXX 10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., (2010) ....
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....ourt after the parties adduce oral and documentary evidence. 12. Reverting to the registered General Power of Attorney, the same has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, in our opinion, the Trial Court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the Trial Court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The High Court, in our opinion, therefore, should have stopped at that instead of analysing the said instrument by invoking the principle of incorporation by reference to the agreement to sell dated 12th November, 1995. For, the Appellant (Plaintiff) is not a party to the said document. Indeed, the executor of the document - original Defendant No. 1 and the Defendant No. 2 in whose favour the same has been executed, are parties to the present suit. The principal document, namely, the agreement to sell dated 12th November, 1....