The current original petition has filed by the petitioner who was the first defendant, respondent no 1 is the plaintiff and respondent no 2 is the 2nd defendant respectively of
O.S. No. 36/2017 on the files of the munsiff pala.
A suit was filled by the plaintiff in the trial Court praying for prohibitory injunction against the defendant to restrain his interference from tapping of rubber trees standing in the schedule property. Plaintiff has argued that permission of tapping rubber trees was given to him by the defendant no 1 through the defendant no 2 by virtue of power of attorney. The defendant no 1 has in his opposition argued that such registered agreement is fabricated. The first defendant had filled a interim application in the trial court asking for invocation of order 13 rule 3 of the C.P.C for rejection of such agreement as evidence as it is a unregistered document inspite of such documents should compulsorily be registered for being a admissible evidence. The trial court after hearing both sides has dismissed the application by passing an order attached as exhibit p.7 with original petition (civil) filed in the High Court Of Kerala by the first defendant.
The first defendant of the trial court thereafter filled an original petition (civil) against such order, learned counsel on behalf of the first defendant has argued that as per section 17(1)© of The Kerala Registration Act any non-testamentory instrument in which acknowledgement for receiving of payment of any consideration is there ,for creation,
declaration, assignment, limitation or extinction of any right, title or interest in immovable property is a compulsorily registrable document. Section 47© says that documents which required to be registered as per section 17 no-registration of such documents barred it from being a admissible evidence. The trial court has adopted sec 17(1)(d) of the said act and found that such agreement is only a licence, not a lease. It was further found by the
trial court that such agreement did not create any interest over immovable property and therefore registration of such agreement is not compulsory. The learned counsel for
petitioner has argued that the agreement creates interest or right over the immovable property against receipt of consideration , so it requires registration.
Learned counsel for the respondent submitted that as per agreement respondent supposed to collect latex from 750 rubber trees for the period of 15 years for consideration value of rupees 1000000, and latex is a immovable property.
In determining the question that whether the rubber trees are immovable property or not the Hon’ble High Court has considered definition of immovable property in different acts these are :
- Section 3 of the Transfer of Property Act defines immovable property thus:”immovable property” does not include standing timber,growing crops or grass”.12. Section 2(6) of the Registration Act defines immovable property thus: “2(6). “immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass”.
- The expression “immovable property” is also defined under 3(26) of the General Clauses Act as under: “3(26). “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth”.
The Court therefore determine whether the rubber trees falls within the definition of
standing timber or growing trees , in determining that the Court has relied on the judgement of Hon’ble Supreme Court in Shantabai v. State of Bombay and Others [AIR 1958 SC 532 (Y 45 C 79)]. The Court thereafter observed that –“A reading of the agreement would show that the right given to the plaintiff by the first defendant was to tap yielding rubber trees. They have not attained the stoppage of the process of vegetation and nourishment for further growth. They are growing trees. Income is generated from the yield. The trees do not perish after taking the yield once.There is no doubt that they would not fall under “standing
timber” falls under Section 3 of the Transfer of Property Act. The rubber trees in the plaint schedule property indeed are trees and thus immovable property. Thus, the transaction evidenced by the agreement is one which requires registration under Section 17 of the
Registration Act as it amounts to the creation of right or interest in respect of immovable property for consideration.”
Where as The trial court has opined that the latex is the juice of the rubber tree and as the plaintiff has been given the right to draw latex from the rubber trees, the nature of interest created as per the agreement is not on an immovable property but on a movable property and hence it requires no registration.
But observation of the honorable High Court is that the interest has created on the said rubber trees is an immovable property. For the reason that what is extracted from the
yielding rubber trees is in the form of juice, it cannot be said that the interest is created with respect to the movable property. Therefore the agreement is a compulsorily registrable
document, it cannot be admissible as evidence of any transaction regarding the immovable property as stated in Section 49 of the Registration Act.
The Court has said that the expression used in rule 3 of the CPC is ‘may’ and not ‘shall’ ,
but the trial Court has to reject such document as an admissible evidence by exercising it’s discretion so that at the time of trial irrelevant and inadmissible evidence can’t be pleased.
The Court has therefore decided that – “Since the agreement in question was inadmissible in evidence for want of registration, the trial court ought to have rejected it exercising its
discretion under Order 13 Rule 3 of C.P.C. Accordingly, Ext.P7 order is set aside. Ext.P4 stands allowed.”
Case Title : THOMAS BABY VS JOJO V.GEORGE(DIED) C Ors. OP © NO : 3120 OF 2018.
Judgement Pronounce by the Hon’ble Justice DR. KAUSER EDAPPAGATH.