9911796707
TMI Blog1993 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ildren on August 23, 1976 is not a valid and genuine document ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal has misconstrued the documents produced before it, viz., the agreement dated August 23, 1976, the release deed dated February 28, 1985, plantation tax assessment, compromise order of the sub-court in arriving at the conclusion that they do not disclose the transfer of possession of the property by the applicant to his children ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not deciding the issues regarding the yield estimated, price of produce fixed and adequacy of expenses raised before it ? " The assessee, Sri S. Sainuddin, was assessed to agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated September 1, 1987, the Tribunal declined to interfere, holding that no transfer was effected by the agreement made in 1976, that possession and enjoyment continued with the assessee and that the properties were released to the children of the assessee only in 1985. The Tribunal, therefore, held that there was no infirmity in the inclusion of the income from this area of 7.6 acres of land in the assessment of the appellant. It was thereafter that the questions of law formulated above were referred to this court for a decision thereon. Heard counsel for the assessee and the Government Pleader for the respondent. Before proceeding to examine the contentions raised on both sides on the questions referred, we have to mention that the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal held against the assessee on this aspect. A specific finding was rendered that the property was transferred without adequate consideration and that directly calls for application of all the provisions regarding inclusion of deemed income. Sri Nagendran, learned counsel for the assessee, strenuously con- tends that this observation of the Tribunal does not amount to a finding whereas it is only one of the circumstances relied on to come to the conclusion that no transfer was effected by the agreement executed in 1976. True, the Tribunal has observed that no transfer of property was effected in the circumstances mentioned. The finding that no transfer was effected in 1976 and the finding that the transfer was without adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement. Section 17(1) of the Registration Act, inter alia, stipulates that any non- testamentary instrument which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. 100 and upwards to or in immovable property shall be registered. By the provision of law relied on by counsel, section 17(1) will not apply to any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of Rs. 100 and upwards to or in immovable property but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uishment of the right of the assessee in favour of his children. The value of the property is admittedly more than Rs. 100. The consideration received is stated to be Rs. 2,200. If that be so, the release or extinguishment of the right can only be by a registered document. Section 17(2)(v) is, therefore, not attracted to the present case. The document being a compulsorily registrable one having not been registered is inadmissible in evidence. The Tribunal was right in finding that no transfer has been effected by this document as per the provisions of law. No error has been committed by the Tribunal in coming to this conclusion. In this connection, learned counsel for the assessee placed reliance on a Division Bench decision of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the court recording that compromise will not confer any right on the assessee. For the same reason, the payment of plantation tax, if any, will not also clothe the transferee with ownership. The transfer by a registered document took place only in 1985. A valid transfer had taken place only then. The Tribunal has, therefore, not committed any error in finding that possession and enjoyment of the property continued with the assessee and that the property was released to his children only in 1985. For the reasons aforesaid, the questions referred to this court are answered in favour of the Revenue and against the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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