While interpreting the document not only the contents have to be kept in mind, but the real intention of the parties is also to be determined. The form in which the document is styled is inconclusive for determination of intention of the parties. In this document it is nowhere mentioned that it was a sale Deed. The intention of the parties from oral evidence is also not coming out that it was a sale of immovable property. Easement by way of passage no doubt creates some interest in the property, but not title or Ownership in the property. The document owner cannot, while claiming easement of passage, say that he has acquired title or ownership in the servient tenement.
13. Section 6(c) of the Transfer of Property Act provides that easement cannot be transferred apart from the dominant heritage. It is thus clear from this section that easement can be transferred when dominant heritage is also transferred. If there is no transfer of dominant heritage mere easement cannot be transferred.
14. The sale is defined u/s 54 of the Transfer of Property Act which says that sale is a transfer of ownership in exchange for a price paid or promised or part paid and part-promoted. Such a transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. The sale of immovable property of value less than hundred rupees can be effected either by registered instrument or by delivery of the property.
15. it is thus obvious from Section 54 that there is no sale unless transfer of ownership in exchange for a price paid or promised to be paid or partly paid or partly promised to be paid takes place.
16. In the case in hand there has been no transfer of ownership in property over which the right of passage is denied. Much stress was laid on the fact that the transfer was evidenced for an amount of Rs. 351 /-. Hence it requires registration. Reference was also made by the learned Counsel for the respondent that u/s 2(6) of the Registration the right of way is included in the definition of immovable property: Section 2(6) of the Registration Act reads as under:
“Immovable property includes land, buildings, hereditary allowance, 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 nor grass.”
It is thus clear that right of way is immovable property within the aforesaid definition.
17. It is now to be seen whether u/s 17 of the Registration Act the transfer of such property requires registration or not. Section 17(b) of the Registration Act inter alia provides that a document other than non-testamentary instruments which purport or operate 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 one hundred rupees and upwards, to or in immovable property is required to be registered.
18. Thus according to this section if a document purports or operate to create, declare, assign or extinguish any right title or interest in immovable property having value more than hundred rupees it is required to be registered.
The Madras High Court in the case of Ramakrishna Doss Chandrathna Doss Vs. P. Kesavalu Chetty and Others, held whether a document dealing with immovable property acquires registration or not, depends on whether the document in question constitutes the bargain between the parties or it is merely the record of an already completed transaction.
The Privy Council in AIR 1923 50 (Privy Council) also observed that the test in such cases is was the document in question bargain between the parties.
In V. Krishnayya Vs. S. Ponnuswami Iyer and Another, , the document was subject matter of interpretation and considering the document it held that if the document constitutes the bargain, then, on the well known rule that, where contracts are reduced to writing, you cannot give parol evidence of their contents, in order to prove the mortgage the plaintiff would have to attempt to put in as evidence the document, and if it is a mortgage document, he would be precluded from so doing by the Transfer of Property Act and under the Registration Act. [HAMIR RAM AND OTHERS Vs. VARISNG RAIMAL AND OTHERS ]