Kundan Soni & Others vs Devendra Kumar Soni & Another

The instant petition has been filed under Article 227 of the Constitution of India assailing the order dated 18.08.2017 (Annexure-P-1) passed by the Court below in Civil Suit No.69A/2014, whereby the document which is titled as consent letter dated 03.12.2013 (Sahmati Patra) was not allowed to be exhibited as the same was not found admissible by the Court below for the reason that the objection was raised that the document was not registered though it was required to be registered.

The plaintiffs/present respondents have filed a suit for possession over the suit property against the defendants/petitioners alleging that the suit property was purchased by plaintiff No.2 namely, Smt. Draupti Bai by registered sale-deed dated 20.07.2009 and also obtained possession of the same and accordingly her name was recorded in the revenue records and with her consent, name of her son/plaintiff No.1 was also recorded. It is also averred in the plaint that the defendant Nos. 1 to 3 are son of defendant No.4 and they reside together. It is also averred by the plaintiffs that the defendants are the lessees of the plaintiffs and they have been leased out half of the portion of the suit property temporarily on rent, but after asking them to vacate the premises, they have refused to vacate the same, therefore, the suit for possession has been filed.

The defendants submitted their written statements and filed a document titled as "Consent letter" (सहमति पत्र) dated 03.12.2013 claiming that though the property got registered in the name of Smt. Draupti Bai, but their mother namely Munni Bai had spent half of the amount over the suit property and a consent letter was executed by Draupti Bai admitting the fact that as and when the defendants would be required to get half of the property, the same would be transferred by her in their names.

During the course of trial, a consent letter dated 03.12.2013 was sought to be exhibited by the defendants, but on an objection raised by the plaintiffs that the said document being neither duly stamped nor got registered, therefore, cannot be accepted in evidence. The trial Court, on an objection raised by the plaintiffs, passed an order dated 18.08.2017 holding that from the recital of the document, it appears that the document of transfer of title, as per Article 22 of Schedule-1-A, needs to be registered and even cannot be taken as evidence as not admissible even for a collateral purpose. The trial Court observed that as per Section 49 of the Registration Act, 1908 (for brevity the 'Act, 1908'), the said document is not admissible in evidence for any purpose and accordingly, passed the order impugned.

Being aggrieved with the said order, this petition has been filed by the defendants/petitioners stating therein that the Court below has committed mistake considering the document as a document of transfer of rights and title and further committed an error holding that the said document even cannot be taken in evidence for collateral purpose. In support of his contention, the learned counsel for the petitioners placed reliance upon a decision reported in 2016 (2) MPLJ 156 parties being Akshay Doogad Vs. State of M.P. and others.

Per contra, learned counsel appearing for the respondents supported the impugned order and contended that the document which is sought to be exhibited in the title of 'consent letter' but from the recital of the same, it is infact a transfer deed and transferring a share of immovable property valued more than Rs.100/- needs to be registered as per requirement of the provisions of the Act, 1908 and since the same is not registered, therefore, it is not admissible in evidence even for collateral purpose. In support of his contention, he placed reliance upon decisions reported in 2012 (3) MPHT 508 parties being Khusiram Awasthy Vs. Sahab Singh and another, (2008) 4 SCC 451 parties being B.K. Muniraju Vs. State of Karnataka and others and 2017 (4) MPLJ 565 parties being Gordhan Vs. Dinesh and others.

Arguments heard.

Record perused.

The document which is sought to be exhibited in evidence by the defendants is available on record as (Annexure-P-2). From a perusal of this document which is titled as Sahmati Patra notarized on 03.12.2013, an objection was raised by the plaintiffs that the document is not admissible for any purpose even for collateral purpose as per Section 49 of the Act, 1908 as the document is not registered, whereas looking to the recital of the document though it is titled as consent letter, it can be easily gathered that it is a document of transfer of rights and title regarding immovable property valued more than Rs.100/-. Thus, I am of the opinion that by this document, the defendants are claiming right over the half of the suit property which got registered vide sale-deed dated 20.07.2009 in favour of Draupti Bai (plaintiff No.2). As per Section 17 (2)(v) of the Act, 1908, the document needs to be compulsorily registered, which reads as under:-

"17(2)(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees 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 any such right, title or interest;"

The document Annexure-P-2 was required to be registered but in absence of registration of said document as per Section 49 of the Act, 1908 which provides the effect of non-registration of document required to be registered. For ready reference, Section 49 of the Registration Act, 1908 is reproduced as under:-

"49. Effect of non-registration of documents required to be registered.- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877)2 , 3 [***] or as evidence of any collateral transaction not required to be effected by registered instrument."

In view of the above provisions, it is clear that a document which is required to be registered under Section 17 of the Act, 1908 but not registered, then the same is not admissible in evidence even for collateral purpose.

The judgment relied upon the by respondents in case of Khusiram Awasthy (supra) laying down that a document not duly stamped and registered, is not admissible for any purpose including a collateral purpose as provided under Section 49 of the Act, 1908, is fully applicable in the fact situation of the present case.

Likewise, the High Court in case of Gordhan (supra) has also laid down that a document required to be registered but not registered is inadmissible in evidence and even its terms cannot be admitted in evidence.

Adverting to a decision of the Division Bench of this Court placed reliance by learned counsel for the petitioners, reported in 2010 (3) MPLJ parties being S. Kaladevi Vs. V.R. Somasundaram and others which provides that the document if not registered can be used in evidence for collateral purpose but said judgment is not applicable in the facts and circumstances of the present case for the reason that the same deals with specific nature of case i.e. suit for specific performance in which there was no dispute in respect of the execution of the agreement of sale but the relief was claimed for return of earnest money and therefore, considering the pleadings between the parties, the Division Bench has observed that the document i.e. agreement to sale though registered can be used for collateral purpose but here facts of the present case are all together different and therefore, case law relied upon by the petitioners is not applicable.

In view of the above, I do not find any infirmity in the order passed by the Court below. The document (Annexure-P-2) very clearly reveals that it is not a simpliciter consent letter but is a document showing transfer of immovable property and is relinquishment of some portion of the immovable property by Smt. Draupti Bai in whose name the disputed property got registered.

Accordingly, the contentions raised by the petitioners have no substance and I do not find any illegality committed by the trial Court while passing the order impugned dated 18.08.2017.

In the result, the petition being bereft of any merits, is hereby dismissed