MUNNA LAL S/O CHITERMAL JI SEN vs PREM BAI W/O GANESH RAM

Both the writ petitions were heard together, however

orders are being passed separately in both the petitions.

Heard both the counsels at length.

S.B. CWP NO.8970/2008

The brief facts of the case which require to be noted

for disposal of these writ petitions are as under:-

The respondents No.1 to 4 filed a suit No.22/2002 for

possession on the basis of an agreement dated 22.05.1992.

The petitioner, however, took an objection with regard to

admissibility of the agreement, which was decided in his

favour on 16.08.2004 and consequently the suit was also

dismissed on 24.08.2007.

Thereafter, the respondents No. 1 to 4 filed a second

suit for possession on the basis of title. In the Year 2007

petitioner filed written statement and denied all the facts.

During the course of recording evidence, respondent No.2

appeared as PW-1 and produced the agreement dated

22.05.1992 as Ex.-1. When PW-1 came for cross

examination, the petitioner raised the objection regarding

admissibility of agreement dated 22.05.1992 on the ground

that the same was not registered.

The Court dismissed the objection of the petitioner

and accepted the document on the ground that the

document agreement dated 22./05.1992 can be used for

the purpose to show the possession of the disputed

property collaterally.

Feeling aggrieved of the order dated 15.10.2008, the

petitioner filed the present petition.

It is submitted by the counsel for the petitioner that

the agreement dated 22.05.1992 is essentially an

agreement of usufructuary mortgage and therefore, the

same was compulsorily registrable. In view of the fact that

the document is unregistered it could not have been made

as an admissible document. It is further submitted that the

document in the nature thereof already stood decided on

16.08.2004, in the earlier suit proceedings which

culminated in the dismissal of the suit itself holding that the

document cannot be looked into. Since it was an agreement

for usufructuary mortgage and was improperly stamped and

unregistered and was, therefore, inadmissible in evidence

as a documentary proof.

It was further pointed out that the Court while

dismissing the earlier suit observed that unless the

document is properly stamped within 30 days thereof and

is registered, the same cannot be looked into. He has relied

upon the observations made in the judgment dated

24.08.2007 passed by the learned Additional Civil Judge,

(Sr.Dn.) Bhilwara whereby the earlier suit filed by the

respondent was dismissed.

Counsel for the petitioner further submits that even

though the document agreement dated 22.05.1992 has

been later on properly stamped, it can still not be used for

collateral purposes. The order dated 15.10.2008 passed by

the Additional District Judge, Fast Track No.2, Bhilwara be,

therefore, quashed and set aside.

Per contra, counsel for the respondents has submitted

that after the decision in the earlier suit No.27/2002 dated

24.08.2007, the respondents filed present suit again on the

basis of permissive possession of the defendant-petitioner.

It was done after the document was properly stamped and

the same is only being used for collateral purposes. It is

submitted that the earlier suit was barred only because the

document was unstamped and unregistered. However, it

was kept open for the respondents-plaintiffs to file a

separate suit for permissive possession on the basis of said

document independently. It was further submitted by the

respondents that the trial Court in the present proceedings

has already allowed the document to be taken on record

and after the document has already been impounded and

has been duly stamped, there can be no objection to use

the same for collateral purposes in regard to case relating

to permissive possession.

A look at Sections 17 and 49 of the Registration Act,

1908 (hereinafter referred as ''the Act of 1908'')reads as

under:-

Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other 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;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award 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 one hundred rupees and upwards, to or in immovable property:

Section 49 in The Registration Act, 1908

Effect of non-registration of documents required to be registered.--No document required by section 17 1 [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:

From above, it is seen that Section 17 (1) (b) of the

Act of 1908 mandates that any document which has the

effect of granting or taking away the right in an immovable

property must be registered, where as Section 49 of the Act

of 1908 imposes a ban on the admissibility of an

unregistered document and deals with the documents that

are required to be registered under Section 17 of the Act of

1908.

In 2015 AIR SCW 6184 Yellapu Uma Maheshwari

& Another Vs. Buddha Jagadheeswararao & Ors. in

which the effect of unregistered document in proceedings

has been discussed at length. Paras 17 & 18 as reads as

under:-

"17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section

17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.

Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.

Similarly, in the case of Jagdish Prasad Vs.

Parsuram reported in 2013 (1) WLC 696 the Coordinate

Bench of this Court held as under:-

"In this regard, it may be further noted that as per the proviso to Section 49 of the Registration Act, an unregistered document effecting immovable property and required by the said Act to be registered, may be received as evidence of any collateral transaction. However, the instrument chargeable with the stamp duty under Section 3 but not duly stamped would not be admissible in evidence for any purpose under Section 35 of the Act of 1899 ( Section 39 of the Act of 1998), unless the requisite duty is paid. Therefore, the court finds substance in the argument made by the learned counsel Mr. G.P. Sharma for the respondent-plaintiff that in the instant case, the document in question though required to be compulsorily registered under Section 17 of the Registration Act, would be admissible in evidence for collateral purpose, in view of the proviso to Section 49 of the said Act, the suit of the respondent-plaintiff being for the declaration and possession of one half share in the suit property and for permanent injunction, on the basis of the document in question.

Thus, if the proviso to Section 49 of the Act of 1908 is

looked into, even an unregistered document effecting

immovable properly may be received in evidence for any

collateral transactions provided it is duly stamped.

Counsel for the petitioner has, however, relied upon

judgment rendered in AIR 2010 Sc 1654 S. Kaladevi Vs.

V.R. Somasundaram & Ors. However, this Court finds

that the law as laid down has been clearly discussed at

length in the aforesaid case and it does not support the

case of the petitioner. The Court after discussing the

judgments has laid down as under:-

"This Court then culled out the following principles:- "1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance 17. From above view taken by the Hon''ble Supreme Court

as well as by this Court, I do not find any merit in the

submissions raised by the counsel for the petitioner and I

do not find any illegality committed by trial Court in treating

the agreement dated 22.05.1992 as admissible evidence

vide its order dated 15.10.2008. Document agreement

dated 22.05.1992 could be taken as an admissible

document in evidence for collateral purposes in view of the

proviso to Section 49 of the Act of 1908.

It is also seen that once the document has already

been taken on record and the petitioner did not object to

the same, for not allowing it to be accepted now in evidence

is misconceived.

SBCWP NO.9442/2008

This Writ Petition relates to the closing of the cross

examination of witnesses of the plaintiff by the defendant-

petitioner by the same order dated 15.10.2008.

It is seen that the petitioner had submitted an

application informing that he wants to challenge the order

dated 15.10.2008 by which the documents were allowed to

be made admissible in evidence but the Court has rejected

his application for deferring the cross examination of the

plaintiff and the cross examination has been closed for all

witnesses.

In view of the order passed by this Court relating to

admissibility of document in Writ Petition No.8970/2008 In

find that the order passed by the Court for closing the cross

examination cannot be allowed to be sustained in the

circumstances. Considering the submissions, this Court

finds that the order passed by the trial Court for closing the

cross examination was too harsh.

Accordingly, the order of closing the cross examination

of witnesses by the trial Court is quashed and set aside and

the petitioner is allowed to cross examine the witnesses put

up by the plaintiff henceforth.

In the result the Writ Petition No.8970/2008 is allowed

and Writ Petition No.9442/2008 being devoid of merit is

hereby dismissed. Cost is made easy.