Narayanasamy Reddiar vs Smt. Muniammal

R. Banumathi, J.—This Revision Petition is directed against the order dated 03.11.2005 made in I.A. No. 528 of 2005 in O.S. No. 31 of 2004, on the file of the Second Additional District Munsif Court, Dindigul, dismissing the application filed under Order 12, Rule 2, r/w Section 151 of C.P.C. and thereby declining to receive the document of Panchayat Muchalika filed by the first defendant.

The respondent / plaintiff filed suit for declaration and permanent injunction to declare her 1/3rd right in the well in S. No. 156/4 and the land thereon - 16 cents and 5 HP electric motor pumpset and the service connection thereon.

The case of the respondent / plaintiff is that in the Partition Deed dated 21.12.1974, the suit property was allotted to the share of the second defendant and the second defendant sold the share in favour of Peter Mariya Sigamani by sale deed dated 10.10.1991 and the said Peter Mariya Sigamani sold the suit property and other properties to the plaintiff and one Natarajan on 18.11.1999. On 19.11.2003, Natarajan sold his half share in favour of the plaintiff and thus, the plaintiff claims to be entitled to 1/3 rd share in the well and the land thereon. Alleging that the defendants are interfering with her possession and enjoyment of the suit well and the pumpset, the plaintiff has filed the suit.

Referring to Panchayat Muchalika dated 06.06.1981, the first defendant has filed written statement contending that under the said Panchayat Muchalika, the defendants 2 and 3 have given up their 1/3rd share. According to the first defendant, by virtue of Panchayat Muchalika, he is entitled to the entire well in S. No. 156/4 and 5 HP electric pumpset and the service connection thereon.

In the Trial Court, the first defendant has filed I.A. No. 528 of 2005 under Order 12 Rule 2 read with Section 151 CPC to receive the document and receipt of Panchayat Muchalika dated 06.06.1981. The application was dismissed by the learned District Munsif on the ground that Panchayat Muchalika was not properly stamped and that the document being unregistered document cannot be received in evidence.

Challenging the impugned order, the learned Counsel for the revision petitioner/first defendant contended that the document was sought to be marked for collateral purpose and only to show that the first defendant is in possession and while so, the Trial Court erred in dismissing the application and thereby declining to receive the Panchayat Muchalika. It was further submitted that ever since 1980, the first defendant has been in possession and enjoyment of the suit well and the property thereon and the Panchayat Muchalika is very well looked into for the purpose of showing long possession of the first defendant. It was further argued that Panchayat Muchalika was only a family arrangement made between the parties and the said Muchalika need not be registered and therefore, Section 17 of Indian Registration Act is not applicable. In support of his contention, the learned Counsel for the revision petitioner placed reliance upon Karuppannan Vs. Thavasiappan and President Gobichettipalayam Co-operative Society Limited, .

Countering the arguments, the learned Counsel for the respondent/plaintiff submitted that the alleged Panchayat Muchalika is to be registered u/s 17(1)(b) of Registration Act and the same is inadmissible evidence u/s 49 of the Registration Act. It was further argued that the document being unregistered, u/s 35 of Indian Stamp Act, the same cannot be looked into for any purpose and the Court below rightly dismissed the application and the impugned order cannot be interfered with. In support of his contention, the learned Counsel for the first respondent placed reliance upon (2003) 3 MLJ 45 (Balakrishnan and Anr. v. Chandrasekaran).

The case of the revision petitioner / first defendant is that on 06.06.1981, there was a Panchayat and in the said Panchayat, it was agreed that S. No. 157/5 and the well thereon is to be enjoyed by Ponnusamy and the defendants 2 and 3 in lieu of relinquishment of share of defendants 2 and 3 in the suits in the well in suit S. No. 156/4.

In effect, the Panchayat Muchalika is a deed of exchange and the first defendant was given right in well and the property in S. No. 156/4 and the defendants 2 and 3 and Ponnusamay were given right in the well and property in another S. No. 157/5. The document, being in the nature of the deed of exchange, necessarily the same is to be registered.

In Bajaj Auto Limited Vs. Behari Lal Kohli, , this Court observed that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord''s permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.

In Rana Vidya Bhushan Singh Vs. Ratiram, , the following has been laid down:

A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.

Referring to the various decisions on the question of admissibility of document in 2008 (5) SCC 260, (K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Limited), the Supreme Court summarized the principles and laid down held as under:

From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:

A document required to be registered, if unregistered is not admissible into evidence u/s 49 of the Registration Act. 2. 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.

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.

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.

In the instant case, under the Panchayat Muchalika, the revision petitioner was given right in suit S. No. 156/4 in lieu of his right in the well in another S. No. 157/5. Therefore, the document being in the nature of an exchange deed, which is admittedly unregistered cannot be received in evidence. As held by the Supreme Court, if the document is inadmissible in evidence for want of registration none of its term can be admitted in evidence.

It was further argued that the document in question is more in the nature of family arrangement and family arrangement should be treated differently and that family arrangement even though not registered can be relied upon for the purpose of proving possession. In support of his contention, the learned Counsel for the petitioner placed reliance upon (2007) 5 MLJ 203 (Kasim Beevi and Ors. v. Sowr Beevi and Ors.). The above contention does not merit acceptance. As pointed out earlier, the document though styled as ''''Panchayat Muchalika'''', in essence, the document is in the nature of exchange deed and cannot be said to be a family arrangement.

The learned Counsel for the revision petitioner submitted that the document can be received in evidence for collateral purpose. It was further argued that the collateral purpose to be seen is the possession of the plaintiff over the suit property under the well thereon. The above contention does not merit acceptance.

In K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., , wherein the Hon''ble Supreme Court has inter alia observed that ''a collateral transaction should be one which does not create, extinguish title, interest, right or interest etc., in immovable property and once the document cannot be admitted in evidence for want of registration any important clause in such document cannot be used for collateral purpose etc. Moreover, 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 will not be using it as a collateral purpose, in the considered opinion of this Court.

Inasmuch as the unregistered Panchayat Muchalika dated 06.06.1981 relied upon by the revision petitioner shows that he is entitled to the entire extent of the well and the land in suit in S. No. 156/4. It creates right in favour of the petitioner, when the document cannot be admitted in evidence for want of registration, the contents of the document cannot be employed for any collateral purpose and in that view of the matter, the order passed by the Trial Court refusing to mark the document as an exhibit is perfectly in order and cannot be interfered with.

In the result, the order passed in I.A. No. 528 of 2005 in O.S. No. 31 of 2004, dated 03.11.2005, on the file of the II Additional District Munsif Court, Dindigul, is confirmed and this revision is dismissed. Consequently, connected Civil Miscellaneous petition is closed.

� The learned II Additional District Munsif Court, Dindigul, is directed to take up the suit and proceed with the same in accordance with law.

� The learned II Additional District Munsif Court, Dindigul, may not be influenced by the views expressed in this order.

� The views expressed in this order may not be construed as expression of opinion on the merits of the matter.