Ramamoorthy vs M. Shanmugam, S. Dhamodharan and S. Kaliraman

R. Banumathi, J.—This Revision is directed against the order in I.A. No. 1038 of 2005 in O.S. No. 262 of 2004, on the file of District Munsif Court, Srivaikuntam, ordering reception of the document dated 18.05.1949. The Plaintiff and the Second Defendant are brothers and sons of Sankaralinga Nadar. The Plaintiff has filed a Suit in O.S. No. 262 of 2004, seeking for a declaration to declare that fourth schedule property is the common path way meant for common user of plaintiff and Defendants 2 and 3 and also for permanent injunction restraining the First Defendant from interfering with the possession and also from putting up construction in the fourth schedule-pathway. The Plaintiff claims right in first schedule of suit property through a Will executed by his father, Sankaralinga Nadar, dated 09.01.1981.

Denying the Plaint averments, the First Defendant has filed Written Statement and contended that the First Defendant has left vacant site on the eastern side of his property for his own use, which is now shown as fourth item in the plaint schedule. According to the Defendants, the fourth item of Plaint schedule exclusively belongs to him and at no point of time, it was used as a common path way by the Plaintiff and the Defendants 2 and 3.

In his Written Statement, the Second Defendant has also pleaded that the fourth item of Plaint schedule is the Common path way meant for common user of Plaintiff and Defendants 2 and 3 and that the First Defendant has got no right to prevent the user of the common path way.

Before the Trial Court, the First Respondent/First Defendant filed I.A. No. 1038 of 2005, praying to receive the unregistered document dated 18.05.1949. In the Petition, the First Respondent averred that under oral sale, his father Masanamuthu has purchased the property for a sum of Rs. 200/- and handing over of possession was entered into dated 18.05.1949 and therefore, the document is very well admissible in evidence.

Observing that even though, the document is unregistered, the same can be received for collateral purpose, the learned District Munsif, Srivaikuntam, allowed the Application and ordered reception of the said document, which is the subject matter of challenge in this Revision Petition.

Challenging the impugned order, the learned Counsel for the Petitioner contended that as per Section 17 of the Registration Act, the document ought to have been registered and without registration, the document cannot be received in evidence. It was further contended that when the First Respondent/ First Defendant is claiming through the the document cannot be said to be relied upon for collateral purpose. In support of his contention, the learned Counsel for the Petitioner placed reliance upon S. Kaladevi Vs. V.R. Somasundaram, S. Priya and S. Soundarajan,

The learned Counsel for the First Respondent contended that even though, the document is unregistered, it can be very well looked into for collateral purpose of ascertaining the possession of the First Respondent and also the extent, in which, the First Respondent is in possession of the property.

Whether Trial Court was right in receiving the unregistered document is the point calling for consideration in this revision.

The Plaintiff and his brother, the Second Defendant claims right of common path way in the fourth item of plaint schedule. The First Defendant''s house is situated on the western side of the Plaintiff and the Second Defendant''s house. According to the First Defendant, on the west of his house, he has left a vacant space for his exclusive user and the said vacant space on the eastern side is now shown as fourth item in the plaint schedule. Even in the Written Statement, the First Defendant has raised defence plea that he has left space on the eastern side for his own use. In paragraph 6 of the Written Statement, the Defendant has pleaded thus:

According to the First Defendant, Santhanamuthu Nadar and Pechimuthu Nadar have sold the property to his father, Masanamuthu for a sum of Rs. 200/- by an oral sale and handing over of possession was reduced into the said It was further contended that even though the document is an unregistered document, the same could be received in evidence for collateral purpose, for the purpose of finding out the nature of possession of the suit land and in support of his contention, the learned Counsel for the First Respondent placed reliance upon Mayilu Ammal and Another Vs. Renganathan .

Contending that once the document cannot be admitted in evidence for want of registration for any important clause in such document, the document cannot be looked into for other purposes, the learned Counsel for the Revision Petitioner placed reliance upon K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., .

In the decision 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.

In the said case before the Supreme Court, the document was sought to be relied upon in reference to a clause in the Lease Deed enabling one named officer or family members of lessee occupying leased premises. Observing that such clause relied upon is an important clause, Hon''ble Supreme Court has held that the document cannot be looked into as such the lease deed was not registered. The said decision is not applicable to the facts of the case on hand.

The learned Counsel for the Revision Petitioner relies on the decision in Bipin Shantilal Panchal Vs. State of Gujarat and Another, wherein the Hon''ble Supreme Court has observed that ''it is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. Such practices when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remoulded to give way for better substitutes which would help acceleration of trail proceedings''. He also cites the decision in Bondar Singh and Others Vs. Nihal Singh and Others, wherein the Hon''ble Court has observed as follows:

Under the law a Sale Deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the Sale Deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the Plaintiffs over the suit land.

It is well settled that whether the document is admissible in evidence or not depends upon the nature and contents of the documents and also the facts and circumstances of each case. In the instant case, the First Respondent seeks to rely upon the document to show the nature of possession and in respect of boundaries. Even though, under the document the property is said to have been conveyed, the document could still be looked into for the collateral purpose of ascertaining possession and also the boundaries of the property of the First Defendant. The impugned order directing the reception of the document does not suffer from any perversity, warranting interference and exercising supervisory jurisdiction under Article 227 of the Constitution of India.

* The order passed in I.A. No. 1038 of 2005 in O.S. No. 262 of 2004, on the file of District Munsif Court, Srivaikuntam, is confirmed and this Revision is dismissed. Consequently, connected Civil Miscellaneous Petition is closed.

* The learned District Munsiff Court is directed to take up the Suit and proceed with the same in accordance with law.

* The learned District Munsiff Court 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.