Salam Rather and Others vs Mod. Ganai and Others

J.N. Bhat, J.—This is a revision petition directed against the order of the Munsiff Pulwama dated 31-10-62 whereby he has held the so-

called agreement of 29-11-61 executed by one Mt. Khatuni in favour of the Plaintiffs as inadmissible in evidence for want of registration.

The Plaintiff-Petitioners brought a suit for a permanent injunction against the Defendant-Respondents with respect to 2 kanals and 3 marlas of

land comprising different survey numbers in village Chandharu Tehsil Pulwama. In para 2 of the plaint they have mentioned that the mother of

Defendant No. 1 transferred her rights in the Shamilat and Abadi Deh pertaining to 1 kanal and 3 marlas for a consideration of Rs. 1500/- to the

Plaintiffs. A further averment in this paragraph was made by the Plaintiffs that prior to the execution of this document, the Plaintiffs had' been in

possession of this land for some time. This 1 kanal and 3 marlas is the subject-matter of the document in question dated 29-11-61.

The trial Court has held that the document in question is a sale-deed and by means of this document Mst. Khatuni has transferred her rights in

Abadi Deh and Shamilat land. All that could be transferred pertaining to Shamilat land was the possessory rights, as title vested in the State.

Therefore, according to the trial Court, the sale-deed whereby possession had to be transferred not being registered, the document was

inadmissible in evidence. The Court has further rejected the contention of the Plaintiffs that the document could be used for collateral purposes,

because according to the Munsiff, the proviso to Section 49 of the Registration Act was not incorporated in the State.

The learned Munsiff has fallen in error when he states that title in %Shamilat cannot be transferred by one land-holder to Anr. , the title being

vested in the State.

Shamilat and rights in Shamilat were the subject-matter of one of the boons which were granted by late His Highness Maharaja Hari Singh at the

time of his Raj Tilak in February, 1926, and to that effect a proclamation was made on the 25th of that year. The boon pertaining to Shamilat was

thus worded.

In villages where there is at present no land entered as Shamilat and where the common land in the vicinity of the village site is now entered as

Khalsa, this land shall henceforth be shown un Shamilat Deh and the villagers concerned shall jointly be awarded the same rights therein which |hey

possess in their individual holdings.

There were further clarifications and Ailans with respect to Shamilat land which are not very material for purposes of this case. They pertain to the

size of a Shamilat in a village and how and in what circumstances could Nautors and Bhanjars and other kinds of land be deemed as Shamilat. But

the basic right that was granted by this boon was that the land-holders in a particular Mahal would be entitled to have a share in the land declared

as Shamilat pro rata their holdings. That means they had proprietary rights in Shamilat land in proportion to the size of their holdings, which they

would hold in common with the other land-holders. The Shamilat could be, got partitioned and each individual, land-holder get his share of the

Shamilat, land in proportion to the size of his holding. The trial Court was not, therefore, correct in holding .that, all that could be transferred about

Shamilat land was possessory right alone; but the right of ownership, though joint with Ors. , can also be the subject of a Shamilat land.

Now so far as the admissibility of a document is concerned, the Registration Act lays down certain classes of documents which are compulsorily

registrable; some documents the registration of which is optional and yet there is a third class of documents which need not at all be registered, and

the last class of documents can transfer title without the document evidencing the transfer being registered. Section 17 of the Registration Act lays

down the description of documents of which registration is compulsory. Section 49 of the Registration Act is the section which lays down as to

what are the effects of non-registration of documents which are' compulsorily registrable. It refers to documents; which are compulsorily registrable

under the provisions of Section 17 of the Act or the provisions of the Transfer of Property Act. The disqualification that attaches to these

documents u/s 49 is also described in Clauses (a), (b) and (c) of the same section. In other parts of India, excepting the State of Jammu and

Kashmir, a-proviso was added to this section by the Registration Amendment Act XXI of 1929. The proviso reads as under:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 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, or as

evidence of part performance of a contract for the purposes of Section 53A of the T.P. Act, 1882, or as evidence of any collateral transaction not

required to be effected by registered instrument.

This amendment was necessitated by certain controversies about the interpretation of the three clauses of Section 49 of the Registration Act. The

authorities u/s 49 with or without the proviso lay down tire law to the following effect:

An unregistered document which is compulsorily registrable can be used as evidence for a collateral purpose if that collateral purpose does not

require registration.

If a document consists of various parts, one part of which requires registration and the other does not, that portion which does not require

Registration can be admitted in evidence.

If the same document has two portions, one of which is compulsorily registrable and the other not registrable, that portion which is not

registrable can be used in evidence provided that portion is divisible from the portion which requires registration.

If the document is taken as a whole and the entire document evinces one transaction, no portion of it can be received in evidence even though

some portion-of - the document may by itself not require registration.

Different authorities have given different interpretations to the expression 'collateral purpose'. Tracing the history of the law u/s 49 before the

amendment of 1929, we come, to the well-known Privy Council authority, Varada Pillai v. Jeevarathnammal AIR 1919 PC, 44;. Viscount Cave

delivering the judgment of the Board laid down:

...But even if the devise included the testatrix' interest in the two villages, it would appear to be reasonably clear that the gift was by way of

confirmation only, and affords no evidence that Duraisani was a trustee of the property. In any case the recitals contained in the will are strong

evidence of the possession of the property by Duraisani.

In that case it was held that a gift which was not properly registered was not admissible in evidence. It was further laid down in the same

authority:

It should be added that, although the petitions of 1895, and the change of names made in the register in consequence of those petitions are not

admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth-held by

Duraisani.

A perusal of Section 49 of the Registration Act shows that unregistered documents which are compulsorily registrable cannot be received in

evidence so far as they affect any immovable property comprised therein or...be received as evidence of any transaction affecting such property.

That means these documents have to be rejected from evidence so far as, in other words, they try to create, declare, assign, limit or extinguish

whether at present or in the future any right, title or interest to or in immovable property. That is the only interpretation that can be placed upon' this

section. Such documents can very easily and safely be used as evidence for purposes which are not included in the above mentioned purposes.

The same has been the ratio decidendi in Vishvanath Haibatrao Deshpande Vs. Ranganath Dhondo Deshpande, ;. A division Bench of that High

Court was pleased to remark that Collateral purpose referred to in Section 49 is any purpose other than of creating, declaring, assigning, limiting or

extinguishing right to immovable property.

The authority further lays down that the proviso to Section 49 introduced in 1929 to the effect that an unregistered document may be looked at as

evidence of any collateral transaction not required to be effected by registered instrument, is merely a statement of what was held to be the law

even before that proviso. In this authority AIR 1919 PC 44 (supra) and Hope Mills Ltd. v. Cowasji, J. Readymoney 13 Bom LR 162; have been

referred. To the same effect is Karshan Jaram v. Harkha Hari AIR 1953 Sau 56;in which it has been laid down that a collateral transaction means

a transaction which does not create rights in immovable property.

In 13 Bom LR 162 : 10 IC 748 it has been laid down that

Where a document which as a whole requires registration, contains separable parts which do not require registration, those parts may be admitted

in evidence to prove transactions which ex hypothesi do not affect immovable property of the value of Rs. 100 or upwards.

Then we come across a whole host of authorities which lay down that a document can be used as evidence for a collateral purpose though the

main document is compulsorily registrable under law. Baldeo Singh Vs. Udal Singh and Others, ; holds that a registered deed though invalid in

transferring rights in immovable property could be used as collateral evidence of an agreement.

In Pirbax v. Nanhebi AIR 1926 Nag 255; it has been held that a compulsorily registrable but unregistered lease cannot be admitted to prove

tenancy though collateral facts of payment of premium or character of possession may be proved by it.

In Vyravan Chetti v. Subramanian, Chetti AIR 1920 PC 33;it was held that an agreement providing that the first and second mortgagees

should have equal rights in the mortgaged property and that its proceeds should be equally divided, needs no registration for being received in

evidence in suit between the parties where only division of proceeds is in question.

In T.S. Venkatrama Aiyar Vs. V. Chendrasekara Aiyar and Another, ;it has been held that an unregistered mortgage cannot be the basis for

redemption though Defendant admits relationship, as terms have to be proved. It was further held that the deed is admissible to prove the character

of the Defendant's possession.

In Rupa Nonia Vs. Ram Brich Pathak and Others, ;it has been held that

an invalid mortgage deed can be referred to for ascertaining the nature and the character of the possession and accordingly it may be referred to

for determining the quantum of interest for which the mortgage has prescribed...The attempt to use the document to prove the quantum of the

interest prescribed for and the character: of possession is not the use of the document for the purpose of enforcing the mortgage itself. The;

document is not used as a source of mortagee's title....

In Saniram Kachari and Another Vs. Gauri Ram Koch and Others, ; the Plaintiff in the suit for declaration of title, and confirmation of his

possession, had been in possession of the suit property for over 12 years and there was a mutation of sale in his, favour and he had been in

possession of the property in his own right. It was held that

the unregistered sale deed could be utilized for the purpose of showing the nature of the Plaintiff's possession and, therefore, eyen if unregistered

sale deed combined with delivery of possession could not confer title on him, he did acquire title by possession as owner for over 12 years.

In Kedar Nath Ambasta Vs. Radha Shyam and Others, ; it has been held that an unregistered compromise petition is admissible to prove a

cessor of jointness between two branches of a Mitakshara family.

In Sribhagwan Singh and Others Vs. Rambasi Kuer and Others, ;it was held that

although the oral sale by Defendant to the Plaintiffs for Rs. 300/- was an invalid sale, as it was not under a registered document, and therefore, it

did not amount to a legal sale of the land to the Plaintiffs, it could nevertheless be referred to as explaining the nature and character of the

possession of the Plaintiffs.

In In Re: Vadasseri Tharawattil Karnavan and Manager Ittichathara Valia Mannadiar, it was laid down that 'a raji decree: under which

Defendants were allowed to be in possession of the properties as permanent tenants subject to a condition that they should not mortgage or assign

or otherwise alienate the properties, and impliedly there should be a forfeiture if there was any alienation, is inadmissible in evidence if it was not

registered but it can be looked into for other and collateral purposes, particularly to ascertain the nature of the possession which a party obtained

under that document.

There are a number of authorities of this High Court and the Board of Judicial Advisors wherein it has been held that a document which is

compulsorily registrable and has not been registered can be used for collateral purposes. See; Musa v. Amir Wani, (S) AIR 1955 J.& K. 31; Ali

Mohd. Bawan v. Ghulam Mohi-ud-din AIR 1956 f. and It. 24 and 5 J. & K. LR 152;.

I have cited only a few authorities to show that it has been uniformly laid down by different High Courts that a document which is compulsorily

registerable can nevertheless be used in evidence for collateral purposes and such collateral purpose vary from case to case and can be determined

fey the facts of each particular case. The crux of the matter is that all purposes other than those which try to create, declare, assign limit or

extinguish right, title or interest in immovable property are collateral purposes.

Again, as I stated in an earlier portion of this judgment, there have been authorities which have laid down that when a document is compulsorily

registrable and certain recitals in the document are separable from Ors. which are compulsorily registrable, for the purposes of separable contents

the document is admissible in evidence. In this behalf the following authorities may be cited:

Thandavan Chetti v. Valliamma ILR 15 Mad 336; Mahomed Qasim v. Mt. Ruqia Begum AIR 1935 Lah. 375 ; (Shri) Satyadhyantirtha Swami

Vs. Raghunath Daji Patil and Others, ; Ramaswami Reddiar Vs. Kuppalagu Pandithan and Others, ; Mt. Sindhi v. Mt. Partapo AIR 1949 EP 207.

In ILR 15 Mad 336 a document provided for the distribution of the property of the deceased, both movable and immovable. The document

was not registered. It was held that the unregistered Instrument was admissible in evidence in support of the Plaintiff's claim for the moveable

property.

In AIR 1935 Lah 375 an unregistered document after mentioning about the fact of the, marriage contained recitals regarding immovable

property and there was a separate agreement in the same by the husband to pay certain amount as prompt dower and the father-in-law was surety

for the same under the same document; In a suit for recovery of the prompt dower, it was held that

the Plaintiff in the suit was merely seeking to enforce the covenant relating to dower and did not claim any immovable property comprised in the

document arid as this was detached and separable from the declaration regarding immovable property, the document was admissible for the

purpose of proving the amount of dower and the contract of guarantee......

In (Shri) Satyadhyantirtha Swami Vs. Raghunath Daji Patil and Others, it was held that

where there are two clearly divisible agreements in two documents jointly, and one of them makes the documents compulsorily registrable and the

other does not, there is authority for saying that you can look at the part of the document which does not require registration.

In Viziaram Gajapathiraj Bahadur, Raja of Vizianagaram Vs. Vikramadeo Varma, Maharaja of Jeypore, it has been laid down that when there

is a clause which is compulsorily registrable but that part of it is separable the rest of the document, the document can be used as evidence of that

portion which is not compulsorily registrable.

Similarly in AIR 1949 EP 207 it has been held that where parts in an agreement are severable and one of them did not require registration, that

portion which did not require registration was admissible in evidence, notwithstanding the nonregistration of the document as a whole.

Applying these tests to the present case, let us see if the document in question is admissible in evidence, the document has been described as,

an agreement, but a plain, reading of it shows that it is a pure and simple sale of the possessory and all other rights possessed by the transferor in

favour of the transferee. Such rights are created on, the one hand and extinguished on the other in immovable property namely, 1 kanal and 3

marlas of land comprised in the document. The trial Court was perfectly right in rejecting this document as evidencing the sale or, transfer of

possession of the rights of the transferor and the transferee.

But the trial Court has committed an error in rejecting the document in its entirety. Apart from the recitals of sale there is an unconnected

admission by the transferor in this document to the effect that possession of the land transferred has already been for some time with the transferee.

An admission of this nature by itself does not at all create, limit, extinguish or otherwise assign any title, right or interest in immovable property.

Moreover, this is clearly separable from the rest of the document. A recital of this fact in or its absence from the document would not affect the

main document in any way. This is a suit for injunction and para (2) of the plaint is clearly divisible into two parts. In the first part it recites the fact

of transfer of the right in this land for a consideration of Rs. 1500/- and the second part recites the fact of the Plaintiffs' possession over this land

for some time before the institution of the suit. In my opinion, therefore, the document is not admissible to prove either the consideration or the

factum of transfer of the right of the transferor to the transferee by means of this document. But it is admissible, so far as the Plaintiffs intend to

prove from this document an admission of the transferor that the possession of this land has been for some time with the transferees.

With the above modification this revision application is dismissed. There will be no order as to costs in this Court.