Madhya Pradesh High Court
Omprakash vs Ganesh Shankar Mehta on 1 August, 2019
1
THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
Gwalior, Dated : 01.08.2019
Shri Vivek Mishra, Counsel for the petitioner.
This petition under Article 227 of the Constitution of India has
been filed against the order dated 4.12.2011 passed by Second Civil
Judge Class-II Sheopur, District Sheopur in Civil Suit No.16A/2011
by which the application filed by the petitioner under Section 33 of
the Stamp Act, 1899 has been rejected.
It is submitted by the counsel for the petitioner that the Trial
Court has come to a conclusion that considering the contents of the
document, it does not appear to be an agreement but it is a mortgage
deed and, therefore, it is required to be registered. As the instrument
is not a registered document, therefore, there is no question for
sending the same to Collector (Stamps). Since the mortgage deed is
unregistered document, therefore, it is not admissible in evidence. It
is submitted by the counsel for the petitioner that it is true that an
unregistered mortgage deed is not admissible in evidence but the
same can be read for collateral purposes and, therefore, the Claims
Tribunal committed a material illegality by holding the instrument as
not admissible even for collateral purposes. To buttress his
contentions, the counsel for the petitioner has relied upon the order
passed by a Co-ordinate Bench of this Court in the case of Narendra
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
Prasad Soni vs. Manjulata reported in 2002 (1) MPWN 14.
It is fairly conceded by the counsel for the petitioner that
earlier by order dated 24.8.2012 this Court had granted interim stay
of the further proceedings but in the light of the judgment passed by
the Supreme Court in the case of Asian Resurfacing of Road
Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation in
Criminal Appeal Nos. 1375-1376 of 2013, trial has reached to the
stage of defence evidence.
Heard the learned counsel for the petitioner.
During the course of arguments, the petitioner has not
challenged the findings of the Trial Court regarding the nature of the
document. His only contention is that even the document might be an
unregistered mortgage deed but it still can be read for collateral
purposes.
The contention of the counsel for the petitioner is no more res
integra.
The Supreme Court in the case of Avinash Kumar Chauhan
vs. Vijay Krishna Mishra by order dated 17.12.2008 passed in
Civil Appeal No.7350/2008 has held that an unregistered document
cannot be read even for collateral purposes. It has been held by the
Supreme Court in the case of Avinash Kumar Chauhan (supra) as
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
under:-
"19. The contention of learned counsel for the
appellant that the document was admissible for
collateral purpose, in our opinion, is not correct. In
Bondar Singh (supra) this Court was not
concerned with the provisions of the Act. Only
interpretation of the provisions of the Registration
Act, 1908 was in question. It was opined :-
" The main question, as we have already
noted, is the question of continuous
possession of 13 the plaintiffs over the suit
lands. The sale deed dated 9-5-1931 by
Fakir Chand, father of the defendants in
favour of Tola Singh, the predecessor-in-
interest of the plaintiffs, is an admitted
document in the sense its execution is not in
dispute. The only defence set up against the
said document is that it is unstamped and
unregistered and therefore it cannot convey
title to the land in favour of the plaintiffs.
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 law 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. The sale deed in
question at least shows that initial
possession of the plaintiffs over the suit
land was not illegal or unauthorized..."
In this case, by reason of the statutory interdict, no
transfer at all is permissible. Even transfer of
possession is also not permissible. [See Pandey
Oraon v. Ram Chander Sahu 1992 Supp (2) SCC
77 and Amrendra Pratap Singh v. Tej Bahadur
Prajapati and Others (2004) 10 SCC 65]
20. The Registration Act, 1908 provides for
such a contingency in terms of the proviso
appended to Section 49 thereof, which reads as
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
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) or as evidence of any collateral transaction
not required to be effected by registered
instrument."
21. Section 35 of the Act, however, rules out
applicability of such provision as it is
categorically provided therein that a document of
this nature shall not be admitted for any purpose
whatsoever. If all purposes for which the
document is sought to be brought in evidence are
excluded, we 15 fail to see any reason as to how
the document would be admissible for collateral
purposes.
22. The view we have taken finds support from the
decision of the Privy Council in Ram Rattan v.
Parmananad, [AIR 1946 PC 51] wherein it was
held :-
"That the words 'for any purpose' in
Section 35 of the Stamp Act should be
given their natural meaning and effect and
would include a collateral purpose and that
an unstamped partition deed cannot be used
to corroborate the oral evidence for the
purpose of determining even the factum of
partition as distinct from its terms."
The said decision has been followed in a large
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
number of decisions by the said Court. In
Bhaskarabhotla Padmanabhaiah and others v. B.
Lakshminarayana and others [ AIR 1962 A.P.
132 ], it has been held :-
"9. In this case, the learned Subordinate
Judge has observed that what the plaintiff
was trying to prove was not the division in
status but to show that the property was
divided under the partition deed. In any
case, the fact that the document is
inadmissible due to want of being stamped
is clear. For, in Ram Rattan v. Parmanand,
AIR 1946 PC 51, their Lordships of the
Privy Council 16 held that the words 'for
any purpose' in S. 35 of the Stamp Act
should be given their natural meaning and
effect and would include a collateral
purpose and that an unstamped partition
deed cannot be used to corroborate the oral
evidence for the purpose of determining
even the factum of partition as distinct from
its terms."
It was furthermore held :-
"10. In the result, I agree with the learned
Munsif-Magistrate that the document is 'an
instrument of partition' under Sec. 2(15) of
the Indian Stamp Act and it is not
admissible in evidence because it is not
stamped. But, I further held that if the
document becomes duly stamped, then it
would be admissible to evidence to prove
the division in status but not the terms of the
partition."
In Sanjeeva Reddi v. Johanputra Reddi, [ AIR
1972 A.P. 373 ], it has been held :-
"9. While considering the scope of Section
35 of the Indian Stamp Act we cannot bring
in the effect of non-registration of a
document under Section 49 of the Indian
Registration Act. Section 17 of the Indian
Registration Act deals with documents, the
registration of which is compulsory and
Section 49 is concerned only with the effect
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
of such non-registration of the documents
which require to be registered by Section 17
or by any provision of the Transfer of
Property Act. The effect of non-registration
is that such a document 17 shall not affect
any immovable property covered by it or
confer any power to adopt and it cannot be
received as evidence of any transaction
affecting such property or conferring such
power. But there is no prohibition under
Section 49 to receive such a document
which requires registration to be used for a
collateral purpose i.e. for an entirely
different and independent matter. There is a
total and absolute bar as to the admission of
an unstamped instrument whatever be the
nature of the purpose or however foreign or
independent the purpose may be for which
it is sought to be used, unless there is
compliance with the requirements of the
provisos to Section 35. In other words if an
unstamped instrument is admitted for a
collateral purposes. It would amount to
receiving such a document in evidence for a
purpose which Section 35 prohibits. There
is nothing in the case of B.
Rangaiah v. B. Rangaswamy, (1970) 2 Andh
WR 181 which supports the contention of
the petitioner. That was a case as pointed
out by Kuppuswami, J., where there were
two instruments though contained in one
document one a settlement in favour of the
4th defendant therein and the other a will. It
was therefore held that part of the
instrument which constitutes a will did not
require any stamp and will be admissible in
evidence for proving the bequest contained
therein. It was for that reason that the
learned Judge said that Sec. 35 of the Stamp
Act has no application to a case where one
of the separate instruments relating to one
such matters would not at all be chargeable
under the Act as in the case before him."
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
18 In T. Bhaskar Rao v. T. Gabriel and others,
[ AIR 1981 A.P. 175 ], it has been held :-
"5. Section 35 of the Stamp Act mandates
that an instrument chargeable with duty
should be stamped so as to make it
admissible in evidence. Proviso A to
Section 35 of the Stamp Act enables a
document to be received in evidence on
payment of stamp duty and penalty if the
document is chargeable, but not stamped or
on payment of deficit duty and penalty, if it
is insufficiently stamped. The bar against
the admissibility of an instrument which is
chargeable with stamp duty and is not
stamped is of course absolute whatever be
the nature of the purpose, be it for main or
collateral purpose, unless the requirements
of proviso (A) to Section 35 are complied
with. It follows that if the requirements of
proviso (A) to Section 35 are satisfied, then
the document which is chargeable with
duty, but not stamped, can be received in
evidence."
It was further held :-
"7. It is now well settled that there is no
prohibition under Section 49 of the
Registration Act, to receive an unregistered
document in evidence for collateral
purpose. But the document so tendered
should be duly stamped or should 19
comply with the requirements of Section 35
of the Stamp Act, if not stamped, as a
document cannot be received in evidence
even for collateral purpose unless it is duly
stamped or duty and penalty are paid under
Section 35 of the Stamp Act."
(See also Firm Chuni Lal Tukki Mal v. Firm
Mukat Lal Ram Chanda and others, [ AIR
1965 All. 164 ] and Chandra Sekhar Misra
v. Gobinda Chandra Das, [ AIR 1966 Ori.
18 ] ).
23. For the reasons aforementioned, there is no
merit in this appeal which fails and is dismissed.
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THE HIGH COURT OF MADHYA PRADESH
WP No.5914/2012
Omprakash vs. Ganesh Shankar Mehta
However, in the facts and circumstances of the
case, there shall be no order as to costs."
The Supreme Court in the case of K.B. Saha & Sons Private
Limited vs. Development Consultant Limited reported in (2008) 8
SCC 564 has held as under:
"29. As we have already noted that under the
proviso to Section 49 of the Registration Act, an
unregistered document can also be admitted into
evidence for a collateral fact/collateral purpose, let
us now look at the meaning of "collateral purpose"
and then ascertain whether Clause 9 of the lease
agreement can be looked into for such collateral
purpose.
30. In Haran Chandra Chakravarti v.
Kaliprasanna Sarkar it was held that the terms of
a compulsorily registrable instrument are nothing
less than a transaction affecting the property
comprised in it. It was also held that to use such
an instrument for the purpose of proving such a
term would not be using it for a collateral purpose
and that the question as to who is the tenant and
on what terms he has been created a tenant are not
collateral facts but they are important terms of the
contract of tenancy, which cannot be proved by
admission of an unregistered lease deed into
evidence.
31. The High Court in the impugned judgment
relied on a decision of the Allahabad High Court
in Ratan Lal v. Hari Shanker to hold that since the
appellant wanted to extinguish the right of the
respondent with the help of the unregistered
tenancy, the same was not a collateral purpose. In Ratan lal case while discussing the meaning of the term "collateral purpose", the High Court had observed as follows: (AIR pp. 180-81, para 4) "4. The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose.
9THE HIGH COURT OF MADHYA PRADESH WP No.5914/2012 Omprakash vs. Ganesh Shankar Mehta ... but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished a right to immovable property. ... term 'collateral purpose' would not permit the party to establish any of these acts from the deed."
32. In Bajaj Auto Ltd. v. 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. Again this Court in Rai Chand Jain v. Chandra Kanta Khosla reiterated the above and observed in para 10 as under: (SCC p. 429, para
10) "10. ... the lease deed, Ext. P-1 dated 19-5- 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the appellate authority to the effect that the said deed cannot be used for collateral purposes, namely, to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows: 'The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to the lessee for residential purposes only'. This clearly evinces that the property in question was let out to the tenant for his residence only."
33. In Rana Vidya Bhushan Singh v. Ratiram the 10 THE HIGH COURT OF MADHYA PRADESH WP No.5914/2012 Omprakash vs. Ganesh Shankar Mehta 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. As stated by Mulla in his Indian Registration Act, 7th Edn., at p. 189:
'The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.' "
34*. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 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.
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 11 THE HIGH COURT OF MADHYA PRADESH WP No.5914/2012 Omprakash vs. Ganesh Shankar Mehta 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.
35. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises were let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a clause, namely, Clause 9 of the lease agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of the lease agreement. That being the position, we are unable to hold that Clause 9 of the lease agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same."
Accordingly, the petition fails and is hereby dismissed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.08.02
16:09:11 +05'30'