Andhra HC (Pre-Telangana)
Kaheeda Moin And Ors. vs Md. Iqbal Ali And Ors. on 11 September, 1998
Equivalent citations: 1998(5)ALD633, 1998(5)ALT704, 1999 A I H C 162, (1998) 5 ANDHLD 633, (1999) 1 RECCIVR 252, (1999) 1 CIVILCOURTC 129, (1999) 3 LANDLR 349, (1998) 4 ICC 79, (1998) 5 ANDH LT 704, (1998) 3 APLJ 219, (1999) 2 CIVLJ 359, (1998) 2 LS 290
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
ORDER
1. This revision is filed by the plaintiffs in O.S.No.716 of 1995 on the file of the II Additional Subordinate Judge, Rangareddi District, Hyderabad questioning the impugned orders dated 4-9-1997 by which the disputed document dated 17-2-1983 was not permitted to be marked as evidence as inadmissible on the ground of non-registration.
2. The revision petitioners, who are the plaintiffs filed the said suit seeking the relief Of declaration of their title and for recovery of possession of the suit property and also for the relief of permanent injunction against the respondents herein contending that the suit property along with some other properties were jointly purchased by them under a registered sale deed dated 10-9-1979 and all of them continued to be in joint possession and enjoyment of the said properties that subsequently there was a partition of those properties effected on 17-2-1983 in the presence of elders and in that partition the present suit properties fell to the share of the plaintiffs and the other properties fell to the share of the defendants and ever since then the plaintiffs were in possession and enjoyment of the properties that fell to their share and that the suit is now filed as their title to the suit properties is being disputed by the defendants. They also contended that at the time of the abovesaid partition on 17-2-1983 the disputed document was executed mentioning the particulars of the abovesaid partition. When the plaintiff was being examined as PW1 and when the above said document, which isdescribed as memorandum of partition dated 17-2-1993 was sought to be marked as evidence, the defendants raised an objection on the ground that it is an unregistered partition , deed evidencing partition and as such it is inadmissible in evidence. The lower Court by the impugned orders dated 4-9-1997 upheld the said objection raised by the defendants and did not permit the said document to go into evidence on the ground that it is a partition deed which is compulsorily required to be registered and that inasmuch as it is not registered, it is inadmissible in evidence. Questioning such orders the present revision is filed by the plaintiffs.
3. Both the Counsel are heard.
4. It is now clear from a perusal of the disputed document, a copy of which is enclosed to the present revision petition that the plaintiffs and the respondents, who are alleged to have jointly purchased the present suit properties and some other properties under a registered sale deed dated 10-9-1979, had effected partition of those properties in the presence of elders on 17-2-1983 and that to evidence such partition of the properties and disputed document was executed between them. It is clear from the terms ofthe said document that the said document is not a mere memorandum of any partition which was already effected between the parties. On the other hand it is clearly mentioned that the partition of the properties between the parties was effected under that document itself and specific items of properties were allotted to the respective sharers. It is-also further mentioned in the said document that the parties to whom specific items of properties were allotted under the document, have become the absolute owners of the properties that were allotted to their respective shares in that partition and they have also taken possession of their respective shares in that partition on that day itself i.e., on 17-2-1983 which is the date of partition. It is clear from such terms and conditions ofthe disputed document that the said document of partition has created and declared the rights of the respective parties to the properties that were allotted to their respective shares under that document. Therefore, such a document is compulsorily registerable under Section 17 of the Registration Act and as it is not so registered, it cannot be admitted in evidence in view of the provisions of Section 49 of the Registration Act to prove the terms of the disposition of properties embodied in the document and to show as to which properties fell to whose share under that document.
5. The learned Counsel for the revision petitioners does not dispute the abovesaid proposition, nor does he dispute the fact that the disputed document is a partition deed under which the actual partition of the properties took place between the parties. But he however tries to contend that in view of the Proviso to Section 49(c) of the Indian Registration Act the disputed document can be admitted in evidence for the collateral purpose of proving the factum of partition of the properties and the nature of possession of the parties and that the lower Court has however failed to consider this aspect and as such the impugned orders of the lower Court are to be modified accordingly. On the other hand the learned Counsel for the respondents, who are the defendants in the suit, tries to contend that in the present case the alleged partition of the properties does not relate to partition of joint family properties that the present suit properties and some other properties were jointly purchased by all the parties under a registered document in 1979 and as such there is no question of bringing any division or severence of status between the parties, that the suit itself is filed for declaration of title and for recovery of possession on the basis of the disputed document and as such there is no collateral purpose to be established in the present case and as such the document cannot be admitted in evidence for want of registration. He has also tried to rely upon the decision reported in Ratan Lal v. Hari Shanker, , in support of his contention in this regard. But such contention of the learned Counsel for the respondents cannot be accepted and the above cited decision is not of any assistance for such contention. It is observed in the said decision that even though a document is compulsorily registerable and has not been registered it will be admissible in evidence for collateral purpose, that such collateral purpose has however limited scope and meaning and that it cannot be used for the purpose of showing that the deed created or declared or assigned or limited or extinguished a right to immovable property, and that if such facts could not be established by the collateral purpose, then the document cannot be marked as evidence for showing that the property was partitioned or that particular properties were given to various parties in the partition. But, in the present case the learned Counsel for the petitioners does not propose to mark the document for the purpose of establishing any of the abovesaid acts namely creating, declaring or assigning of any right to any immovable property by marking the said document for collateral purpose and his contention however is that such document can be marked as evidence for the purpose of proving the factum of partition of the properties and the nature of possession of the properties which amount only to collateral purpose. It is now admitted by the parties that the defendants in this suit have chosen to file a separate suit in O.S.I 16 of 96 seeking the partition and separate possession of their share in the properties including the present suit properties and the said suit is being contested by the present plaintiffs who are the defendants in that suit on the ground that there was already a partition under the disputed document. It is also said that both these suits are being tried together. Under these circumstances, the disputed partition deed can be admitted for the limited purpose of proving the factum of partition and nature of possession which is collateral purpose even though it cannot be admitted in evidence for the purpose of proving any of the terms of the document or to show that particular properties fell to the share of any particular person. Such view is clearly held by various decisions of different Courts including the Full Bench decisions of this Court.
6. In the Full Bench decision of our High Court presided by three Judges reported in Kanamathareddi Kanna Reddy v. Kanamatha Reddy Venkata Reddy, , it is held that unregistered partition deed cannot be received as evidence of separate allotment of and declaration of exclusive right and title to specific items of properties in favour of the parties, that the ban of clause (c) of Section 49 of the Registration Act is against the reception of the unregistered document as evidence that it does not however prohibit the reception of any other evidence of the transaction that Section 91 of the Evidence Act steps in here and imposes a prohibition by stating that when the terms of contract or of grant or any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act, that such prohibition enacted by Section 91 of the Evidence Act is however limited in scope, that it relates only to the giving of other evidence "in proof of terms of such contract, grant or other disposition of properties" that there is an area which is not covered by Section 49(C) of die Registration Act and Section 91 of the Evidence Act, that Section 49(C) excludes from evidence the unregistered document and Section 91 precludes the proof of only the terms of the contract, grant or other disposition of property, and that if the unregistered document is not to be relied upon and if the terms of the disposition of the property embodied in that document are not sought to be proved by other evidence, the bar of neither of these sections will come into effect. Such observations were made by their Lordships in the said decision of our High Court by distinguishing the earlier Full Bench Decision of Madras High Court reported in Ramayya v. Achamma, AIR 1944 Mad. 550, on facts. In a subsequent decision of this Court reported in N. Seetharamaiah v. N. Ramakrisknaiah, , it is observed by relying upon the above said Full Bench decision of this Court in Gotla 's case (supra) and also die decision of Supreme Court reported in Ruhnambai v. Lakshminarayana, as follows:
"Exs.B.l and B.5 are documents which require to be compulsorily registered under Section 17(1) (b) of the Registration Act. The effect of non-registration of these documents is that they will not create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the documents. In short these documents are ineffectual to achieve the object or purpose for which they were drawn up. But the fact that these documents are inadmissible in ' evidence will not affect the case of the defendants for the reason that they are not precluded from proving the factum of partition by other evidence. They cannot be looked into only for ascertaining the terms of the partition and tracing the source of tide in the property held by each of the sharers."
7. In another Full Bench decision rendered by five Judges of this Court reported in Muthyala Reddy v. Venkata Reddy, in which the above cited decisions reported in Gotla's case and Ramayya's case (supra) and some other decisions including the decision of the Supreme Court in Rukmambai's case (supra) are referred, their Lordships have observed as follows:
"In our view where a partition takes place the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severence in status, though that severence would ultimately affect the nature of possession held by the members of the separated family who from thence onwards, hold it as co-tenants."
After making such observation their Lordships have observed in para 36 that in view of such circumstances the unregistered partition deeds marked as Exs.B18 and Ex.B19 in that particular case, though inadmissible in evidence for want of registration, can however be looked into for establishing the severence in status.
8. In the decision of the Supreme Court reported in Roshan Singh v. Zile Singh, AIR 1988 SC 881, it is observed in para 16 as follows:
"It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severence in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Ex. P. 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide."
In the decision of Punjab and Haryana High Court reported in Rikki Ram v. Sada Ram, , also it is observed that the provisions of Section 49 of the Registration Act do not bar the proving of un-registered instrument of partition for the purposes of ascertaining the nature of possession of any party to such an instrument and that the factum of partition and the nature of possession of the parties regarding the properties in their possession could be proved by oral and other documentary evidence. In another decision of the same High Court reported in Nirmal Singh v. Gurbachan Singh, , also it is observed that an unregistered document of partition of land between co-sharers would not be admissible in evidence except to prove the factum of partition and nature of possession and that oral evidence is admissible to prove that there was partition of land between the co-sharers. In that case also partition of properties was between co-sharers as in our present case and not a partition of joint family properties between co-owners. In the said case also the parties had jointly purchased the properties previously and are alleged to have partitioned the properties under , the disputed document. Under these circumstances also it was held that an unregistered document can be utilised for the limited purpose of proving the factum of partition and nature of possession though it cannot be admitted in evidence for proving the terms of the document. Therefore, in view of all these circumstances, the disputed partition deed in the present case can be admitted in evidence for the limited purpose of proving the factum of partition and nature of possession of the parties even though it cannot be looked into for the purpose of proving the terms of partition and to show as to which properties fell to whose share in that partition. To this extent the orders of the lower Court are liable to be modified.
9. In the result, the revision is allowed to the abovesaid extent holding that the disputed document, though inadmissible in evidence for the purpose of proving the terms and conditions of the document, can be admitted in evidence for collateral purpose of proving the factum of partition and the nature of possession of the parties and the impugned orders of the lower Court are modified to that extent. No costs.