Karnataka High Court
Smt.Gangamma vs Rangaiah on 21 October, 2020
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
WP.15209/2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 21ST DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.P.No.15209/2015 (GM-CPC)
BETWEEN:
SMT. GANGAMMA, W/O RANGAPPA,
AGED ABOUT 63 YEARS, OCC:AGRICULTURIST,
R/O SAKKARA VILLAGE,
DHARMAPURA HOBLI,
HIRIYUR TALUK - 572 143.
(PETITIONER NOT CLAIM SENIOR CITIZEN)
... PETITIONER
(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. RANGAIAH, S/O LATE AMBALAPPA,
AGED ABOUT 24 YEARS,
2. NAGARAJ, S/O LATE RANGAPPA,
AGED ABOUT 53 YEARS,
3. RANGANATH, S/O LATE MUDLAPPA,
AGED ABOUT 73 YEARS,
4. MARIYAMMA, S/O LATE MUDLAPPA,
AGED ABOUT 70 YEARS,
5. PANDAPPA, S/O LATE MUDLAPPA,
AGED ABOUT 68 YEARS,
6. SRI. GOWRAMMA, WIDOW OF DASPPA,
AGED ABOUT 73 YEARS,
WP.15209/2015
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7. NAGARAJ, S/O DASAPPA,
AGED ABOUT 38 YEARS,
RESPONDENTS No.1 TO 7
ARE AGRICULTURIST AND
RESIDENT OF SAKKIRA VILLAGE,
DHARMAPURA HOBLI,
HIRIYUR TALUK - 572 143.
8. SMT. LAKSHMIDEVI
W/O LATE HANUMANTHAPPA,
AGED ABOUT 58 YEARS,
AGRICULTURIST,
R/O MYADNAHALLI VILLAGE,
DHARMAPURA HOBLI,
HIRIYUR TALUK-572 143.
9. SHARADAMMA, W/O ERANNA,
AGED ABOUT 54 YEARS,
AGRICULTURIST,
R/O HALE YALANDUR VILLAGE,
JAVANAGONDANAHALLI HOBLI,
HIRIYUR TALUK - 572 143.
10. JOYTHAMMA, W/O LATE RUDRAMMA,
AGED ABOUT 51 YEARS,
AGRICULTURIST,
R/O HALE YALANDUR VILLAGE,
JAVANAGONDANAHALLI HOBLI,
HIRIYUR TALUK - 572 143.
11. THIPPANNA, W/O CHANNABASAPPA,
AGED ABOUT 48 YEARS,
AGRICULTURIST
R/AT KAMANAHALLI VILLAGE,
CHALLAKERE TALUK - 577 522. ... RESPONDENTS
(R-1 TO R-11 ARE SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
WP.15209/2015
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DATED 21.11.2014 PASSED BY THE PRINCIPAL CIVIL JUDGE
(JR.DVN.) HIRIYUR IN O.S.No.240/2012 VIDE ANNEXURE-A
AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. One Erappa had four sons namely Rangappa, Mudlappa, Dasappa and Thimmanna.
2. Gangamma - petitioner herein is the daughter of Thimmanna, the youngest son of Erappa. She filed a suit seeking for a declaration that she had become the owner of 'A' schedule property by virtue of a registered Will dated 02.11.1992 executed by her father Thimmanna and she also sought for a consequential decree of injunction.
3. The said suit was filed against the children of her paternal uncle and her siblings.
4. Gangamma, during the course of her deposition, sought to produce a document which was titled as a WP.15209/2015 4 'Release Deed'. Under the said Release Deed, her sisters were stated to have relinquished their share in favour of the petitioner by receiving a sum of Rs.7,500/- each.
5. In the said Release Deed, there was also a recital that their father - Thimmanna had executed a registered Will in favour of the petitioner and thereby, the petitioner had become the owner of the property by virtue of the bequest made in her favour. The said Release Deed was not registered and was printed on a stamp paper of Rs.70/-.
6. The Trial Court, by the impugned order, refused to receive the said document in evidence on the ground that it was a compulsorily registrable document and that the same had been insufficiently stamped.
7. It is this order which is assailed in this writ petition contending that even if the Release Deed is required to be registered, it could still be received in evidence for WP.15209/2015 5 the collateral purpose of establishing that the petitioner's father had executed a Will in her favour.
8. It is the contention of Sri G. Balakrishna Shastry, learned counsel for the petitioner that in the said document, petitioner's sisters i.e., defendants 8 to 11 had admitted that their father had executed a Will dated 02.11.1992, whereby he had bequeathed his 1/4th share to the petitioner and since this admission had been recorded in writing, it had become imperative for the said document to be received in evidence as proof of the said fact.
9. The respondents, though served, have chosen to remain absent before this Court.
10. The question which arises for consideration in this writ petition is :
Whether an unregistered Release Deed can be received in evidence for the collateral purpose of considering an admission stated to have been WP.15209/2015 6 made by the defendants pertaining to the execution of a Will in favour of the petitioner?
11. It is trite law that any document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest, in respect of an immovable property having a value of more than one hundred rupees is compulsorily required to be registered as envisaged under Section 17 of the Registration Act, 1908 (for short, hereinafter referred to as 'the Act').
12. Part X of the Act provides for provisions which relate to the effects of registration and non-registration.
13. Section 47 of the Act indicates the time from which a registered document operates.
14. Section 48 of the Act indicates as to when a registered document relating to property would take effect against oral agreements.
WP.15209/20157
15. Section 49 of the Act states the effect of non- registration of documents which are required to be registered.
16. Section 49 of the Act which is relevant for the purpose of this case is reproduced below:
"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 WP.15209/2015 8 any collateral transaction not required to be effected by registered instrument."
17. As could be seen from Section 49 of the Act, any document which is required to be registered under Section 17 of the Act shall have no effect on any immovable property nor will it confer any power to adopt.
18. Sub-section (c) of Section 49 of the Act bars receiving a document which is not registered as evidence, if it is required to be compulsorily registrable under Section 17 of the Act or under the provisions of the Transfer of property Act.
19. Section 17 of the Act mandates that documents relating to gift of immovable property or non testamentary instruments which create a transfer of interest in an immovable property having a value of more than Rs.100/- will have to be compulsorily registrable.
WP.15209/20159
20. Thus, by virtue of the bar created under Section 49(c) of the Act, whenever, any document relates to any transaction affecting any immovable property and is not registered, the same cannot be received in evidence. In other words, there is a complete bar for receiving in evidence any document which contains any transaction affecting immovable property, unless it is registered.
21. However, Sub-section (c) of Section 49 of the Act is subject to the proviso that an unregistered document affecting immovable property and required by the Act or by the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. The said proviso also states that an unregistered document can be received as evidence of any collateral transaction not required to be effected by registered instrument. Thus, an unregistered document can be received as evidence of any collateral transaction which WP.15209/2015 10 by itself is not required to be effected by means of a registered instrument.
22. In other words, an unregistered document which normally cannot be received in evidence can nevertheless be received as evidence of any collateral transaction, which by itself, is not required to be effected by way of a registered instrument. To put it differently, if an unregistered document contains two transactions, one of which is required to be effected by means of a registered instrument and another transaction which is not required to be effected by any registered instrument, then the said unregistered instrument can be received as evidence of that collateral transaction. It is therefore clear that only to this limited extent, an unregistered instrument can be received in evidence i.e., to evidence a collateral transaction which by itself is not required to be effected by a registered instrument.
23. However, in the instant case, the moot question that falls for consideration is whether a recital contained WP.15209/2015 11 in the unregistered Release Deed regarding execution of a registered Will in favour of the petitioner can be received as evidence of an admission of the bequest or would the entire document be inadmissible in evidence since it is not registered and is in relation to a transaction relating to an immovable property.
24. It is important to notice a significant aspect of the bar contained in Section 49 of the Act relating to receiving the unregistered instrument as evidence. A careful reading of Section 49 (c) of the Act does not create an absolute bar to receive an unregistered document. The only bar that is created and is envisaged is for receiving an unregistered document as "evidence of any transaction affecting such property" meaning thereby the unregistered document cannot be received as evidence in respect any transaction of an immovable property alone. The necessary consequence arising out of this singular bar created under Section 49 (c) is that an unregistered document can be received as evidence WP.15209/2015 12 for any other purpose which does not relate to a transfer of an interest in an immovable property. In other words, even if an unregistered document is in relation to an immovable property, it can still be received in evidence of something contained therein which does not affect the immovable property.
25. It is to be stated here that if the intent of the Law was to create an absolute bar for receiving an unregistered document in evidence for any purpose whatsoever, the bar would not be circumscribed by the phrase "evidence of any transaction affecting such property". The said sub-section would have simply said that an unregistered document cannot be received in evidence at all. The fact that the bar to receive the document only in respect of a particular purpose i.e., evidence of any transaction affecting such property makes it clear that the document can be received as evidence of some other thing contained in the document which does not affect the immovable property. WP.15209/2015 13
26. In my view, since the sub-section (c) of Section 49 of the Act and its proviso consciously uses the phrase "evidence of any transaction affecting such property" and "evidence of any collateral transaction not required to be effected by registered instrument" it will have to be held that the only possible interpretation is that an unregistered document can be received as evidence in respect of any other fact which does not involve a transfer of property (which would otherwise require registration compulsorily). In other words, an unregistered document can be received as evidence of some other fact which does not relate to a transfer of an interest in an immovable property.
27. I am fortified in this view that I have taken by the decision of the Three Judges Bench of the Apex Court in the case of MATTAPALLI CHELAMAYYA AND ANOTHER Vs. MATTAPALLI VENKATARATNAM AND ANOTHER - (1972) 3 SCC 799, in which the Apex Court while interpreting Section 49 (c) of the Act has held as follows: WP.15209/2015 14
"since the charge was not registered it will be correct to say that the document will not affect the immovable properties of the appellants sought to be charged. It will not also be received as evidence of any transaction affecting such property that is to say, in this case, as evidence of the charge. It should be noted that the section does not say hat the document cannot be received in evidence at all. All that it says is that the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision which was accepted for a long time by the High Courts has been duly recognized by the Amending Act 21 of 1929, which added a proviso to the section. The proviso clearly empowers the courts to admit any un-registered document as evidence of a collateral transaction not required to be registered."
(underlining by me)
28. Thus, if an unregistered instrument is to be received in evidence, then, the document can be received in evidence only for the limited extent of proving a transaction or a fact which does not relate to a transfer of an interest in an immovable property. WP.15209/2015 15
29. I may, however, add that the Court, while receiving the said unregistered document would have to necessarily specify that the document was being received only for the purpose of proving some other fact which was unrelated to the transfer of interest in an immovable property and the Court should specifically mark only that portion of the unregistered document and also specify the purpose for which it was being marked. The Court should also specifically record that the document cannot and should not be used as proof of anything connected to the transfer of an immovable property.
30. In this view of the matter, in this case, I hold that only that portion of the Unregistered Release Deed relating to the bequest can be received in evidence and marked only for the limited purpose of establishing the admission of the defendants regarding the bequest with a clear condition that the Unregistered Release Deed WP.15209/2015 16 cannot be used as evidence of any transfer of interest in the immovable property in favour of the petitioner.
31. As a consequence of the view that I have taken, the order of the Trial Court cannot be sustained and consequently the impugned order is set aside.
32. The Trial Court shall now receive the Unregistered Release Deed and permit the marking of only that portion of the document relating to the bequest and it shall also make a specific endorsement that the said document cannot be used as proof of any transaction relating to the transfer of an interest in the immovable property.
Writ Petition is allowed to the extent stated above.
Sd/-
JUDGE PKS