Andhra HC (Pre-Telangana)
Annamadevulu Chandrarao vs M.Veera Raghavulu And Others on 26 December, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION No.2222 Of 2014 26-12-2014 Annamadevulu Chandrarao .Petitioner M.Veera Raghavulu and others....Respondents Counsel for the Petitioner: Sri J.Sreenivasa Rao. Counsel for Respondents: Sri P.Durga Prasad <Gist : >Head Note: ? Cases referred: (1) 2008 (8) SCC 564 (2) AIR 1969 AP 242 THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITON No.2222 of 2014 ORDER:
The defendant in the suit filed this revision challenging the correctness of the decision of the learned V Additional District Judge (Fast Track Court) Rajahmundry holding that the document dated 08.08.1962 sought to be marked by the petitioner herein as inadmissible in evidence, for want of registration and also for non- payment of necessary stamp duty thereon.
The petitioner was the defendant in the suit instituted for partition of the suit schedule properties. During the course of examination of D.W.1, a document dated 08.08.1962 which is reduced on a plain paper and which is not registered and which has not suffered any stamp duty is sought to be introduced and marked on behalf of the defendant. When an objection was taken, the Court had examined the recitals of the document and found that though it is shown to be a mere enumeration of shares of the sharers of an earlier oral partition, but however the recitals disclosed division of properties amongst all the sharers and hence the Court held that the document is compulsorily registerable and it is also liable to be suffered stamp duty. That gave raise to this Civil Revision Petition.
Heard Sri J.Sreenivasa Rao, learned counsel for the petitioner and Sri P.Durga Prasad, learned counsel for the respondents.
It is the contention of Sri J. Sreenivasa Rao, learned counsel for the petitioner, that the document in question is sought to be marked for establishing the possession of the defendant /petitioner herein over the suit schedule property. It is his contention that there was a partition effected amongst the family members by way of a registered partition deed dated 18.12.1957 by which the entire joint family properties, including the suit schedule property, have been partitioned amongst the various sharers and subsequent thereto an arrangement in respect of the suit schedule property has been worked out to safeguard the suit schedule property and also to avoid disputes in future in relation to the partition effected earlier. Therefore, contends, learned counsel for the petitioner that the present document dated 08.08.1962 is sought to be marked for the purpose of establishing possession of the defendant over the suit schedule property, that being a collateral purpose the document is admissible in evidence.
The learned counsel for the respondents Sri P.Durga Prasad would contend that the document talks of shares of each individual and hence it is liable to be registered. Since the present document having not been registered, it is not liable to be admitted in evidence.
For determination of the question of admissibility of a document, the recitals contained therein are not only vital but they are decisive. Hence, at the time of considering the question of admissibility of a document, it is the recitals contained in that document that would govern the entire issue. Thus, the admissibility of a document is entirely dependent upon the contents of the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. (See: Omprakash v. Laxminarayana and others (2014 (1) ALD 83 (SC)) If a document is liable to be compulsorily registered in terms of and in accordance with the Section 17 of the Registration Act, 1908, Section 49 of the said Act has provided for the effect of non- registration of document required to be compulsorily registered. Section 49 reads thus:
S.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.
While the main part of Section 49 provides that any document if it is to be registered, if not so registered, renders such a document inadmissible in evidence of any transaction affecting such property. However, the proviso incorporated thereunder renders an unregistered document affecting immovable property though required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by the registered instrument. Thus, an unregistered document affecting immovable property can be admitted in evidence of any collateral transaction not required to be effected by the registered document.
The Supreme Court in K.B.Saha and sons (P) Ltd. v. Development Consultant Ltd after reviewing exhaustively the law on the subject has culled out the following 5 principles.
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 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.
A five Judges Bench of this Court in Chinnappareddigari Pedda Muthylareddy v. Chinnappareddigari Venkatareddy held that though an unregistered partition deed cannot be looked into for terms of partition, it can be looked into for establishing severance in status. Thus, for establishing the collateral purpose of proving the factum of earlier partition and the consequential nature of possession of the parties to the document, an unregistered partition deed can be let in evidence.
What is a collateral purpose is not free from grave doubts. As was pointed out by the Supreme Court in K.B.Sahas case (referred supra) a collateral transaction is one which is independent of, or divisible from, the transaction to effect which the law requires registration. Hence, it must be a document which does not create any right, title or interest in immovable property of the value of one hundred rupees and upwards. For establishing only an ancillary issue which is purely incidental to the direct and substantive issue, a document can otherwise be received in evidence, but however whenever a document is marked for any such collateral purpose, the Court must make an endorsement that the said document is received only as evidence for collateral purpose under the proviso to Section 49 of the Registration Act, 1908. Since the document in question is sought to be marked for purpose of establishing the possession of the defendant/petitioner altogether independent of an earlier partition, the document can be received in evidence and marked for establishing the collateral purpose relating to the possession of the petitioner herein.
Accordingly, the Court below is directed to receive the document dated 08.08.1962 in evidence marking an endorsement on the face of it that it is received for collateral purpose of possession of the defendant under the proviso to Section 49 of the Registration Act, 1908. The document, however, shall not be looked into for purpose of establishing the shares of the respective parties effected by an earlier partition.
The Civil Revision Petition is accordingly allowed. No order as to costs.
All the miscellaneous petitions, pending in the revision, shall stand closed.
______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 26.12.2014