Madhya Pradesh High Court
Sem Verma @ Shivnarayan Verma vs Om Prakash Verma on 22 July, 2015
1
W.P. No. 3947/2015.
(Sem Verma @ Shivnarayan Verma & others Vs. Om Prakash Verma and another)
22/07/2015 .
Shri Sushil Kumar Tiwari, learned counsel for the
petitioners.
Ku. Sudipta Choubey, learned counsel for the
respondent no. 1.
This petition has been filed against the orders dated 20/02/2015 and 02/03/2015. The plaintiff filed a suit for permanent injunction on the ground that he is owner of the suit land. At the time of evidence the plaintiff wanted to exhibit his sale deed. The defendants had taken objection in regard to exhibiting the sale deed on the ground that the sale deed was not properly stamped and it was unregistered. The trial court vide order dated 03/04/2014 upheld the objection of the defendants, however, the trial court further observed that the plaintiff is at liberty to exhibit the sale deed document after impounding and payment of proper stamp duty. Against the order, the plaintiff filed writ petition before this Court and this court vide interim order dated 20/08/2014 passed in W.P. no. 8815/2014 passed the following order:
"In the meanwhile, it is directed that while the document in question shall not be admitted in evidence. In case occasion arises during pendency of the case, it may be used for collateral purpose till the next date of hearing."
Thereafter, the trial court passed the impugned order which is under challenged in this writ petition.
Learned counsel for the petitioners has submitted that even for collateral purpose, unregistered document is 2 W.P. No. 3947/2015.
not admissible in evidence because it is not properly stamped. In support of his contention learned counsel for the petitioners relied upon the following judgments reported in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra 2009(1)MPJR 113, & judgments of the High Court reported in Narbada Prasad Agrawal Vs. Omprakash Bhawasar 2009(1) MPWN 29, M.P. Road Transport Corporation Bhopal Vs. Virendra Singh Sisodia (d) through L.Rs. 2009(I) MPWN 30, Dinesh Kumar and others VS. Sarveshari and others, 2013(I) MPLJ 282, Rajesh Rajora Vs. Lokayukt Organization and another, 2013 (I) MPLJ, 286, Nathu Khan Vs. Komal and others 2010(II) MPWN 4, Smt. Malti Bai Vs. Smt. Khilona Babu (since deceased) thr. L.Rs. Laxmi Narayan Soni and others 2013(4)MPHT 393 & Bhajanlal Kushwaha Vs. Kanhaiyalal Kushwaha, 2013(1) MPWN
55. Contrary to this learned counsel appearing on behalf of the respondent No. 1 has submitted that an unregistered document can be admitted in evidence for collateral purpose. For the aforesaid proposition, learned counsel for respondent No. 1 relied upon the judgment of the Supreme Court reported in S. Kaladevi Vs. V.R. Somasundaram and others (2010) 5 SCC 401. The question for consideration before this Court in this petition is whether an unregistered and insufficient stamped document can be used in evidence or not. The aforesaid question has been considered by the Supreme Court in S. 3 W.P. No. 3947/2015.
Kaladevi Vs. V.R. Somasundaram and others (2010) 5 SCC 401 where the Supreme Court has held as under:-
11. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be 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."
12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale 4 W.P. No. 3947/2015.
deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.
13. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited1, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 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 at 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......"
This Court then culled out the following principles:(K.B. Saha case, SCC P.577, Para 34) "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.
5W.P. No. 3947/2015.
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."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance."
In this judgment, the Supreme Court has also quoted the earlier judgment passed in the case of Kalavakurti Venkata Subbaiah VS. Bala Gurappagari Guruvi Reddy, (1999) 7 SCC 114 where the Supreme Court has held as under:-
"15. This Court then held that the first appellate court rightly took the view that under Section 49 of the 1908 Act, unregistered sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. It was held:
"......The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub- Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property..... ".
In the aforesaid judgment, the Supreme Court has clearly held that the sale deed could be received in evidence to prove the agreement between the parties, 6 W.P. No. 3947/2015.
though it may not itself constitute a contract to transfer of property.
There is no provision in law of contract that a contract must be stamped by affixing proper fee. An agreement can also be entered by the parties on a plain paper. In such circumstances in my opinion, the objection raised by learned counsel for the petitioners that if the documents is not sufficiently stamped then it is not admissible in evidence has to be rejected. The Judgments cited by learned counsel for the petitioners is distinguishable on facts.
In this view of the matter, in my opinion, there is no merit in this petition, it is hereby dismissed.
(S.K. GANGELE) JUDGE MISHRA