Andhra Pradesh High Court - Amravati
Peddina Subba Rao vs Peedina Prasad on 2 March, 2020
Author: G. Shyam Prasad
Bench: G. Shyam Prasad
* HON'BLE SRI JUSTICE G. SHYAM PRASAD
+ C.R.P No.3310 OF 2019
% 02-03-2020
# Peddina Subba Rao, S/o Venkayya
Aged 50 years, Occ: Cultivation
R/o D No.3-58, Nyayampalli Village
Pedavegi Mandal, West Godavari District.
... petitioner/plaintiff.
vs.
$ 1. Peddina Prasad, S/o Venkatarao
Age 40 years, Occ: Cultivation
R/o D No.3-15, Nyayampalli village
Pedavegi Mandal, West Godavari District.
2. Peddina Satyanarayana, S/o Venkatarao
Age 42 years, Occ: Cultivation
R/o D No.3-16, Nyayampalli village
Pedavegi Mandal, West Godavari
3. Peddina Gopinadh, S/o Satyanarayana
Age 20 years, Occ: Cultivation
R/o D No.3-17, Nyayampalli village
Pedavegi Mandal, West Godavari
4. Peddina Chaitnaya, S/o Satyanarayana
Age 19 years, Occ: Cultivation
R/o D No.3-17, Nyayampalli village
Pedavegi Mandal, West Godavari
... Respondents/defendants.
!Counsel for the petitioner : Sri Kambhampati Ramesh Babu
^Counsel for the Respondents : Sri Siva Sankara Rao Borra
<Gist :
>Head Note :
? Cases referred : 1. 2008 (5) SCC 717 (DB)
2. 2017 (2) ALT 736
3. AIR 1963 SC 70
4. AIR 1959 Punjab 609
5. 2004 (5) ALD 322
6. 2005(6) ALT 601
GSPJ
CRP No.3310 of 2019
2
HON'BLE SRI JUSTICE G. SHYAM PRASAD
CIVIL REVISION PETITION No.3310 OF 2019
ORDER:
The Civil Revision Petition arises out of the order dated 20.08.2019 passed in O.S No.373 of 2012 on the file of I Additional Judicial Magistrate of First Class, Eluru.
2. Heard the arguments of learned counsel for the petitioner and the respondents.
3. The revision petitioner is the plaintiff. He filed O.S.No.373 of 2012 before the trial Court for permanent injunction. The respondents who are defendants in the suit have filed Exchange Deed dated 14.02.1997 which is an unregistered document to receive in their evidence. At that time, the respondent/plaintiff raised an objection that it was an unregistered document therefore it cannot be marked. The trial Court has permitted to mark the Exchange deed dated 14.2.1997 holding that the said document was impounded and therefore it is admissible in evidence for collateral purposes only to the limited extent of the schedule property.
4. Learned counsel for the revision petitioner placed reliance on the judgment in case of K.B. Saha & Sons Private Limited Vs Development Consultant Limited1 , wherein, it was held in para- 21, reads as under:
"21. 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
2008 (5) SCC 717 (DB) GSPJ CRP No.3310 of 2019 3
1. A document required to be registered 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."
5. Learned counsel also placed reliance on the judgment of this Court in Budha Jagadeeswara Rao v. Sri Ravi Enterprises rep. by its Proprietor Kedarisetty Gurumurthy2 wherein it was held in para-26, as under:
"26. The concepts "main purpose" and "collateral purpose" play a pivotal role of admitting or not admitting in evidence an un-registered document compulsorily registerable. The main purpose means the purpose mentioned in Section 17 i.e., for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property, et., Such a document when compulsory registerable not admissible in evidence for the said main purposes. The effect of non-registration of such an instrument compulsory registerable is that the instrument doesn't affect any immovable property 2 2017 (2) ALT 736 GSPJ CRP No.3310 of 2019 4 comprised therein nor can it be received as evidence of any transaction affecting such property. It does not follow, however, that the document is wholly irrelevant. Though the instrument is not admissible for the purpose of proving a concluded transaction transferring an interest, yet it can be received in evidence for collateral purposes. Collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The proviso to Section 49 permits the use of an un-registered document even compulsorily be registered, as evidence of a collateral transaction within the meaning of Section 49 proviso. Collateral transaction means a transaction other than the transaction affecting the immovable property but which is in some ways connected with it".
6. Learned counsel for the petitioner placed reliance on the above judgment mainly contended that the document in dispute is an Exchange Deed which was unregistered. The Exchange Deed is a compulsorily registerable document, and if it is not registered the document, is inadmissible in evidence, as per Section 49 of the Registration Act 1908. The document cannot be used for collateral purpose. The decision of K.B Saha's case (Supra 1) referred by the learned counsel for the petitioner has been referred in para-21 of the judgment by this Court.
7. The point for consideration in this matter is whether the Exchange Deed dated 14.2.1997 can be received in evidence without registration and whether it is admissible in evidence in the light of the above judgment?
POINT :
GSPJ CRP No.3310 of 2019 5
8. At the outset the suit is filed for permanent injunction. The defendant has filed Exchange deed dated 14.2.1997 to prove his possession over the schedule property. The main purpose of filing of the Exchange Deed was only to prove his possession. As per Section 17 of the Registration Act 1908 (for short "the Act") deals with the Documents of which registration is compulsory.
9. As per Section 17 of the Act, for the purpose of creating, declaring, assigning, limiting or extinguishing any right, title of interest, to or in immovable property, such a document is compulsory registerable. The effect of non-registration of such an instrument compulsory registerable is that the instrument does not affect any immovable property comprised therein nor can it be received as evidence of any transaction affecting such property. In para-26 of the above judgment, the main purpose of collateral purpose has been clearly distinguished. The Proviso to Section 49 permits the use of an unregistered document even compulsorily be registered, as evidence of a collateral transaction within the meaning of Section 49 proviso. Collateral transaction means a transaction other than the transaction affecting the immovable property but which is in some ways connected with it.
10. Section 49 of Registration Act deals with the Effect of non-registration of documents required to be registered. Section 49 of the Act, reads as under:
"49. Effect of non-registration of documents required to be registered- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall:
GSPJ CRP No.3310 of 2019 6
(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 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 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, or as evidence of any collateral transaction not required to be effected by registered instrument."
11. A careful perusal of Section 49 clearly reveals that an unregistered document effecting immovable property may be received as evidence of contract in a suit for specific performance under Chapter II of Specific Relief Act 1877 are as evidence of any collateral transaction not required to be effected by registered instrument. The phrase used is "as evidence of any collateral transaction not required to be effected by registered instrument."
12. The suit is admittedly filed for permanent injunction. The possession over the schedule property is to be proved by the plaintiff in order to claim injunction. In a suit for injunction, a prima facie title is only required to be considered. In the instant case, the defendants tried to prove their possession over the schedule property by virtue of the exchange deed executed on 14.02.1997. The exchange deed is duly stamped. But it was unregistered document. The main purpose of marking document in the suit was only to prove that they were in possession by the GSPJ CRP No.3310 of 2019 7 date of filing of the suit by virtue of that exchange deed. The collateral transaction is not required to be affected by registered instrument as a proof of possession by the date of filing of the suit was a collateral transaction and not main purpose. In this regard, it is appropriate to refer to a decision in Padma Vithoba Chakkayya v. Md. Multani3 , wherein it was held that an unregistered document namely, gift deed, which is not legally admissible as evidence, can be used as evidence to show the character of possession.
13. In Nand Singh v. Sewa Singh4 , it was observed that, Section 17 provides for compulsory registration of documents mentioned in the section. This section is made effective by the present section, which provides that any document so required to be registered shall not, unless it has been so registered:
i) Affect any immovable property comprised therein; or
ii) To be received as evidence of any transaction affecting such property.
It is important to observe that the section does not say that an unregistered document that requires to be registered shall not be received in evidence. It says as evidence of any transaction affecting the property, it may be received in evidence for a collateral purpose even if that purpose does indirectly affect the property. This subject is further noticed in Clauses (a) & (c ). Such document may be required in evidence to prove the factum of the transaction, but not its contents.
3 AIR 1963 SC 70 4 AIR 1959 Punjab 609 GSPJ CRP No.3310 of 2019 8
14. K.R Subbaraya Mudaliar v. T.T.D 5, it was held as under:
"2. Proviso : It prohibits the court to receive in evidence any document affecting immovable property which is not registered as required under Section 17 of the Act or any provisions of the Transfer of Property Act 1882. The proviso to Section 49 contains three exceptions. (1) Part performance of a contract for the purpose of Section 53-A T.P.Act. (2) Contract in a suit for specific performance. (3) An unregistered document affecting immovable property required to be registered under law may be received as evidence of any collateral transactions not required to be affected by registered instrument."
15. An unregistered sale deed is admissible in evidence for the collateral purpose to the limited extent of showing possession. In the similar manner, an Exchange Deed also is admissible in evidence for the collateral purpose to the limited extent of showing possession. In this regard the collateral transaction is not transaction affecting the immovable property but a transaction which is incidentally connected with that transaction. The unregistered partition deed of insufficiently stamped partition deed can be used for collateral purpose under the proviso only on payment of stamp duty and penalty and the said proposition of law was laid down in P. Rama Subbareddy v. P.Subba Reddy alias G. Subbanna6.
16. In the light of the foregoing decisions, it is no longer res integra with regard to deciding a fact whether an unregistered exchange deed can be used as collateral purpose or not. Admittedly, the suit is filed for permanent injunction. The 5 2004 (5) ALD 322 6 2005(6) ALT 601 GSPJ CRP No.3310 of 2019 9 defendants have filed an Exchange Deed to prove their possession over the schedule property. The objection taken by the plaintiff is that Exchange Deed was unregistered document.
17. In the light of the catena of decisions referred above, the main purpose of marking document is to be considered. The main purpose of marking of document is to prove possession and title in an injunction suit. Therefore, the Exchange Deed sought to be marked for collateral purpose is not illegal.
18. With the above observations, the orders passed by the trial Court do not require any interference.
19. Finding no merit in the instant petition and the same is dismissed accordingly. No order as to costs.
Miscellaneous petitions, if any, pending shall also stand closed.
_______________________ G. SHYAM PRASAD,J Date: 02.03.2020 Note : L.R. copy to be marked (b/o) Gvl GSPJ CRP No.3310 of 2019 10 HON'BLE SRI JUSTICE G. SHYAM PRASAD CIVIL REVISION PETITION No.3310 OF 2019 Date: 02.03.2020 Gvl GSPJ CRP No.3310 of 2019 11