Madras High Court
Arumughachamy Nadar vs Deivanaiammal on 11 February, 1998
Equivalent citations: 1998(1)CTC286, (1998)IIMLJ5
ORDER
1. Tenant in R.C.O.P. No.8 of 1993, on the file of Rent Controller (Principal District Munsif), Sankarankoil, is the revision petitioner herein, which is one under Art. 227 of the Constitution of India.
2. Since caveat was entered by the landlord, even at the time when the revision camp up for admission, I heard the entire matter.
3. Respondent herein filed a petition for eviction on the ground that the petitioner herein has committed wilful default in paying the rent, and also for various other reasons. Before initiating the eviction proceedings, a notice was issued asking the tenant to vacate the premises. In reply to that notice, revision petitioner sent a letter stating that he is in possession of the building not as a tenant, but on the basis of an agreement dated 8.3.1990 entered into with the previous landlord. It is stated therein that he has advanced a sum of Rs.40,000, and in consideration of the said payment, he was allowed to occupy the building free of rent and in lieu of interest. It was his case that he is not liable to pay rent and his possession is that of a mortgagee. After receipt of the reply, revision petition was filed, alleging the grounds referred to in the earlier notice.
4. A counter was filed in terms of the reply notice.
5. Thereafter, the case was posted for trial. Evidence of the landlady was over in September, 1997. During the examination of the landlady, tenant did not put forward any contention on the basis of the socalled agreement dated 8.5.1990. The document was also not filed. After the evidence of the landlady was over, tenant filed the document dated 8.3.1990. When the tenant entered the box and spoke about his case, he sought the marking of the impugned document. The same was seriously opposed by the landlady on the ground that it is a new matter which cannot be taken into consideration after the evidence of the landlord is ever, and that apart, the document itself is unregistered and, therefore, is admissible in evidence. When the marking of the document was opposed, it was argued in reply that the tenant wanted to mark the document only for collateral purpose and, therefore, even if it is unregistered, the same could be relied on. The Rent Controller did not find favour with the argument of learned counsel for tenant and, therefore, refused to mark the document. That Order of the Rent Controller is challenged in the revision under Art. 297 of the Constitution.
6. After having heard the learned counsel on both sides, I do not think the Rent Controller has acted illecally, so as to warrant an interference under Ar. 227 of the Constitution.
7. It may be stated that this revision has been filed only to delay the trial of the rent control proceedings by the Rent Controller, which was initiated five years back. It was not stated even by the tenant that he was not aware of the document or that he was not in possession of the same. He did not think of producing the same at the time when the counter was filed, or at the time when P.W.1 was examined. Not even one questioned was put to P.W.1 when she was in the box. The long delay in producing the document shows the lack of good faith on the part of the petitioner.
8. Even on merits, I do not think that the Order of the Rent Controller is to be interfered with. The fact that the petitioner is in possession of the property is admitted. The case of the landlord is that his possession is that of a tenant. But the revision petitioner wants to disprove the same by relying on the document and to conclude that his possession is that of a mortgagee. Admittedly the document is not registered. It is a mortgage deed for Rs. 40,000, which is compulsorily registerable under Sec. 17 of the Indian Registration Act. The document which is compulsorily registerable cannot be admitted in evidence for any purpose under Sec. 40 of the State Act. But there is a proviso to that Section which enables to look into the document for any collateral purpose. Learned counsel for the petitioner submitted that even if the document is unregistered, he can mark the document for a collateral purpose, i.e., to prove his possession. Therefore, it is argued that the refusal to consider the document in that perspective by the Rent Controller is illegal. The Rent Controller has failed to exercise the jurisdiction vested in him, is the argument of the learned counsel.
9. I do not think that the submission of the petitioner's counsel could be accepted in this case. I have already said that the possession of the premises by the petitioner (tenant) is admitted. So, there is no necessity to prove possession. By virtue of this document, what the tenant wants is, to prove the character of his possession, whether his possession is that of a tenant or that of a mortgaree. If he wants to prove his possession as a mortgagee, then that cannot be treated as a collateral purpose, coming under the Proviso to Sec. 49 of the Indian Registration Act.
10. Rustomji on Indian Registration Act 4th Edition (1989), has considered the question as to what is meant by 'collateral purpose'. At pages 439 and 440 of the book, the learned Author, on the basis of decided cases, said thus:-
"It is well settled in a long series of decisions (which have since received statutory recognition by the Amending Act of 1929, vide the concluding words of the new proviso Sec. 49 of the Registration Act) that a compulsorily registerable but unregistered document is admissible in evidence for a collateral purpose which does not require registration, is., for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purpose" is no doubt a very vague one, and the court must decide in each such case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to he conveyed by the document. But by the simple device of calling it a "collateral purpose" a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it, would have had if registered. Nor is it a collateral purpose when the compulsorily registerable but unregistered document is sought to be used for the and direct purpose of (for instance) creating or extinguishing rights in immovable property. To be "collateral", the fact must be independent of, or divisible from, the purpose to effect which the law requires registration.
"Collateral purpose" means purpose other than that for creating, declaring assigning, limiting or extinguishing a right to immovable property. Documents compulsorily registerable under Sec. 17 may be used for collateral purpose in a suit is very significant".
11. It is also worthwhile to take into consideration on the Division Bench decision of this Court reported in Panchapagesa v. Kalyanasundaram, . In Paragraphs 25 and 26, it has been held thus:-
"To sum up, it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1920 (vide the concluding words of the new proviso to S. 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.
The expression "collateral purpose" is no doubt a very vague one and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to be conveyed by the document. But by the simple device of calling it a "collateral purpose" a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if registered.
To quote Sir Geroge Landaus in James R.R. Skinner v. Robert Hercules Skinner, ILR 51 All 771: AIR 1920 PC 269 the collateral purpose to which the document is put should be nothing else than an evasion of the statute and render almost hugatory the hitherto well established rule relating to the limited user to which an unregistered partition deed can be put to.
These principles are elborately set out in the following recent well known decisions cited before us: In Muruga Mudaliar v. Subha Reddiar, (FB), a Bench of five Judges held:
"Per Rajamannar, C.J.: S. 49(C) of the Registration Act prohibits the use of an unregistered instrument in any legal proceeding in which such a document is sought to be relied on in support of a claim to enforce or maintain any right, title or interest to or in immovable property. So Long as the document is not sought to be relied on as evidence of any right, title or interest to or in immovable property, there is nothing to prevent the document being received in evidence ... ...
Per Satanarayana Rao, J.: The prohibition against admissibility enacted by S. 49 of the Registration Act is not an absolute one, but the section renders the unregistered document inadmissible only for the two limited purposes specified in clauses (a) and (c) and leaves it available to be used in evidence for other purposes".
In it was held:
"Although an unregistered partition deed and sale deeds are inadmissible in evidence to prove the terms of the partition or title to the immovable property transferred thereunder they are admissible for a collateral purpose to determine the nature and character of possession, and other materials on the record can also he taken into consideration for the purpose of coming to a decision that the possession was referable to a division of properties between the parties concerned.
The word "partition" involves two concepts (1) change of status, (2) division of property. Severable of status does not require to be proved by any documentary evidence at all, nor is it necessary for the purpose of actual division of the property between the members of a joint family that a written instrument is essential. Where there is evidence that there was an actual division of the property between the parties and that they went into possession of their respective shares in accordance with that division, and there are also other circumstances to show that the conduct of the parties are inconsistent with anything except the factum of "separation, a Court of law may very well hold, apart from any instrument of partition (which happens to be unregistered) that the parties had separated in status and effected a partition of the family properties.
This would be a perfectly legitimate course to adopt. Unregistered instruments, such as partition deed, sale deed, receipt, etc. (which require to be registered) may be admitted and relied on for the purpose of proving the disruption of status and division of property, separate possession and separate dealings by the parties. Though not admissible to prove title to the immovable properties in question, they could be referred for the collateral purpose of showing that the parties were dealing with the properties in their separate possession on the footing that there had been a partition between the members of the family.
Unregistered sale deeds would also be admissible under the proviso to S. 49, Registeration Act to prove part performance under S. 53A, Transfer of Property Act besides being admissible for the collateral purpose of separate possession and separate dealing and enjoyment". (All relevant Madras decisions discussed). In it was held:-
"The expression collateral" transaction in the proviso to S. 40, Registration Act, is not used in the sense of an ancillary or a subsidiary transaction to a main or principal transaction. The transaction as recorded could be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of transaction and what may be called a collateral purpose; the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs to other with or on parallel lines with the same.
A memo of partition of immovable property belonging to a Hindu joint family which is required to be registered but which is not registered would be inadmissible under the main provisions of S. 49 of the Registeration Act as evidence of the terms or details of the partition. But the partition i.e., the seveance of joint status which is not required to be effected by a registered instrument would be a collateral transaction, evidence of which would certainly be admissible under the proviso to S. 49, and the memo of partition though unregistered would be admissible to prove the fact of such partition".
In Mt. Thekura v. Sukhraj Singh, it was held:
"A partition chitti which merely records that certain persons named therein have been allotted certain properties described therein at a private partition need not be registered under S. 17(l)(h). Even if it requires registration, it can be used for the collateral purpose of proving the nature of possession in view of S. 49".
That latest decision is Appeals Nos. 581 and 780 of 1948 dated 10.2.1965 (Mad) laying down that oral evidence of the terms of a document which is inadmissible in evidence for want of registration is not admissible as" this would be a case of virtually admitting an unregistered partition deed to prove details of the partition and how the property was divided and to whom allotted amounting to an indirect (sic), as in of the statute."
12. Learned counsel for revision petitioner relied on a recent decision of the Supreme Court reported in Mithilesh Kumar v. Mahshar Lal, . After perusing the same, I do not think the same has any application to the facts of this case. In fact, in that case, Their Lordships interpreted the document as not compulsorily registrable under Sec. 17(1)(h) of the Indian Registration Act. Their Lordships did not consider, nor did they discuss what is meant by 'collateral purpose' as stated in Sec. 49 of the Indian Registration Act.
13. The decision of this Court in Sharfunisa Bi vs. Ameena Bi Ammal, 1988 (1) LW 517 was brought to my notice by learned counsel for respondent. Of curse, in that case also the scope of Sec. 49. of the Indian Registration Act was not considered. S.A.Kader, J. only held that to prove possession, is a bar by way of S. 92 of the Indian Evidence Act. If a person relies on a document to prove his possession and nature of possession, the document alone should be in evidence and not any other oral evidence regarding the same. I do not think the said decision has any application in so far as the interpretation to Sec. 49 of the Indian Registration Act, is concerned. But it could be made use of only for the purpose of proving possession, and the petitioner cannot prove possession de hors the document. I do not find any merit in the Revision Petition and the same is accordingly dismissed. No costs.
14. I direct the Rent Controller to expedite the disposal of the Rent Control petition and see that the matter is disposed of on or before 15.3.1998. C.M.P. 1143 of 1998 for stay is also dismissed consequently.