Rajasthan High Court - Jodhpur
Vinod Kumar Sanadhya vs Surendra Mohan on 6 August, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B. CIVIL WRIT PETITION NO.9656/2008
Vinod Kumar Sanadhya Vs. Surendra Mohan
DATE OF ORDER: 6thAugust, 2013
::P R E S E N T::
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Deelip Kawadia, for the petitioner.
Mr. Suresh Shrimali, for the respondent.
****
BY THE COURT:
By this writ petition, the petitioner/plaintiff has invoked supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India for quashing the impugned order dated 3rd of November 2008 passed by the learned Addl. District Judge (Fast Track), No.2, Udaipur (hereinafter referred to as 'the learned trial Court').
The apposite facts, for the purpose of this writ petition, are that the petitioner instituted a suit for specific performance of contract against the respondent-defendant before the learned trial Court, inter-alia, on the ground that [2] the respondent agreed to sell the suit property for a consideration of Rs.1,50,000/- and in terms of the agreement the entire consideration amount was paid by the petitioner and accepting the same a receipt was executed by the respondent. The petitioner has also averred in the plaint that the respondent has also executed a Will in his favour for the said property.
The suit was contested by the respondent and written statement was submitted on his behalf. In the written statement, the respondent has denied all the averments contained in the plaint. Acknowledging the acceptance of the amount to the tune of Rs.1,50,000/-, the respondent has stated with clarity and precision in the written statement that the said amount was paid by the petitioner to the respondent for his future maintenance and not in the form of consideration of the disputed property. Adverting to the alleged Will, the respondent has repudiated the claim of the petitioner by alleging that the Will has already been cancelled.
After submission of the written statement on behalf of the respondent, an application under Section 151 CPC read with Section 17 of the Registration Act was [3] preferred before the learned trial Court raising serious objections about the authenticity and admissibility of the receipt allegedly signed by him. The respondent has raised objection in the application that the alleged receipt is per-se transaction of sale of the immovable property and looking to the recitals contained in the document, it is inadmissible in evidence. Categorizing the document as improperly stamped and unregistered, the respondent has prayed that the petitioner-plaintiff may not be allowed to mark exhibit on the same. As regards the Will, the respondent has objected to its admissibility on the ground that it is a testamentary instrument and the executant of the same is alive, therefore, it is of no significance whatsoever.
No formal reply to the application under Section 151 CPC read with Section 17 of the Registration Act was submitted on behalf of the petitioner. The learned trial Court after hearing the rival parties, allowed the application of the respondent and concluded that the alleged receipt and the Will are inadmissible in evidence, and therefore, the exhibits marked on these documents are struck off.
Learned counsel for the petitioner, Mr. Deelip Kawadia, has argued that the document, on the strength of [4] which the suit for specific performance of contract is laid by the petitioner, is a receipt and as such by construing the same as a sale-deed, the learned trial Court has committed grave and serious error of law and fact, which is apparent on the face of record. Learned counsel for the petitioner has also assailed the impugned order for treating the Will as inadmissible in evidence. According to Mr. Kawadia, it was a supporting document for proving his case.
Mr. Kawadia, learned counsel for the petitioner, has strenuously argued that a suit for specific performance of contract based on an unregistered document is maintainable and law is well settled that an unregistered instrument can be used by a party in a proceeding for collateral purposes. Mr. Kawadia, the learned counsel for the petitioner, has urged that the relief claimed in the suit was only for specific performance of contract, and therefore, it was desirable from the learned Court below to examine the document in right perspective so as to do justice between the rival parties. Mr. Kawadia has contended that in view of inconsistency in the stand of the respondent about the nature of document, the learned trial Court has wrongly construed the said document as a sale transaction, and therefore, the impugned order has occasioned failure of [5] justice and its obvious consequence is that the suit of the petitioner may not survive. Learned counsel for the petitioner has submitted that law is well settled that an unregistered sale-deed is though inadmissible in evidence but can be looked into for collateral purposes so as to see nature of the possession of the party over the suit property. In support of his contentions, learned counsel for the petitioner has placed reliance on a decision of Apex Court in case of Bondar Singh Vs. Nihal Singh & Ors. (AIR 2003 SC 1905). In the said verdict, while referring its finding on the said issue, the Apex Court has made following observations in Para 5:
"5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be property stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or [6] unauthorized. It is significant to note that the sale deed is dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand never disrupted plaintiffs' title or possession of the suit land. There is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question. There is a notice dated 16.4.1956 Exhibit P.6. The notice was issued on behalf of the defendants and is addressed to the predecessor interest of the plaintiffs. By the notice the defendants called upon the plaintiffs to hand over possession of the suit land to them. According to the notice, the plaintiffs were trespassers on the suit land and were liable to hand over its possession to the defendants. This notice is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16th April, 1956. The notice was followed by an application dated 8th May, 1956 (Exhibit P.3). filed by the defendants under Section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the revenue authorities. In the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. It is further admitted that the land was being cultivated by the plaintiffs. It was prayed in the said application that the plaintiffs be declared trespassers over the suit land and possession of the land be given to the defendants. In their reply to the application, the present plaintiffs denied the allegation that they were trespassers on the suit land, they refer to the sale deed of 9.5.1931 by Fakir Chand in favour of their predecessor. Thus the plaintiffs were all along asserting that they were in possession of the land in their own right. The Tehsildar vide his order dated 3rd October, 1959 dismissed the said application of the defendants. He relied on an admission on the part of Poonam Chand, eldest son of Fakir Chand that the present plaintiffs were in possession for the last 26-27 years. Relying on the said statement the revenue authorities [7] held that since possession of the present plaintiffs was continuing for last 26-27 years they could not be dispossessed from the suit land. The application of the defendants was dismissed. The defendant filed an appeal against the said order which was also dismissed on 6.8.1962. A copy of the order of the Tehsildar is Exhibit P.8 while a copy of the order of the appellate authority i.e. S.D.O. is Exhibit P.9. These judgments of the revenue authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. They also totally nullify the assertion of the defendants in their written statement in the present suit that they had taken possession of the suit land in 1957-58. If they had taken possession of the suit land in 1957-58 why were they pursuing the matter before the revenue authority till 1962 when the appeal was contested before the S.D.O. and the decision of the S.D.O. was given on 6.8.1962?
(emphasis supplied) For substantiating his arguments that even if document is improperly stamped, the same can be used for collateral purposes after making good the deficiencies, for authenticating his argument, learned counsel for the petitioner has placed reliance on a coordinate Bench decision of this Court in case of Hazari Lal Vs. Ratan Lal & Ors. [2009 (1) DNJ (Raj.) 396]. This Court, while considering the import of Section 49 of the Registration Act has made following observations in Para 8 to 10:
8. In view of the above reason, it is clear that a document which has not been executed on stamps, even when it is required to be executed on stamps or it is executed on insufficient stamps then that can be admitted in evidence on payment of proper stamp duty and penalty thereon.[8]
9. The provision to Section 49 of the Registration Act is also very clear which has been noticed by this Court even in the case of Jamna Bai (supra), relied upon by the learned counsel for the respondents, which clearly says that the document can be allowed to be admitted in evidence for a collateral purpose or to determine the nature and character of possession and there cannot be any dispute regarding the correctness of this proposition.
10. In view of the above reason and in view of the judgment referred above, the order of the trial court proceeded on wrong assumption of law and hence liable to be set aside.
The said proposition of law is further reiterated by a subsequent decision of the coordinate Bench of this Court in case of Vipin Kumar & Anr. Vs. Addl. District Judge, Nimbahera & Ors. [2009 (3) DNJ (Raj.) 1658], and the Court observed in Para 6 to 8 as infra:
6. Having heard learned counsels and in view of the judgments cited at the Bar and the provisions of Section 49 proviso of the Registration Act, this Court is of the view that the agreement in question even though being inadmissible in evidence as it was not stamped and registered in accordance with the requirements of Section 35 of the Rajasthan Stamp Law for the purposes of suits for specific performance, could be considered only for the limited collateral purposes of establishing the character of possession of the plaintiff-petitioner, if any, though the learned counsel for the respondent submitted that suit property has passed hands and stands transferred to third party.[9]
7. In view of this, the impugned order rejecting the said document as a whole without saving it for the purpose of being used for collateral purpose as per proviso to Section 49 of the Registration Act, 1908, cannot be sustained.
8. In view of the above, this writ petition is disposed of with the modification of the impugned order of the learned trial court that the said document in question dated 22.12.1998 can be used by the plaintiff-
petitioner only for collateral purpose and not for the basing of the claim of specific performance itself on the basis of the said agreement as the same is neither registered not stamped in accordance with Section 35 of the Rajasthan Stamp Law.
The petitioner has also placed heavy reliance on Apex Court judgment in case of Deb Dutt Seal Vs. Raman Lal Phumra & Ors. (AIR 1970 SC 659). In the said verdict, while interpreting Section 17 & 49 of the Registration Act, vis-a-vis a document of equitable mortgage for its requirement for registration, per majority, held that the document is not intended to create any mortgage. The Apex Court made following observations in Para 5 to 7 of the verdict:
5. Ex. 2, dated December 17, 1951, on the face of it clearly does not create any mortgage. It records a past transaction and then the writer undertakes to execute a legal mortgage and further assures that the premises are free from all encumbrances, etc. The latter two provisions cannot make the document registrable because they do not create or declare any interest in the premises.[10]
6. The learned Counsel for the appellant contends that we should read the words "delivered to and deposited" occurring in the first line of the letter as "I hereby deliver and deposit with you". But we are unable to see how we can change the wording of the document. He says that this letter reduces all the terms of the bargain to writing and, therefore, the letter itself constitutes the bargain and is registrable. He says it mentions the amount secured and the three Hundis executed and thus inferentially the interest on the Hundis under Section 80 of the Negotiable Instruments Act. The law on the point is quite clear and has been considered by this Court on at least three occasions. It is only necessary to mention the latest decision in United Bank of India Vs. Lakharam Sonaram & Co., AIR 1965 SC 1591 where Ramaswami, J., reviewed the earlier decisions bearing on the point.
7. The only question is whether the parties intended to create a charge by the execution of Ex. 2 or was it merely a record of the transaction which had already been concluded and under which rights and liabilities had already been created. It seems to us that the document did not intend to create a charge by its execution.
Learned counsel for the petitioner, Mr. Kawadia has also placed reliance on a verdict of Hon'ble Apex Court in case of S. Kaladevi Vs. V.R. Somasundaram & Ors. (2010 (1) WLC (SC) Civil 672) to support his contention in respect of admissibility of unregistered document. [11]
On the other hand, learned counsel for the respondent, Mr. Suresh Shrimali, has urged that the learned trial Court while passing the impugned order has not committed any error much less an error apparent on the face of record, and therefore, no interference in exercise of supervisory jurisdiction of this Court is warranted. Mr. Shrimali has argued that while construing the instrument in question, the learned Court below has taken cognizance of all the aspects including the intention of the parties, and thereafter, it has concluded that the document in question is neither a receipt nor an agreement to sale but a complete sale-deed, and therefore, in these circumstances the learned Court below has opined that the same is not admissible in evidence in want of registration and for the reason that it is inadequately stamped. The learned counsel for the respondent has further contended that jurisdiction of this Court under Article 227 of the Constitution is very much limited and is to be exercised with great care and circumspection. The power of this Court under the supervisory jurisdiction is restricted to interference in cases of miscarriage of justice, dereliction of duty, or flagrant violation of law by the subordinate courts and not otherwise. Primarily, while exercising the said jurisdiction, the concern of the Court is to see whether an [12] inferior Court or Tribunal has proceeded within its parameters and not to correct the error apparent on the face of record, much less an error of law. Laying stress on the recitals of the instrument, on which the entire claim of the petitioner is founded, learned counsel for the respondent would urge that any prudent man can draw this inference that the instrument in question is a sale-deed and not a mere receipt or an agreement to sale and therefore while construing the same as sale-deed, the learned Court below has not committed any error much less manifest error of law. For substantiating his contentions, the learned counsel for the respondent has placed reliance on a decision of Andhra High Court in K. Santhakuari Vs. K. Suseela Devi (AIR 1961 AP 424). The Andhra Pradesh High Court, while deducing the parameters laid down by the Privy Council in Para 6 of the verdict finally concluded in Para 12 that the document in question is a sale-deed. The complete text of Para 6 is reproduced as infra:
6. In Skinner v. Skinner, 57 Mad LJ 765 (AIR 1929 PC 269), their Lordships of the Privy Council had to decide whether a document was admissible in evidence in that connection whether it was a sale deed. The learned Subordinate Judge in that case held that the document was a sale deed and, therefore, required registration under Section 17 and that being unregistered, it was not admissible in evidence. The High Court, on appeal, held that the document ought to be treated as being an agreement for sale rather [13] than a sale deed & that, therefore, registration was not necessary. Their Lordships of the Privy Council disagreed with the High Court, agreed with the Sub-Judge and held that the document was a sale deed and not an agreement to sell, mainly on the following grounds:
(1) The language employed is perhaps not that of a trained draftsman, but the document clearly purports to transfer the executant's interest in the immovable properties which he had inherited from his brother.
(2) The document in addition to creating an interest in immovable property provided as one of the terms and therefore, an integral part of the transfer that the vendor should, if the vendee so required, execute a registered sale deed.
In this case it will be observed, that transfer of interest in the Property is clearly effected as seen from the language : Vide (1) of the recitals and the recital regarding registration cannot avail the defendant. For ready reference, Para 12 is reproduced as under:
12. The Privy Council in 57 Mad LJ 765 :
(AIR 1929 PC 269) has held in effect that the mere offer to execute and register a sale deed at a later date does not take away the effect of a clear recital transferring the title and interest of the vendor to the vendee or change the character of a document from a sale to an agreement to sell. The mere use of the word 'agreement' is not conclusive as held by the learned Judge in Un-reported decision of this Court in C.R.P. 199 of 1959 dated 3-11-1959. It is the cumulative effect of all the recitals and the relevant facts which has to be taken into account to decide the question.[14]
The provision for execution of sale deed and registration in both the documents and the provision for obtaining the permission of the District Collector under Section 47 of the Hyderabad Tenancy Act in one document show that contemplation of something being done in future by the vendor. The mere existence of such provision does not necessarily mean that either the document is not a sale or that the parties really intended to effect a real sale only by a document, duly stamped and registered. For the provision for registration in the document, concerned in the decision of the Privy Council in 57 Mad LJ 765 : (AIR 1929 PC 269) has not rendered the document an agreement to sell.
Mr. Suresh Shrimali, learned counsel for the respondent, in support of his contentions has also placed reliance on a coordinate Bench decision of this Court in case of Sukhdev Singh Vs. Baxis Singh & Anr. [2006 (2) RDD 732 (Raj.)] wherein while considering the import of Sections 17 & 49 of the Registration Act and Section 35 of the of the Stamp Law (Adoption) Act 1952, the Court has held that a document which is insufficiently stamped and not registered is inadmissible in evidence even for collateral purposes. The Court made following observations in Para 29 & 30 of the verdict:
29. In view of the above referred documents and in view of the fact that Ex. A/2 has not been challenged by Mst. Gurdev Kaur any further, therefore this judgment and decree awarded in the year 1997 declaring the tenancy rights in favour of appellant-
Defendant No. 2 makes it clear that Gurdev [15] Kaur, who was made defendant in the present suit for specific performance was well aware of the Will and her power of attorney holder, who is said to be her nephew, was also well aware of all litigation and when plaintiff had chosen to purchase the agricultural land then he cannot blame others. Ex. A/2, Ex. A/8 and Ex. A/11 are the documents, which speak about the tenancy rights available in favour of the appellant. When a revenue suit regarding declaration of tenancy rights was filed against Gurdev Kaur, she did not contest and when the judgment was delivered, she did not challenge the same, then it can very well be concluded that in the light of various decisions, certified copies of which have been filed, it appears that Defendant No. 1 had no tenancy right at the time when Ex. A/1 the sale deed was executed. It shall also be relevant to refer here one more document Ex. A/18, which is a judgment delivered by learned Addl. Munsif Magistrate No. 2, Hanumangarh in a civil suit filed by Smt. Gurdev Kaur, defendant respondent and Gurdwara Namdhari Bheni Sahab and other persons including Sukhdev Singh, the present appellant for cancellation of Will. In this case 6 issues were framed. Issue No. 3 and 5 were relevant. Issue No. 3 was regarding limitation and Issue No. 5 was as to whether in view litigation pending in many courts whether the suit was liable to be stayed? It further appears that this suit was filed in the year 1993. The Court recorded its findings regarding Issue No. 3 that the suit was barred by limitation. The Court also recorded finding on Issue No. 5 that in view of litigation pending in other courts, the matter was required to be stayed. Nothing has been brought on record to show that this judgment- dated 3.6.1994 has been challenged any further or not. Be as it may, but this thing absolutely certain that respondent Gurdev Kaur was well aware of the fact that there was Will in favour of defendant-appellant, who filed the suit and the Will of 1979 was made by the husband of Defendant No. 1 in favour of appellant as well as defendant Gurdev [16] Kaur, so in the above facts and circumstances it was necessary for her to have disclosed the facts in the written statement but it appears that Defendant No. 1 Smt. Gurdev Kaur has not even filed a written statement in this case.
30. In view of above discussion, the answer to point No. 1 and 2 is that document Ex. 1 is not admissible in evidence even for collateral purposes and further Mst. Gurdev Kaur had no tenancy right in the suit land as the land in dispute was in the tenancy of Defendant No. 2, the appellant. Consequently, the answer to point No. 2 is that plaintiff is not entitled to a decree for specific performance of contract and the appeal filed by the Defendant No. 2 is required to be accepted. However, the plaintiff-respondent, who has paid the consideration amount for the suit land to Defendant No. 1, is entitled to get refund of the amount with interest @ 6% per annum from the date of filing of the suit till realization and that answers the point No.
3. The learned counsel for the respondent has placed reliance on yet another decision of this Court in case of Hemraj Singh Vs. Nandlal & Ors. [2006 (5) RDD 2792 (Raj.)]. In the said verdict, while construing the nature of the document in a suit for specific performance of contract, the Court has concluded that when possession of the immovable property is handed-over to the buyer, then such document is required to be registered and if the document is not registered, the same is inadmissible in evidence. This Court, while interpreting Section 17 of the Registration Act and taking into account rigor of Section 49 [17] of the Registration Act, in Para 17 & 18 of verdict made following observations:
17. After passing of the above order dated 10.07.2001, no compliance was made whatsoever till date by the plaintiff-appellant.
Not only this, no evidence at all was adduced by the plaintiff to prove his claim in the case. It is also significant to notice here that both the parties have not adduced any evidence whatsoever in the present case apart from the fact that no compliance of the above order was made. Thus, it can safely be said that in a matter where after filing plaint, written statement is filed and issues are framed, no evidence is led either by the plaintiff or the defendant then in that situation unless the other party admits a claim made by the plaintiff till then in absence of any evidence led by the plaintiff to prove his claim, the suit is not liable to be decreed.
18. After carefully examining the findings recorded by the trial Court, I am of the opinion that when the parties have failed to lead evidence then simply on the basis of filing plaint, the suit was not liable to be decreed. The trial Court has assigned cogent reasons and the findings recorded by the trial Court appears to be based on proper reasonings. Taking into consideration the facts and circumstance of the case, no interference is required by this Court in the impugned judgment and decree passed by the trial Court. The answer to the point framed is accordingly.
I have heard the learned counsel for the rival parties and perused the impugned order.
The crucial question, which requires judicial scrutiny is the nature of the document on which the entire suit for specific performance of contract of the petitioner is [18] founded. It is a trite law that for construing a document as a whole, effect must be given to each part of the document. This in turn means that in general each part of the document is taken to have been deliberately inserted, having regard to all the other parts of the document, with the result that there is a presumption against the redundant words. While interpreting a document, the intention of the parties can be inferred from the recitals contained therein coupled with the obligations undertaken by each party in furtherance of the terms of the contract. In that background, if the recitals contained in the so called receipt are examined, then any prudent man can draw this inference that the alleged sale transaction stands concluded. There is a clear and unambiguous recital in the document that consideration amount has been paid to the vendor, possession has been handed over to the vendee, and the vendee has taken possession of the property. That apart, the words employed in the instrument also reveal that the sale transaction is complete in all respect vis-a-vis both the parties. From any stretch of imagination, such an instrument cannot be construed as a receipt, nor the same can be categorized as an agreement to sale. The complete and unabridged copy of the instrument in its original form is reproduced as infra:
[19]
Its typed copy is as under:
रस द प पग रस दकर :- श सरन म हन सन ढ प र स ० श ग प नद ल ल सन ढ , ज र ब हमण, उम 74 र, नन स - ग प नद सदन र ह%र ड बदल उद र (र ज०) रस दगहहर :- श प न द कम र सन ढ प र सरन म हन सन ढ , ज र ब हमण, उम 44, नन स 38 ,ब ० ज ० नगर ,बदल , र० गग उद र (र ज०) ह कक मझ रस दकर पथम कक र क स म त ए 1 आग3 त क4 सह ख रद र% हक क4 क6पर भ8मम क ग म ब हमण:[20]
क गड ट र कत स हट 17 गग जजल उद र (र ज०) म> जसथर ह? जजसम> मर ¼ @ हहसस ह? ज र न 8 जम बनद% म> मझ पथम कक र क न म दज ह न अ1ककर ह? जजसक आर ज न1० 271 रकब 260 लग न ह? । उक रणर हहसस बश ल भ8खणड ह? जजसक4 लमब ई 8 स जIम 180 गकJट चLड ई 36.6 + 50 ह कर कमल कतJल 7794 गकJट ह? उक भ8मम क आज हदन 1क हMर कक र क ब ल ए ज 1,50,000/- अकर एक ल ख च स हज र र : म> प क करन र कर प क कर हद ह? जजसक4 कमल पनरJल र मश 1,50,000/- आज हदन 1क क नगद प प कर मलए ह? अब क ई रकम लन शर नह%1 ह? । र प नप क4 अमभस क6नर म> रस दकर नकद M र करर ह8P । जम न क कबज आ हMर कक र क सL हद ह? । जजस हMर कक र न सर क र स ल% ह? ।
ह रस द आज हदन 1क 26.2.05 क र ज खश ह श ह स म>
बबन ककस दब क ननमन स क गण: क समक मलखहद ह? स सह%
सनद रह क जररर क म आ ।
सथ न :- बनल (उद र)
ह०
हदन 1क हसर कर
रस दकर
सक (1) म हनद सन ढ (2)श म ल ल बस ठ
The document/instrument, quoted hereinabove, on the face of it creates suspicion about its execution and in the light of the stand of the respondent that he has signed a receipt acknowledging acceptance of future maintenance from the petitioner. Desisting from recording any adverse finding at this stage, this Court feels that possibility of manipulation and maneuvering in the instrument cannot be completely ruled out. A vital fact that there is no mention about reciprocal obligation of the rival parties for execution and registration of sale-deed and non-mentioning of the period or deadline for registration of the requisite instrument for sale further creates doubts about its authenticity. Launching litigation after two years from the [21] date of execution of the alleged receipt is yet another mitigating factor casting shadow on it.
One more glaring fact of the case is that the present litigation is between father and son duo and father is at the receiving end as he has been arrayed as defendant in the suit. Looking to the relationship between the rival parties, the doubts about the genuineness of the document cannot be prima facie ruled out. The document being under serious clouds is also clearly discernible from a bare perusal of the above quoted complete and unabridged copy of the document. As regards the testamentary instrument allegedly executed by the respondent in favour of the petitioner, suffice it to state that there is no legal sanctity of a testamentary instrument when the testator is alive. It is really strange that in a legal battle between a father and son when the father is alive, the son has made an attempt to place on record his deed of bequeath, which is disowned by its executant. This sort of conduct further raises doubts about the instrument in question on which edifice of the entire suit is based. The decision of Hon'ble Apex Court in S. Kaladevi (supra) has laid down the law that a trial Court is not justified in refusing to admit unregistered sale-deed in light of the fact that the sale-deed was properly stamped.[22]
Here, in the instant case, the document, which prima facie appears to be a sale deed, is neither properly stamped nor registered. Moreover, in S.Kaladevi's case (supra), after execution of the sale deed on proper stamp papers, the incumbent also approached the Sub-Registrar for registration but the same was denied for the reason that the property in question was attached and that prevented registration of sale-deed. There is no such facts in the instant case and taking into account the peculiar facts and circumstances of the case, where litigating parties are father and son, the said judgment cannot render any assistance to the petitioner. In Bonder Singh's case (supra), it was a case of use of unregistered and unstamped sale-deed for collateral purpose of proving nature of possession of the plaintiff over suit land and to thwart defence of the defendants that their possession is unlawful.
Looking to the fact situation in the instant case of the blood relationship between rival parties, the ratio decidendi of the said verdict cannot help the petitioner.
Thus, taking into account the recitals of the instrument and the facts and circumstances, which are relevant and germane to the matter, coupled with the close proximity of blood relationship between the rival parties, in [23] my considered opinion, it is not possible for this Court to find any fault with the findings recorded by the learned Court below. Therefore, on examining the said instrument on the touchstone of Section 17 & 49 of the Registration Act, there appears to be no valid reason to treat the said document as admissible in evidence even for collateral purposes.
In this view of the matter, I am not inclined to feel persuaded to interfere with the impugned order passed by the learned Court below.
Resultantly, there is no force in this writ petition and the same is accordingly dismissed.
(P.K. LOHRA), J.
arora/