Calcutta High Court (Appellete Side)
Tarjen Mondal vs Shri Prithiraj Mondal & Ors on 27 July, 2011
Author: Harish Tandon
Bench: Harish Tandon
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In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 1490 of 2009.
Tarjen Mondal
-vs-
Shri Prithiraj Mondal & Ors.
For the petitioner : Mr. Samiran Giri
For the Opposite Party : Mr. Amit Baran Das
Judgment on : 27.7.2011
HARISH TANDON, J.:
This revisional application is directed against an order no. 33 dated 27.4.2009 passed by the Civil Judge (Junior division), 1st Court, Contai in Title Suit no. 32 of 2006.
The plaintif/petitioner filed a suit for declaration of the title and permanent injunction. It is contended by the petitioner in the plaint of the said Title Suit no 32 of 2006 that on the basis of the 2 unregistered amicable family settlement/partition one of the original owner namely Kailash possessed 'Ka' schedule property and upon the death of the said Kailash the property devolved upon his widow and three sons who subsequently sold the property to one Prabhabati. Upon the death of Prabhabati her two sons namely Chittaranjan and Vimcharan executed a deed of exchange amongst themselves and the suit property came to be possessed and owned by Chittranjan and after his death his son namely Tarjen is occupying the same.
The defendant/opposite parties disputed the said contention of the petitioner in the written statement.
The said deed of family settlement/partition was tendered in evidence by the petitioner but the same was not exhibited and was marked 'X' for identification by the trial court.
Subsequently an application was filed for exhibiting the said unregistered deed dated 22nd October 1940 on two-fold grounds. Firstly that the document is more than 30 years old and secondly the said document has come from the proper custody.
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The said application was contested by the defendant/opposite parties by filing the written objection. It is contended that all the co- sharers did not sign on the said settlement deed. A specific defence is taken that unless the said document is registered the same cannot be exhibited in view of the embargo created under section 49 of the Registration Act.
The trial court dismissed the said application holding that the said document cannot be marked as an exhibit. Assailing the said order the present revisional application is filed.
The learned Advocate appearing for the petitioner submits that the trial court ought to have consider that the document is more than 30 years old and section 90 of the Evidence Act permit such document to be taken on evidence. He further submits that it has been specifically averred in the evidence in relation to the custody of the said document and upon satisfaction that the document is coming from a proper custody the court cannot deny to admit the 4 said document under section 90 of the Evidence Act. Lastly, he concludes that the impugned order is not sustainable.
The learned Advocate appearing for the opposite parties submits that the purported document is not registered and cannot be admitted in evidence in view of the bar created under section 49 of the Registration Act. He further submits that the document which is unregistered is not admissible in evidence even for collateral purposes as has been held in case of Smt. Jamna Bai vs. Tulsi Ram reported in AIR 1997 Rajasthan 85.
Having considered the respective submissions of the parties, this is a suit for declaration of right, title and interest in respect of the immovable property. The plaintiff/petitioner is tracing their title through the purported unregistered deed of family settlement/partiton executed on 22nd October 1940.
Section 49 of the Registration Act provides that no document which is required under section 17 to be registered shall be received as an evidence of any transaction affecting the property unless the 5 same is registered. Section 17(1)(b) of the Registration Act postulates that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
On conjoint reading of the aforesaid section if by a non- testamentary instrument any right to the immovable property having a value of more than one hundred rupees creating, declaring, limiting or extinguishing any right, title and interest is compulsorily registrable and in absence of such registration the same cannot be received in evidence by the court.
The document has not been defined under the Registration Act 1908 but it has been defined under the Evidence Act which means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Section 90 of the Evidence Act creates a 6 presumption as to the signature and /or handwriting of a person and also about the due execution and attestation of the document which is more than 30 years old and coming from a proper custody. Such statutory presumption have an edge over the other provision of the Evidence Act by which the documents have to be proved by adducing the proper evidence but such presumption would only arise if the document is otherwise admissible in evidence. Section 49 of the Registration Act makes it clear that the document shall not be received in evidence if the same is compulsorily registrable under section 17 of the Registration Act. If the document cannot be received in evidence the question of statutory presumption as to its due execution and attestation under section 90 does not arise.
Although the deed of family settlement/partition does not require any registration but once the same is reproduced in writing then such document requires registration [see Rajangam Ier Vs. Rajangam Ier (1923) 69 Indian Cases : Nami Bai Vs. Gita Bai AIR 1958 SC 706 : Roshan Vs. Zile AIR 1988 SC 881].
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On harmonious reading of section 90 of the Evidence Act and section 49 of the Registration Act the position that emerges is the document which is otherwise admissible in evidence and more than 30 years old shall be received in evidence and the court shall raise a statutory presumption of its due execution and attestation of the document. The proviso makes an exception to the parent section that the document can be received in evidence as evidence of a collateral transaction not required to be effected by registered instrument. Thus, the corollary effect of both the sections are that an unregistered document which is compulsorily registrable and is more than 30 years old can be received in evidence for collateral purposes i.e. for proving the nature of possession and such document cannot be admitted in evidence in support of any substantive and clear right.
In the instant case the plaintiff/petitioner is attempting to trace his title to the 'Ka' schedule property on the strength of the said unregistered deed of family settlement/partition dated 22nd October 1940. Thus it cannot be said that the said document can be admitted in evidence for collateral purposes. The trial court also found that the same is not used for collateral purposes. The judgment of the 8 Rajasthan High Court in case of Jamna Bai (supra) is not a good law. In view of the other decision of the Supreme Court in case of Mattapalli Chelamayya Vs. Mattapalli Venkataratnam reported in (1972) 3 SCC 799, the three-judges Bench of the Supreme Court held that section 49 of the Registration Act does not say that the document cannot be received in evidence at all but what it says is that the document cannot be received as evidence of any transaction affecting the property otherwise than for collateral purposes. The subsequent three-judges Bench of the Supreme Court in case of Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo & Ors. reported in (1981) 4 SCC 613 held that even if the document is unregistered it can be used as evidence of any collateral transaction, of ascertaining the nature of possession. Similar view is expressed by the Division Bench of the Supreme court in case of Bondal Singh & Ors. Vs. Nihal Singh & Ors. reported in (2003) 4 SCC 161.
Recently, the apex court in case of K.P Saha & Sons Pvt. Ltd. Vs. Development Consultant Ltd. reported in (2008) 8 SCC 564 held :
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"34. 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. 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."
Through the said document the petitioner is attempting to trace their right, title and interest in respect of the schedule property which cannot be said to be used for collateral purpose.
Thus, I do not find any infirmity and/or illegality in the order of the trial court impugned in this revisional application.
The revisional application is, therefore, dismissed. 10 However, there shall be no order as to costs.
Urgent photostat copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.) TM