Rajasthan High Court - Jodhpur
Pahar Singh vs State & Ors on 18 January, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13312 / 2016
Pahar Singh S/o Shri Samrath Singh, Aged About 63 Years,
Pindwara, At Present Kautal, Tehsil- Pindwara, District- Sirohi
----Petitioner
Versus
1. State of Rajasthan Through the Distirct Collector, Sirohi
2. Tehsildar, Pindwara, District- Sirohi
3. Jora Ram S/o Puraji, Pindwara, Tehsil- Pindwara, District- Sirohi
4. Mala Ram S/o Joraji, Pindwara, Tehsil- Pindwara, District- Sirohi
5. Raja Ram S/o Puraji, Pindwara, Tehsil- Pindwara, District- Sirohi
6. Bhanwara S/o Raja Ram, Pindwara, Tehsil- Pindwara, District-
Sirohi
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Richin Surana
For Respondent(s) : Mr.V.D.Vaishnav
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 18/01/2018
1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:-
"i) impugned order dated 13.05.2016 (Annex.5) passed by the learned Civil Judge, Pindwara, District Sirohi in Civil Original Case No.26/2013 (Pahar Singh Vs. Jora Ram & Ors.) may kindly be quashed and set aside and the application filed by the respondents-
defendants under Order 17 of Registration Act read with Section 54 of the Transfer of Property Act may (2 of 6) [CW-13312/2016] kindly be ordered to be dismissed with costs and the unregistered written (sale-deed) may kindly be ordered to be exhibited and be treated as admissible in evidence.
ii) Any other writ order or direction which this Hon'ble Court deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."
2. Learned counsel for the petitioner states that Section 17(p), which is an amendment in the Indian Registration Act cannot be applied retrospectively.
3. The totality of the controversy before this Court under Article 227 of the Constitution of India is that the learned court below has declined to take the unregistered sale deed on record on the ground that the same is not admissible in evidence, as per Section 17(p) of the Indian Registration Act and Section 54 of the Transfer of Property Act.
4. Learned counsel for the petitioner further states that since the purpose is collateral, therefore, the document should have been taken on record.
5. Learned counsel for the petitioner relied upon the precedent law laid down by this Hon'ble Court in Hazari Lal Vs. Ratan Lal & Ors., reported in 2009(1) DNJ (Raj.) 396, relevant para 9 of which reads as under:-
"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, (3 of 6) [CW-13312/2016] 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."
6. On the other hand, learned counsel for the respondents opposed the submissions made on behalf of the petitioner, while placing reliance on the precedent law laid down by this Hon'ble Court in Indu Vs. Narsingh Das & Ors., reported in 2013(2) Civil Court Cases 003 (Rajasthan), relevant portion of which reads as under:-
"23. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh this Court was not concerned with the provisions of the Act Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined:-
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-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly 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 (4 of 6) [CW-13312/2016] 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 unauthorized.
25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
11. Same view has been taken by the Andhra Pradesh High Court in the judgment reported in AIR 2012 A.P. 110, in which, it has been held that such document which is not registered and unstamped is not admissible in evidence. Para 24 and 25 of the said judgment are as follows:
24. As discussed above, the document sought to be filed is nothing but a partition deed creating right and title in the lands said to have been allotted to the parties. It is settled law that registration of document which is to be required under Section 17(1)(b) of the Registration Act makes the document inadmissible in evidence. Under Section 49(c) of the Registration Act, no document required by Section 17 to be registered shall be received as evidence of any transaction affecting the said property unless it has been registered. Of course the proviso says that an unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a (5 of 6) [CW-13312/2016] contract for the purpose of section 53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be affected by registration of instrument.
25. The A.P. Amendment Act 17 of 1986 came into force with effect from 16.8.1986 and definition of 'instrument of partition' under Section 2(15) of the Indian Stamp Act has been amended. As referred in the above paragraphs even a memo recording past partition is also brought within the definition of 'instrument of partition' by virtue of the said amendment. Thus, the argument that a document is merely a record of family arrangement, settlement or acknowledgment of prior partition and admissible for collateral purpose is no more available after the above amended provisions of Indian Stamp Act came into force. Section 35 of the Indian Stamp Act is very clear and creates a clear bar and therefore unstamped document is inadmissible in evidence for any purpose. Admittedly the alleged document i.e. partition deed is chargeable with duty. In view of the settled legal position i.e. the bar engrafted under Section 35 of the India Stamp Act is an absolute bar and therefore the document cannot be used for any purpose unlike the bar contained in Section 49 of the Registration Act.
12. In this case, it is abundantly clear that document Annex. 3 dated 11.5.1969 is totally unstamped and not registered, therefore, as per the adjudication made by the Hon'ble Supreme Court the said document is not even admissible for collateral purpose too because in Section 35, words "for any purpose whatsoever" have been advisedly used. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking Section 35 of the (6 of 6) [CW-13312/2016] Registration Act. If all purposes for which the document is sought to be brought in evidence are excluded, there is no reason as to how the document would be admissible for collateral purpose.
13. In this view of the matter, while following the adjudication made by the Hon'ble Supreme Court, this writ petition is allowed. Order impugned dated 18.10.2011 is hereby quashed and set aside."
7. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that the statutory prohibition of taking the unregistered sale deed on record for any purpose is a settled law. The precedent law makes it clear that even for collateral purposes the unstamped sale deed cannot be taken on record.
8. In light of the above, no interference is called for in the present writ petition and the same is accordingly dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-