Andhra HC (Pre-Telangana)
Moghal Sardar Hussain Baig vs Syed Farveej Begum on 12 July, 2017
Equivalent citations: AIR 2017 HYDERABAD 146, (2017) 179 ALLINDCAS 399 (HYD), (2017) 5 ANDHLD 259, (2017) 4 CURCC 34
Author: A. Ramalingeswara Rao
Bench: A. Ramalingeswara Rao
THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Civil Revision Petition No. 1115 of 2017
12-07-2017
Moghal Sardar Hussain Baig Petitioner
Syed Farveej Begum Respondent
Counsel for the Petitioner:Sri Namavaraplu Chantibabu
Counsel for the Respondent: Sri Challa Siva Sankar
<Gist :
>Head Note :
? Cases referred:
1. 1969 Law Suit (SC) 581 = 1969 (1) UJ 86 = 1969(1) SCWR 341
2. (1984) 1 SCC 369 = AIR 1984 SC 143
3. 2004(3) ALD 817 (DB)
4. 2008(6) ALD 92 (SC)
5. 2012(6) ALD 163
6. (2015) 16 SCC 787
7. 2017 (1) ALT 299
8. 2017(1) LS (Hyd) 325
9. AIR 1969 AP 242
10. 2000(2) ALD 30 = 2000 (1) ALT 568
11. 2000(5) ALD 577 = 2000(5) ALT 561
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Civil Revision Petition No.1115 of 2017
Order:
Heard learned counsel for the petitioner and learned counsel for the
respondent.
This Civil Revision Petition arises out of an order in I.A.No.1670 of
2016 in O.S.No.298 of 2016 dated 19.01.2017 passed by the learned
Principal Junior Civil Judge, Markapur.
The petitioner is the plaintiff in the suit, whereas the respondent is
the defendant. The suit was filed for permanent injunction restraining the
respondent from ejecting the petitioner from the plaint schedule premises
until the expiry of term of lease under an agreement dated 04.04.2016.
When the petition for grant of temporary injunction was coming up for
enquiry, the petitioner tried to mark the said agreement dated
04.04.2016 which was a lease agreement and the respondent objected to
the same on the ground that the said lease agreement was inadmissible in
evidence as it is an unregistered one. The petitioner stated that though it
is an unregistered lease agreement, it can be looked into for collateral
purpose for proving possession and nature of possession. But, the
respondent objected on the ground that the unregistered lease agreement
is inadmissible in evidence even for collateral purpose of proving
possession as the factum of lease being the contentious issue. Hence the
lease agreement cannot be marked and it cannot be looked into even for
collateral purpose as the main suit itself is based on the terms of the
lease. The trial Court upheld the objection on the ground that the lease
agreement was unregistered. Challenging the said order, the above CRP
was filed.
Learned counsel for the petitioner by relying on the decisions
reported in Rana Vidya Bhushan Singh v. Ratiram , Satish Chand
Makhan v. Govardhan Das Byas and A. Kishore @ Kantha Rao v.
G. Srinivasulu contended that the lease deed is admissible in evidence
for collateral purpose of proving possession and nature of possession,
though not for proving the terms of the lease deed and hence the order
passed by the trial Court is erroneous.
Learned counsel for the respondent submitted that the lease deed
cannot be looked into even for collateral purpose and relied on the
decisions reported in Satish Chand Makhan v. Govardhan Das Byas
(supra), K.B. Saha and Sons Pvt. Ltd., v. Development Consultant
Limited , K. Ramamoorthi v. C. Surendranatha Reddy , Yellapu
Uma Maheswari v. Buddha Jagadheeswara Rao , Vyasashramam,
Amanduru village v. Chunduru Bhooshana Kumari and
Moduraboina Deepika v. Kuna Sujatha Devi .
Section 49 of the Registration Act, 1908, deals with the effect of
unregistered documents which are required to be registered and the
relevant provision reads as follows:
49. Effect of non-registration of documents required to be
registered:-
(a) .
(b) .
(c) be received as evidence of any transaction affecting such
property or conferring such power, 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 part
performance of a contract for the purposes of Section 53-A
of the Transfer of Property Act, 1882, or as evidence of any
collateral transaction nor required to be effected by registered
instrument.
In Chinnappareddigari Pedda Muthyalareddy v.
Chinnappareddigari Venkatareddy , the Larger Bench of this Court
examined the effect of unregistered partition deed and held that an
unregistered partition deed is inadmissible in evidence and cannot be
looked into for the terms of partition but can be looked into for the
purpose of establishing a severance in status.
The Honble Supreme Court in Rana Vidya Bhushan Singhs case
(supra) had an occasion to consider an agreement which was unregistered
and it was held that it would not create a right in favour of tenant for a
period of fifteen years and it is inadmissible in evidence to support that
claim. But in support of the plea that his possession was that of a tenant
he was entitled to rely upon the recitals contained in that agreement of
lease.
In Satish Chand Makhans case (supra) the Honble Supreme
Court was examining the effect of unregistered draft lease agreement. It
was held that though the unregistered draft lease agreement was
ineffectual to create a valid lease for want of registration as required
under Section 17(1)(d) of the Registration Act and was also inadmissible
in evidence to prove the transaction of lease, but, it was admissible under
the proviso to Section 49 of the Registration Act only for a collateral
purpose of showing the nature and character of possession of the
defendants. But in the said case it was held that the proviso was
inapplicable as the terms of a lease are not a collateral purpose within
its meaning.
In A. Kishore @ Kantha Raos case (supra) a Division Bench of
this Court considered the decision of the Honble Supreme Court in Rana
Vidya Bhushan Singhs case and other decisions while answering a
reference made by a learned single Judge on the following question:
Whether the document in question is admissible in
evidence, for collateral purpose in the facts and circumstances
of the case?
The facts in that case were also identical to the present case as it arose
out of a suit for permanent injunction where a document, a deed of lease
was pressed into service. An objection as to the registration was taken.
A learned single Judge took note of the decisions in Hussain Begum v.
Madu Ranga Rao , Relangi Nageswara Rao v. Tatha
Chiranjeeva Rao and Satish Chand Makhans case (supra) and
opined that since such questions were cropping up off and on, it is better
to pronounce authoritatively by the Division Bench. The Division Bench,
after considering the decisions on the point, held that there is no
judgment from the Apex Court which lays down that an unregistered lease
deed which is compulsorily registerable cannot be admitted in evidence
even for the purpose of proving the nature of possession. It was further
held that though such lease deed cannot be used for the purpose of
proving the terms of such lease or the lease itself, it can certainly be used
for the purpose of proving the nature of possession and accordingly
answered the reference.
Thus, the views expressed by the Honble Supreme Court and the
Division Bench of this Court are in favour of the petitioner herein.
The decisions relied on by the respondent do not lay down a
different point of view as noticed by our Division Bench in A. Kishore @
Kantha Raos case (supra). Satish Chand Makhans case (supra) was
considered by the Division Bench. In K.B. Saha and Sons Pvt. Ltds
case (supra) the Honble Supreme Court had an occasion to consider the
effect of an unregistered lease agreement between the landlord and
company for residential use of premises. The violation of Clause 9 of the
lease deed was in issue as it provides for use of suit premises only for
named officer of the company and since the decision of the case rested on
the interpretation and application of the said term it was held that the
said important term forming part of lease agreement cannot be looked
into even for collateral purpose. The Supreme Court on the facts of the
case held as follows:
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. 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 immoveable 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.
22. In our view, the particular clause in the lease
agreement in question cannot be called a collateral purpose. As
noted earlier, it is the case of the appellant that the suit premises
was let out only for the particular named officer of the respondent
and accordingly, after the same was vacated by the said officer,
the respondent was not entitled to allot it to any other employee
and was therefore, liable to be evicted which, in our view, was an
important term forming part of the lease agreement. Therefore,
such a Clause, namely, Clause 9 of the Lease Agreement in this
case, cannot be looked into even for collateral purposes to come
to a conclusion that the respondent was liable to be evicted
because of violation of Clause 9 of the Lease Agreement. That
being the position, we are unable to hold that Clause 9 of the
Lease Agreement, which is admittedly unregistered, can be looked
into for the purpose of evicting the respondent from the suit
premises only because the respondent was not entitled to induct
any other person other than the named officer in the same.
Since the interpretation of a particular Clause in the agreement of lease
deed was involved, it was held that the said Clause cannot be looked into.
In K. Ramamoorthis case (supra) a learned single Judge of this
Court elaborately considered several decisions touching upon the subject
of collateral purpose and the effect of the proviso to Section 49 of the
Registration Act arising out of a suit for permanent injunction based on a
registered gift settlement deed and another suit for declaration and
permanent injunction arising out of an unregistered sale deed. This Court
ultimately held as follows:
24. On a compendious reference of the case law discussed
above, the following conclusions emerge:
(i) A document, which is compulsorily registrable, but not
registered, cannot be received as evidence of any
transaction affecting such property or conferring such
power. The phrase "affecting the immovable property"
needs to be understood in the light of the provisions of
Section 17(b) of the Registration Act, which would
mean that any instrument which creates, declares,
assigns, limits or extinguishes a right to immovable
property, affects the immovable property.
(ii) The restriction imposed under Section 49 of the
Registration Act is confined to the use of the document
to affect the immovable property and to use the
document as evidence of a transaction affecting the
immovable property.
(iii) If the object in putting the document in evidence does
not fall within the two purposes mentioned in (ii) supra,
the document cannot be excluded from evidence
altogether.
(iv) A collateral transaction must be independent of or
divisible from a transaction to affect the property i.e.,
a transaction creating any right, title or interest in the
immovable property of the value of rupees hundred
and upwards.
(v) The phrase "collateral purpose" is with reference to
the transaction and not to the relief claimed in the suit.
(vi) The proviso to Section 49 of the Registration Act does
not speak of collateral purpose but of collateral
transaction i.e., one collateral to the transaction
affecting immovable property by reason of which
registration is necessary, rather than one collateral to
the document.
(vii) Whether a transaction is collateral or not needs to be
decided on the nature, purpose and recitals of the
document.
25. Having culled out the legal propositions, the discussion
on this issue will be incomplete if a few illustrations as to what
constitutes collateral transaction are not enumerated as given out in
Radhomal Alumal v. K.B. Allah Baksh Khan Jahi Muhammad
Umar (AIR (29) 1942 Sind 27) and other Judgments. They are
as under:
(a) If a lessor sues his lessee for rent on an unregistered
lease which has expired at the date of the suit, he cannot
succeed for two reasons, namely, that the lease which is
registrable is unregistered and that the period of lease
has expired on the date of filing of the suit. However,
such a lease deed can be relied upon by the plaintiff in a
suit for possession filed after expiry of the lease to
prove the nature of the defendant's possession.
(b) An unregistered mortgage deed requiring registration
may be received as evidence to prove the money debt,
provided, the mortgage deed contains a personal
covenant by the mortgagor to pay (See: Queen-
Empress v Rama Tevan (92) 15 Mad. 253, P.V.M.
Kunhu Moidu v T. Madhava Menon (09) 32 Mad.
410 and Vani v Bani (96) 20 Bom.553).
(c) In an unregistered agreement dealing with the right to
share in certain lands and also to a share in a cash
allowance, the party is entitled to sue on the document
in respect of movable property (Hanmantapparao v
Ramabai Hanmant, (19) 6 AIR 1919 Bom. 38 = 21
Bom. L.R 716).
(d) An unregistered deed of gift requiring registration under
Section 17 of the Registration Act is admissible in
evidence not to prove the gift, but to explain by
reference to it the character of the possession of the
person who held the land and who claimed it, not by
virtue of deed of gift but by setting up the plea of
adverse possession (Varada Pillai v.
Jeevaratnammal (43 Madras 244 (PC).
(e) A sale deed of immovable property requiring registration
but not registered can be used to show nature of
possession (Radhomal Alumals case (supra),
Bondar Singh v. Nihal Singh (AIR 2003 SC 1905)
and A. Kishore @ Kantha Rao v. G. Srinivasulu
(2004(3) ALD 817 (DB).
The above instances are only illustrative and not exhaustive.
There may be many more situations where a transaction can be
collateral to the transaction which affects the immovable property.
The Courts will have to carefully decide on a case to case basis in
the light of the legal principles contained in the above discussed and
various other judgments holding the field.
A perusal of the above decisions shows that they support the case of
the petitioner herein. The decision in Yellapu Uma Maheswaris case
(supra) is also a case arising out of suit for partition and the opinion of
the Honble Supreme Court is in tune with the opinion expressed by a
Larger Bench of our High Court in Chinnappareddigari Pedda
Muthyalareddys case (supra).
In Vyasashramams case (supra) the point did not arise and it is
not relevant for the purpose of the present case. Moduraboina
Deepikas case (supra) is a case arising out of declaration of title and
delivery of possession. This Court considered the cases of
Chinnappareddigari Pedda Muthyalareddys case (supra) and
Yellapu Uma Maheswaris case (supra) and in the facts of that case
held that the deed of partition and the sale deed are not admissible in
evidence and cannot be relied upon even for collateral purposes. Since it
was a decision rendered on the facts of that case and in the absence of
any contrary to the view taken on the point of law, the principle laid
down in the decisions cited by the petitioner are holding the field and, in
view of the same, the document sought to be relied on by the petitioner
can be looked into for collateral purpose.
Accordingly, the order of the lower Court in I.A.No.1670 of 2016
in O.S.No.298 of 2016 dated 19.01.2017 is set aside and the Civil
Revision Petition is allowed for permitting the petitioner to produce the
document for the purpose of collateral purpose. There shall be no order
as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in
this Civil Revision Petition shall stand closed.
__________________________
A.RAMALINGESWARA RAO, J
Date: 12th July 2017