REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8441 OF 2015
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 12788 OF 2014
YELLAPU UMA MAHESWARI & ANR. ...APPELLANTS
VERSUS
BUDDHA JAGADHEESWARARAO & ORS. ...RESPONDENTS
J U D G M E N T
N.V. RAMANA, J.
Leave granted.
2. This Appeal has been preferred aggrieved by the orders passed by the
High Court of Judicature of Andhra Pradesh in CRP No. 3419 of 2013, dt.
27/12/2013 wherein and whereby the learned Judge has dismissed the Revision
Petition preferred by the Appellants/Defendant Nos. 1 & 2 by confirming the
orders passed in O. S No. 10 of 2004, dt. 08/07/2013 on the file of
Principal Senior Civil Judge, Anakapalle.
3. The brief facts which are necessary for adjudicating the dispute
involved in the present appeal, in nutshell, are as follows.
4. The 1st respondent/plaintiff filed O.S No. 10 of 2004 on the file of
Senior Civil Judge Court, Anakapalle against the appellants and others for
the relief of partition claiming ¼th share in Item No. 1, ½ share in Item
No. 2 of the suit schedule properties.
5. It is the specific case of the1st respondent/plaintiff that one
Jaggayya, who is the foster father of the plaintiff, had acquired certain
properties during his life time and executed a Registered Will dt.
22/05/1964 in a sound and disposing state of mind bequeathing his immovable
properties in favour of the plaintiff/respondent and 1st
defendant/appellant No.1 by giving life estate in favour of his wife
Mahalakshmamma, and the said Mahalakshmamma died on 20/05/2001, as such
plaintiff/respondent No.1 and the defendant Nos.1 & 2/appellants became
entitled to the plaint Schedule properties in equal shares. On his demand,
when the defendants failed to partition the properties by giving him his
legitimate right, he has approached the Court by filling the above suit.
6. The appellants herein (Defendant Nos.1 & 2) resisting the plea of
the plaintiff/respondent No.1 filed the written statement that appellant
No. 1 being the sister’s daughter of Mahalakshamma and the
plaintiff/respondent No. 1 who is the sister’s son of late Jaggayya were
treated as foster son and daughter as Jaggayya had no issues. In the year
1969 properties were partitioned between the parties. The
plaintiff/respondent No. 1, in spite of having his share in the properties,
taking advantage of appellant No.1’s innocence and helplessness, has taken
other properties which are not allotted to him, having no other go she
(appellant No.1) kept quiet. According to the defendants/appellants, after
the partition they have been enjoying the properties fell to their
respective shares. It is their further case that on 05-6-1975
plaintiff/respondent No.1 and the first defendant/appellant No. 1 got
executed the Deed of Memorandum of earlier partition. Both the
plaintiff/respondent No.1 and the 1st defendant/appellant No.1 were given
pattadar passbooks and title deeds in respect of properties fell to their
share and in fact, the plaintiff/respondent No.1 has alienated some of his
properties. Mahalakshsamma in a sound and disposing state of mind executed
a Registered Will dated 27/03/1999 bequeathing all the properties in favour
of 1st defendant/appellant No.1. Further, Mahalkshamma has given away her
life estate in favour of appellant No.1/defendant No.1 and the
plaintiff/respondent No.1. Hence, it is pleaded that as properties were
already partitioned in the year 1969, the question of again partitioning
the properties does not arise and sought for dismissal of the Suit.
7. The appellant No.1/defendant No.1 filed her chief examination
affidavit and sought to mark Exhibits B1 to B 48.The plaintiff/respondent
No.1 raised objection with regard to admissibility of Exhibits B-21 and B-
22. Exhibit B-21, dated 05/06/1975 according to the defendant/appellant is
Deed of Memorandum witnessing earlier partition effected between the
plaintiff/respondent No.1 and the defendant No.1/appellant No.1. Exhibit
B-22 is the Agreement dated 04/06/1975 entered between Late Mahalakshammma,
plaintiff/respondent No.1 and the defendant No.1/appellant No.1.
8. The plaintiff/respondent No.1 took objection with regard to
admissibility of Exhibits B-21 and B-22 on the ground that whole contents
referred to in the Memorandum dated 05/6/1975 discloses that the second
party thereto relinquished her right through the said documents.
Therefore, the Agreement dated 04/06/1975 and Memorandum dated 05/06/1975
have to be construed as relinquishment deeds. A relinquishment deed which
is compulsorily registerable document under Sec 17 (b) of the Registration
Act, 1908 and hence, the unregistered document is not admissible in
evidence. The plea of the defendants is that the recitals of the said
document discloses past transaction with reference to division of property
and further it discloses the intention of the parties to enter into a
separate agreement for sharing the properties and that the terms therein
have to be implemented in future.
9. Both the Trial Court and the High Court upheld the objection raised
by the plaintiff/respondent No.1 and came to a conclusion that two recitals
i.e. Exhibit B21 and Exhibit B22 are not evidencing the past transaction,
but they prima facie disclose the partition of the property and
relinquishment of rights by one of the parties. As such, both documents
require stamp duty under the Indian Stamp Act, 1899 and registration under
the Registration Act, 1908. As Exhibits B21 and B22 are unregistered and
unstamped documents, they are not admissible in evidence. The Trial Court
gave a specific finding that even both the exhibits are not admissible for
collateral purpose also. Aggrieved by that, the present appeal is filed.
10. We have heard the learned senior counsel for the
appellants/defendant Nos.1& 2 and the learned counsel for the
respondents/plaintiff.
11. It is urged by the learned senior counsel Mr. V. V. S. Rao that
Exhibits B21 and B22 are admissible in evidence as both the documents
evidence the past transaction which does not require any registration and
both the Courts below erred in coming to a conclusion that Exts B21 and B22
require registration ignoring the true nature of the documents. It is urged
that the amendment that is brought to the Registration Act in 1986, whereby
even the past transaction becomes registerable and the same is not
applicable to Exhibits B21 and B22. It is further urged by the learned
senior counsel that even assuming that Exhibits B21 and B22 require
registration, still the unregistered documents are admissible in evidence
for collateral purpose.
12. The learned counsel Mr. G.V.R. Choudary, appearing for the
respondents, on the other hand, has submitted that the Courts below were
perfectly right in coming to a conclusion that Exhibits B21 and B22 are
compulsorily registerable documents and prayed for dismissal of the Suit.
13. Now the issue that falls for consideration is:
Whether the Courts below were right in holding that Exhibits B21 and B22
are not admissible in evidence as they are compulsorily registerable
documents?
Whether Exhibits B-21 and 22 are admissible in evidence for collateral
purpose?
14. Before we go in to the merits of the matter, we deem it appropriate
to extract the relevant provisions of the Registration Act, 1908.
Sec. 17 of the Registration Act, 1908
Documents of which registration is compulsory.— (l) The following
documents shall be registered, if the property to which they relate is
situate in a district in which, and if they have been executed on or after
the date on which, Act No. XVI of 1864, or the Registration Act, 1866, or
the Registration Act, 1871, or the Registration Act, 1877, or this Act came
or comes into force, namely:—
(a) Instruments of gift of immovable property;
(b) other 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;
(c) non-testamentary instruments which acknowledge the receipt or payment
of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and
(d) leases of immovable property;
(e) non-testamentary instruments transferring or assigning any decree or
order of a Court or any award when such decree or order or award purports
or operates 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:
(f) any decree or order or award or a copy thereof passed by a Civil
Court on consent of the defendants or on circumstantial evidence but not on
the basis of any instrument which is admissible in evidence under section
35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed
produced by the plaintiff, where such decree or order or award purports or
operate to create, declare, assign, limit, 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; and
(g) agreement of sale of immovable property of the value of one hundred
rupee and upwards”,
Provided that the State Government may, by order published in the Official
Gazette, exempt from the operation of this sub-section any lease executed
in any district, or part of a district, the terms granted by which do not
exceed five years and the annual rents reserved by which do not exceed
fifty rupees.
Section 49 of the Registration Act,1908
Effect of non-registration of documents required to be registered.— No
document required by section 17 or by any provision of the Transfer of
Property Act, 1882 ( 4 of 1882), to be registered shall—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt; or
(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 (4 of 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 (3
of 1877) or as evidence of any collateral transaction not required to be
effected by registered instrument.
15. Section 17 (1) (b) of the Registration Act mandates that any
document which has the effect of creating and taking away the rights in
respect of an immovable property must be registered and Section 49 of the
Act imposes bar on the admissibility of an unregistered document and deals
with the documents that are required to be registered u/s 17 of the Act.
16. Coming to the facts on hand, the defendant No.1 wanted to mark
Exhibits B21 and B22, according to her, these two documents are Agreement
and a Memorandum which were unregistered and unstamped documents and do not
require registration. We have seen Exhibits B21 and B22 which are placed
before us. Exhibit B22, dated 04/06/1975 as per the recitals, an Agreement
between the plaintiff/respondent No.1, defendant No.1/appellant No.1 and
late MahaLakshmamma. Clause 1 of the Agreement speaks about relinquishment
of rights of Mahalakshmamma in favour of plaintiff/respondent No. 1 and
defendant No.1/appellant No. 1 and Clause 4 specifies that the life estate
of Mahalakshamama is devolved upon the plaintiff/respondent No.1 and the
defendant No.1/appellant No.1 equally. It is further specified that the
stock amount of Rs 50,000/- in the shop was given to Mahalakashamma and
left over amount will be divided between plaintiff/respondent No.1 and
defendant No.1/appellant No.1 and further it was agreed upon that
Mahalakahamma was entitled to reside in the house where she was residing.
She was at liberty to reside in the house of the plaintiff/respondent No. 1
and the plaintiff/respondent No.1 and the defendant No.1/appellant No.1
shall not raise any dispute over this. Coming to Exhibit B21, date
05/06/1975 which is an agreement between Mahalakashmma,
plaintiff/respondent No.1 and defendant No.1/appellant No.1 wherein at
Clauses 4 to 6 the recitals pertain to relinquishment of shares between the
parties to the agreement. It is stated in the Memorandum, Ext. B 22, that
each of them having partitioned the properties by good and bad qualities,
have been enjoying the respective properties that fell to their shares, in
proof thereof, the Deed of Memorandum is executed. Taking us through the
recitals of these two documents, the learned senior counsel tried to
impress upon this Court particularly through the last few lines from
Exhibit B-21, that these documents are only evidencing the past transaction
of partition that has taken place but through these documents no rights in
immovable property have accrued to the parties as envisaged under Sec. 17
of the Registration Act and which makes these documents out of the purview
of Section 49 of the Registration Act.
17. It is well settled that the nomenclature given to the document is
not decisive factor but the nature and substance of the transaction has to
be determined with reference to the terms of the documents and that the
admissibility of a document is entirely dependent upon the recitals
contained in that document but not on the basis of the pleadings set up by
the party who seeks to introduce the document in question. A thorough
reading of both Exhibits B-21 and B-22 makes it very clear that there is
relinquishment of right in respect of immovable property through a document
which is compulsorily registerable document and if the same is not
registered, becomes an inadmissible document as envisaged under Section 49
of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents
which squarely fall within the ambit of section 17 (i) (b) of the
Registration Act and hence are compulsorily registerable documents and the
same are inadmissible in evidence for the purpose of proving the factum of
partition between the parties. We are of the considered opinion that
Exhibits B 21 and B22 are not admissible in evidence for the purpose of
proving primary purpose of partition.
18. Then the next question that falls for consideration is whether
these can be used for any collateral purpose. The larger Bench of Andhra
Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa
Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole
process of partition contemplates three phases i.e. severancy of status,
division of joint property by metes and bounds and nature of possession of
various shares. In a suit for partition, an unregistered document can be
relied upon for collateral purpose i.e. severancy of title, nature of
possession of various shares but not for the primary purpose i.e. division
of joint properties by metes and bounds. An unstamped instrument is not
admissible in evidence even for collateral purpose, until the same is
impounded. Hence, if the appellants/defendants want to mark these documents
for collateral purpose it is open for them to pay the stamp duty together
with penalty and get the document impounded and the Trial Court is at
liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to
proof and relevance.
19. Accordingly, Civil Appeal is partly allowed holding that Exhibits
B-21 and B-22 are admissible in evidence for collateral purpose subject to
payment of stamp duty, penalty, proof and relevancy.
..................................J.
(RANJAN GOGOI)
……………................J.
(N.V. RAMANA)
New Delhi,
October 08, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8441 OF 2015
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 12788 OF 2014
YELLAPU UMA MAHESWARI & ANR. ...APPELLANTS
VERSUS
BUDDHA JAGADHEESWARARAO & ORS. ...RESPONDENTS
J U D G M E N T
N.V. RAMANA, J.
Leave granted.
2. This Appeal has been preferred aggrieved by the orders passed by the
High Court of Judicature of Andhra Pradesh in CRP No. 3419 of 2013, dt.
27/12/2013 wherein and whereby the learned Judge has dismissed the Revision
Petition preferred by the Appellants/Defendant Nos. 1 & 2 by confirming the
orders passed in O. S No. 10 of 2004, dt. 08/07/2013 on the file of
Principal Senior Civil Judge, Anakapalle.
3. The brief facts which are necessary for adjudicating the dispute
involved in the present appeal, in nutshell, are as follows.
4. The 1st respondent/plaintiff filed O.S No. 10 of 2004 on the file of
Senior Civil Judge Court, Anakapalle against the appellants and others for
the relief of partition claiming ¼th share in Item No. 1, ½ share in Item
No. 2 of the suit schedule properties.
5. It is the specific case of the1st respondent/plaintiff that one
Jaggayya, who is the foster father of the plaintiff, had acquired certain
properties during his life time and executed a Registered Will dt.
22/05/1964 in a sound and disposing state of mind bequeathing his immovable
properties in favour of the plaintiff/respondent and 1st
defendant/appellant No.1 by giving life estate in favour of his wife
Mahalakshmamma, and the said Mahalakshmamma died on 20/05/2001, as such
plaintiff/respondent No.1 and the defendant Nos.1 & 2/appellants became
entitled to the plaint Schedule properties in equal shares. On his demand,
when the defendants failed to partition the properties by giving him his
legitimate right, he has approached the Court by filling the above suit.
6. The appellants herein (Defendant Nos.1 & 2) resisting the plea of
the plaintiff/respondent No.1 filed the written statement that appellant
No. 1 being the sister’s daughter of Mahalakshamma and the
plaintiff/respondent No. 1 who is the sister’s son of late Jaggayya were
treated as foster son and daughter as Jaggayya had no issues. In the year
1969 properties were partitioned between the parties. The
plaintiff/respondent No. 1, in spite of having his share in the properties,
taking advantage of appellant No.1’s innocence and helplessness, has taken
other properties which are not allotted to him, having no other go she
(appellant No.1) kept quiet. According to the defendants/appellants, after
the partition they have been enjoying the properties fell to their
respective shares. It is their further case that on 05-6-1975
plaintiff/respondent No.1 and the first defendant/appellant No. 1 got
executed the Deed of Memorandum of earlier partition. Both the
plaintiff/respondent No.1 and the 1st defendant/appellant No.1 were given
pattadar passbooks and title deeds in respect of properties fell to their
share and in fact, the plaintiff/respondent No.1 has alienated some of his
properties. Mahalakshsamma in a sound and disposing state of mind executed
a Registered Will dated 27/03/1999 bequeathing all the properties in favour
of 1st defendant/appellant No.1. Further, Mahalkshamma has given away her
life estate in favour of appellant No.1/defendant No.1 and the
plaintiff/respondent No.1. Hence, it is pleaded that as properties were
already partitioned in the year 1969, the question of again partitioning
the properties does not arise and sought for dismissal of the Suit.
7. The appellant No.1/defendant No.1 filed her chief examination
affidavit and sought to mark Exhibits B1 to B 48.The plaintiff/respondent
No.1 raised objection with regard to admissibility of Exhibits B-21 and B-
22. Exhibit B-21, dated 05/06/1975 according to the defendant/appellant is
Deed of Memorandum witnessing earlier partition effected between the
plaintiff/respondent No.1 and the defendant No.1/appellant No.1. Exhibit
B-22 is the Agreement dated 04/06/1975 entered between Late Mahalakshammma,
plaintiff/respondent No.1 and the defendant No.1/appellant No.1.
8. The plaintiff/respondent No.1 took objection with regard to
admissibility of Exhibits B-21 and B-22 on the ground that whole contents
referred to in the Memorandum dated 05/6/1975 discloses that the second
party thereto relinquished her right through the said documents.
Therefore, the Agreement dated 04/06/1975 and Memorandum dated 05/06/1975
have to be construed as relinquishment deeds. A relinquishment deed which
is compulsorily registerable document under Sec 17 (b) of the Registration
Act, 1908 and hence, the unregistered document is not admissible in
evidence. The plea of the defendants is that the recitals of the said
document discloses past transaction with reference to division of property
and further it discloses the intention of the parties to enter into a
separate agreement for sharing the properties and that the terms therein
have to be implemented in future.
9. Both the Trial Court and the High Court upheld the objection raised
by the plaintiff/respondent No.1 and came to a conclusion that two recitals
i.e. Exhibit B21 and Exhibit B22 are not evidencing the past transaction,
but they prima facie disclose the partition of the property and
relinquishment of rights by one of the parties. As such, both documents
require stamp duty under the Indian Stamp Act, 1899 and registration under
the Registration Act, 1908. As Exhibits B21 and B22 are unregistered and
unstamped documents, they are not admissible in evidence. The Trial Court
gave a specific finding that even both the exhibits are not admissible for
collateral purpose also. Aggrieved by that, the present appeal is filed.
10. We have heard the learned senior counsel for the
appellants/defendant Nos.1& 2 and the learned counsel for the
respondents/plaintiff.
11. It is urged by the learned senior counsel Mr. V. V. S. Rao that
Exhibits B21 and B22 are admissible in evidence as both the documents
evidence the past transaction which does not require any registration and
both the Courts below erred in coming to a conclusion that Exts B21 and B22
require registration ignoring the true nature of the documents. It is urged
that the amendment that is brought to the Registration Act in 1986, whereby
even the past transaction becomes registerable and the same is not
applicable to Exhibits B21 and B22. It is further urged by the learned
senior counsel that even assuming that Exhibits B21 and B22 require
registration, still the unregistered documents are admissible in evidence
for collateral purpose.
12. The learned counsel Mr. G.V.R. Choudary, appearing for the
respondents, on the other hand, has submitted that the Courts below were
perfectly right in coming to a conclusion that Exhibits B21 and B22 are
compulsorily registerable documents and prayed for dismissal of the Suit.
13. Now the issue that falls for consideration is:
Whether the Courts below were right in holding that Exhibits B21 and B22
are not admissible in evidence as they are compulsorily registerable
documents?
Whether Exhibits B-21 and 22 are admissible in evidence for collateral
purpose?
14. Before we go in to the merits of the matter, we deem it appropriate
to extract the relevant provisions of the Registration Act, 1908.
Sec. 17 of the Registration Act, 1908
Documents of which registration is compulsory.— (l) The following
documents shall be registered, if the property to which they relate is
situate in a district in which, and if they have been executed on or after
the date on which, Act No. XVI of 1864, or the Registration Act, 1866, or
the Registration Act, 1871, or the Registration Act, 1877, or this Act came
or comes into force, namely:—
(a) Instruments of gift of immovable property;
(b) other 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;
(c) non-testamentary instruments which acknowledge the receipt or payment
of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and
(d) leases of immovable property;
(e) non-testamentary instruments transferring or assigning any decree or
order of a Court or any award when such decree or order or award purports
or operates 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:
(f) any decree or order or award or a copy thereof passed by a Civil
Court on consent of the defendants or on circumstantial evidence but not on
the basis of any instrument which is admissible in evidence under section
35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed
produced by the plaintiff, where such decree or order or award purports or
operate to create, declare, assign, limit, 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; and
(g) agreement of sale of immovable property of the value of one hundred
rupee and upwards”,
Provided that the State Government may, by order published in the Official
Gazette, exempt from the operation of this sub-section any lease executed
in any district, or part of a district, the terms granted by which do not
exceed five years and the annual rents reserved by which do not exceed
fifty rupees.
Section 49 of the Registration Act,1908
Effect of non-registration of documents required to be registered.— No
document required by section 17 or by any provision of the Transfer of
Property Act, 1882 ( 4 of 1882), to be registered shall—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt; or
(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 (4 of 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 (3
of 1877) or as evidence of any collateral transaction not required to be
effected by registered instrument.
15. Section 17 (1) (b) of the Registration Act mandates that any
document which has the effect of creating and taking away the rights in
respect of an immovable property must be registered and Section 49 of the
Act imposes bar on the admissibility of an unregistered document and deals
with the documents that are required to be registered u/s 17 of the Act.
16. Coming to the facts on hand, the defendant No.1 wanted to mark
Exhibits B21 and B22, according to her, these two documents are Agreement
and a Memorandum which were unregistered and unstamped documents and do not
require registration. We have seen Exhibits B21 and B22 which are placed
before us. Exhibit B22, dated 04/06/1975 as per the recitals, an Agreement
between the plaintiff/respondent No.1, defendant No.1/appellant No.1 and
late MahaLakshmamma. Clause 1 of the Agreement speaks about relinquishment
of rights of Mahalakshmamma in favour of plaintiff/respondent No. 1 and
defendant No.1/appellant No. 1 and Clause 4 specifies that the life estate
of Mahalakshamama is devolved upon the plaintiff/respondent No.1 and the
defendant No.1/appellant No.1 equally. It is further specified that the
stock amount of Rs 50,000/- in the shop was given to Mahalakashamma and
left over amount will be divided between plaintiff/respondent No.1 and
defendant No.1/appellant No.1 and further it was agreed upon that
Mahalakahamma was entitled to reside in the house where she was residing.
She was at liberty to reside in the house of the plaintiff/respondent No. 1
and the plaintiff/respondent No.1 and the defendant No.1/appellant No.1
shall not raise any dispute over this. Coming to Exhibit B21, date
05/06/1975 which is an agreement between Mahalakashmma,
plaintiff/respondent No.1 and defendant No.1/appellant No.1 wherein at
Clauses 4 to 6 the recitals pertain to relinquishment of shares between the
parties to the agreement. It is stated in the Memorandum, Ext. B 22, that
each of them having partitioned the properties by good and bad qualities,
have been enjoying the respective properties that fell to their shares, in
proof thereof, the Deed of Memorandum is executed. Taking us through the
recitals of these two documents, the learned senior counsel tried to
impress upon this Court particularly through the last few lines from
Exhibit B-21, that these documents are only evidencing the past transaction
of partition that has taken place but through these documents no rights in
immovable property have accrued to the parties as envisaged under Sec. 17
of the Registration Act and which makes these documents out of the purview
of Section 49 of the Registration Act.
17. It is well settled that the nomenclature given to the document is
not decisive factor but the nature and substance of the transaction has to
be determined with reference to the terms of the documents and that the
admissibility of a document is entirely dependent upon the recitals
contained in that document but not on the basis of the pleadings set up by
the party who seeks to introduce the document in question. A thorough
reading of both Exhibits B-21 and B-22 makes it very clear that there is
relinquishment of right in respect of immovable property through a document
which is compulsorily registerable document and if the same is not
registered, becomes an inadmissible document as envisaged under Section 49
of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents
which squarely fall within the ambit of section 17 (i) (b) of the
Registration Act and hence are compulsorily registerable documents and the
same are inadmissible in evidence for the purpose of proving the factum of
partition between the parties. We are of the considered opinion that
Exhibits B 21 and B22 are not admissible in evidence for the purpose of
proving primary purpose of partition.
18. Then the next question that falls for consideration is whether
these can be used for any collateral purpose. The larger Bench of Andhra
Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa
Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole
process of partition contemplates three phases i.e. severancy of status,
division of joint property by metes and bounds and nature of possession of
various shares. In a suit for partition, an unregistered document can be
relied upon for collateral purpose i.e. severancy of title, nature of
possession of various shares but not for the primary purpose i.e. division
of joint properties by metes and bounds. An unstamped instrument is not
admissible in evidence even for collateral purpose, until the same is
impounded. Hence, if the appellants/defendants want to mark these documents
for collateral purpose it is open for them to pay the stamp duty together
with penalty and get the document impounded and the Trial Court is at
liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to
proof and relevance.
19. Accordingly, Civil Appeal is partly allowed holding that Exhibits
B-21 and B-22 are admissible in evidence for collateral purpose subject to
payment of stamp duty, penalty, proof and relevancy.
..................................J.
(RANJAN GOGOI)
……………................J.
(N.V. RAMANA)
New Delhi,
October 08, 2015
