D Prabhavathamma vs D Kavitha
2024 Latest Caselaw 3721 AP

Andhra Pradesh High Court - Amravati

D Prabhavathamma vs D Kavitha on 1 May, 2024

APHC010045902023
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                AT AMARAVATI                  [3311]
                          (Special Original Jurisdiction)

                   WEDNESDAY, THE FIRST DAY OF MAY
                   TWO THOUSAND AND TWENTY FOUR

                                PRESENT

          THE HONOURABLE MS JUSTICE B S BHANUMATHI

                   CIVIL REVISION PETITION NO: 261/2023

Between:

D Prabhavathamma and Others                         ...PETITIONER(S)

                                  AND

D Kavitha                                            ...RESPONDENT

Counsel for the Petitioners:
   Sri    O UDAYA KUMAR

Counsel for the Respondent:

   Sri    MAHESWARA RAO KUNCHEAM

The Court made the following:
                                       2
                                                                           BSB, J
                                                            C.R.P.No.261 of 2023

O R D E R:

This revision is filed against the docket order, dated 20.10.2022,

passed in O.S.No.586 of 2018 on the file of the Court of the I Additional

Junior Civil Judge, Tirupati, by which the unregistered gift settlement

deed, dated 31.03.1987, was held to be not admissible in evidence for

collateral purpose.

2. Heard the learned counsel for the parties.

3. The suit was filed for declaration of the right of the plaintiffs in the

pathway shown as plaint 'B' schedule property, i.e., CEFG in the plaint

rough sketch and for directing the defendant to remove the unauthorized

structure made in the said pathway. The case of the plaintiffs is that the

plaint 'A' schedule property was gifted to D. Varadaraja Naidu, who is the

husband of the 1st plaintiff and father of plaintiffs 2 & 3 under the gift

settlement deed, dated 31.03.1987, and that a right to pass through the

'B' schedule property of 5 feet width east to west and 52 ½ feet length

north to south which is adjacent to plaint 'A' schedule property is created

under the said document. But, the father of the defendant, by name,

D.Devarajulu, got prepared a registered partition deed, dated 12.02.1990,

by mentioning wrong measurements of plaint 'B' schedule property, and

taking advantage of the same, the defendant was making illegal

constructions over the plaint 'B' schedule property. The defendant

resisted the suit admitting the existence of the joint lane but confining to

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the measurements as per partition deed, dated 12.02.1990, and disputing

the gift settlement deed.

4. At the time of marking of the documents, an objection was raised

by the trial Court to receive the gift settlement deed in evidence.

5. The learned counsel for the plaintiffs submitted that though the said

deed is unregistered, it can be received in evidence for collateral purpose.

Placing reliance on the decision of the Supreme Court in Bondar Singh

and others Vs. Nihal Singh and others1 and the decision of the High

Court of Judicature at Hyderabad in C.Bhupal Reddy and others Vs.

Rahamathulla Pasha (died) and others2, the trial Court noted that these

decisions are to the effect that the unregistered document can be

received in evidence to prove possession of the party to the proceedings

over the schedule property, but it cannot be received for the purpose of

proving the title to the property and whereas, in the present case, the

plaintiffs rely on this document to prove measurements of the lands in

dispute and so, the said document cannot be received in evidence for

collateral purpose.

6. Aggrieved by the order, this revision petition is preferred.

AIR 2003 SC 1905

2018 (5) ALT 611

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7. The learned counsel for the revision petitioners referred to the

decision of this Court in K. Ramamoorthi Vs. C.Surendranatha Reddy3,

wherein after considering the numerous number of decisions on this

aspect, the High Court held at paragraph Nos.29 & 30 which read as

follows:

"29. On a compendious reference of the case law discussed above, the followings 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.

2012 (6) Andh LD 163

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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.

30. 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 Jaji Muhammad Umar and another (AIR 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 MANU/MH/0030/1919 : 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,

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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 Vs. Jeevaratnamma, 43 Madras 244 (PC) (supra)).

(e) A sale deed of immovable property requiring registration but not registered can be used to show nature of possession (Radhomal Alumal (supra), Bondar Singh (supra) and A. Kishore @ Kantha Rao Vs. G. Srinivasulu (2004(2) An.W.R 1 (AP) (DB))."

He has drawn the attention of this Court to point No.(d) in para No.30 and

contended that the document in question now can be raised for collateral

purpose of establishing the nature of possession. He has also referred to

the decision of the Supreme Court in K.B. Saha & Sons Pvt. Ltd. Vs.

Development Consultant Ltd. (2008(8) SCC 564), wherein an

registered lease deed was the subject matter in that case and the phrase

'collateral transaction/purpose was discussed at paras 33 & 34 which

runs as follows:

"33. In the case of Rana Vidya Bhushan Singh v. Ratiram (1969) 1 UJ 86 (SC), the following has been laid down:

"A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189:"

'The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa,

BSB, J

Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."

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."

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8. The learned counsel for the respondent opposed the petition and

supported the observation of the trial Court.

9. The admissibility of a document in evidence is subject to the

requirements of registration and stamp duty. There is no dispute that the

document proposed to be filed by the plaintiffs is a gift settlement deed

and that it requires registration and stamp duty more than what is

collected on the said document. However, it is the contention of the

plaintiffs that by virtue of the proviso to Section 49 of the Registration Act,

the document can be admitted in evidence for the purpose of collateral

transaction, and therefore, for the limited purpose of collateral transaction,

the same can be admitted in evidence. It is settled law that even for the

purpose of evidencing collateral transaction, the stamp duty on the

document has to be paid along with penalty and thereafter, the document

can be admitted in evidence for the limited extent of proof of collateral

transaction which by itself also does not require registration.

10. Here, the plaintiffs have not so far expressed their readiness to pay

the deficit stamp duty and penalty without payment of which the

document cannot be admitted in evidence. Moreover, even if they are

ready to pay so, the plaintiffs have to indicate the collateral transaction for

the proof of which they want to rely on. The plaintiffs did not disclose

such purpose and merely used a broad term 'collateral purpose'. As

rightly held by the trial Court, the plaintiffs rely on this document to

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establish the measurements of the pathway over which they make a claim

of right. The main relief in the suit is also for declaration of their right over

the pathway. For the said purpose, they intend to file this document. As

such, for the purpose of establishing a right over a certain property by

virtue of this document, it cannot be said that it is a collateral transaction.

Claiming a right by virtue of a document amounts to the main purpose.

Therefore, in the present case, the trial Court has rightly did not admit the

document in evidence. It further held that it cannot be admitted in

evidence even for collateral purpose. Even in respect of this observation

also, obviously there is no error since the deficit stamp duty and penalty

have not been collected so far on the document. For all the above

reasons, this Court does not see any reason to interfere with the order

impugned in the revision. However, if the petitioner intends to use it for

proof of any collateral transaction other than claim for right, which does

not require registration, it is open to use the said document on payment of

necessary stamp duty and penalty.

11. In the result, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

__________________ B.S.BHANUMATHI, J 01-05-2024 RAR