Bombay High Court
Ketan Dilip Shah And Ors vs Chandrakant Kantilal Shah Decd Thru ... on 28 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:14585
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3289 OF 2025
Ketan Dilip Shah and Others ...Petitioners
vs.
Chandrakant Kantilal Shah and Others ...Respondent
Mr. Rubin Vakil i/b. Mr. Gaurang Jhaveri, for the Petitioners.
Mr. Sharan Jagtiani, Senior Advocate a/w. Mr. Siddharth Joshi, Mr.
Prasanna Tare, Ms. Sankalpita Mullick, for Respondent Nos. 1 to 4
and 8 to 10.
Mr. Kunal Vajani a/w. Mr. Shubhang Tandan and Ms. Akshada
Shetye, for Respondent No. 26.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 18 MARCH, 2025
PRONOUNCED ON : 28 MARCH 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and with the consent of
the counsels for the parties, heard finally.
2. A short question of the admissibility of copies of unregistered
sale deed and confirmation deeds which were subsequently
executed and registered in relation to such unregistered sale deed
arises for consideration, in this petition.
3. A group of seven persons allegedly acquired immovable
properties admeasuring 312 Acres and 19 ½ Gunthas of land
situated at village Khari, Taluka and District Thane. It is alleged,
the legal heirs of one of the co-owners namely Kantilal Smanilal
Sonawala created third party rights in the said properties (the suit
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property) without knowledge and notice to the other co-owners.
Resultantly, three suits came to be filed amongst the same set of
parties representing the seven co-owners.
4. In Special Civil Suit No. 776 of 2011, while the evidence of
defendant Nos. 11 to 13 was being recorded, the defendants
tendered photostat copies of the unregistered sale deed executed by
all the co-owners in favour of Shrikanti Cooperative Housing
Society Limited and Shreepal Cooperative Housing Society Limited,
which were purportedly formed by the co-owners to develop the suit
properties, construct buildings thereon and sale the flats and
commercial premises therein. The defendant Nos. 11 to 13 further
claimed, in the year 1998 two confirmation deeds dated 12th May,
1988 and 11th May, 1988 were executed in favour of Shrikanti CHS
and Shreepal CHS confirming the said unregistered sale deeds
dated 29th March, 1972. Those confirmation deeds were duly
registered and subsequent thereto, a deed of rectification was
executed on 2nd April, 2004 to correct the description of the
property.
5. When the defendants No. 11 to 13 sought to tender those
instruments in evidence, the plaintiff as well as defendant Nos. 2 to
4 and 8 to 10 raised objection to the admissibility of said
documents. Initially the learned Civil Judge ruled that, the
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documents may be taken on record keeping open the issue of
admissibility of the documents at the time of final adjudication of
the suit. However, the plaintiff and other co-defendants insisted for
the determination of the question of admissibility of the document
before adducing further evidence.
6. Thus, by an order dated 3rd February, 2025, the learned Civil
Judge ruled that the copies of the Conveyance Deeds dated 29 th
March, 1972 cannot be admitted in evidence as those conveyances
were unregistered and they cannot be looked into even for collateral
purposes. Secondly, it appeared that those instruments were
scribed on papers insufficiently stamped. The notification dated 30 th
October, 1972 issued under section 42 of the Maharashtra
Cooperative Societies Act, 1960 had no retrospective operation and
thus the stamp duty was not exempted.
7. As regards the Deeds of Confirmation and Rectification Deed,
the learned Civil Judge was of the view that since the main
instruments i.e. Deeds of Conveyance can not be admitted in
evidence, the Deeds of Confirmation and Rectification Deed,
executed after long lapse of time, can not be also admitted in
evidence. Reference was made to to a circular issued by the
Registrar General and Controller of Stamps on 22 nd December, 2011,
not to register such Confirmation Deeds.
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8. Being aggrieved defendant Nos. 11 to 13 have approached this
Court.
9. I have heard Mr. Rubin Vakil, the learned counsel for the
petitioners, Mr. Sharan Jagtiani, the learned senior Advocate, for
respondent Nos. 1 to 4 and 8 to 10, and Mr. Kunal Vajani, learned
counsel for respondent No. 26, at some length.
10. Mr. Vakil, the learned counsel for the petitioners, submitted
that the learned Civil Judge did not properly appreciate the nature
and import of the bar contained in section 49 of the Registration
Act, 1908 (the Act). Under the proviso to section 49 of the Act, an
unregistered document may be received as evidence of any
collateral transaction not required to be effected by registered
instrument. Since the Deeds of Conveyance are not registered,
those instruments can not evidence the transfer of the suit
properties in favour of two cooperative housing societies. However,
those instruments can be received in evidence to show the nature of
the ownership and the then understanding between the parties as
regards the title to the suit property. Thus, the learned Civil Judge
unjustifiably discarded those instruments. To this end, Mr. Vakil
placed reliance on the judgments of the Supreme Court in the cases
of S. Kaladevi V/s. V.R.Somasundaram and Ors.1 and Korukonda
Chalapathi Rao and Anr. V/s. Korukonda Annapurna Sampath
1 (2010) 5 SCC 401
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Kumar2.
11. Mr. Vakil further urged that the refusal to receive the
Confirmation Deeds which are duly executed and registered was
wholly unjustifiable. Whether those Confirmation Deeds have any
bearing on the rights and liabilities of the parties would be a matter
for adjudication at the trial. However, the trial Court was not
justified in shutting out the said instruments on the count that the
Deed of Conveyance, they referred to, were not registered.
12. Mr. Vakil submitted that the aspect of stamp duty on the
Deeds of Conveyance was also not correctly appreciated. In fact,
there is a prior Notification which exempted the payment of stamp
duty on the conveyances in favour of the Cooperative Housing
Society. Mr. Vakil, however, fairly conceded that the said
notification issued in the year 1939 was not produced before the
learned Civil Judge.
13. Mr. Jagtiani, learned Senior Advocate for the respondents,
supported the impugned order. It was submitted that in view of the
law laid down by the Full Bench of this Court in the case of
Hemendra Rasiklal Ghia vs. Subodh Mody3, since the objection
related to the very admissibility of the document for want of
registration and insufficiency of stamp duty, the objection was
2 (2022) 15 SCC 475
3 (2008) 6 Mah.L.J. 886 (FB).
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required to be decided the moment the objection was raised without
reserving the question of admissibility of the document until the
final judgment in the case. The learned Civil Judge has thus
followed the correct procedure and, therefore, in exercise of limited
supervisory jurisdiction, this Court would not be justified in
interfering with the ruling on the admissibility of the documents.
Mr. Jagtiani submitted that the perusal of the impugned order
would indicate that all the relevant factors are taken into account
by the learned Judge. By no stretch of imagination the order can be
said to be arbitrary or perverse. Therefore, this Court need not
entertain the petition, urged Mr. Jagtiani.
14. On the merits of the matter, Mr. Jagtiani submitted that since
the Deeds of Conveyance were not tendered for registration within
the period stipulated by sections 23 to 25 of the Registration Act,
those deeds of conveyance, cannot be received as evidence of any
transaction affecting the immovable property comprised therein, in
view of the bar contained in Section 49(c) of the Registration Act,
1908.
15. The endeavour of the defendants to press into service those
Deeds of Conveyance for the purported collateral purpose by
resorting to the proviso to section 49 of the Registration Act, 1908,
cannot be countenanced.
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16. Taking the Court through the affidavit in lieu of examination
in chief of defendant No. 12/1, especially paragraph 6, Mr. Jagtiani
submitted that there is a categorical statement that the suit land
was transferred in the name of two societies under two Deeds of
Conveyances dated 29th March, 1972. Therefore, it was abundantly
clear that those instruments were sought to be tendered as
evidence of transaction of Sale and not for any collateral purposes.
Thus, the learned Judge was fully justified in declining to receive
those instruments in evidence.
17. Mr. Jagtiani further submitted that execution of Confirmation
Deeds after 16 years of the execution of Deeds of Conveyance, and
registration thereof, would not clothe legality and validity on those
Deeds of Conveyance. The learned Civil Judge was, therefore,
perfectly justified in disallowing the endeavour of the defendants to
bring the Deeds of Conveyance on record in an indirect manner.
18. Mr. Jagtiani submitted that the decision of the Supreme Court
in the case of S. Kaladevi vs. V.R. Somasundaram and Ors. (supra) ,
on which reliance was sought to be placed by defendant Nos. 11 to
13, to urge that the Deeds of Conveyance can be admitted in
evidence by making an endorsement, as indicated therein that, they
were admitted as proof of oral agreement of sale under the proviso
to section 49 of the Act, 1908, is not at all applicable to the facts of
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the case as the instant suit is not for specific performance of the
contract. The decision in the said case is restricted to the suit for
specific performance of contract only.
19. Mr. Jagtiani also placed reliance on a judgment of this Court
in the case of Nilkanth Shridhar Thorbole and Anr. vs. Hanumant
Baburao Magar and Others4 wherein this Court repelled the
submission premised on the admissibility of the Sale Deed for the
collateral purpose of establishing longstanding possession of the
plaintiff by observing that the alleged Sale Deed constituted the
substratum of the plaintiff's case on the basis of which the principal
relief of declaration of title was sought. Mr. Jagtiani urged that the
aforesaid pronouncement governs the facts of the case at hand as
the defendant Nos. 11 to 13 are banking upon the Deeds of
Conveyance to assert that the suit property was transferred to the
two Cooperative societies thereunder.
20. Under section 54 of the Transfer of Property Act, 1882, a sale
of immovable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible thing, can
be made only by a registered instrument. The consequences of non-
registration of documents required to be registered either under
section 17 of the Registration Act, 1908 or the Transfer of Property
Act, 1882 are provided in section 49 of the Registration Act, 1908.
4 2021 (5) Mh.L.J. 264.
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In a sense, section 49 of the Registration Act lends sanction to the
mandate of compulsory registration of instrument under section 17
of the Registration Act or the provisions of Transfer of Property
Act, by incorporating disabilities.
21. Section 49 of the Registration Act, 1908 reads as under:-
49. 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 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.
22. Section 49 thus provides that any document which is required
to be registered, but has not been registered, shall not affect any
immovable property comprised therein, nor such document shall be
received as evidence of any transaction affecting such property. The
proviso to section 49, however, removes the disability in specified
cases. Under the proviso, an unregistered document may be
received as an evidence of a contract in a suit for specific
performance or evidence of collateral transaction not required to be
effected by registered instrument.
23. Consequently, by virtue of the proviso, an unregistered Sale
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Deed of an immovable property of the value of rupees hundred and
more can be admitted for two purposes. First - specific, as evidence
of a contract in a suit for specific performance of the contract.
Second - general, as evidence of any collateral transaction not
required to be effected by registered instrument.
24. In the case of K.B. Saha and Sons Private Limited Vs
Development Consultant Limited5, the Supreme Court culled out the
principles regarding the interplay between the main part of Section
49 and the proviso thereto, as under:-
"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." (emphasis supplied)
25. A useful reference can also be made to a three Judge
judgment of the Supreme Court in the case of Bhaiya Ramanuj
Pratap Deo Vs Lalu Maheshanuj Pratap Deo & Ors. 6, wherein the
5 (2008) 8 SCC 564.
6 (1981) 4 SCC 613.
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admissibility of Khorposh (Maintenance Deed) was called in
question as it was an unregistered instrument. The Supreme Court
held that the maintenance deed can be looked into for collateral
purpose of ascertaining the nature of the possession. The
observations in para 22 read as under:
"22 As regards the second reason, the argument is based on Section 17
read with Section 49 of the Indian Registration Act. Section 17 of the
Registration Act enumerates the documents requiring registration. Section
49 of the Registration Act provides that no document required by Section
17 or by any provision of the Transfer of Property Act, 1882 to be
registered shall be (a) affect any immovable property comprised therein,
(b) *** (c) be received as evidence of any transaction affecting such
property or conferring such power, unless it has been registered. Khorposh
(maintenance) deed is a document which requires registration within the
meaning of Section 17 of the Indian Registration Act and as the document
was not registered it cannot be received as evidence of any transaction
affecting such property. Proviso to section 49, however, permits the use of
the document, even though unregistered, as evidence of any collateral
transaction not required to be effected by registered instrument. In this
view of the legal position the maintenance deed can be looked into for
collateral purpose of ascertaining the nature of possession.
(emphasis supplied)
26. In the case of S. Kaladevi (supra), on which reliance was
placed by Mr. Vakil, undoubtedly the suit was instituted for specific
performance of the contract for sale and, in that context, the
Supreme Court enunciated that when an unregistered Sale Deed is
tendered in evidence, not as evidence of a completed sale, but as
proof of an oral agreement of sale, the deed can be received in
evidence making an endorsement that it is received only as
evidence of an oral agreement of sale under the proviso to Section
49 of 1908 Act.
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27. Mr. Jagtiani was justified in canvassing a submission that the
said mode of admission of an unregistered Sale Deed in evidence
would apply where the suit is for specific performance of the
contract. However, it deserves to be noted in paragraph 11 of the
said judgment, the Supreme Court also referred to the exception
carved out by second proviso to section 49 in its general
application, namely, admission of an unregistered instrument, as an
evidence of any collateral transaction not required to be effected by
registered instrument.
28. In the case at hand, it is the later part of the proviso i.e.
admissibility of unregistered Deed of Conveyance as evidence of any
collateral transaction not required to be effected by registered
instrument, that requires consideration.
29. In the case of Korukonda Chalapathi Rao (supra), the
Supreme Court had an occasion to consider the import of the term,
"affect" used in clause (c) and the "collateral transaction" used in
the last limb of the proviso to Section 49. The observations in
paragraphs 25 to 27, 31, 36 and 37 are instructive and hence
extracted below:-
25} The expression 'affect' has been explained by the Full
Bench judgment of the Madras High Court in Muruga
Mudallar and Ors. v. Subba Reddiar, 1950 SCC OnLine
Mad.136. We may notice only the following discussion in the
judgment of Satyanarayana Rao, J.:
"..... ....As pointed out by Spencer J. in
Saraswathamma v. Paddayya, 46 Mad. 349 : (A. I. R.
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1923 Mad. 297) the verb "affect" in Section 49 is only a
compendious term employed by the Legislature to
express the meaning of the longer phrase "purporting
or operating to create, declare, assign, limit or
extinguish, whether in present or in future, any right,
title or interest whether vested or contingent to" (See
also Kanjee & Moolji Bros, v. Shanmugham Pillai, 56
Mad. 169 : (A. I. R. 1932 Mad. 734), where the view of
Spencer J. was accepted)."
26} Section 49(c) of Registration Act prohibits the admitting of
compulsorily registrable documents which are unregistered as
evidence of any transaction affecting immovable property
unless it has been registered. In the very same Judgment, we
notice the following discussion: (Murdga Mudaliar case)
".. ........The other consequence of non-registration is
to prohibit the document from being received not "in"
evidence, but "as" evidence of any transaction
affecting such property. The emphasis on the word
"as" was, in my opinion, rightly laid by Venkatasubba
Rao J. in Saraswathamma v. Paddayya, where the
learned Judge observed:
"What is prohibited by the section is receiving a
document as evidence of a transaction, not merely
receiving it in evidence, i.e., as a piece of evidence
having a bearing on the question to be ultimately
decided."
In other words, the prohibition is to prevent a
person from establishing, by the use of the document
in evidence a "transaction, affecting Immovable
property". A person should not be permitted to establish
indirectly by use of the document what he is prevented from
doing directly under Clause (a)."
27} The proviso carves out two exceptions. We are only
concerned, in this case, with only one of them and that is
contained in the last limb of the proviso. The unregistered
document can be used as evidence of any collateral
transaction. This is however subject to the condition that the
said collateral transaction should not itself be one which must
be effected by a registered document. It is this expression
contained in the proviso which leads us to ask the question as
to what would constitute a collateral transaction. If it were
collateral transaction, then an unregistered document can
indeed be used as evidence to prove the same. Would
possession being enjoyed or the nature of the possession on the
basis of the unregistered document, be a transaction and
further would it be a collateral transaction? We pose this
question as the contention of the appellants is that even if the
Khararunama dated 15.4.1986 cannot be used as evidence to
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prove the factum of relinquishment of right which took place
in the past, the Khararunama can be looked into to prove the
conduct of the parties and the nature of the possession which
was enjoyed by the parties.
31. This is significant for the reason that the law is not that in
every case where a party sets up the plea that the Court may
look into an unregistered documents to show the nature of the
possession that the Court would agree to it. The cardinal
principle would be whether by allowing the case of the party to
consider an unregistered document it would result in the
breach of the mandate of the Section 49 of the Registration
Act.
36.If we apply the test as to whether the Khararunama in this
case by itself "affects" i.e. by itself creates, declares, limits or
extinguishes rights in the immovable properties in question or
whether it merely refers to what the appellants alleged were
past transactions which have been entered into by the parties,
then going by the words used in the document, they indicate
that the words are intended to refer to the arrangements
allegedly which the parties made in the past. The document
does not purport to by itself create, declare, assign, extinguish
or limit right in properties. Thus, the Khararunama may not
attract Section 49(a) of the Registration Act.
37.As far as Section 49(c) of the Registration Act is concerned,
it provides for the other consequence of a compulsorily
registrable document not being so registered. That is, under
Section 49(a), a compulsorily registrable document, which is
not registered, cannot produce any effect on the rights in
immovable property by way of creation, declaration,
assignment, limiting or extinguishment. Section 49(c) in
effect, reinforces and safeguards against the dilution of the
mandate of Section 49(a). Thus, it prevents an unregistered
document being used "as" evidence of the transaction, which
"affects" immovable property. If the Khararunama by itself,
does not "affect" immovable property, as already explained,
being a record of the alleged past transaction, though relating
to immovable property, there would be no breach of Section
49(c), as it is not being used as evidence of a transaction
effecting such property. However, being let in evidence, being
different from being used as evidence of the transaction is
pertinent (see Murdga Mudaliar 7). Thus, the transaction or
the past transactions cannot be proved by using the
Khararunama as evidence of the transaction. That is, it is to be
noted that, merely admitting the Khararunama containing
record of the alleged past transaction, is not to be, however,
understood as meaning that if those past transactions require
registration, then, the mere admission, in evidence of the
Khararunama and the receipt would produce any legal effect
7 1950 SCC Online Mad 136
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on the immovable properties in question."
30. The thrust of the submission of Mr. Jagtiani was that the
defendant Nos. 1 to 13 are not seeking to tender the Sale Deeds as
for any collateral purpose but as evidence of transfer itself. Strong
emphasis was laid on the assertion in paragraph 6 of the affidavit in
lieu of examination in chief. Para 6 of the affidavit reads as under :
"6. After the demise of my maternal
grandfather, in order to implement their
objective to do the business of land development
and construction, all the co-owners decided to
form and register co-operative housing Society
Ltd. under whose banner the suit land was to be
developed and construct buildings thereon and
sell the flats and shops or commercial premises
to the prospective purchasers as provided
under Maharashtra Ownership Flats Act.
Therefore they formed and registered two
societies by names (1) Shrikanti Co-op. Hsg.
Society Ltd. and (2) Shripal Co-op. Hsg. Society
Ltd., bearing Registration Nos.TNA/HSG/809 of
1971 and TNA/HSG/805 of 1971 respectively.
Subsequent to the formation and registration of
the societies, the suit land was transferred in
the name of Societies under two Deeds of
Conveyances both dated 29/031/1972. In 1988
deeds of confirmation dated 12/05/1988 and
11/05/1988 respectively were executed in
favour of Shrikanti C.H.S. and Shripal C.H.S. In
2004 a Deed of Rectification was executed on
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02/04/2004 with respect to the land bearing
Gat No.63(P) which was wrongly mentioned as
Gat No.62/1 in the Agreement with Shrikant
C.H.S."
31. I find it difficult to accede to the submission of Mr. Jagtiani.
The assertions in the said paragraph are required to be read as a
whole. The purpose of execution of those unregistered Deeds of
Conveyance and the animus of the parties thereto, precedes the
affirmation that subsequent to the formation and registration of the
Societies, the suit land was transferred in the name of Societies
under two Deeds of Conveyance both dated 29th March, 1972.
32. It is fairly crystallized that the nature of the possession and
the jural relationship which the parties intended to arrive at under
the unregistered instrument, can be construed as collateral
transaction.
33. Deeds of Conveyance, in question, explicitly referred to the
fact that the vendors along with other promoters had promoted the
proposed Housing Co-op. Societies, namely, Shrikanti and Shripal
Co-op. Hsg. Societies; those societies were registered under the
Indian Co-operative Societies Act, on 11 October 1971 and the
vendors transferred the title to the suit land to the societies upon
receipt of consideration. The last part i.e. conveyance of title is
clearly hit by the bar contained in Clauses (a) and (c) of Section 49
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of the Registration Act, 1908. However, to the extent the Deeds of
Conveyance referred to the arrangement between the parties
whereby the vendors along with the other promoters formed co-
operative societies, got it registered and, thereafter, agreed to
transfer the suit lands to the said societies and formed by
themselves (as distinguished from conveyance of title) pertained to
antecedent transactions which are not required to be effected by
registered instrument. The jural relationship thereby intended to
be formed and the nature and character of the possession of the
parties over the suit lands, thereafter, in my considered view, can
form the "collateral purposes" for which Deeds of Conveyance can
be permitted to be let in evidence. From this standpoint,
unregistered Deeds of Conveyance could not have been discarded as
inadmissible even under the later part of the proviso to section 49.
34. On the aspect of the admissibility of the Deeds of Conveyance
in question on the ground of insufficient stamp duty, the learned
Civil Judge was within his rights in observing that the defendants
No. 11 to 13 were not entitled to bank upon the Notification dated
30th October, 1972 as the said Deeds were executed on 29 th March,
1972. The submission of Mr. Vakil that there was a prior
Notification of the year 1939, need not be considered by this Court
as the said notification was not placed on the record of the trial
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Court and the learned Judge has had no opportunity to delve into
the said aspect of the matter.
35. With regard to the objection of insufficient stamp duty, the
defendant Nos. 11 1to 13 are required to surmount another
impediment. What the defendant Nos. 11 to 13 have produced are
copies of the Deeds of Conveyance and not the original instrument.
Albeit, they have been permitted to adduce secondary evidence of
those instrument. Yet, it is trite law that a copy of an instrument
which is chargeable with duty, cannot be impounded.
36. In the case of Jupudi Kesava Rao V/s. Pulavarthi Venkata
Subbarao8, in the context of the provisions contained in section 35
of the Indian Stamp Act, the Supreme Court expounded the legal
position in clear and explicit terms that Section 35 of the said Act
deals with original instrument and not copies and thus Section 36
of the said Act cannot be so interpreted as to allow secondary
evidence of an instrument to have its benefit. The observations in
para Nos.14 and 15 are instructive. They read as under :
"14. If Section 35 only deals with original instruments
and not copies Section 36 cannot be so interpreted as to
allow secondary evidence of an instrument to have its
benefit. The words "an instrument" in Section 36 must have
the same meaning as that in Section 35. The legislature
only relented from the strict provisions of Section 35 in
cases where the original instrument was admitted in
8 AIR 1971 SC 1070
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evidence without objection at the initial stage of a suit or
proceeding. In other words, although the objection is based
on the insufficiency of the stamp affixed to the document, a
party who has a right to object to the reception of it must
do so when the document is first tendered. Once the time
for raising objection to the admission of the, documentary
evidence is passed, no objection based on the same ground
can be raised at a later stage. But this in no way extends
the applicability of Section 36 to secondary evidence
adduced or sought to be adduced in proof of the contents of
a document which is unstamped or insufficiently stamped.
15. The above is our view on the question of
admissibility of secondary evidence of a document
which is unstamped or insufficiently stamped, as if
the matter were res-integra. It may be noted
however that the course of decisions in India in the
Indian High Courts,barring one or two exceptions,
have consistently taken the same view."
37. The aforesaid aspect of the matter is also required to be
examined by the trial Court, if it is found that the Deeds of
Conveyance were chargeable with stamp duty and the exemption
from stamp duty, pursuant to the Notification issued under section
42 of the Maharashtra Cooperative Societies Act, 1960, was not
available.
38. So far at the Confirmation Deeds and Rectification Deed,
which are duly registered, once it is found that unregistered Deeds
of Conveyance could have been admitted in evidence, by invoking
the proviso to section 49 of the Registration Act, 1908, the principal
Vishal Parekar, PS ...19
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objection to the admissibility of these documents based on
inadmissibility of the unregistered Deeds of Conveyance falls
through. Even otherwise, in my view, the Confirmation Deeds and
Rectification Deed, which are duly executed and registered, cannot
be completely eschewed from consideration. The evidentiary value
of those Confirmation Deeds and Rectification Deed is an altogether
different matter. What consequences emanate from those
Confirmation Deeds and Rectification Deed are the matters for
adjudication. However, those instruments, cannot be said to be per
se inadmissible.
39. The defendants could have been thus permitted to tender
those Confirmation Deeds and Rectification Deed in evidence
keeping open the issues of their legality, validity and binding
efficacy on the rights and liabilities of the parties, or for that matter,
the impact of those instruments on unregistered Deeds of
Conveyance.
40. The upshot of the aforesaid consideration is that the petition
deserves to be partly allowed.
Hence, the following order.
ORDER
1}The petition stands partly allowed.
Vishal Parekar, PS ...20
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2} The unregistered Deeds of Conveyance dated 29 th March, 1972
are held to be admissible in evidence only as evidence of collateral
transaction not required to be effected by registered instrument.
3} The question of admissibility of the unregistered Sale Deed for
being insufficiently stamped is, however, left open to be determined
by the learned Civil Judge in the light of the observations in this
judgment.
4} Confirmation Deeds and Rectification Deed are declared to be
admissible in evidence.
5} The legality, validity and evidentiary value of those Confirmation
Deeds and Rectification Deed are, however, kept open for
adjudication.
6} Rule made absolute to the aforesaid extent.
7} No costs.
(N. J. JAMADAR, J.)
Vishal Parekar, PS ...21
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 29/03/2025 14:37:46
