Rajesh Kumar Sahu vs Manish Kumar Sahu
2023 Latest Caselaw 9680 MP

                                1


     IN THE HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                             BEFORE
          HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                 ON THE 27TH OF JUNE, 2023
               MISC PETITION NO. 5485 OF 2019

BETWEEN:-

RAJESH KUMAR SAHU, AGED 56 YEARS, S/O
JHUNNALAL SAHU, DOCUMENT WRITER
KARELI,  R/O    RAM      WARD,   KANDELI,
NARSINGHPUR,    TEHSIL       AND DISTRICT
NARSINGHPUR - 487001 (M.P.).

                       .              .....PETITIONER/PLAINTIFF

(BY SHRI CHOUDHARY RAHUL SINGH - ADVOCATE)

AND

1.   MANISH KUMAR SAHU, AGE 44 YEARS, S/O
     JHUNNALAL SAHU, R/O GANDHI WARD
     (OLD) NOW RAM WARD, KAMATH CHOWK,
     KANDELI, NARSINGHPUR, TEHSIL AND
     DISTRICT NARSINGHPUR - 487001 (M.P.).

2.   VINOD KUMAR SAHU, AGE 58 YEARS,
     DOCUMENT WRITER, S/O JHUNNALAL
     SAHU, R/O IN FRONT OF TEHSIL COURT,
     STATION ROAD, GOTEGAON, PIN-487118,
     TEHSIL      GOTEGAON,      DISTRICT
     NARSINGHPUR (M.P.).

3.   CHIEF MUNICIPAL OFFICER, MUNICIPAL
     COUNCIL, NARINSHGPUR, TEHSIL AND
     DISTRICT NARSINGHPUR-487001 (M.P.).

4.   SMT. REKHA SAHU, W/O TULSIRAM SAHU,
     AGED    62  YEARS,  THROUGH-MANOJ
     KUMAR SAHU, PATRAKAR, GADARWARA-
     487551, TEHSIL-GADARWARA, DISTRICT
     NARSINGHPUR.
                                                                      2

5.       SMT. SHEELA SAHU, AGED 58 YEARS, W/O
         ASHOK    KUMAR    SAHU,   R/O   TILA
         MOHALLA,      NARSINGHPUR     ROAD,
         GOTEGAON - 487118, TEHSIL GOTEGAON,
         DISTRICT NARSINGHPUR.

6.       SMT. SANDHYA SAHU, AGED 51 YEARS, W/O
         KAMAL KISHORE SAHU, R/O OLD BUS
         STAND, NEAR SAW MILL, PIPARIYA-461775,
         TEHSIL-PIPARIYA,             DISTRICT
         HOSHANGABAD (M.P.).

                                                                                                         .....RESPONDENTS
(BY SHRI BRIJEDRA SWAROOP SAHU - ADVOCATE)
................................................................................................................................................
Reserved on :                      22/06/2023
Pronounced on : 26/06/2023
           This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:


                                                                  ORDER

Petitioner/defendant has filed this petition under Article 227 of the Constitution of India challenging the order dated 20.09.2019 (Annexure P/1) passed by the trial court in Civil Suit No. 05-A/2014 whereby the objection raised by the petitioner/defendant before the court for not taking the document i.e. Annexure P/2 on record because it is not admissible in law as it was unregistered and not duly stamped, has been rejected.

2. Learned counsel for the petitioner submits that the trial court considered the objection raised by the defendant and also heard the counsel for the plaintiff and finally passed the impugned order saying that document in question is nothing but a Will and therefore it is not required to be registered and also not required to be stamped, therefore the objection raised by the defendant has been rejected by the court, the

said document was allowed to be taken on record and was permitted to be exhibited.

3. Learned counsel for the petitioner has submitted that the court below has committed a mistake considering the said document to be a Will whereas the document itself contained the executor namely, Jhunnalal Sahu had to execute the Will with regard to his property separately and that was done by him. The Will was executed with regard to the property in question on 19th March, 2002 and that Will is on record as Annexure P/5. Not only this, but he has also filed a document i.e. Annexure P/7 whereby Jhunnalal has cancelled the Will and also the document which is in question, by a registered document dt. 24.02.2010. According to him, it clearly indicates that the document that is titled as 'Abhiswikriti Patra'. From the recital of the document it is clear that it required to be registered because it is transferring the right and title in favour of Manish who is son of executor. He submits that in such a circumstance when executor himself admitted that the Will is being separately written and that Will is also on record and documents cancelling the Will is also on record, the document in question cannot be considered to be a Will. The observation made by the trial court considering this document to be a Will, taken on record and permitted to be executed is not proper. He submits that the impugned order deserves to be set aside as this document is not registered and duly stamped and cannot be taken on record.

4. On the other hand, counsel for the respondents has opposed the submission and submits that the court did commit any illegality saying that document in question is a Will. He submits that from the recital of the document it is clear that the executor has given his property to Manish and also mentioned that the other family member would not get

any share over the same and he submits that this document fulfills the requirement of Will because it has also been signed by the two witnesses and as such order of the trial court is proper.

5. After considering the rival submission made by the learned counsel for the parties and perusal of record, the document which is said to be a Will by the trial court and permitted to be taken on record, though the same was unregistered and not duly signed, I have perused perused the recital of the document, it is titled as "Abhiswikrati Patra" but from the contents of document it reveals that Jhunnalal, the executor, has distributed his self acquired property among his sons and created right in their favour. As per the document, the executor assigning reason given maximum share to his one of the sons namely, Manish, as such transferred the right and document therefore required to be registered as creating right in favour of Manish. This document cannot be considered to be a Will for the reason that the executor himself has admitted in the document that he was also writing a Will giving his share in the property to his son Manish and also clarified that other sons would not get any share in the property.

6. This Court even on earlier occasion considered almost a similar situation and the document, which was titled as "Sahmati Patra" creating right and transferring share, was neither registered nor properly stamped but it was only notarized. This Court found that the said document was not admissible for any purpose even for co-lateral purpose. The observation made by this Court in the case of Kundan Soni & others vs. Devendra Kumar Soni & another - MP No. 1119/2017 decided on 15.02.2019 reads as under:-

"9. The document which is sought to be exhibited in evidence by the defendants is available on record as (Annexure-P-2). From a perusal of this document

which is titled as Sahmati Patra notarized on 03.12.2013, an objection was raised by the plaintiffs that the document is not admissible for any purpose even for collateral purpose as per Section 49 of the Act, 1908 as the document is not registered, whereas looking to the recital of the document though it is titled as consent letter, it can be easily gathered that it is a document of transfer of rights and title regarding immovable property valued more than Rs.100/-. Thus, I am of the opinion that by this document, the defendants are claiming right over the half of the suit property which got registered vide sale-deed dated 20.07.2009 in favour of Draupti Bai (plaintiff No.2). As per Section 17 (2)(v) of the Act, 1908, the document needs to be compulsorily registered, which reads as under:-

"17(2)(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest;"

The document Annexure-P-2 was required to be registered but in absence of registration of said document as per Section 49 of the Act, 1908 which provides the effect of non-registration of document required to be registered. For ready reference, Section 49 of the Registration Act, 1908 is reproduced 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 (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)2, 3 [***] or as evidence of any collateral transaction not required to be effected by registered instrument."

10. In view of the above provisions, it is clear that a document which is required to be registered under Section 17 of the Act, 1908 but not registered, then the same is not admissible in evidence even for collateral purpose.

11. The judgment relied upon the by respondents in case of Khusiram Awasthy (supra) laying down that a document not duly stamped and registered, is not admissible for any purpose including a collateral purpose as provided under Section 49 of the Act, 1908, is fully applicable in the fact situation of the present case.

12. Likewise, the High Court in case of Gordhan (supra) has also laid down that a document required to be registered but not registered is inadmissible in evidence and even its terms cannot be admitted in evidence."

The Supreme Court also in the case of Sita Ram Bhama vs. Ramvatar Bhama reported in AIR 2018 SC 3057 considered this aspect and the document whereby family arrangement was made and the right over the property valued more than Rs. 100/- was transferred and share relinquished by the parties was considered by the Court to be a family settlement required to be registered as per Section 17 of the Registration Act and also considered to be inadmissible in view of

Section 49 of the Act. The Supreme Court has also observed as under:-

"12. We are, thus, in full agreement with the view taken by the trial court as well as the High Court that the document dated 9-9-1994 was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and the order of the trial court allowing the application under Order 13 Rule 3 CPC and the reasons given by the trial court in allowing the application of the defendant holding the document as inadmissible cannot be faulted.

13. There is only one aspect of the matter which needs consideration i.e. whether the document dated 9-9-1994, which was inadmissible in evidence, could have been used for any collateral purpose. 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. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yellapu Uma Maheswari v. Buddha Jagadheeswararao [Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787 : (2016) 3 SCC (Civ) 767] is appropriate. In the above case also, admissibility of documents, Ext. B-21 dated 5-6-1975 a deed of memorandum and Ext. B-22 dated 4-6-1975 being an agreement between one late Mahalakshamma, Respondent 1-plaintiff and Appellant 1-defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court [Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, 2013 SCC OnLine AP 766] and trial court. Matter was taken up by this Court. In the above case, this Court held 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. This Court after considering both the documents, B-21 and B-22 held that they require registration. In para 15, the following was held: (SCC p. 794)

"15. 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 Exts. 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 registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)

(b) of the Registration Act and hence are compulsorily registrable 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 Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition."

7. Under the circumstances and in view of the law laid down by this Court and also by the Supreme Court, this Court has no hesitation to hold that the document "Abhiswikrati Patra" (Annexure P/2) is not a Will but is a document creating and transferring right and title of the property valued more than Rs. 100/- and as such required to be registered but it is not registered, therefore it is not admissible. The observation made by the court below in the impugned order treating the said document as a Will is not sustainable as the same is contrary to law.

The impugned order dated 20.09.2019 (Annexure P/1) is accordingly set aside. The objection raised by the petitioner/defendant before the trial

court is sustained and the document Annexure P/2 "Abhiswikrati Patra" executed on 04.01.2002 is not admissible, therefore cannot be taken on record.

8. The petition is accordingly allowed. However, there shall be no order as to costs.

(SANJAY DWIVEDI) JUDGE

Raghvendra

RAGHVENDRA SHARAN SHUKLA 2023.06.28 16:37:59 +05'30'