Madhya Pradesh High Court
Smt. Sonu Alias Sunita vs Sandeep on 31 March, 2023
Author: Vivek Rusia
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M.P. No.5731/2019
IN THE HIGH COURTOF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 31st OF MARCH, 2023
MISC. PETITION No. 5731 of 2019
BETWEEN:-
SMT. SONU ALIAS SUNITA W/O LATE JITENDRA PATEL, AGED
1. ABOUT 28 YEARS, OCCUPATION: HOUSEWIFE VILLAGE
BAMANDI TEHSIL KASRAWAD, (MADHYA PRADESH)
NEHA MINOR THROUGH NATURAL GUARDIAN MOTHER SMT.
SONU ALIAS SUNITA W/O LATE JITENDRA PATEL, AGED ABOUT
2.
28 YEARS, OCCUPATION: HOUSEWIFE VILLAGE BAMANDI TEH
KASRAWAD DIST KHARGONE (MADHYA PRADESH)
MASTER KARTIK MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT. SONU ALIAS SUNITA W/O JITENDRA PATEL, AGED
3.
ABOUT 28 YEARS, OCCUPATION: HOUSEWIFE BAMANDI TEH.
KASRAWAD, DIST KHARGONE (MADHYA PRADESH)
.....PETITIONER
(MS. SWATI SHARMA, LEARNED COUNSEL FOR THE PETITIONERS.)
AND
SANDEEP S/O DHARAMCHAND JAIN, AGED ABOUT 42 YEARS,
1. OCCUPATION: BUSINESS AND FARMING NEAR RAM MANDIR,
VILLAGE BAMANDI, TEHSIL KASRAWAD, (MADHYA PRADESH)
AARTI W/O SURESH PATEL, AGED ABOUT 24 YEARS, VILLAGE
2.
JAVDA TEH KASRAWAD DIST KHARGONE (MADHYA PRADESH)
NEETU W/O RAKESH PATEL, AGED ABOUT 28 YEARS, VILLAGE
3.
OJHRA, TEH. KASRAWAD, KHARGONE (MADHYA PRADESH)
SANDEEP S/O RUKDIYA PATEL VILLAGE REGWA TEH KASRAWAD
4.
DIST KHARGONE (MADHYA PRADESH)
RUKDIYA S/O NAGYA PATEL VILLLAGE REGWA TEH KASRAWAD
5.
DIST KHARGONE (MADHYA PRADESH)
RAKESH S/O THAKUR PATEL VILLAGE OJHRA, TEH. KASRAWAD,
6.
KHARGONE (MADHYA PRADESH)
COLLECTOR / DISTRICT MAGISTRATE COLLECTOR KHARGONE
7.
(MADHYA PRADESH)
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M.P. No.5731/2019
.....RESPONDENTS
( YASH AGRAWAL APPEARING ON BEHALF OF PRAKHAR MOHAN
KARPE NO.1.)
This petition coming on for hearing on admission this day, the
court passed the following:
ORDER
With consent of learned counsel for the parties, heard finally.
The petitioners/defendants No.1 to 3 have filed the present
petition under Article 227 of the Constitution of India challenging
order dated 4.10.2019 passed in Civil Suit No. 26-A/2017 by Civil
Judge, Class-II, Kasrawad, District Khargone whereby the objection
taken by them in respect of exhibiting agreement-deed dated 27.5.2016
has been rejected.
2- Respondent No.1/plaintiff filed the suit for recovery of
Rs.1,00,000/- from defendants No.1 to 3. According to the plaintiff, the
husband of defendant No.1 died on 12-13.10.2016 who took a loan of
Rs.40,000/- from him and signed an agreement dated 27.5.2016 in his
favour. The plaintiff was handed over the land bearing Survey No.
370/3, area 0.377 Hect. By the borrower for agricultural purpose.
Thereafter, husband of the respondent No. 1 further borrowed
Rs.60,000/- from him on interest @ Rs.2/- per Rs.100/-. In total, he had
received Rs.1,00,000/-. Since 27.5.2016 the possession of the land in
question was in possession of the plaintiff. Till date, the plaintiff has
not been returned the said amount of Rs.1,00,000/- and the defendants
are trying to dispossess him from the land in question. Therefore, the
plaintiff filed the suit initially for the decree of permanent injunction as
well as recovery of Rs.1,00,000/- on 13.10.2017. However, later on, the
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M.P. No.5731/2019
plaintiff has withdrawn the relief of permanent injunction and
continued the suit for recovery of Rs.1,00,000/-.
3- At the time of plaintiff's evidence, when the agreement was
tendered as an evidence, the defendants' counsel raised an objection
that the agreement is not sufficiently stamped. Learned trial Court sent
the document for impounding and the plaintiff paid the deficit stamp
duty. Again on 4.10.2019 when the said agreement dated 27.5.2016
was marked as Exhibit P/1, the defendants raised an objection that the
said agreement is an unregistered document, hence it cannot be
tendered as evidence. The plaintiff opposed the said objection and the
learned trial Court vide impugned order has turned down the objection
taken by the defendants' counsel on the ground that under the Proviso
to Section 49 of the Registration Act, the document can be looked into
for collateral purposes. Hence, the present petition before this Court.
4- Learned counsel for the petitioners/the defendants submits that
by agreement dated 27.5.2016 the land was mortgaged to the plaintiff
and being a mortgage-deed, it mandatorily requires registration u/s. 70
of the Registration Act, hence, it cannot be looked into for any purpose.
Appreciations & Conclusion
5- Learned trial Court has held that the agreement is in two parts,
the first part is in respect of mortgaging the land, and the second part is
in respect of lending money of Rs.1,00,000/-. So far as mortgage is
concerned, the plaintiff is not claiming any relief and continued the suit
only for recovery of money, therefore, for recovery of money, under
section 17 of the Registration Act, the agreement is not required to be
registered. Even the suit filed under the provisions of Specific Relief
Act, the unregistered document can be looked into for collateral
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M.P. No.5731/2019
purposes under the proviso of section 49 of the Registration Act as
held by the this court the case of Mahesh V/s. Anil ( Writ Petition No.
3964/2014 decided on 4.2.2015)
has held as under:-
"The argument of counsel for petitioner that State
amendment in Section 17(f) for which President's assent has
been obtained will prevail in view of Article 254 of
Constitution because it is repugnant to proviso to Section 49
of Act cannot be accepted because in view of the judgment in
the matter of M. Karunanidhi Vs. Union of India and another,
reported in (1979) 3 SCC 431 before any repugnancy between
the Central Act and the State Act can arise, following
conditions are required to be satisfied:
i) That there is a clear and direct inconsistency between the
Central Act and the State Act;
ii) That, such an inconsistency is absolutely irreconcilable;
iii) That the inconsistency between the provisions of the two
Acts is of such a nature as to bring the two Acts into direct
collision with each other and a situation is reached where it is
impossible to obey the one without disobeying the other.
In the present case, there is no such direct
irreconcilable inconsistency between Section 17 (1)(b) and
proviso to Section 49 of the 3 Registration Act. The scope of
proviso to Section 49 of Act is very limited to the extent of
receiving such document as evidence of a contract in a suit
for specific performance or as evidence of any collateral
transaction not required to be effected by registered
instrument.
Counsel for respondents has placed reliance upon
judgment of the Supreme court in the matter of Raghunath
and others Vs. Kedar Nath, reported in 1969(1) SCC 497 but
that was not a case of specific performance of contract nor
proviso to Section 49 of Act has been examined in that matter.
Similar is the position in respect of the Division Bench
judgment of Allahabad High court in the matter of Vijay
Kumar Sharma Vs. Devesh Behari Saxena, reported in AIR
2008 Allahabad 66. In the judgment of Rajasthan High court
in the matter of Raju Ram Vs. Khinyaram, reported in AIR
2014 (NOC) 83 (Raj.) also the effect of proviso to Section 49
of Act has not been examined.
Thus the trial court has committed an error in holding
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M.P. No.5731/2019
that the sale agreement in question being unregistered is
inadmissible in evidence.
Hence, the impugned order of trial court cannot be
sustained and is hereby set-aside. Writ petition is accordingly
disposed off."
6- In view of the above discussion I do find any error in the view
taken by the learned civil judge hence no case for interference is called
for.
Accordingly, this petition is dismissed.
( VIVEK RUSIA )
JUDGE
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.04.06 15:33:37 +05'30'
