Madhya Pradesh High Court
Mangilal Deceased Through Lrs Radha Bai vs Pawan Singh on 22 July, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:18998
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
MISC. PETITION No. 5594 of 2024
MANGILAL DECEASED THROUGH LRS RADHA BAI AND OTHERS
Versus
PAWAN SINGH
Appearance:
Shri Arjun Agarwal, counsel for the petitioner.
Shri Shubham Yadav with Shri Prafull Sharma, counsel for the respondent.
Heard On: 15.07.2025
Delivered On: 22.07.2025
ORDER
1. This miscellaneous petition is filed under Article 227 of the
Constitution of India being crestfallen by the order dated 04.09.2024 passed
by the learned Xth District Judge, District Indore in COS No. 22-B/2014
wherein learned Judge has rejected the application of plaintiff/petitioner filed
under Order XVIII Rule 17 read with Section 151 of C.P.C. for re-
examination with regard to a document which has already been stamped
properly.
2. Learned counsel for the petitioner submitted that the trial Court has
not considered each and every aspect of the case. The learned trial Court has
wrongly treated the loan agreement dated 29.06.2011 as mortgage deed and
ignored the fact that the loan agreement is primarily executed against loan
taken by the respondents/defendants for acknowledging the loan transaction
and to ensure its re-payment. Therefore, the document in question is not
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required to be registered. It is further contended that even assuming the
document as mortgage deed, the document can be exhibited under Section 49
of Registration Act for collateral purpose of recovery of money covered
under the unregistered document without touching upon right regarding the
property. It is also contended that the learned trial Court itself ordered that
the said document should be stamped and in light of said order, the
document has been properly stamped by the Collector of Stamps. It is also
contended that if the said document is not allowed to be exhibited, the
plaintiff case would be prejudiced. Under these circumstances, learned
counsel requested to set aside the order to that extent and allow the
application filed under Order XVIII Rule 17 read with Section 151 of C.P.C.
for plaintiff's evidence to the extent of exhibiting documents.
3. Learned counsel for the respondent vehemently contended that since
the said document is a mortgage deed, related to immovable properly, it is
required to be registered under Order XVIII Rule 17 read with Section 151
of C.P.C. and without registration, it possesses no value. Therefore, the same
can not be exhibited.
4. Heard counsel for the parties and perused the record available.
5. At the outset, the said provision of Section 49 of Registration Act is
required to be produced here as under:-
49. Effect of non-registration of documents
required to be mentioned as under :-
- No document required by section 17 [or by any
provision of the Transfer of Property Act, 1882 (4 of
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1882),] [Added by Act 21 of 1929, Section 10.] 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] [Added by Act 21 of 1929,
Section 10.], [* * *] [The words "or as evidence of part
performance of a contract for the purposes of section
53-A of the Transfer of Property Act, 1882 (4 of 1882)"
omitted by Act 48 of 2001, Section 6 (w.e.f.
24.9.2001).] or as evidence of any collateral transaction
not required to be effected by registered instrument.]
6. In view of the aforesaid law, the said document namely as "आपसी
कज का इकरारनामा" comes under purview of evidence of any collateral
transaction not required to be effected by registered instrument.
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7. Here, it is worth to mention that the learned trial Court itself vide
order dated 12.10.2023 ordered for stamping the document as per Section 35
of Indian Stamp Act and in compliance thereof, the document was duly
stamped by the Collector of Stamps by imposing and levying stamp of
Rs.39,300/- including penalty, which was paid by the petitioner and
photocopy of receipt of the same, was annexed as annexure-P/8. In this
regard, proviso of Section 49 of Registration Act clearly indicates that the
said document can be taken as evidence for any collateral transaction.
8. At this stage, the petitioner has relied upon the judgment in the case
o f Brajesh Rai Vs. Gurmeet Singh reported in 2018 SCC OnLine Del
11611 passed by High Court of Delhi and Umde Bhojram Vs. Wadla
Gangadhar reported in 2004 (2) APLJ 200 (HC) passed by High Court of
Andhra Pradesh at Hyderabad.
9. The following extracts of the judgment Brajesh Rai (supra) is
condign to quote here :-
"The trial court has held that the Mortgage-cum-Loan
Agreement need not be registered inasmuch as the said
agreement would be operative if the suit was for
recovery of moneys on the basis of a mortgage, but the
subject suit is only a simple suit for recovery of moneys
and not a suit filed under Order XXXIV CPC alleging
existence of a mortgage. In my opinion, the trial court
in this regard has committed no illegality inasmuch as
the factum of loan which is the subject matter of a
mortgage deed is a collateral transaction, and such an
agreement, so far as the grant of loan is concerned, is
not required to be registered under Section 17(1)(b) of
the Registration Act. A direct judgment in this regard is
the judgment of a Single Judge of the Madras High
Court in the case of Murugan v. Sumathradevi and
Durairaj, CRP(P.D.) No. 1863/2003 and this judgment
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holds that if there is a mortgage-cum-loan agreement,
the said mortgage-cum-loan agreement can be looked
into as an independent transaction so far as the aspect
of loan is concerned, and in doing so, the said document
can be looked into as a collateral transaction with
respect to the loan given. In the case of Murugan
(supra), the learned Single Judge has relied upon earlier
judgments of the Madras High Court starting from the
year 1931, wherein it has been held that a mortgage-
cum-loan agreement, even if not registered, can be
looked into, so far as a grant of loan under the subject
agreement is concerned. In my opinion, therefore, the
trial Court has committed no illegality in referring to
the Mortgage-cum-loan Agreement with respect to the
aspect of grant of loan."
10. Likewise, the relevant excerpt of the judgment Umde Bhojram
(supra) is also worth to be quoted here:-
"2. The plaintiff filed the suit for recovery of Rs.
22,500/- on the basis of an unregistered mortgage deed
dated 10-10-1996 alleged to be executed by the
defendant in his favour......."
"14. According to the above rulings, a document
required to be registered but not registered can be used
as evidence of any collateral transaction not required to
be effected by a registered document and it prohibits
only the user of the documents for establishing any
right, title or interest to or any immovable property."
11. In view of the aforesaid discussion, it is crystal clear that if the
document in question contains a written pledge whereby the executant
undertakes to discharge liability personally and without reference to the
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mortgaged property and if that document is not registered, still it can be
admissible as evidence for the purpose of establishing the personal liability
and the debt. Since it is clearly mentioned in the said document that the
creditor may file a civil suit for recovery of the said loan alongwith interest,
the said document comes under the purview of agreement for loan.
12. Hence, taking into consideration of the facts and circumstances of
the case, this Court is of the considered opinion that said document is
required to be exhibited in the suit and accordingly, the application under
Order XVIII Rule 17 read with Section 151 of CPC for tendering evidence of
plaintiff deserves to be and is hereby allowed.
13. Consequently, the order of learned trial Court dated 04.09.2024
passed in COS No. 22-B/2014 is set aside and trial Court is directed to give
an opportunity to the plaintiff for exhibiting the said document and also give
a chance to the defendant to cross-examine the same.
14. Before parting, it is clarified that the learned trial Court while
passing the final judgment be not influenced by observation made by this
Court in this miscellaneous petition.
15. With the aforesaid directions, the miscellaneous petition stands
allowed and disposed of.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
