Telangana High Court
Gugilla Aruna vs Adluri Ramesh Babu on 22 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.476 of 2021
ORDER:
Heard Sri Bankatlal Mandhani, learned counsel for the
petitioner. Despite service of notice, none appears for the
respondents. Perused the material available on record.
2. The present Civil Revision Petition is filed questioning the
validity and legality of the order, dated 09.04.2019, passed by the
III Additional District Judge, Warangal in O.S.No.228 of 2013,
whereby the trial Court declined to receive the unregistered Award
dated 11.06.2010 as evidence on behalf of the plaintiff, on the
ground that the same is hit by Section 17 of the Registration Act.
3. The brief factual background which led to filing of the
present Revision is that the suit was filed for the relief of partition
of the suit properties into five equal shares and to allot one such
share to the plaintiff by meets and bounds. The defendants filed
their written statement and later, issues were settled for trial and
the trial commenced. During the course of trial, plaintiff filed her
chief-examination affidavit and intended to mark an unregistered
Award dated 11.06.2010 passed by the Arbitrators in respect of
partition of the family properties. However, learned counsel for the
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defendants opposed to mark the said Award on the ground that it is
unregistered and hence, hit by Section 17 of the Registration Act.
4. Learned counsel for the petitioner mainly contended that the
trial Court failed to appreciate that the unregistered Arbitral Award
could be used for the collateral purpose i.e., to establish the
character, nature, identity and location in respect of the subject
matter and committed irregularity in declining to receive the said
document in evidence on the ground that the said document is hit
by Section 17 of the Registration Act inasmuch as it was
unregistered and hence, prayed the Court to allow this Revision.
5. To buttress his contentions, learned counsel for the petitioner
relied upon the decisions of the Hon'ble Apex Court in
M. Anasuya Devi v. M. Manik Reddy 1, Bipin Shantilal
Panchal v. State of Gujarat & Anr 2 and Yellapu Uma
Maheswari v. Buddha Jagadheeswararao 3.
6. In M. Anasuya Devi's case (cited supra), the Hon'ble Apex
Court held as hereunder:-
"Section 34 of the Arbitration and Conciliation Act, 1996
provides for setting aside of the award on the grounds
enumerated therein. It is not in dispute that an
(2003) 8 SCC 565
2001 (3) SCC 1
(2015) 16 SCC 787
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application for setting aside the award would not lie on
any other ground, which is not enumerated in Section 34
of the Arbitration and Conciliation Act. The question as
to whether the award is required to be stamped and
registered, would be relevant only when the parties
would file the award for its enforcement under Section 36
of the Arbitration and Conciliation Act. It is at this stage
the parties can raise objections regarding its
admissibility on account of non-registration and non-
stamping under Section 17 of the Registration Act. In that
view of the matter, the exercise undertaken to decide the
said issue by the civil court as also by the High Court
was entirely an exercise in futility. The question whether
an award requires stamping and registration is within the
ambit of Section 47 of the Code of Civil Procedure and
not covered by Section 34 of the Act."
7. In Bipin Shantilal Panchal's case (cited supra), the
Hon'ble Apex Court at para 14 of the judgment held as under:-
"Whenever an objection is raised during evidence-taking
stage regarding the admissibility of any material or item
of oral evidence the trial court can make a note of such
objection and mark the objected document tentatively as
an exhibit in the case (or record the objected part of the
oral evidence) subject to such objections to be decided
at the last stage in the final judgment. If the court finds
at the final stage that the objection so raised is
sustainable the Judge or Magistrate can keep such
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evidence excluded from consideration. In our view there
is no illegality in adopting such a course. (However, we
make it clear that if the objection relates to deficiency of
stamp duty of a document the court has to decide the
objection before proceeding further. For all other
objections the procedure suggested above can be
followed.)"
8. In Yellapu Uma Maheswari's case (cited supra), the
Hon'ble Apex Court at para 13 of the judgment held as under:-
"Section 17(1)(b) of Registration Act mandates that any
document which has the effect of creating and taking
away the rights in respect of an immovable property
must be registered and Section 49 of the Act imposes bar
on the admissibility of an unregistered document and
deals with documents that are required to be registered
under Section 17 of required to be registered under
Section 17 of the Act."
8.1. It is further held in Para 15 as hereunder:-
"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
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of both Exs.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, Exs.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."
8.2. Further, in para 16 it was held as follows:-
"Then the next question that falls for consideration is
whether these can be used for any collateral purpose.
The larger Bench of the Andhra Pradesh High Court in
Chinnappareddigari Peda Mutyala Reddy v.
Chinnappareddigari Venkata Reddy 4has held that the
whole process of partition contemplates three phases i.e.
severancy of status, division of joint property by metes
and bounds and nature of possession of various shares.
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
1967 SCC OnLine AP 4
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and bounds. An unstamped instrument is not admissible
in evidence even for collateral purpose, until the same is
impounded. Hence, if the appellant-defendant want to
mark these documents for collateral purpose it is open
for them to pay the stamp duty together with penalty and
get the document impounded and the trial court is at
liberty to mark Exs.B-21 and B-22 for collateral purpose
subject to proof and relevance."
9. From the aforesaid decisions, it is clear that the Hon'ble
Supreme Court held that the document, which is compulsorily
registrable, if not registered, is inadmissible in evidence for
proving the primary purpose for which it was executed. In a suit
for partition, an unregistered document can be relied upon only 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. It was further held that an
unstamped instrument is not admissible in evidence even for
collateral purpose, until the same is impounded. Therefore, if a
party wants to mark the document for collateral purpose, it is open
for it to pay the stamp duty together with penalty and get the
document impounded and the trial court is at liberty to mark the
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said document for collateral purpose subject to proof and
relevancy.
10. Thus, the law is well settled that an unregistered document
can be admissible in evidence only for collateral purpose, which is
other than the primary purpose of execution of the said document.
11. Even as per the proviso to Section 49 of the Registration
Act, collateral purpose implies that contents of such a document
can be used for purpose other than for which it has been executed
or entered into by the parties or for a purpose remote to the main
transaction.
12. When the said legal proposition is applied to the instant case,
the unregistered Award can be admissible in evidence only for
collateral purpose to the extent of establishing the severancy of
title, nature of possession of various shares, i.e., in other words to
establish the character, nature, identity and location in respect of
the subject matter, but not for proving the factum of partition of the
suit properties.
13. In the instant case, the trial Court observed that since the
Award dated 09.04.2019 is unregistered, it is not admissible in
evidence and accordingly, declined to mark the said document.
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14. The subject suit was filed by the plaintiff seeking to
partition of the suit properties into five equal shares and to allot
one such share to the plaintiff by metes and bounds. During the
course of trial in the said suit, the plaintiff sought to mark the
unregistered Award dated 11.06.2010, under which the Arbitrators
have partitioned the movable and immovable properties among the
legal heirs of Adluri Krishna Murthy.
15. A purpose would be collateral, if it is other than the one,
which the document itself serves. For instance, if the document is
an Award regarding partition of the property, any purpose, which is
other than the division of the properties, can be treated as
collateral.
16. Such being the legal position, the unregistered Award,
dated 11.06.2010, can be used for collateral purpose other than that
of partition of the suit properties. In other words, the said
unregistered document can be used for the collateral purpose to the
limited extent of establishing the nature, identity and location of
the properties sought to be partitioned.
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17. For the foregoing reasons, discussion and the legal position,
this Court is of the considered view that the trial Court ought to
have received the unregistered Award in evidence for the collateral
purpose, instead of declining to receive the unregistered Award
dated 11.06.2010 in evidence on the ground that the same is hit by
Section 17 of the Registration Act. Therefore, the impugned order
is liable to be set aside.
18. Nevertheless, it is to be noted that an unstamped instrument
is not admissible in evidence even for collateral purpose, until the
same is impounded. Therefore, if the plaintiff intends to mark the
said unregistered Award dated 11.06.2010 for collateral purpose, it
is open for her to pay the stamp duty together with penalty and get
the document impounded. Upon impounding of the said document,
the trial court is at liberty to mark the said document subject to
proof and relevancy, only for the collateral purpose of establishing
the nature, identity and location of the suit properties sought to be
partitioned.
19. Subject to the above observations and directions, this Civil
Revision Petition is allowed. The order, dated 09.04.2019, passed
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by the III Additional District Judge, Warangal in O.S.No.228 of
2013 is hereby set aside. No costs.
20. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:22.04.2024
dr
