Sri L.Nagesh vs Smt L.Sandhya
2025 Latest Caselaw 2375 Tel

Telangana High Court

Sri L.Nagesh vs Smt L.Sandhya on 20 February, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE Dr.JUSTICE G.RADHA RANI

  CIVIL REVISION PETITION Nos.2723 AND 2876 OF 2022

COMMON ORDER:

Civil Revision Petition No.2723 of 2022 is filed by the

petitioner-defendant No.1 in O.S No.178 of 2013 challenging the

order dated 15.03.2022 passed in I.A. No.1515 of 2021 in O.S.

No.178 of 2013 by the I-Additional Chief Judge, City Civil Court,

Secunderabad, for demarking the document marked as Ex.B2, a

certified copy of the unregistered partition deed dated 22.06.1969.

2. Civil Revision Petition No.2876 of 2022 is filed by the

petitioner-defendant No.1 in O.S. No.179 of 2013, challenging the

order dated 15.03.2022 passed in I.A. No.1516 of 2021 in O.S.

No.179 of 2013 by the I-Additional Chief Judge, City Civil Court,

Secunderabad, for demarking the document marked as Ex.B2, a

certified copy of the unregistered partition deed dated 22.06.1969.

3. Heard Sri Sripada Prabhakar, learned Senior Counsel

representing Sri Setty Raviteja, learned counsel for the petitioners on

record and Sri M. Shiva Shekar, learned counsel for the respondents.

Dr.GRR,J CRP Nos.2723&2876 of 2022

4. Learned counsel for the petitioners submitted that no

objection was taken by the respondents while exhibiting Ex.B2-

uregsitered partition deed. The same was filed and marked on

08.11.2021. The said partition deed was also earlier marked as exhibit

in O.S. No.311 of 2009 between the same parties except one among

them, D. Shalini-respondent No.4 herein (plaintiff No.4). The

document Ex.B2 was an age old document executed on 22.06.1969, as

such, the trial Court ought to have drawn a legal presumption. The

trial Court failed to see that Ex.B2 was validated and endorsed by the

Collector, Hyderabad District, under the Indian Stamps Act on

18.07.2000. It was the second round of litigation. The plaintiff No.1

was the daughter-in-law of one Veeroji. The petitioners herein-

defendants were the sons of late Veeranna and late Chinnoji, brothers

of late Veeroji. There was an oral partition among the brothers and by

virtue of a family settlement, all the brothers were residing in separate

portions in the suit schedule property. But, the property was

registered in the name of Veeroji, the elder brother. The plaintiff

No.1 during the lifetime of her husband or her father-in-law never

objected the possession of the defendants in the suit schedule

property, but after their death, as she was claiming the property as that

Dr.GRR,J CRP Nos.2723&2876 of 2022

of Veeroji alone, the defendants filed a suit for injunction vide O.S.

No.311 of 2009 on the file of I-Junior Civil Judge, City Civil Court,

Secunderabad and the same was allowed. The appeal filed against it

by the respondents-plaintiffs herein vide A.S. No.62 of 2012 was also

dismissed confirming the order of the trial Court on 21.06.2016. The

partition deed was marked as an exhibit in the said suit in O.S. No.311

of 2001 as Ex.A1 therein. No objection was taken at the time of

marking the said document in the said suit.

4.1 The respondents herein subsequently filed the present

suits O.S. Nos.178 and 179 of 2013 against the revision petitioners-

defendants seeking the relief of declaration of title and recovery of

possession. The plaintiff No.1 was examined in these suits as PW.1

and she admitted in her cross-examination that the defendants were

residing in the suit schedule properties since 1969. The husband of

plaintiff No.1 nor her father-in-law Veeroji never objected the

partition during their lifetime. As the document marked under Ex.B2

was also earlier marked as an exhibit in O.S No.311 of 2009 and no

objection was recorded at the time of marking the said document, the

trial Court ought not to have de-exhibited the same. The trial Court

ought to have taken a call at the time of the judgment without passing

Dr.GRR,J CRP Nos.2723&2876 of 2022

any order in the impugned application and relied upon the judgments

of the Hon'ble Apex Court in Bipin Shantilal Panchal v. State of

Gujarat and another 1 on the aspect that:

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re- moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: 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

(2001) 3 SCC 1

Dr.GRR,J CRP Nos.2723&2876 of 2022

magistrate can keep such 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.)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses.

The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

and of the High Court of Bombay in Naginbhai P. Desai v. Taraben

A. Sheth 2 on the aspect that:

"Once a document, improperly stamped, is admitted in evidence, it is not open to the Trial Court or to a Court of Appeal to go behind that order."

4.2 He further relied upon the judgment of the erstwhile High

Court of A.P. in Pullela Lakshminarayana and another v.

(2002) SCC OnLine Bombay 1114

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Maddimsetti Mukteswara Rao and another 3, wherein by placing

reliance upon the judgment of the Hon'ble Apex Court in Bipin

Shantilal Panchal v. State of Gujarat and another (1 supra), the

High Court agreed with the opinion of the trial Court that the

unregistered lease deed can be received in evidence and marked on

behalf of the plaintiff.

4.3 He further relied upon the judgment of the Hon'ble Apex

Court in S.Kaladevi v. V.R. Somasundaram and others4 on the

aspect that:

"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."

4.4 He further placed reliance upon the judgment of this Court

in Sri Kathi Narsinga Rao v. Kodi Supruya and another5 on the

aspect that:

"Certified copies obtained from Court proceedings of another suit being public documents within the meaning of Section 74 read with 77 of the Evidence Act can be exhibited."

2009 SCC OnLine AP 109

2010 (5) SCC 401

2016 SCC OnLine Hyderabad

Dr.GRR,J CRP Nos.2723&2876 of 2022

4.5. He further relied upon the judgment of the High Court of

Gujarat in Apurva Dave v. Prapti Apurva Dave 6 wherein in a

family court matter, the wife had not disputed the contents of the CD

filed by the respondent-husband and she had nowhere mentioned that

the CD was false and fabricated, it was held that:

"Section 65-B certificate can be provided at a later stage and it was not a legality going to the root of the matter and the document ought to have been permitted to be produced in the matter."

4.6. He further placed reliance upon the judgment of the High

Court of A.P. in Parchuri Sireesha and another v. Challapalli

Jalaja 7 on the aspect whether an unregistered gift deed could be

received in evidence for collateral purpose and observed that:

"Since the matter is only at the first stage of collection of deficit stamp duty and penalty on the gift deed, there was no need to go into the other aspect as to whether the same could be received in evidence for collateral purpose and permission ought to have been considered by the trial court for payment and collection of deficit stamp duty and penalty on the instrument in question."

4.7. He further placed reliance upon the judgment of the

Hon'ble Apex Court in Z. Engineers Construction Private Limited

2019 SCC OnLine Gujarat 2113

2019 SCC OnLine AP 268

Dr.GRR,J CRP Nos.2723&2876 of 2022

and another v. Bipin Bihari Bahera and others 8 wherein an

objection was taken with regard to impounding of power of attorney,

it was held that; "Such objection was required to be decided at the

threshold but incase where evidence is required to determine the

nature of document, it was reasonable to defer that issue at the time of

final decision in the suit and remitted the matter to the trial court to

decide the petition on admissibility of the document along with the

main suit."

4.8. He further placed reliance upon the judgment of the

Hon'ble Apex Court in Dhanpat v. Sheo Ram 9 on the aspect of

"objections regarding admissibility of the 'Will' shall be decided by

the court at the final stage, unless there is a legal provision to the

contrary, as the bar on taking into evidence a compulsorily stampable

document which is not stamped or is deficiently stamped, may then

have to be decided as a preliminary issue."

4.9. He further relied upon the judgment of the Hon'ble Apex

Court in Korukonda Chalapathi Rao v. Korukonda Annapurna

2020 (4) SCC 358

2020 (16) SCC 209

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Sampath Kumar 10 wherein by applying the test laid down by the

Hon'ble Apex Court, it was held that:

"The words in the khararunama are intended to refer to the arrangements allegedly made by the parties in the past and the document itself would not create, declare, assign, extinguish or limit right in the properties as such, the khararunama would not attract Section 49 (1)(a) of the Registration Act."

5. Learned counsel for the respondents, on the other hand,

contended that the suit was filed by the respondents-plaintiffs seeking

declaration of title, recovery of possession and consequential

injunction. The respondent No.1 was examined as PW.1 and got

marked the documents in support of her claim. The matter was posted

for the evidence of defendants and the defendants got filed the

Certified Xerox copy of the unregistered partition deed dated

22.06.1969 seeking leave of the Court to receive the said document.

The respondents have taken an objection that the said document could

not be received in evidence and so also could not be marked

as an exhibit even for collateral purpose. They contended that the

unregistered partition deed was forged and the same was brought

into existence only for the purpose of grabbing the suit schedule

property. While considering the objection raised by their

(2022) 15 SCC 475

Dr.GRR,J CRP Nos.2723&2876 of 2022

counsel, the trial court marked the certified Xerox copy of the

unregistered partition deed as Ex.B2 (subject to objection for want of

registration) relying upon the statement of the counsel that stamp duty

was paid on the said document.

5.1. He further contended that even though the original

document was impounded and deficit stamp duty was collected, the

defect of non-registration could not be cured as per Section 17 of the

Indian Registration Act. As such, the respondents filed the impugned

I.As., seeking to de-exhibit the document marked as Ex.B2. From the

beginning, an objection was taken with regard to marking of the said

document. It was marked on the last date of hearing on 08.11.2021

without considering their objections. On the applications filed by

them, the trial court considering merits in their submissions and the

judgments of the Hon'ble Apex Court in the said regard allowed their

applications de-exhibiting Ex.B2. There was no illegality in the order

of the court below and relied upon the judgments of the High Court of

Judicature of Telangana and Andhra Pradesh in Sure Ranga Murali

Krishna Reddy v. Sure Yerri Vara Prasada Reddy and others 11,

2018 (5) ALD 396

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Lakkoji Mohana Rao v. Lakkoji Viswanadham and others 12,

Dammu Eswara Rao v. Gorli Gouresh 13 and Budha

Jagadeeshwara Rao v. Sri Ravi Enterprises14; and of the Hon'ble

Apex Court in K.B. Shah and Sons Pvt. Ltd.v. Development

Consultant Ltd. 15 and R.V.E. Venkatachala Gounder v. Arulmigu

Viswesaraswami and V.P. temple and another16 and of this Court

in Smt. Yeluvolu Blessy Sheeba v. Smt. Amgoth Anitha Nayak17.

6. Now the point for consideration:

Whether the trial court committed an error in demarking the document exhibited as Ex.B2?

7. Admittedly, the suit was filed for declaration of title and

recovery of possession by the plaintiffs, the daughter-in-law and grand

children of late Veeroji claiming that the suit schedule properties were

the self acquired properties of Veeroji and Veeroji executed an

unregistered Will bequeathing the said properties in favour of his wife

Smt. L. Narsubai and his only son L. Jagadeeshwar and that L.

Jagadeeshwar died intestate and Narsubai executed a gift settlement

2012 (3) ALD 327

2018 (2) ALD 428

2017 (1) HLT 56

2008 (6) ALD 92 (SC)

AIR 2003 sc 4548

CRP No.1769 of 2023 dated 09.10.2023

Dr.GRR,J CRP Nos.2723&2876 of 2022

deed in favour of her two grandsons. The defendants are the sons of

late Veeranna and late Chinnoji, the brothers of late Veeroji. The

contention of the defendants in their written statement was that the

suit schedule properties were purchased from the joint family nucleus

and was kept in the name of Veeroji, who acted as kartha of joint

family and there was a partition among late Veeroji and his brothers in

the year 1969. The defendants herein earlier filed a suit for perpetual

injunction against the plaintiffs herein, vide O.S.No.311/2009 with

respect to the same schedule of properties. In the said suit, they got

filed and marked the partition deed as Ex.A1. Though it was an

unregistered document, the same was marked to prove the possession

of the defendants herein i.e., the plaintiffs therein for collateral

purpose. The defendants have now filed the certified copy of the said

partition deed as Ex.B2. An objection was taken by the plaintiffs at

the time of marking of the said document also and the same was

marked subject to objection being an unregistered document. The

contention of the defendants was that they got validated the said

partition deed by paying necessary stamp duty and an endorsement

was also made by the Collector with regard to receipt of the

stamp duty and the objection with regard to non-registration of

Dr.GRR,J CRP Nos.2723&2876 of 2022

the said document can be considered at the final stage of passing the

judgment. But the plaintiffs filed an application for de-exhibiting the

said document and the same was allowed by the trial court vide the

impugned orders which was the subject matter of these revisions.

8. As per the judgment of the Hon'ble Apex Court in Bipin

Shantilal Panchal v. State of Gujarat and another (1 supra), a

procedure was suggested by the Hon'ble Apex Court to postpone the

decision on the admissibility of the document till the final stage of the

case except with regard to the objection relating to the deficiency of

stamp duty as it would not waste the precious time of the court.

However, without following the said procedure, the trial court had

undertook to decide the validity of the unregistered partition deed.

As the validity of the document has to be decided by the trial court

even at the final stage and as already there was a lapse of almost three

years in deciding these revisions and the trial could not be proceeded

because of the pendency of these revisions, it is considered fit to pass

an order with regard to the validity of the said document without

postponing the said aspect to a final stage.

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9. It is considered fit to extract Section 49 of the Indian

Registration Act, 1908 for better appreciation of the case:

"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) or as evidence of any collateral transaction not required to be effected by registered instrument."

10. Section 17 of the Registration Act speaks of documents

which are compulsorily registerable. It reads as follows:

"17. Documents of which registration is compulsory.

(1)The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian

Dr.GRR,J CRP Nos.2723&2876 of 2022

Registration Act, 1877, or this Act came or comes into force, namely,

(a)instruments of gift of immovable property;

(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

11. Section 17 (1) (b) of the Registration Act lays down that a

document for which registration is compulsory should, by its own

force, operate or purport to operate to create or declare same rights in

immovable property. A document though unregistered can, however,

be looked into under the proviso to Section 49 of the Act, to be used

as evidence of any collateral transaction not required to be effected by

Dr.GRR,J CRP Nos.2723&2876 of 2022

a registered instrument. Thus, an unregistered partition deed can be

received in evidence only to prove the collateral purpose of severance

in status, but not the main purpose of creating or extinguishing right

over the property.

12. As per the judgment relied by the learned counsel for the

respondents-plaintiffs in Sure Ranga Murali Krishna Reddy v.

Sure Yerri Varaprasada Reddy (11 supra), the High Court of

Telangana and A.P., after considering the judgments of the Hon'ble

Apex Court Bipin Shantilal Panchal v. State of Gujarat and

another (1 supra), Javer Chand v. Pukhraj Surana [AIR 1961 SC

1655], Avinash Kumar Chauhan v. Vijay Krishna Mishra [2009

(1) ALD 109 (SC)] and R.V.E. Venkatachala Gounder v.

Arulmigu Viswesaraswami and V.P. temple and another (11

supra) observed that:

"16. In the case on hand, the objection is not only with regard to the mere sufficiency or otherwise of the stamp duty payable on the original partition deed but, also with regard to non- registration of the original partition deed. The law is well settled that there is no bar under law to consider at any stage of the matter, an objection which is raised with regard to the admissibility of an unregistered document, which is compulsorily registerable, even though such document is marked as an exhibit, more particularly, when such marking is given inadvertently and without application of mind. Indeed, in a recent decision in Uma Pandey

Dr.GRR,J CRP Nos.2723&2876 of 2022

and another v. Munna Pandey and others, (2018) 5 SCC 376, the Supreme Court held that question relating to admissibility of an unregistered partition deed relied upon by the defendants is a substantial question of law and can be permitted to be raised even in a second appeal. Further, as already noted the law is well settled that Section 35 only deals with original instruments and not copies and that 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 evidence without objection at the initial stage of a suit or proceeding. Therefore, the document in question now being a certified copy and not an original the benefit cannot be extended to it in any view of the matter.

17. In the facts and circumstances and in view of the precedential guidance, this Court is of the well considered view that the Court below was in error in marking the document, viz., CC of unregistered partition deed as Exhibit B1 without application of mind and without first deciding the objection raised as ordained in the decision of the Supreme Court in Bipin Shantilal Panchal's case (supra) and in further refusing to accede to the request of the plaintiff to de-exhibit the document or exclude/eschew it from evidence for deciding its admissibility or otherwise after adverting to the aspects viz., whether it's original was duly stamped/charged with duty and whether it can be admitted in evidence for collateral purpose in the light of the ratios in the precedents adverted to supra. For the foregoing reasons, this Court finds that the order is unsustainable and is liable to be set aside."

13. The erstwhile High Court of A.P. in Lakkoji Mohana Rao

v. Lakkoji Viswanadham and others (12 others), after considering

various judgments culled out the principles laid down in various

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judicial precedents with regard to admissibility of an unregistered

document as evidence and held that:

"24. As discussed above, the document sought to be filed is nothing but a partition deed creating right and title in the lands said to have been allotted to the parties. It is settled law that registration of document which is to be required u/s 17(1)(b) of the Registration Act makes the document inadmissible in evidence. Under Section 49(c) of the Registration Act, no document required by Section 17 to be registered shall be received as evidence of any transaction affecting the said property unless it has been registered. Of course the proviso says that an unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be affected by registration of instrument.

25. The A.P. Amendment Act 17 of 1986 came into force with effect from 16-08-1986 and definition of ''instrument of partition'' under section 2(15) of the Indian Stamp Act has been amended. As referred in the above paragraphs even a memo recording past partition is also brought within the definition of ''instrument of partition'' by virtue of the said amendment. Thus, the argument that a document is merely a record of family arrangement, settlement or acknowledgment of prior partition and admissible for collateral purpose is no more available after the above amended provisions of Indian Stamp Act came into force. Section 35 of the Indian Stamp Act is very clear and creates a clear bar and therefore unstamped document is inadmissible in evidence for any purpose. Admittedly the alleged document i.e. partition deed is chargeable with duty. In view of the settled legal position i.e. the bar engrafted u/s 35 of the Indian

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Stamp Act is an absolute bar and therefore the document cannot be used for any purpose unlike the bar contained in Section 49 of the Registration Act.

26. ...Collateral purpose means not for the purpose of proving the partition or allotment of shares or creating of any right. For example, in a case the Parties have partitioned their properties in 07-01- 1953 and after some time they prepared the lists of properties allotted to the parties or prepared a memo of family arrangement and a suit for partition is filed in the year 1960 and the party who pleads that partition had taken place on 07-01-1953 proves his possession by filing documentary evidence that he has been in exclusive possession of the properties allotted to him and that there was a severance of joint family and his status is no more as a member of Joint Hindu family and his status has changed. Then in such circumstances only for the purpose of proving that his possession commenced from 1953 onwards or that his status is not as a member of Joint Hindu Family, for that purposes a family arrangement which was reduced into writing as the lists prepared alone amounts after the actual date of partition could be received for collateral purpose. If the said document cannot be proved to show that the partition had taken place on 07-01-1953 or that the properties were allotted to those parties in pursuance of the said partition on 07-01-1953, thus it is clear that a document for the purpose of proving the terms of such document cannot be admitted in evidence. Thus the document cannot be received to say that it created or declared assigned or limited or extinguished a right to immovable properties. The term collateral purpose would not permit the parties to establish any of these facts from the deed. In the name of collateral purpose, no document can be received nor any right said to have been created, declared or assigned or limited or extinguished can be inferred from such document."

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14. This Court in Dammu Eswara Rao v. Gorli Gouresh (13

supra) held that:

"8. In the case on hand, the said document was not admitted in evidence earlier. Admittedly, the document in issue is not duly stamped as required under Section 35 and is not registered as required under Section 17 of the Indian Registration Act. Thus, mere admission of document in another suit is not a bar for a party to raise an objection in another suit. Section 36 of the Act has limited application and the language employed therein would make it clear that it has no application to any other suit, though the document may be the same. Thus, it is permissible for a party to a suit to raise an objection on the marking of the document if the same is not duly stamped. This aspect was not considered by the trial court while over-ruling the objection.

14. Further, when an objection was raised on admissibility of document in evidence, it is mandatory for the Court to consider such objection and assign reasons in support of the decision."

15. The High Court for the States of Telangana and Andhra

Pradesh in Budha Jagadeeshwara Rao v. Sri Ravi Enterprises (14

supra) had discussed the concepts 'main purpose' and 'collateral

purpose' as follows:

"26. The concepts main purpose and collateral purpose play a pivotal role for admitting or not admitting in evidence an un-registered document compulsorily registerable. The main purpose means the purpose mentioned in Section-17 i.e. for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immoveable property, etc. Such a document when compulsory

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registerable not admissible in evidence for the said main purposes. The effect of non-registration of such an instrument compulsory registerable is that the instrument doesn't affect any immoveable property comprised therein nor can it be received as evidence of any transaction affecting such property. It does not follow, however, that the document is wholly irrelevant. Though the instrument is not admissible for the purpose of proving a concluded transaction transferring an interest, yet it can be received in evidence for collateral purposes. Collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immoveable property. The proviso to Section-49 permits the use of an un- registered document even compulsorily be registered, as evidence of a collateral transaction within the meaning of Section-49 proviso. Collateral transaction means a transaction other than the transaction affecting the immoveable property but which is in some ways connected with it. The expression collateral transaction is not used in the sense of an ancillary transaction to a principal transaction or subsidiary transaction to a main transaction. The root meaning of the word collateral is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose. The fulfillment of that collateral purpose would bring into existence a collateral transaction, which may be said to be a part and parcel of the transaction but nonetheless, a transaction which runs together with or on parallel lines with the same. Thus, a collateral purpose is a purpose which must be unrelated to the terms and conditions of the main purpose of the transaction covered by the document. It must be independent of, or divisible from the transaction which requires registration, and it must be a transaction not by itself required to be effected by a registered document. The term collateral purpose is a very vague one and therefore it is the courts that must decide in each case depending upon facts and circumstances and from contents, as to whether the parties who seek a compulsory but unregistered

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document when not admissible to main purpose, for a purpose which is really a collateral purpose to mean other than for any of the main purposes mentioned as held in K.Panchapagesu Aiyyar Vs. K.Kalyanasundaram Aiyyar . It is because a party cannot use such un-registered document by the simple device of calling it as collateral purpose. In legal proceedings what one cannot directly bring about, cannot indirectly bring about is held in A.C.Lakshmipathy and Others Vs. A.M. Chakrapahi Reddiar . In-AIR-1932-PC-55 and Kashinath Bhaskar Datar Vs. Bhasker Viveshwar it was clearly held that to decide whether registration required or not the words creating, declaring, assigning, limiting or extinguishing a right to immoveable property are ejusdem-generis and imply a definite change of legal rights in the property that is main purpose. Where the document doesnt reflect any definite change of legal rights in the property and merely recites what the existing rights therein are i.e. mere acknowledgment of a fact took place, likewise merely recites with whom the possession of the property lies, it cannot be construed from the contents as of creating, declaring, assigning, limiting or extinguishing any rights in immovable property. See also Uma Devi and Others Vs. Shaik Hussaini and Others , Harendra H. Mehta and Others Vs. Mukesh H.Mehta & Ramlaxmi Ranchlodal Vs. Bank of Baroda, Hyderabad . In-1969(1) SCWR it was held that evidence as to character of possession is being considered as collateral purpose. See also Hari Waman Rao and Others Vs. Pappula Narsimlu . In-AIR-1959-SC-199-it was held that character of possession prior to date of document cannot be regarded as collateral purpose. The test would be whether the party relying on the registered document seeks to rely on its terms for affecting such property or conferring such power. If the genuineness of a document is questioned, the execution of the document itself will have to be proved and that cannot be a collateral purpose. For instance, an unregistered lease deed cannot be relied upon to enforce the terms of the agreement such as the period of tenancy, quantum of rent, mutual obligations under the agreement, where the lessee has the right to sub-lease or to carry out the

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repairs to the building etc., In other words, what is prohibited is the attempt to enforce the terms of the unregistered document, but not to establish the purpose for which the property was given possession i.e., nature of possession which is a collateral purpose. See Sardar Amar Singh and Others Vs. Smt Surinder Kaur ; AIR-1977-AP-371; 1975(2) APLJ-298; Gangayya and Others Vs. S. Madan Chand Samdaria ; Raghunath Singh and Others Vs. Kishanla (deceased LR); 1975(2) AnWR-226=(1)APLJ-372; S.K.Agarwal Vs. M. Venkateswarlu - all the above cases are relating to unregistered lease deed or lease agreements. In Ambati Durgamma vs. Pericherla Ragapathiraju it was held that an unregistered lease deed, which is compulsorily registerable can be looked into for the purpose of proving nature of possession of lessee over leasehold land. In Giri Yadav vs. L.Ramesh Goud it was held that a lease deed in respect of immovable property for a period exceeding one year or reserving yearly rent requires registration. However, unregistered lease is admissible in evidence for collateral purpose of proving possession of a party."

16. The Hon'ble Apex Court in K.B. Shah and Sons Pvt.

Ltd.v. Development Consultant Ltd. (15 supra) explained the

principles as to what can be considered as a collateral transaction and

held that:

"A collateral transaction must be independent of, or divisible from, transaction which requires registration and must not by itself be registerable. A document which, if inadmissible in evidence for want of registration, none of its terms can be admitted in evidence. Use of a document for proving an important clause would not be using it as a collateral purpose."

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The Hon'ble Apex Court in the above case also referred the case of

High Court of Allahabad in Ratan Lal & ors. v. Harisankar & Ors.

[AIR 1980 Allahabad 180], wherein it was held that:

"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property ..........term collateral purpose would not permit the party to establish any of these acts from the deed."

17. The Hon'ble Apex Court in R.V.E. Venkatachala

Gounder v. Arulinigu Viswesaraswami and V.P. temple and

another (16 Supra), while considering the argument that the objection

to the admissibility of the document can be raised only when it is

tendered but not subsequently, held that:

"19. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.

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20. The learned counsel for the defendant- respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then

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and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

18. In the present case, an objection was taken by the

respondent-plaintiff with regard to admissibility of Ex.B2 when the

document was tendered in evidence. Though the document was

marked as an exhibit subject to the objection, the same would not

enable the party tendering the evidence to cure the defect. The

respondent also immediately filed an application questioning the

admissibility of Ex.B2. As such, the court, after going through the

said objection taken by the respondents even at the initial stage and

considering the case laws in the said regard, had accepted the said

document.

19. The contention of the learned counsel for the petitioners

was that the petitioners had taken the plea of adverse possession and

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an issue was also framed in the said regard by the trial court and the

unregistered partition deed can be considered for proving the title of

the defendants by adverse possession. But, when the petitioners were

trying to prove their title through adverse possession and were using

the unregistered partition deed to prove their possession, the same also

cannot be considered as collateral purpose. As such, this Court

considers that the unregistered partition deed cannot be used even for

proving adverse possession by the defendants herein.

20. This court does not find any irregularity or illegality in the

observations of the trial court in de-exhibiting Ex.B2 as the present

suit is not a suit for injunction to prove the possession of the parties

but a suit for declaration of title wherein it has to decide whether

substantial rights were accrued to the parties by virtue of the above

document.

21. In the result, both the Civil Revision Petitions are dismissed

confirming the orders dated 15.03.2022 passed in I.A. No.1515 of

2021 in O.S. No.178 of 2013 and I.A. No.1516 of 2021 in O.S.

No.179 of 2013 by the I-Additional Chief Judge, City Civil Court,

Secunderabad. No order as to costs.

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Miscellaneous applications, pending if any, shall stand closed.

____________________ Dr. G.RADHA RANI, J February 20, 2025 KTL