Judgment :- The writ petition coming on for preliminary hearing in ‘B’ group is considered for final disposal, having regard to the facts and circumstances of the case. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 3. The petitioner herein is the first defendant in a pending civil suit, which is filed by the respondent No.1 herein, for the relief of declaration of ownership and injunction. The declaration sought is that a registered gift deed is not binding on the plaintiff. It is the case of the plaintiff-respondent no.1 that the family of the plaintiff while joint, had acquired plot No.70 to run a business and although the allotment was made in the name of defendant No.2, there was a partition, wherein it was alleged that the said plot land was allotted to the plaintiff and his brother and that, there was also a compromise entered into between the plaintiff and defendant No.2 in another civil suit in O.S.No.539/2006 dated 12.10.2007. The suit was contested and the plaint averments were denied. During the course of evidence, the plaintiff-respondent no.1 sought to produce a document which was styled as a partition deed. On an objection being raised as to its admissibility and marking of the same, on account of want of registration, the trial Court has rejected the objection, on the footing that the document could be marked for a collateral purpose, even though it is an unregistered and unstamped document. To arrive at this conclusion, the trial Court has relied upon the authorities referred to hereunder. The only question, therefore, is whether the trial Court was justified in holding that the document in question could be marked for a collateral purpose, even though it was not registered and was unstamped. 4. The trial Court has relied upon the decision in the case of K. Anjaneya Setty vs. K.H. Rangiah Setty (ILR 2002 KAR 3613), to accept the argument put forth that the document though unregistered the unstamped, could yet be relied upon for a collateral purpose. The facts of that case were as follows: The plaintiff therein had filed a suit for the relief of declaration to declare that he was entitled to half share in the suit property and for partition and separate possession. The facts of that case were as follows: The plaintiff therein had filed a suit for the relief of declaration to declare that he was entitled to half share in the suit property and for partition and separate possession. It was his further case that under a registered partition deed, the properties of the joint family were divided between the plaintiff, the defendant and their father and that there was a specific recital in the partition deed that, on the demise of the father, the plaintiff and the defendant should divide certain properties which were allotted to the father. The father having died, the defendant refused to effect partition as declared therein and therefore, the plaintiff was constrained to file the suit. The suit was resisted on the ground that though the registered partition deed between the parties was admitted, after the death of the father, it was alleged that there was a settlement under a deed, under which, the plaintiff and the defendant had agreed to give the rents to the father and the mother and in pursuance of the family settlement, the properties were divided between the parties and accordingly, the suit property had fallen to the share of the defendant. It was pleaded that the defendant had filed another suit against the plaintiff for the relief of permanent injunction and as the said document, namely, the Settlement Deed was marked, after overruling the objections of the plaintiff and it was in that background that the dispute as to whether the document could be marked in the present suit before this Court, in that decided case, arose for consideration. 5. This Court while referring to several decisions of the Apex Court, has concluded that though Section 49 of the Registration Act prohibits receiving documents in evidence, requiring registration under Section 17, which are compulsorily registrable, it was observed that the proviso to the said Section provides for receiving such documents in the circumstances narrated therein. Therefore, it was clear that there is no total prohibition for receiving unregistered documents in evidence and that it was settled law that an unregistered partition deed could be received in evidence to prove any collateral transaction. Therefore, it was held that even if an unregistered document is marked, it would in no way affect the interest of the parties. Therefore, it was clear that there is no total prohibition for receiving unregistered documents in evidence and that it was settled law that an unregistered partition deed could be received in evidence to prove any collateral transaction. Therefore, it was held that even if an unregistered document is marked, it would in no way affect the interest of the parties. Mere marking of documents does not take away the right of the opposite party to contend that such a document cannot be relied upon as it is not registered. Similarly, when the law declares that for a collateral purpose, an unregistered document could be looked into, it makes it clear that such a document could be marked under those circumstances. The proper course for the Courts would be to mark such documents, subject to objections, permitting the parties to adduce evidence instead of putting questions to the Counsel at the time of arguments, etc. 6. The trial Court has also relied on yet another judgment in the case of AIR 2003 SC 1905 (Bondar Singh and Others vs. Nihal Singh and Others), which is also reported in ILR 2003 KAR 2253. .The facts were the plaintiffs therein had filed a suit for declaration that they had become the owners of the land in suit by adverse possession, and for an injunction to restrain the defendant from interfering with the plaintiff’s possession. The suit was decreed. However, an appeal filed against the same was allowed by the First Appellate Court and a further appeal was allowed by the High Court and the suit was finally decreed. The same was carried before the Supreme Court. One of the questions that arose for consideration was that the land which was sold was owned by Fakir Chand, the predecessor-in-interest of the appellants and Fakir Chand had sold the land to one Tola Singh, predecessor-in-interest of the plaintiffs, by an unstamped, unregistered sale deed and whether the said document could be relied upon. 7. The Supreme Court has held that under the law the sale deed is required to be properly stamped and registered before it conveyed title to the vendee. However, the legal position is clear that a document like a sale deed, in that case before it, even though not admissible in evidence could be looked into for collateral purposes. 7. The Supreme Court has held that under the law the sale deed is required to be properly stamped and registered before it conveyed title to the vendee. However, the legal position is clear that a document like a sale deed, in that case before it, even though not admissible in evidence could be looked into for collateral purposes. It was held by the Apex Court that the collateral purpose to be seen is the nature of possession of the plaintiff’s over the suit land. The sale deed in question showed that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. Therefore, it is in that vein, that the Supreme Court held that even an unregistered sale deed could be looked into for collateral purposes. 8. The question therefore, that arises for consideration is whether in the case on hand, whether the trial Court was justified in permitting the marking of a document which was admittedly an unstamped and unregistered partition deed on the ground that it was possible to have the same marked for a collateral purpose. 9. In this regard, this Court while dealing with an identical question has taken note of the decided case law, in W.P.Nos.83637-638/2009 dated 23.08.2010, with reference to the following decisions which would be relevant to answer the question, namely Nani Bai vs. Gita Bai Kom Rama Gunge ( AIR 1958 (SC) 706 ), Mattapalli Chelamayya vs. Mattapalli Venkataratnam ( AIR 1972 (SC) 1121 ) and Darshan Singh vs. Samsher Singh ( AIR 1988 (SC) 881 ). 10. In Nani Bai’s case supra, which was a defendants appeal from the High Court of Bombay, one of the questions that arose for consideration was whether certain documents which were exhibited would operate, or create a right or interest in immovable property within the meaning of Section 17(1)(b) of the Registration Act. On a close interpretation of the documents, the Supreme Court has observed that partition in the Mithakshara sense may be severance of the joint status of the members of a coparcenery, that is to say, what was once a joint title has become a divided title, though there has been no division of any properties by metes and bounds. Partition may also mean, what is ordinarily understood by partition among co-parceners, who may not be members of a Hindu co-parcenery. Partition may also mean, what is ordinarily understood by partition among co-parceners, who may not be members of a Hindu co-parcenery. For partition in the former sense, it is not necessary that all the members of the joint family should agree because, it is a matter of individual volition. If a co-parcener expresses his individual intention in unequivocal language to separate himself from the rest of the family that effects partition, so far as he is concerned from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the later sense, of allotting specific properties or parcels to individual co-parceners agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally. But if the parties reduce the transaction through a formal document which is intended to be the evidence of partition, it has the effect of declaring the exclusive title of the co-parcener to whom a particular property is allotted by partition and is thus, within the mischief of Section 17(1)(b) of the Registration Act. But partition in the former sense of defining the shares only, without specific allotment of the property has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the co-parcenery. The change of status from a joint member of a co-parcenery to a separated member having a definite share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b). Because, so long there has been a partition, in that sense, the interest of the separated member continues to extend over the whole joint property as before. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b). Because, so long there has been a partition, in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that Section and the Supreme Court concluded, that insofar as the documents, referred to in that case, was evidence of partition only in the former sense and therefore, were not compulsorily registrable under Section 17 and shall not come within the mischief of Section 49, which prohibits the reception into evidence of any document effecting immovable property and it was held that the documents were rightly received in evidence for a limited purpose. 11. In Mattapalli Chelamayya’s case supra, the question that arose for consideration was as regards the terms of an award by arbitrators, under the provisions of the Arbitration Act, 1940. The appellants before the Apex Court were made liable to pay certain amounts personally, to the respondents, along with interest and that amount was made a charge on the immovable properties in the possession of the appellants. The Apex Court was dealing with the effect of non-registration of the said award. The Apex Court held that insofar as the direction to pay a sum of money by one party to another is concerned, it was held that there was no difficulty, because it creates a personal liability and an award containing such a direction did not require to be registered. But the contention that was raised was that since the award creates a charge also, for the payment of that amount, on immovable properties, the whole transaction was to be regarded as one and unseverable and since a charge requires to be registered, the instrument could not be received in evidence, for want of registration. The High Court had rejected such a contention. The Supreme Court held that it was rightly rejected; And while interpreting the scope of Section 49 of the Act, the Supreme Court held that since the award was not registered, it would be correct to hold that the document would not affect immovable properties of the appellants. The High Court had rejected such a contention. The Supreme Court held that it was rightly rejected; And while interpreting the scope of Section 49 of the Act, the Supreme Court held that since the award was not registered, it would be correct to hold that the document would not affect immovable properties of the appellants. It cannot also be received as evidence of any transaction affecting the said property as evidence of the charge. But the Apex Court observed that the Section does not indicate that the document cannot be received in evidence at all and if under the Evidence Act, the document was receivable in evidence for a collateral purpose, Section 49 was no bar and this legal position has been duly recognized by the amending Act 21 of 1929, which has added a proviso to the Section. The Apex Court concluded that the direction to pay a sum of money which had been held due and payable by the appellants to the respondents did not create a liability for the first time, but merely worked out the liability, but the same cannot be said about the charge which was created for the first time. The Court concluded that the case involved two distinct matters, one being a personal liability to pay a certain amount and the second, an additional relief to recover that amount from the immovable property of the appellants and that the two did not form one transaction, but two severable transactions. That the test would be whether the transaction evidenced by the particular instrument is single and indivisible or whether it really evidences two transactions which can be severable from each other. One as creating an independent personal obligation and the other, as merely strengthening it by adding a right to proceed against immovable property. But it was also observed that it is not enough if there was an obligation to pay a sum of money, but it was also necessary that the obligation should have an independent existence and be in no way contingent or conditional on the breach of some obligation relating to immovable property created by some instrument for the contingency or the condition and the obligation would then be a part of one indivisible transaction. 12. 12. In Darshan Singh’s case supra, the case involved four brothers, who were the plaintiffs, who along with the defendants, were the descendants of a common ancestor. The two branches of the family had joint ancestral properties. The agricultural lands were partitioned and which was followed by a further partition of residential properties. This fact was embodied in a memorandum of partition. It was claimed that the parties had remained in separate exclusive possession of their respective properties. However, a dispute having arisen in respect of the plaintiff’s intention to construct over a portion of one item of property, the parties were before the Court. A learned Single Judge as well as a Division Bench of the High Court, construed the document, which came in for interpretation, as a memorandum of family arrangement and not as an instrument of partition requiring registration and therefore, was held admissible in evidence under the proviso to Section 49 of the Act. The Apex Court on a close interpretation of the content of the document, held that, while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causing a change of legal relation to the property divided amongst the parties to such a document, would require registration under Section 17(1)(b) of the Act. But a writing which merely recites that, there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter would be whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction and it was well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration and has held that Section 17(1)(b) lays down that a document for which registration is compulsory should by its own force operate, or purport to operate, to create, or declare some right in immovable property. Therefore, a mere recital of what has already taken place, cannot be held to declare any right and there would be no necessity of registering such a document. Therefore, a mere recital of what has already taken place, cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally, but if it is subsequently reduced into a form of document and that document purports by itself to effect a division and embodies all the terms of a bargain it will be necessary to register it. If it is not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, the evidence of factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists, which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered to prove the fact of partition. 13. In the light of the ratio in Nani Bai’s case supra, wherein the Apex Court has discussed the difference between a document merely recording a severance of joint status of the members of a co-parcenery and a document evidencing a partition, whereby there is allotment of specific properties or parcels to individual co-parceners and its opinion as to whether the one or the other would require registration or not; And as to how transactions evidenced under the same document, if are capable of severance and one of the transactions requiring registration and the other not so required to be registered, as discussed in Mattapalli Chelamayya’s case and finally having regard to the discussion in Darshan Singh’s case, the fact that the document in question was a mere agreement to divide which did not by itself effect division. 14. Having regard to the legal position as emerges from the discussion hereinabove, it cannot be said that the trial Court was justified in proceeding to mark the document for a purported collateral purpose, when the law as laid down is, in the opinion of this Court, is as above. 15. 14. Having regard to the legal position as emerges from the discussion hereinabove, it cannot be said that the trial Court was justified in proceeding to mark the document for a purported collateral purpose, when the law as laid down is, in the opinion of this Court, is as above. 15. Insofar as the reliance placed on the decisions by the said Court it can be seen that one relates to an unregistered sale deed, which was referred to for a collateral purpose which may not lend support to the arguments put forth by the respondents and further insofar as the decision in Anjaneya Setty’s case is concerned, the observation of this Court that, the document may be marked, subject to the objection, would again leave the question open, whether it could be relied upon or would be totally eschewed in considering the merits of the case, is significant. Therefore, the correct legal position, insofar as marking an unregistered, unstamped partition deed, is to be considered on a case by case basis with reference to the tenor and content of the deed, not so much its nomenclature. With that, the petition is allowed. The impugned order Annexure-D is quashed. The trial Court was not justified in permitting an unregistered and unstamped document to be marked, for whatever purpose.