Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 20 (MP)

Jayant Kumar (Smt. ) v. Vasanti Devi

2012-01-04

SANJAY YADAV

body2012
Judgment Sanjay Yadav, J:- Order dated 03.04.2008 is being called in question vide this petition under Article 227 of the Constitution of India. By said order the trial Court, in a suit for declaration and permanent injunction brought by the petitioner, over-ruled the petitioner's objection for admitting an unregistered and unstamped gift deed dated 30.12.83 in evidence allowing the same for collateral purpose, purportedly, as per proviso to Section 49 of the Registration Act, 1908. 2. The suit by the petitioner for declaration, injunction and possession with respect to the land described in Schedule A, annexed to the plaint is founded on a will dated 26.08.1987 said to be executed by one Rajkumari bai, mother in law of the petitioner (as will of respondent). The claim of the petitioner plaintiff is countered by the respondent defendant. It is contended that the will in question is forged and fabricated and that she is in possession and ownership of the suit land by virtue of gift deed dated 30.12.83. 3. The said gift deed, admittedly, unregistered, on a Stamp paper of Rs.5 (Rupees Five), was when tendered in evidence by the respondent defendant was objected at by the petitioner plaintiff on the ground that the same being insufficiently stamped and unregistered. The trial Court by impugned order allowed the same to be taken for collateral purpose under Section 49 of 1908 Act. 4. The order is being questioned on the ground that the gift deed since" conveys a title and is foundation for establishing ones own title and possession against the claim put forth by the petitioner plaintiff, unless registered could' not even be taken for collateral purpose. 5. The respondent on its turns support the impugned order stating that/ the same being in consonance with the proviso to Section 49 of 1908 Act does -not warrant an interference. It is also contended that the gift of the suit land by the respondent's mother-in-law being customary it was not at all necessary to have it registered as the same is not a gift under the Transfer of Property Act, 1882. 6. Catena of decisions were relied upon by respective counsels in support of respective contentions. 7. Chapter VII of the Transfer of Property Act, 1882 deals with gifts. 6. Catena of decisions were relied upon by respective counsels in support of respective contentions. 7. Chapter VII of the Transfer of Property Act, 1882 deals with gifts. Section 122 defines "Gift" as "the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called the donor, to another called the donee, and accepted by or on behalf of the donee." 8. Section 123 of 1882 Act makes the provision as to how the transfer of the immovable property, gifted is effected. It stipulates "123-Transfer how effected-for the purpose of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same was as goods sold may be made." 9. The gift deed is registrable is also evident from Section 17 (1) (a) of the Registration Act, 1908 which stipulates: "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 exempted on or after the date on which Act No. XVI of 1864, or the India Registration Act, 1866, or the India registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes, into force, namely, (a) instruments of gift of immovable property." 10. Thus Section 123 of Transfer of Property Act 1882 and Section 17 (1) (a) of the Registration Act, 1908 makes an instrument of gift of immovable property compulsorily registrable, as the same conveys a title in favour of donee. 11. The reliance placed upon by the respondent on the decision in Bhubaneshwar Naik Santoshrai and etc. etc. v. The Special Tahsildar Land Reforms Tekkai and other : AIR 1980 Andhra Pradesh 139 and P. Buchi Reddy and others v. Ananthmla Sudhakar AIR 1999 Andhra Pradesh 188 (1), is of no assistance in the case at hand, even if it is accepted that, it was customary in the family of mother-in-law of the petitioner and respondent to gift a land to newly wed daughter in law. In the cases relied upon by the respondent the High Court of Andhra Pradesh was concerned with the gift of land in favour of daughter or sister towards "Pasupa Kumkuma" an obligation of father under Hindu Law to "maintain" an unmarried daughter which term includes reasonable expenses of an incident to her marriage; therefore, the act of discharging an obligation by giving away movable and immovable property was adjudged as not a gift within the meaning of Section 122 of Transfer of Property Act 1882. 12. The facts of present case are different as would attract any parity No obligation seems to have been discharged by giving away a property. On the contrary there is positive act of conveying a right, title and interest over an immovable property, it is compulsorily thus registrable under Section 123 of the Act of 1882 and Section 17 (1) (a) of 1908 Act. The decisions in Bhubaneshwar Naik (supra), P. Buchi Reddy and others (supra) are therefore, of no assistance to the petitioner. Similarly, because of Section 129 of Act 1882 (stipulating that "Nothing in this chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law) and Article 150 (4) of Mullah's Mohammadan Law (which says: "If it is to be proved by oral evidence that a gift was completed as required by law (Section 149 and 150), it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act under Section 17 (a) of the then Registration Act") and the decision in Chotte Khan v. Johri Bi: 1995 (1) MPWN 13 Notes 10, is of no assistance to the respondents. 13. In Beni Madhav Prasad and others v. Raskal Ambalal arid others AIR 1959 Madhya Pradesh 23, it is observed that - "5..........The deed of gift set up by the defendants is valueless to support their title as owners of the house as it is unregistered arid not attested by any witness. It is not admissible even to show that the possession of the defendants was adverse. To do so would be really to hold on the basis of the unregistered and unattested deed that the house was gifted away by Rasik to Chunnilal." 14. It is not admissible even to show that the possession of the defendants was adverse. To do so would be really to hold on the basis of the unregistered and unattested deed that the house was gifted away by Rasik to Chunnilal." 14. In the present case since the instrument dated 30.12.1983 has the trapping of 'gift as defined under Section 122 of Act of 1882 it is compulsorily registrable. , 15. Question now is could an unregistered gift deed be taken in evidence for collateral purpose. Section 49 of the 1908 Act provides for "49. Effect of non-registration of documents required to be registered No document required by section 17 1 [or by any provisions-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 suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), 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), or as evidence of any collateral transaction not required to be effected by registered instrument] 16. Thus, though an unregistered document which is compulsorily registrable under Section 17 of the Act of 1908, can also be admitted into evidence for collateral purpose. [Please see (1072) 3 SCC 799 paragraph 10) and (1981) 4 SCC 613 paragraph 22]. But whether an instrument, such as gift deed, as in the present case, which records conveying of right, title and interest in an immovable property when used for the purpose of establishing such right can be said to be a collateral purpose. In the case at hand the answer would be in negative Tor the reasons that, on the basis of said gift deed the respondent defendant seeks extinguishment of the right of the petitioner plaintiff who has based her suit on the alleged will dated 26.08.87. In the case at hand the answer would be in negative Tor the reasons that, on the basis of said gift deed the respondent defendant seeks extinguishment of the right of the petitioner plaintiff who has based her suit on the alleged will dated 26.08.87. It is by relying on the terms of the gift deed in question, respondent defendant intends to establish her right, title, interest and" possession over the suit property, it therefore, cannot be said that the unregistered instrument is being used for collateral purpose. When the unregistered instrument is not admissible in evidence, the contents thereof is also not admissible. In this context reference can be had of a decision by Supreme Court in Rana Vidya Bhushan Singh v. Ratiram (1969) 1 UJ 89 (SC): wherein it is held - "A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his India Registration Act, 7th Edn. At p. 189 : "The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir: the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it." 17. The said decision finds its affirmation in KB. Sana and sons (P. Ltd) v. Development Consultants Ltd. (2008) 8 SCC 564 in the following terms. "34 From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :- 1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 18. Another decision in the context may be noted in Avinash Kumar Chauhan v. Vijay Krishna Mishra: (2009) 2 SCC 532 ; "24. In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [Pandey Oraon v. Ram Chander Sahu 1992 Supp (2) SCC 77 and Amrendra Pratap Singh V Tej Bahadur Prajapati (2004) 10 SCC 65 ] The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under - "49. Effect of non-registration of document 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 to 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of any collateral transaction not required to be effected by registered instrument." 25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. It all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes. 26. The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parmananad, [ AIR 1946 PC 51 ] wherein it was held :- [That] the words for any purpose' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms." 19. In view whereof, the trial Court while permitting the admission of unregistered gift deed in evidence for collateral purpose patently committed an error of law and thus erred in exercise of jurisdiction vested in it. In the result the impugned order is quashed. 20. The petition is allowed to the extent above. There shall be no costs.