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2017 DIGILAW 1658 (RAJ)

OM PRAKASH v. MADAN LAL

2017-07-26

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. I.A. No. 2300 of 2017. The petitioners have moved the present application, seeking dispensing with the service upon other unserved respondents, whose presence is inessential for the purpose of adjudicating the present issue. 2. For the reasons stated, the application is allowed. Needless to observe that the same shall be at the risk and peril of the petitioner. 3. Looking to narrow compass of the controversy and the fact that the proceedings in the Trial court are likely to be affected, the matter is taken up for consideration, today itself, at the request and with the consent of the counsels for the parties. 4. By way of filing the present writ petition, the petitioners have challenged the order dated 04.04.2016 passed by the learned Additional District Judge, Rajsamand, (hereinafter referred to the 'Trial Court'), whereby an application dated 02.12.2013 filed by the petitioners/plaintiffs under Section 17 of the Registration Act, 1908 read with Section 35 of the Rajasthan Stamp Act, 1998 has been rejected. 5. Avoiding the unwarranted, the facts relevant, for the purpose of adjuding the correctness of the order impugned are; that the petitioners/plaintiffs filed a suit for partition, seeking partition of the ancestral property by meets and bounds. The defendant No. 1 Madan Lal filed a written statement in response thereof and contended that pursuant to two sale deeds dated 27.05.1983 and 05.08.2000, the ownership alongwith the possession of a residential house (Gawadi), situated in 'HoliKa Than' has vested in him. In support of such assertion the said sale deeds had been placed by the said defendant, alongwith his written statement. 6. Confronted with such documents, the plaintiff moved the application dated 02.12.2013 raising objection about admissibility of the document, in view of the provisions contained in Section 17 of the Registration Act, 1908 and Section 35 of the Stamp Act, 1998. The petitioners/plaintiffs interalia contended that the sale deeds in question relate to immovable property, are unregistered and insufficiently stamped, for which they are inadmissible in evidence. 7. The defendant No.1 filed reply to the said application and contended that documents in question, namely sale deeds are being used for collateral purposes, and as such they are admissible in evidence. 8. The petitioners/plaintiffs interalia contended that the sale deeds in question relate to immovable property, are unregistered and insufficiently stamped, for which they are inadmissible in evidence. 7. The defendant No.1 filed reply to the said application and contended that documents in question, namely sale deeds are being used for collateral purposes, and as such they are admissible in evidence. 8. Learned Trial court rejected the application aforesaid, vide its order dated 04.04.2016 interalia observing as under:- ^^gLrxr ekeys esa ;g ,d Lohd`r fLFkfr gS fd izfroknh la[;k 1 ftl nLrkost cSpkuukek fnuakfdr 27-05-1983 dks lk{; esa iznf'kZr djkuk pkgrk gS] og nLrkost iathd`r ,oa lE;d :i ls LVkafir ugha gSA fdUrq ;gka ;g mYys[k djuk lehphu gksxk fd mDr nLrkost cSpkuukek gLrxr ekeys ds i{kdkjksa ds e/; fu"ikfnr fd;k gqvk ugha gksdj oknh la[;k 1] 2 ds firk feJhyky }kjk iq:"kksRre ds i{k esa fy[kk gksuk mYysf[kr gS rFkk mDr cSpkuukek dh fy[kki<+h ds le; izfroknh la[;k 1 enuyky dk mifLFkr gksdj mlds Hkh bl fy[ki<+h ij gLrk{kj gksus dk dFku izfroknh la[;k 1 dh vkSj ls fd;k x;k gSA ,slh fLFkfr esa mDr nLrkost cSpkuukek] ftlesa ekeys ds i{kdkjksa ls lacaf/kr iwoZ lEifRr ds vUrj.k dh ?kVukvksa dk mYys[k fd;k x;k gS] ,slh fLFkfr esa mDr nLrkost cSpkuukek fnukafdr 27-05-1983 tks ;|fi iathd`r gksdj lE;d :i ls LVkafir ugha gksus ls nLrkost dh fof/kd xzkg~;rk ds laca/k esa ;g nLrkost lk{; esa vxzkg~; gS] fdUrq bl nLrkost esa oknxzLr lEifRr ls tqM+h iwoZorhZ ?kVuk ,oa vUrj.k ds mYys[k dk rRo lek;ksftr gksus ls oknxzLr lEifRr ds fgLls fo'ks"k ds iwoZorhZ vUrj.k ,oa vkf/kiR; ds Lo:i ij fopkj fd;s tkus dh gn rd mDr nLrkost dks ek= lhfer ,oa lgikf'oZd iz;kstu (Limited and Collateral Purpose) gsrq bl Lrj ij iznf'kZr fd;s tkus dh vuqefr fn;k tkuk fof/klEer izrhr gksrk gSA ,slh fLFkfr esa oknh@izkFkhZ dh vkSj ls tks U;kf;d n`"VkUr ekeys esa izLrqr fd;s x;s gS] og rF;kRed fHkUurk ds dkj.k gekjs fouez er esa ;gka pLik ugha gksrs gSA Qyr~ mijksDr foospukuqlkj oknh@izkFkhZ dh vkSj ls izLrqr mDr izkFkZuki= [kkfjt djrs gq, izfroknh dh vkSj ls izLrqr nLrkost cSpkuukek fnuakfdr 27-05-1983 dks ek= lhfer ,oa lgikf'oZd iz;kstu dh gn rd gh mijksDrkuqlkj lk{; esa iznf'kZr djus dh vuqefr nh tkrh gSA^^ 9. Mr. Mr. Sandeep Saruparia, learned counsel appearing for the petitioners, assailing the impugned order, submitted that the defendant has based his claim, admittedly on the contentious sale deeds to contend that the property had been purchased by him and he has been enjoying the possession thereof, since it was purchased. In the light of those un-controverted facts, the counsel for the petitioner submitted that since the subject property has changed hands by way of these sale deeds, they are/were required to be registered, as provided under Section 17 of the Registration Act, 1908 read with Section 54 of the Transfer Property Act, 1882. With narration of these facts and statutory provisions, he contended that as the sale deeds in question are not registered and sufficiently stamped, they cannot be admitted in evidence, for which, the petitioners' application ought to have been allowed. 10. Mr. A.K. Babel, learned counsel appearing for the respondents supported the order of the learned court below and contended that since the documents in question have been relied upon as a collateral evidence, the learned Trial Court was justified in passing the order under challenge. He added that at the stage of deciding the application under consideration, the Court was not required to examine the purpose for which, the defendant would use them. 11. I have heard learned counsel for the rival parties and perused the relevant material available on record. 12. Having perused the documents namely two sale deeds dated 27.05.1983 and 05.08.2000, this Court is of the firm view that they convey right interest and title in the immovable property, hence they are exigible to appropriate stamp duty, under the provision of Stamp Act, 1998. Until and unless such stamp duty is paid, the documents are inadmissible in evidence, in the teeth of Section 39 of the Stamp Act, 1998. 13. Adverting to the issue of Registration, pertinent it is to note, that Section 17(b) of the Registration Act mandates that any instrument conveying the immovable property is required to be registered, while Section 49 of the Registration Act provides that a document which is required to be registered and has not been registered, can not be admitted in evidence. 14. Adverting to the issue of Registration, pertinent it is to note, that Section 17(b) of the Registration Act mandates that any instrument conveying the immovable property is required to be registered, while Section 49 of the Registration Act provides that a document which is required to be registered and has not been registered, can not be admitted in evidence. 14. For proper adjudication of the question involved in the present case, it would be appropriate to be reminded of the provisions contained in Section 49 of the Registration Act, for which they are being reproduced here infra:- "49. Effect of non-registration of documents required to be registered : No document required by section 17 [or 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 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." 15. A perusal of the proviso to Section 49 shows that a document even without registration can be used for collateral purposes, on which, learned counsel for the respondents, has heavily relied. The position of law that a document can be used for collateral purposes cannot be disputed, but the bone of contention or the moot question is; as to whether the purpose, for which the document in question is being sought to be used, can at all be considered as a collateral purpose? 16. The defendant's sole case is edificed on the sale deeds dated 27.05.1993 and 05.08.2000, upon which he has projected his claim that possession and proprietorship of the property in question has vested in him. The moment, the defendant seeks to rely upon these documents as a documents of title qua the disputed property and claim ownership, the documents fall foul to Section 17 and 49 of the Registration Act. 17. The moment, the defendant seeks to rely upon these documents as a documents of title qua the disputed property and claim ownership, the documents fall foul to Section 17 and 49 of the Registration Act. 17. However, the defendant may assert or prove his position, based on these documents and contend that he has been enjoying possession of the property, as the same would fall in the sweep of collateral purpose, which is permitted under proviso to Section 49 of the Registration Act. 18. The learned Trial Court has clearly erred in defining rather expanding the scope of collateral purpose, by using the expression, "Prior Transfer and Possession". The relevant part of order is as under:- ^^fdUrq bl nLrkost esa oknxzLr lEifRr ls tqM+h iwoZorhZ ?kVuk ,oa vUrj.k ds mYys[k dk rRo lek;ksftr gksus ls oknxzLr lEifRr ds fgLls fo'ks"k ds iwoZorhZ vUrj.k ,oa vkf/kiR; ds Lo:i ij fopkj fd;s tkus dh gn rd mDr nLrkost dks ek= lhfer ,oa lgikf'oZd iz;kstu (Limited and Collateral Purpose) gsrq bl Lrj ij iznf'kZr fd;s tkus dh vuqefr fn;k tkuk fof/klEer izrhr gksrk gSA^^ 19. The order impugned to the extent of permitting the document to be used as evidence for proving prior transfer is, therefore, clearly illegal and contrary to Section 17 and 49 of the Registration Act, inasmuch as the moment the document is relied upon for the purpose of proving transfer of any kind prior, present or future, the requirement of Registration is a precursor. 20. As soon as the defendant seeks to show his title or even predecessor's title, such unregistered document is hit by the provision of Section 17 and 49 of the Registration Act and the same cannot be admitted in evidence. 21. As an upshot of the above discussion, the present writ petition is allowed. The order impugned dated 04.04.2016 passed by the learned Trial Court is quashed and set aside, the learned Trial Court is directed to impound the document and send the same for determination of proper stamp duty, in accordance with the provisions of Rajasthan Stamp Act, 1998. 22. However, since the documents are not registered, it is clarified that they can be used for the collateral purpose of showing factum and the nature of possession only and not otherwise. 23. The writ petition is allowed as indicated above.