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2017 DIGILAW 2814 (MAD)

Amruthlal Jain v. Vijayakumar

2017-08-22

T.RAVINDRAN

body2017
ORDER : The respondents/plaintiffs have laid the suit, in O.S.No.226 of 2015, on the file of the Additional Subordinate Court, Kumbakonam, for recovery of possession against the revision petitioners/defendants. The said suit is being resisted by the revision petitioners/defendants by filing a written statement. It is found that in the said suit, the revision petitioners have preferred an application in I.A.No.16 of 2017 seeking for the admission of the unregistered lease deed, dated 01.02.2002, in evidence on the footing that the lease deed had been executed in respect of the suit property between the first petitioner and one Nagarajan fixing the lease period as fifteen years from 01.02.2002 to 31.01.2017 and inasmuch as the said document is unregistered and not properly stamped, according to the revision petitioners, they are ready to pay the deficit stamp duty and penalty and further, according to them, inasmuch as the unregistered document could be relied on for collateral purpose, to prove the character of possession, according to them, they have preferred the said application for the relief above mentioned. 2. The above said application has been resisted by the respondents/plaintiffs stating that no doubt the unregistered document can be marked for the collateral purpose only if the collateral transaction is the one which do not require it to be done by a registered document as per law and if the so- called collateral transaction is the one, which could be done only by way of the registered document as per law, then the alleged unregistered document projected by the revision petitioners cannot be marked for any purpose and inasmuch as the revision petitioners seek to mark the above said lease deed, which requires to be compulsorily registered as per law and for the purpose of establishing their tenancy in respect of the suit property and which fact or transaction could be done only by way of the registered document considering the terms of the lease deed and in such view of the matter, according to the respondents/plaintiffs, the transaction for the purpose of which the revision petitioners seek to mark the above said document is not a collateral transaction and hence, the document should not be received in evidence and it is liable to be dismissed. 3. 3. The Court below, on a consideration of the rival contentions put forth by the respective parties, after referring to the various decisions of the Apex Court and the High Courts, concluded that the document sought to be marked by the revision petitioners is a lease deed and in and by which, the revision petitioners seek to establish their tenancy in respect of the suit property under one Nagarajan and inasmuch as the said collateral transaction as put forth by the revision petitioners by itself required to be effected only by a registered document as per law and therefore, held that the document cannot be marked for the collateral purpose as sought for by the revision petitioners and hence, dismissed the application. Aggrieved over the same, the present civil revision petition has been preferred. 4. The revision petitioners/defendants seek to mark the unregistered lease deed said to have been executed between the first revision petitioner and one Nagarajan on 01.02.2002. Admittedly, the said document is not registered as per law. It could, therefore, be seen that the said document cannot be received in evidence. However, relying upon the proviso to Section 49 of the Registration Act, the revision petitioners had moved the Court by way of an application to receive the document in evidence for the purpose of establishing a collateral transaction/purpose i.e., to prove the character of possession of the suit property by them and hence, the document should be received in evidence. Resisting the above said application, the respondents/plaintiffs contended that the collateral purpose/transaction for the purpose of which, the revision petitioners had pressed the above said document to be admitted in evidence requires itself to be registered as per law and in such view of the matter, according to them, the document projected by the revision petitioners cannot be received at all in evidence for any purpose, particularly, for the purpose pleaded by the revision petitioners and hence, the application is liable to be dismissed. 5. As seen from the proviso appended to Section 49 of the Registration Act, it is found that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. 5. As seen from the proviso appended to Section 49 of the Registration Act, it is found that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. Therefore, the person, who wants to seek the admission of an unregistered document for any collateral purpose must establish that the collateral purpose/transaction would also not be required to be effected by a registered instrument as per law, only then he would be entitled to mark the said document by invoking the proviso to Section 49 of the Registration Act. 6. The learned counsel for the revision petitioners, in support of his contentions, placed reliance upon the decisions reported in 2003 (2) CTC 635 [Bondar Singh and others vs. Nihal Singh and others], 2005 (5) CTC 424 [Mayilu Ammal and another vs. Renganathan], (2008) 8 SCC 564 [K.B. Saha and Sons Private Limited vs. Development Consultant Limited], 2009 (6) CTC 609 [Ramamoorthy vs. M. Shanmugam and others] and (2010) 5 SCC 401 [S. Kaladevi vs. V.R. Somasundaram and others]. Suffice to note that the Apex Court in the decision reported in (2008) 8 SCC 564 has adumbrated the principles to be followed as to the reception of the unregistered document in evidence with reference to the proviso appended to Section 49 of the Registration Act as follows: “34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evidence that: 1. A document required to be registered, if unregistered 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 immovable property of the value of one hundred rupees and upwards. 5. 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 immovable 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.? 7. As per the principles inter alia adumbrated by the Apex Court in the above said decision, it is to be noted that if a document is inadmissible 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. Therefore, it is found that when the revision petitioners in particular want to seek only to establish their legal tenancy as claimed by them under Nagarajan in respect of the suit property by marking the said document, when as rightly argued by the learned counsel for the respondents as per the above cited decision of the Apex Court, the establishment of the status of the tenant as claimed by the revision petitioners under the projected document and also the terms of tenancy as such, emanating therefrom require compulsory registration as per law, cannot be termed as collateral purpose as enunciated by the Supreme Court and therefore, according to him, the application deserves rejection. The above arguments put forth by the learned counsel for the respondents seem perfect and acceptable. 8. It is not as if the revision petitioners simpliciter want to establish the factum of possession of the suit property by them as put forth in their application. When the suit itself has been laid by the respondents/plaintiffs claiming possession of the suit property from the revision petitioners, their endeavour or attempt to establish their possession of the suit property by marking the said document does not seem to be acceptable. When the suit itself has been laid by the respondents/plaintiffs claiming possession of the suit property from the revision petitioners, their endeavour or attempt to establish their possession of the suit property by marking the said document does not seem to be acceptable. On the other hand, indirectly, the revision petitioners want to seek only their status as tenants and thereby seek to establish the terms of the tenancy entered into between the parties under the projected document and when the above said purpose requires compulsory registration as per law, it is found that as determined by the Apex Court in the above cited decision, the revision petitioners' request for admitting the document in evidence cannot be accepted. Therefore, it is found that the Court below has rightly dismissed the application and hence, the impugned order does not warrant any interference in this civil revision petition. 9. In view of the foregoing reasons, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.