Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 891 (RAJ)

Ravishankar Bawaliya v. Vijay Kumar Bawaliya

2021-04-29

PRAKASH GUPTA

body2021
JUDGMENT 1. The instant Writ Petition under Article 227 of the Constitution of India has been preferred against the order dated 19.11.2019 passed by the learned court below whereby the learned Court below allowed the application filed by the Respondents-defendants filed under Order 13 Rules 3, 4 and 6 of the Civil Procedure Code and held the Sale Deed executed in the year 1884 to be inadmissible in evidence. 2. The brief facts giving rise to the instant Writ Petition are that the Petitioners-Plaintiffs had filed a suit for Partition and Permanent Injunction with respect to an immovable property situated at Nehru Market, Jhunjhunu. It was averred by the Petitioners-Plaintiffs that the aforementioned property was purchased by them jointly with the predecessors of the parties through Sale Deed executed in the year 1884, for a total sale consideration of Rupees 300/-. The Respondents-defendants denied the execution of the aforementioned Sale Deed and also took a specific objection that being an unregistered and insufficiently stamped document, the Sale Deed in question was not admissible in evidence. 3. During the pendency of the suit, the Respondents-Defendants filed an application under Order 13, Rules 3, 4, and 6 of the CPC stating therein that the Sale Deed which the Petitioners-Plaintiffs stated to have been executed between the predecessors of the parties was not admissible in evidence as the same was unregistered and insufficiently stamped. It was stated by the Respondents-Defendants that the Sale Deed was for a sale consideration of Rupees 300/- and since the value of the property in question was more than Rupees 100/-, it was a compulsorily registrable document in view of Section 54 of the Transfer of Property Act, 1882 (for short, 'the Act of 1882'). 4. Detailed reply to the said application was filed by the Petitioners-Plaintiffs. It was the case of the Petitioners-Plaintiffs before the learned trial court that the Transfer of Property Act had not come into force in the State of Rajasthan at the relevant point of time. Since the Sale Deed in question was executed in the year 1884 in Jhunjhunu, which was part of the erstwhile Jaipur State and the stamp had been issued by the competent authority of the erstwhile Jaipur State and thus, proper stamp duty was paid. Since the Sale Deed in question was executed in the year 1884 in Jhunjhunu, which was part of the erstwhile Jaipur State and the stamp had been issued by the competent authority of the erstwhile Jaipur State and thus, proper stamp duty was paid. It was further stated by the Petitioners-Plaintiffs in their reply that the provisions of the Indian Registration Act were also not applicable on the sale deed in question since the Registration Act had not come into force in the year 1884. 5. The matter came up for consideration before the learned trial court and vide the impugned order dated 19.11.2019 the learned trial court allowed the application filed by the Respondent-Defendant under Order 13, Rules 3, 4 and 6 of the CPC and held that the Sale Deed in question was not admissible in evidence since the same was unregistered and insufficiently stamped. Being aggrieved of the order dated 19.11.2019 passed by the learned trial court, the instant writ petition has been filed by the Petitioners-Plaintiffs. 6. Reiterating the grounds and facts urged in the Writ Petition, Mr B.L. Agarwal, learned counsel appearing for the Petitioners-Plaintiffs has contended that the trial court erred in allowing the application filed by the Respondents-Defendants. It is urged by the learned counsel for the Petitioners-Plaintiffs that since the Sale-Deed was executed in the year 1884 in Jhunjhunu, which was part of the former Jaipur State and the Act of 1882 had come into force in the State of Rajasthan only in the year 1952 vide a Gazette Notification, the provisions of Section 54 of the Act of 1882 could not be made applicable to the Sale-Deed in question. The learned counsel also contended that the Indian Registration Act was equally inapplicable to the Sale-Deed in question, the same having been enacted in 1908. The learned counsel further contended that the law applicable in the erstwhile Sate of Jaipur at the relevant point of time was Hidayat No. 22 dated 28.07.1883 as per which, the document i.e. the sale deed was required to be compulsorily registered but since the Hidayat did not specifically bar the admissibility of an unregistered document, the sale deed was admissible in evidence and the learned trial court thus grossly erred in allowing the application filed by the Respondent-Defendant. Reliance was placed on the judgement rendered by this court in the case of Inder Lal v. Abdul Salam, AIR 1983 Rajasthan 57. 7. On the other hand, Mr Sudesh Bansal, learned counsel appearing for the Respondents-Defendants has supported the impugned order and contended that the trial court rightly held the Sale-Deed in question to be inadmissible in evidence since the same was unregistered and insufficiently stamped. Distinguishing the judgment rendered in Inder Lal (Supra), the learned counsel contended the in that case, only the admissibility of document for collateral purposes was considered. Since, in the instant case the Sale-Deed is not sought to be used for collateral purposes, the same is not admissible. Mr Bansal further contended that as per Act XVI of 1864, more particularly Section 13 thereof, every instrument which purports or operates to create, declare, transfer, extinguish any right, title or interest. Reliance was placed by the learned counsel on the judgment rendered by a coordinate bench of this court in Kamlesh v. Khem Chand, 2012 (2) RLW 1422 as also the judgment rendered by a Division Bench of the Bombay High Court in Datto Shivram v. Babasahabe Malhar, AIR 1934 Bombay 194. 8. Heard. Considered. 9. After having given my thoughtful consideration to the issues involved in the instant petition, I am of the opinion that the impugned order does not call for any interference. While it is correct on part of the learned counsel for the Petitioners-Plaintiffs to contend that the provisions of Section 54 of the Act of 1882 would not be applicable to the document in question as the Transfer of Property Act had been made applicable to the State of Rajasthan in 1952, the answer regarding the admissibility of the sale-deed in question is clear from a perusal of Section 17 of the Indian Registration Act, 1908 (for short, 'the Act of 1908')- Section 17 of the Registration Act reads as under: 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 No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian 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; (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:] PROVIDED that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-Ci) any composition-deed; or (ii) any instrument relating to shares in a joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or (iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such company; or (v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a court 13[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding;] or (vii) any grant of immovable property by government; or (viii) any instrument of partition made by a revenue-officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such treasurer of any property; or] (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue-officer. [Explanation: A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. 10. A bare perusal of Section 17 (1) (b) makes it clear that any document purporting or operates to create declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent in an immovable property the value of which is more than Rupees 100/- is compulsorily registrable even though the document might have been executed at a time when the provisions of the Act XVI of 1864, the Indian Registration Act, 1866, Indian Registration Act, 1871 or Indian Registration Act, 1877 were applicable. Further, Section 23 of the Act of 1908 also provides for a time-limit of four months for presenting an instrument for registration. Thus, notwithstanding its date, provisions of Section 49 of the Act of 1908 apply to the Sale-Deed in question and thus, the Sale-Deed cannot have the effect of creating, transferring, extinguishing or assigning any right, title or interest in the property forming the subject-matter of the suit. A similar controversy came up for consideration before the Division Bench of the Bombay High Court in Datto Shivram (Supra) wherein the Bombay High Court held as under: "The learned Subordinate Judge was of opinion on looking at that document that it was one which required registration, and that not having been registered, it could not be given in evidence. But he held that the permanent tenancy was proved by certain entries in the record of rights, and therefore he answered the first issue in the affirmative, holding the permanent tenancy to be proved. The first question which arises, therefore, is whether the document of February 17, 1865, requires to be registered, and if so, what is the effect of no registration? The first question which arises, therefore, is whether the document of February 17, 1865, requires to be registered, and if so, what is the effect of no registration? The document appears to create or purports to create a permanent tenancy, and I think, therefore, that it required registration under section 13 of the Indian Registration Act of 1864, which was in force at the time when this document was executed. The effect of an omission to register under that section was that the document could not be received in evidence in any civil proceeding in any Court or be acted upon by any public officer. But that section did not provide that the document should pass no interest. The Registration Act of 1864 was repealed by the Registration Act of 1866, and that Act by section 17 provided for the registration of certain documents executed on or after the date on which the Act of 1864 came into operation. Then it was provided in section 22 that a document could not be accepted for registration unless presented within four months from the date of its execution. Then by section 100 it was provided that documents executed before the date of the Act should be accepted for registration if duly presented for registration within twelve months from the date when the Act came into operation. That Act was in turn repealed by the Act of 1871, and finally came the Act of 1908 which is at present in force. By section 17 of the Act of 1908, which is in very much the same terms as section 17 of the Act of 1866 and subsequent Acts, it is provided that documents of the character therein referred to shall be registered if they have been executed on or after the date on which the Registration Act of 1864 or 1866 or 1871 or 1877 or the present Act came or comes into force. Therefore, this document of February 1865, being executed after the date of the Act of 1864, falls within the terms of section 17. Therefore, this document of February 1865, being executed after the date of the Act of 1864, falls within the terms of section 17. But then section 23 provides that a document shall not be accepted for registration unless presented within four months from the date of its execution, and there is no such provision as that contained in section 100 of the Act of 1866, giving an extended time for registration of documents executed before the Act came into force. So that, although the present document requires registration under section 17, it cannot in fact be registered, having regard to the terms of section 23. Then section 49 deals with the consequence of nonregistration, and it is in much the same terms as section 49 of the Act of 1866 and subsequent Acts. It provides, so far as material, that no document required by section 17 to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered. The word "registered" must be construed by virtue of section 3, clause (45), of the General Clauses Act, as meaning registered in British India under the law for the time being in force for the registration of documents, so that a document required to be registered by section 17 cannot affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered under the law for the time being in force. If this document had in fact been registered under the Act of 1864, or reregistered under the Act of 1866, is it might have been under section 100, no objection could be taken to it. But as it has not in fact been registered, and as it is a document which falls within section 17, notwithstanding its date, it seems to me that the provisions of section 49 apply, and that it cannot affect the immovable property comprised therein or be received as evidence of any transaction affecting such property." 11. But as it has not in fact been registered, and as it is a document which falls within section 17, notwithstanding its date, it seems to me that the provisions of section 49 apply, and that it cannot affect the immovable property comprised therein or be received as evidence of any transaction affecting such property." 11. So far as the judgment relied on by the learned counsel for the Petitioners-Plaintiffs in the case of Inder Lal (Supra) is concerned, this court is of the view that the said judgment does not apply to the facts of the instant case for two reasons: First, the provisions of the Act of 1908 more particularly Section 17 were not at all considered in that judgment. Second, the real question in that case was regarding the admissibility of a document for collateral purposes as evident from a bare perusal of paragraph 6, 7 and 8 of the aforementioned judgment, which are reproduced below: 6. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. Learned counsel for the parties placed for the perusal of this court compilation of Hidayats from 1-4-1883 to end of 1886, published in Jaipur Government Press in February, 1887. In this Hidayat though there is a provision for registration of the mortgage deeds and certain other documents, but there is no provision that in absence of such registration, the document will not be admitted in evidence in court. In another Hidayat from January, 1894 to the end of December 1896 published in Gazette of Jaipur State of December, 1897, it has been mentioned that without registration a document could not be completed and as such the same was inadmissible in evidence in the court. In this compilation, it is mentioned that Hidayats in this regard are already existing, but Mr. Dutta, learned counsel for the defendants was unable to show any previous Hidayats containing this rule that in the absence of registration, the document would be inadmissible in evidence. In the case Ram Pal v. Dwarka Das (supra), Hon'ble Sharma, J., has also taken the same view. The compilation of Hidayats from 1st April, 1883 to end of 1886 does not show the existence of such law. The second publication of computation of Hidayats is from January 1894 onwards. In the case Ram Pal v. Dwarka Das (supra), Hon'ble Sharma, J., has also taken the same view. The compilation of Hidayats from 1st April, 1883 to end of 1886 does not show the existence of such law. The second publication of computation of Hidayats is from January 1894 onwards. This compilation also does not itself contain such provisions of law that for want of registration, the document would be inadmissible in evidence. It only makes a mention of some earlier Hidayats which are not available for consideration. In any case, the document Ex. 4 is of 1890 and as such also the subsequent compilation of Hidayats commencing from 1st January, 1894 can have no application. 7. I am further in agreement with the view taken in Chhagan Lal Shobha Ram vs. Madan Lal Shobha Ram (supra) by Neweskar, J., that where a document required by law to be registered, is not registered it cannot be allowed to affect an immovable property comprising therein nor it can be received in evidence of any transaction affecting such property under Section 49 of the Registration Act. Yet such document can be admitted to prove an admission of a party with regard to the character of the property i.e., whether it is joint or otherwise. In Anandi, Lal v. Geegla (supra), the objector was claiming right on the basis of the document itself for creating rights in the immovable property as mortgagee. Thus in that case the question of admissibility of a document for collateral purpose was not in question. Even in that case it was observed that on the basis of unregistered mortgage deed, suit for money could be filed if no in cumbrance or bar was claimed against any immovable property. 8. In Suhran Khan v. Bhatt Jyotish Rai (supra) it was held that in the absence of registration the document cannot create a mortgage. A decree for redemption was given in favour of the plaintiff as the period of mortgage was only two years and the defendant had remained in occupation for more than 12 years. The above case also renders no assistance on the question of admissibility of Ex. 4 for the purpose of determining the nature of possession of the parties over the ravish in question. It was not disputed by Mr. Dutta, learned counsel for the defendant-respondent that Ex. 4 was original and not a copy. The above case also renders no assistance on the question of admissibility of Ex. 4 for the purpose of determining the nature of possession of the parties over the ravish in question. It was not disputed by Mr. Dutta, learned counsel for the defendant-respondent that Ex. 4 was original and not a copy. This document was of more than 30 years old and as such a presumption about its genuineness will have to be drawn under Section 90 of the Evidence Act. Sua Lal had made a mortgage of his properties in favour of the forefathers of the defendant by this document Ex. 4 and there is a clear recital in it that the ravish in question shall remain joint. It is neither the case of the defendant nor proved by any documentary evidence that he or his ancestors purchased this ravish and became its owner exclusively by such purchase. Thus from the recital of Ex. 4, the ravish in question is proved beyond any manner of doubt to be a joint one. As regards Ex. 5 also the learned Additional District Judge was clearly wrong in holding it inadmissible. There is no question of any admission of any party in his own favour. It is a sale deed by the forefathers of the plaintiff in favour of the forefathers of the defendant. The original of the this document has not been produced by the defendants though they were called upon to do so by the plaintiffs and secondary evidence of this document has been permitted by the courts below. This document though does not directly mention about the ravish but it speaks about the staircase on the left of the entrance of the haweli as joint." 12. Moreover, Hidayat No. 22 dated 28.07.1883 which was applicable in the State of Jaipur when the Sale-Deed was executed also lays down that a Sale-Deed was required to be necessarily registered. Merely because the consequences of non-registration were not clearly laid down, it cannot be said that even an unregistered document could be taken in evidence. 13. The upshot of the observations made above is that the writ petition filed by the Petitioners-Plaintiffs is devoid of merit and the impugned order dated 19.11.2019 passed by the learned trial court does not call for any interference. Accordingly, the writ petition is liable to be dismissed and accordingly dismissed. No Costs.