Registration Act, 1908 – ss. 17(1)(b), 49 – Partition – Family Settlement, if required registration – Suit filed by respondent inter alia for declaration of title over the plaint schedule property and eviction of the appellants – Appellants filed the evidence affidavit and sought to mark Kharurunama - the family settlement and a receipt, allowed by trial court – High Court held that the documents being unregistered and unstamped were inadmissible in evidence – On appeal, held: Words used in the document referred to the arrangements allegedly which the parties made in the past – It does not purport to by itself create, declare, assign, extinguish or limit right in properties and thus, the Khararunama may not attract s.49(1)(a) – If the Khararunama by itself, does not ‘affect’ immovable property, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of s.49(1)(c), as it is not being used as evidence of a transaction effecting such property – Being let in evidence is different from being used as evidence of the transaction – Mere admission, in evidence of the Khararunama and the receipt would not produce any legal effect on the immovable properties in question – Further, in view of the nature of the Khararunama, being record of the alleged transactions, it may not require to be stamped – Impugned judgment set aside – Transfer of Property Act, 1882 – Code of Civil Procedure, 1908 – Or.13, rr.3, 4 – Deeds and Documents.
Registration Act, 1908 – Proviso to s.49, exceptions under – Discussed.
Allowing the appeal, the Court
HELD: 1.1 Section 49 deals with the effect of nonregistration of documents which are compulsorily registrable under Section 17 of the Registration Act and Transfer of Property Act. Section 49(a) of the Registration Act declares that an unregistered document which is compulsorily registrable cannot ‘affect’ any immovable property comprised therein. Section 49(c) of Registration Act prohibits the admitting of compulsorily registrable documents which are unregistered as evidence of any transaction affecting immovable property unless it has been registered. The proviso carves out two exceptions. This Court is only concerned, in this case, with only one of them and that is contained in the last limb of the proviso. The unregistered document can be used as evidence of any collateral transaction. This is however subject to the condition that the said collateral transaction should not itself be one which must be effected by a registered document. What would constitute a collateral transaction? If it were collateral transaction, then an unregistered document can indeed be used as evidence to prove the same. Would possession being enjoyed or the nature of the possession on the basis of the unregistered document, be a transaction and further would it be a collateral transaction? This question is posed as the contention of the appellants is that even if the Khararunama dated 15.4.1986 cannot be used as evidence to prove the factum of relinquishment of right which took place in the past, the Khararunama can be looked into to prove the conduct of the parties and the nature of the possession which was enjoyed by the parties. The law is not that in every case where a party sets up the plea that the court may look into an unregistered documents to show the nature of the possession that the court would agree to it. The cardinal principle would be whether by allowing the case of the party to consider an unregistered document it would result in the breach of the mandate of the Section 49 of the Registration Act. [Paras 24-26, 29][851-B-C, E-F; 852-B-E; 853-G-H; 854-A]
1.2 If this Court applies the test as to whether the Khararunama in this case by itself ‘affects’, i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which have been entered into by the parties, then, going by the words used in the document, they indicate that the words are intended to refer to the arrangements allegedly which the parties made in the past. The document does not purport to by itself create, declare, assign, extinguish or limit right in properties. Thus, the Khararunama may not attract Section 49(1)(a) of the Registration Act. [Para 33][857-E-G]
2.3 As far as Section 49(1)(c) of the Registration Act is concerned, it provides for the other consequence of a compulsorily registrable document not being so registered. That is, under Section 49(1)(a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Section 49(1)(c) in effect, reinforces and safeguards against the dilution of the mandate of Section 49(1)(a). Thus, it prevents an unregistered document being used ‘as’ evidence of the transaction, which ‘affects’ immovable property. If the Khararunama by itself, does not ‘affect’ immovable property, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property. However, being let in evidence, being different from being used as evidence of the transaction is pertinent. Thus, the transaction or the past transactions cannot be proved by using the Khararunama as evidence of the transaction. That is, it is to be noted that, merely admitting the Khararunama containing record of the alleged past transaction, is not to be, however, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question. As far as stamp duty goes, on the finding regarding the nature of the document, viz., Khararunama, being record of the alleged transactions, it may not require to be stamped. When there has been a partition, then, there may be no scope for invoking the concept of antecedent right as such, which is inapposite after a disruption in the joint family status and what is more an outright partition by metes and bounds. The appellants and the respondents, admittedly, partitioned their joint family properties. This is clear from the Khararunama wherein it is stated that they have divided the joint family properties. The properties, which are mentioned in the Khararunama, became the separate properties of the respondent. The impugned Judgment is set aside. [Paras 34-36][857-G-H; 858-A-E, G-H; 859-A-B]
Subraya M.N. v. Vittala M.N. (2016) 8 SCC 705 : [2016]
5 SCR 924; Thulasidhara v. Narayanappa (2019) 6 SCC
409 : [ 2019] 8 SCR 212; Kale v. Dy. Director of Consolidation AIR 1976 SC 807 : [1976] 3 SCR 202; Kirpal Kaur v. Bachan Singh and Ors. AIR 1958 SC
199 : [1958] SCR 950; Ram Charan v. Girja Nandini AIR 1966 SC 292; Krishna Beharilal v. Gulabchand AIR 1971 SC 1041 : [1971] Suppl. SCR 27; Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and Others (2015) 16 SCC 787; Sita Ram Bhama v. Ramvatar Bhama (2018) 15 SCC 130 : [2018] 10 SCR 503; Roshan Singh and Others v. Zile Singh and Others AIR 1988 SC 881 : [1988] 2 SCR 1106; SMS Tea
Estates (P) Ltd. v. Chandmari Tea Co. Private Ltd. (2011)
14 SCC 66 : [2011] 9 SCR 382 – referred to.
Muruga Mudallar and Ors. v. Subba Reddiar AIR 1951 Madras 12; K. Panchapagesa Ayyar and Ors. v. K. Kalyanasundaram Ayyar and Ors AIR 1957 Madras 472; A.M. Chakrapani Reddiar and others AIR 2001 Madras 135 – referred to.
N. Varada Pillai v. Jeevarathnammal AIR 1919 P.C.
44 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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