N.V. Ramana, J.— Leave granted. This appeal has been preferred aggrieved by the orders passed by the High Court of Judicature of Andhra Pradesh in Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao 766, dated 27-12-2013 wherein and whereby the learned Judge has dismissed the revision petition preferred by appellant-Defendants 1 and 2 by confirming the orders passed in OS No. 10 of 2004, dated 8-7-2013 on the file of the Principal Senior Civil Judge, Anakapalle.
2. The brief facts which are necessary for adjudicating the dispute involved in the present appeal, in a nutshell, are as follows: the first respondent-plaintiff filed OS No. 10 of 2004 on the file of the Senior Civil Judge Court, Anakapalle against the appellants and others for the relief of partition claiming one-fourth share in Item 1 and half-share in Item 2 of the suit scheduled properties.
3. It is the specific case of the first respondent-plaintiff that one Jaggayya, who is the foster father of the plaintiff, had acquired certain properties during his lifetime and executed a registered will dated 22-5-1964 in a sound and disposing state of mind bequeathing his immovable properties in favour of the respondent-plaintiff and Appellant 1-first defendant by giving life estate in favour of his wife Mahalakshamma, and the said Mahalakshamma died on 20-5-2001, as such Respondent 1-plaintiff and appellant-Defendants 1 and 2 became entitled to the plaint schedule properties in equal shares. On his demand, when the defendants failed to partition the properties by giving him his legitimate right, he approached the court by filing the above suit.
4. The appellants herein (Defendants 1 and 2) resisting the plea of Respondent 1-plaintiff filed the written statement that Appellant 1 being the sister's daughter of Mahalakshamma and Respondent 1-plaintiff who is the sister's son of late Jaggayya were treated as foster son and daughter as Jaggayya had no issues. In the year 1969, properties were partitioned between the parties. Respondent 1-plaintiff, in spite of having his share in the properties, taking advantage of Appellant 1's innocence and helplessness, has taken other properties which are not allotted to him; having no other go she (Appellant 1) kept quiet. According to the appellant-defendants after the partition they have been enjoying the properties which fell to their respective shares. It is their further case that on 5-6-1975, Respondent 1-plaintiff and Appellant 1-first defendant got executed the deed of memorandum of earlier partition. Both Respondent 1-plaintiff and Appellant 1-first defendant were given pattadar passbooks and title deeds in respect of properties fell to their share and in fact, Respondent 1-plaintiff has alienated some of his properties. Mahalakshamma in a sound and disposing state of mind executed a registered will dated 27-3-1999 bequeathing all the properties in favour of Appellant 1-first defendant. Further, Mahalakshamma has given away her life estate in favour of Appellant 1-Defendant 1 and Respondent 1-plaintiff. Hence, it is pleaded that as properties were already partitioned in the year 1969, the question of again partitioning the properties does not arise and sought for dismissal of the suit.
5. Appellant 1-Defendant 1 filed her chief-examination affidavit and sought to mark Exts. B-1 to B-48. Respondent 1-plaintiff raised objection with regard to admissibility of Exts. B-21 and B-22. Ext. B-21, dated 5-6-1975 according to the appellant-defendant is deed of memorandum witnessing earlier partition effected between Respondent 1-plaintiff and Appellant 1-Defendant 1. Ext. B-22 is the agreement dated 4-6-1975 entered into between late Mahalakshamma, Respondent 1-plaintiff and Appellant 1-Defendant 1.
6. Respondent 1-plaintiff took objection with regard to admissibility of Exts. B-21 and B-22 on the ground that whole contents referred to in the memorandum dated 5-6-1975 disclose that the second party thereto relinquished her right through the said documents. Therefore, the agreement dated 4-6-1975 and memorandum dated 5-6-1975 have to be construed as relinquishment deeds. A relinquishment deed which is compulsorily registrable document under Section 17(1)(b) of the Registration Act, 1908 and hence, the unregistered document is not admissible in evidence. The plea of the defendants is that the recitals of the said document disclose past transaction with reference to division of property and further they disclose the intention of the parties to enter into a separate agreement for sharing the properties and that the terms therein have to be implemented in future.
7. Both the trial court and the High Court upheld the objection raised by Respondent 1-plaintiff and came to a conclusion that two recitals i.e. Exts. B-21 and B-22 are not evidencing the past transaction, but they prima facie disclose the partition of the property and relinquishment of rights by one of the parties. As such, both documents require stamp duty under the Stamp Act, 1899 and registration under the Registration Act, 1908. As Exts. B-21 and B-22 are unregistered and unstamped documents, they are not admissible in evidence. The trial court gave a specific finding that even both the exhibits are not admissible for collateral purpose also. Aggrieved by that, the present appeal is filed.
8. We have heard the learned Senior Counsel for appellant-Defendants 1 and 2 and the learned counsel for the respondent-plaintiffs.
9. It is urged by the learned Senior Counsel Mr V.V.S. Rao that Exts. B-21 and B-22 are admissible in evidence as both the documents evidence the past transaction which does not require any registration and both the courts below erred in coming to a conclusion that Exts. B-21 and B-22 require registration ignoring the true nature of the documents. It is urged that the amendment that is brought to the Registration Act in 1986, whereby even the past transaction becomes registrable and the same is not applicable to Exts. B-21 and B-22. It is further urged by the learned Senior Counsel that even assuming that Exts. B-21 and B-22 require registration, still the unregistered documents are admissible in evidence for collateral purpose.
10. The learned counsel Mr G.V.R. Choudary, appearing for the respondents, on the other hand, has submitted that the courts below were perfectly right in coming to a conclusion that Exts. B-21 and B-22 are compulsorily registrable documents and prayed for dismissal of the suit.
11. Now the issues that fall for consideration are:
11.1. (i) Whether the courts below were right in holding that Exts. B-21 and B-22 are not admissible in evidence as they are compulsorily registrable documents?
11.2. (ii) Whether Exts. B-21 and B-22 are admissible in evidence for collateral purpose?
12. Before we go into the merits of the matter, we deem it appropriate to extract the relevant provisions of the Registration Act, 1908:
12.1. Section 17 of the Registration Act, 1908
“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 16 of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 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;
(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;
(f) any decree or order or award or a copy thereof passed by a civil court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under Section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, 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; and
(g) agreement of sale of immovable property of the value of one hundred rupees and upwards:
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.”
12.2. Section 49 of the Registration Act, 1908
“49. Effect of non-registration of documents 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 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.”
13. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Act.
14. Coming to the facts on hand, Defendant 1 wanted to mark Exts. B-21 and B-22; according to her, these two documents are agreement and a memorandum which were unregistered and unstamped documents and do not require registration. We have seen Exts. B-21 and B-22 which are placed before us. Ext. B-22, dated 4-6-1975 as per the recitals, is an agreement between Respondent 1-plaintiff, Appellant 1-Defendant 1 and late Mahalakshamma. Clause 1 of the agreement speaks about relinquishment of rights of Mahalakshamma in favour of Respondent 1-plaintiff and Appellant 1-Defendant 1 and Clause 4 specifies that the life estate of Mahalakshamma is devolved upon Respondent 1-plaintiff and Appellant 1-Defendant 1 equally. It is further specified that the stock amount of Rs 50,000 in the shop was given to Mahalakshamma and left over amount will be divided between Respondent 1-plaintiff and Appellant 1-Defendant 1 and further, it was agreed upon that Mahalakshamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of Respondent 1-plaintiff and Respondent 1-plaintiff and Appellant 1-Defendant 1 shall not raise any dispute over this. Coming to Ext. B-21, dated 5-6-1975, which is an agreement between Mahalakshamma, Respondent 1-plaintiff and Appellant 1-Defendant 1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the memorandum, Ext. B-22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares; in proof thereof, the deed of memorandum is executed. Taking us through the recitals of these two documents, the learned Senior Counsel tried to impress upon this Court, particularly through the last few lines from Ext. B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents no rights in immovable property have accrued to the parties as envisaged under Section 17 of the Registration Act and which makes these documents out of the purview of Section 49 of the Registration Act.
15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy…* v. Chinnappareddigari Venkata Reddy & Others… 1967 SCC OnLine AP 4 , AIR 1969 AP 242 has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.
17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.