Gangamma vs Rangaiah and others. Writ Petition 15209/2015 decided on 21 October 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346526/1/WP15209-15-21-10-2020.pdf
Facts: In a suit for declaration, the plaintiff wanted to produce unregistered release deed in which there was an admission regarding the will under which the plaintiff claimed ownership. The trial court rejected the prayer.
Relevant Paragraphs: 11. It is trite law that any document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest, in respect of an immovable property having a value of more than one hundred rupees is compulsorily required to be registered as envisaged under Section 17 of the Registration Act, 1908 (for short, hereinafter referred to as ‘the Act’).
17. As could be seen from Section 49 of the Act, any document which is required to be registered under Section 17 of the Act shall have no effect on any immovable property nor will it confer any power to adopt.
18. Sub-section (c) of Section 49 of the Act bars receiving a document which is not registered as evidence, if it is required to be compulsorily registrable under Section 17 of the Act or under the provisions of the Transfer of property Act.
19. Section 17 of the Act mandates that documents relating to gift of immovable property or non testamentary instruments which create a transfer of interest in an immovable property having a value of more than Rs.100/- will have to be compulsorily registrable.
21. However, Sub-section (c) of Section 49 of the Act is subject to the proviso that an unregistered document affecting immovable property and required by the Act or by the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. The said proviso also states that an unregistered document can be received as evidence of any collateral transaction not required to be effected by registered instrument.
22. In other words, an unregistered document which normally cannot be received in evidence can nevertheless be received as evidence of any collateral transaction, which by itself, is not required to be effected by way of a registered instrument. To put it differently, if an unregistered document contains two transactions, one of which is required to be effected by means of a registered instrument and another transaction which is not required to be effected by any registered instrument, then the said unregistered instrument can be received as evidence of that collateral transaction. It is therefore clear that only to this limited extent, an unregistered instrument can be received in evidence i.e., to evidence a collateral transaction which by itself is not required to be effected by a registered instrument.
26. In my view, since the sub-section (c) of Section 49 of the Act and its proviso consciously uses the phrase ”evidence of any transaction affecting such property” and “evidence of any collateral transaction not required to be effected by registered instrument” it will have to be held that the only possible interpretation is that an unregistered document can be received as evidence in respect of any other fact which does not involve a transfer of property (which would otherwise require registration compulsorily). In other words, an unregistered document can be received as evidence of some other fact which does not relate to a transfer of an interest in an immovable property.
28. Thus, if an unregistered instrument is to be received in evidence, then, the document can be received in evidence only for the limited extent of proving a transaction or a fact which does not relate to a transfer of an interest in an immovable property.
29. I may, however, add that the Court, while receiving the said unregistered document would have to necessarily specify that the document was being received only for the purpose of proving some other fact which was unrelated to the transfer of interest in an immovable property and the Court should specifically mark only that portion of the unregistered document and also specify the purpose for which it was being marked. The Court should also specifically record that the document cannot and should not be used as proof of anything connected to the transfer of an immovable property.
Compiled by S. Basavaraj, Advocate, Daksha Legal
Daksha Legal 