YELLAPU UMAMAHESWARI &ANR. v. BUDDHA JAGADHEESWARARAO & ORS.

A The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. Leave granted.

2Copy pinpoint2. This Appeal has been preferred aggrieved by the orders passed by the High Court of Judicature of Andhra 8 Pradesh in CRP No. 3419 of 2013, di. 27/12/2013 wherein and whereby the learned Judge has dismissed the Revision Petition preferred by the Appellants/Defendant Nos. 1 &2 by confirming the orders passed in 0. S No. 10 of 2004, di. 08/ C 07/2013 on the file of Principal Senior Civil Judge, Anakapalle.

3Copy pinpoint3. The brief facts which are necessary for adjudicating the dispute involved in the present appeal, in nutshell, are as follows.

4Copy pinpoint4. The 1st respondent/plaintiff filed O.S No. 10 of 2004 on the file of Senior Civil Judge Court, Anakapalle against the appellants and others for the relief of partition claiming %th share in Item No. 1, Yi share in Item No. 2 of the suit schedule properties. E

5Copy pinpoint5. It is the specific case of the 1st respondent/plaintiff that one Jaggayya, who is the foster father of the plaintiff, had acquired certain properties during his life time and executed a Registered Will di. 22/05/1964 in a sound and disposing F state of mind bequeathing his immovable properties in favour of the plaintiff/respondent and 1st defendant/appellant No.1 by giving life estate in favour of his wife Mahalakshmamma, and the said Mahalakshmamma died on 20/05/2001, as such plaintiff/respondent Nq.1 and the defendant Nos.1 & 21 G appellants 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 has approached the Court by filling the above suit.

6Copy pinpoint6. The appellants herein (Defendant Nos.1 &2) resisting

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JAGADHEESWARARAO [N. V RAMANA, J.)

the plea of the plaintiff/respondent No.1 filed the written A statement that appellant No. 1 being the sister's daughter of · Mahalakshamma and the plaintiff/respondent No. 1 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. The plaintiff/ B respondent No. 1, in spite of having his share in the properties, taking advantage of appellant No.1 's innocence and helplessness, has taken other properties which are not allotted to him, having no other go she (appellant No.1) kept quiet. According to the defendants/appellants, after the partition they C have been enjoying the properties fell to their respective shares. It is their further case that on 05-6-1975 plaintiff/respondent No.1 and the first defendant/appellant No. 1 got executed the Deed of Memorandum of earlier partition. Both the plaintiff/ D respondent No.1 and the 1st defendant/appellant No.1 were given pattadar passbooks and title deeds in respect of properties fell to their share and in fact, the plaintiff/respondent No.1 has alienated some of his properties. Mahalakshsamma in a sound and disposing state of mind executed a Registered E Will dated 27 /03/1999 bequeathing all the properties in favour of 1st defendant/appellant No.1. Further, Mahalkshamma has given away her life estate in favour of appellant No.1 /defendant No.1 and the plaintiff/respondent No.1. Hence, it is pleaded that as properties were already partitioned in the year 1969, F the question of again partitioning the properties does not arise and sought for dismissal of the Suit.

7Copy pinpoint7. The appellant No.1 /defendant No.1 filed her chief examination affidavit and sought to mark Exhibits B1 to B G

48. The plaintiff/respondent No.1 raised objection with regard to admissibility of Exhibits B-21 and B-22. Exhibit B-21, dated 05/06/1975 according to the defendant/appellant is Deed of Memorandum witnessing earlier partition effected between the plaintifflrespondent No.1 and the defendant No.1/appellant H

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A No.1. Exhibit B-22 is the Agreement dated 04/06/1975 entered between Late Mahalakshammma, plaintiff/respondent No.1 and the defendant No.1/appellant No.1.

8Copy pinpoint8. The plaintiff/respondent No.1 took objection with regard to admissibility of Exhibits B-21 and B-22 on the ground that whole contents referred to in the Memorandum dated 05/6/ 1975 discloses that the second party thereto relinquished her right through the said documents. Therefore, the Agreement dated 04/06/1975 and Memorandum dated 05/06/1975 have to be construed as relinquishment deeds. A relinquishment deed which is compulsorily registerable document under Sec 17 (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 discloses past transaction with reference to division of property and further it discloses 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.

9Copy pinpoint9. Both the Trial Court and the High Court upheld the objection raised by the plaintiff/respondent No.1 and came to a conclusion that two recitals i.e. Exhibit 821 and Exhibit 822 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 Indian Stamp Act, 1899 and registration . under the Registration Act, 1908. As Exhibits 821 and 822 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.

10Copy pinpoint10. We have heard the learned senior counsel for the appellants/defendant Nos.1 & 2 and the learned counsel for the respondents/plaintiff.

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JAGADHEESWARARAO [N. V. RAMANA, J.]

11Copy pinpoint11. It is urged by the learned senior counsel Mr,. V. V. S. A Rao that Exhibits B21 and B22 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 B21 and B22 require registration ignoring the true nature of the documents. It is urged B that the amendment that is brought to the Registration Act in 1986, whereby even the past transaction becomes registerable and the same is not applicable to Exhibits B21 and B22. It is further urged by the learned senior counsel that. . even assuming that Exhibits B21 and B22 require registration, c still the unregistered documents are admissible in evidence for collateral purpose.

12Copy pinpoint12. The learned counsel Mr. G.VR. Choudary, appearing for the respondents, on the other hand, has submitted that the D Courts below were perfectly right in coming to a conclusion that Exhibits B21 and B22 are compulsorily registerable documents and prayed for dismissal of the ~uit.

13Copy pinpoint13. Now the issue that falls for consideration is: E

(1) Whether the Courts below were right in holding that Exhibits B21 and B22 are not admissible in evidence as they are compulsorily registerable documents? F

(2) Whether Exhibits B-21 and 22 are admissible in evidence for collateral purpose?

14Copy pinpoint14. Before we go in to the merits of the matter, we deem it appropriate to extract the relevant provisions of the G Registration Act, 1908.

Sec. 17 of the Registration Act, 1908

Documents of which registration is compulsory- H

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A (I) 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 Registration· Act, 1866, or the Registration Act, 1871, or the B Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

c (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; D (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 E (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 F 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:

G (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 H registered title deed produced by the plaintiff, where such

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JAGADHEESWARARAO [N. V. RAMANA, J.]

decree or order or award purports or operate to create, A 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 B (g) agreement of sale of immovable property of the value of one hundred rupee and upwards",

Provided that the State Government may, by order published in the Official Gazette, exempt from the C 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. D Section 49 of the Registration Act, 1908

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- E

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt; or F (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 G 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 (3 of 1877) or as evidence of H

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A any collateral transaction not required to be effected by registered instrument.

15Copy pinpoint15. Section 17 (1) (b) of the Registration Act mandates that any document which has the effect of creating and taking 8 away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admis_sibility of an unregistered document and deals with the documents thatare required to be registered u/s 17 of the Act.

c 16. Coming to the facts on hand, the defendant No.1' wanted to mark Exhibits 821 and 822, according to her, these two documents areAgreement and a Memorandum which were unregistered and unstamped documents and do not require registration. We have seen Exhibits 821 and 822 which are o placed before us. Exhibit 822, dated 04/06/1975 as per the recitals, an Agreement between the plaintiff/respondent No.1, defendant No.1/appellant No.1 and late Mahalakshmamma. Clause 1 of the Agreement speaks about relinquishment of rights of Mahalakshmamma in favour of plaintiff/respondent E No. 1 and defendant No.1/appellant No. 1 and Clause 4 specifies that the life estate of Mahalakshamama is devolved upon the plaintiff/respondent No.1 and the defendant No.1/ appellant No.1 equally. It is further specified that the stock amount of Rs 50,000/- in the shop was given to F Mahalakashamma and leftover amount will be divided between plaintiff/respondent No.1 and defendant No.1/appellant No.1 and further it was agreed upon that Mahalakahamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of the plaintiff/respondent G No. 1 and the plaintiff/respondent No.1 and the defendant No.1/ appellant No.1 shall not raise any dispute over this. Coming to Exhibit 821, date 05/06/1975 which is an ~greement between Mahalakashmma, plaintiff/respondent No.1 and H defendant No.1 /appellant No.1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties

. YELLAPU UMAMAHESWARI v. BUDDHA 859. JAGADHEESWARARAO [N. V. RAMANA, J.]

to the agreement. It is stated in the Memorandum, Ext. B 22, A· 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 B impress upon this Court particularly through the last few lines from Exhibit 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 Sec. 17 of the Registration C Act and which makes these documents out of the purview of Section 49 of the Registration Act.

17Copy pinpoint17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance D 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 thai document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A E thorough reading of both Exhibits 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 registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and 8-22 are the documents which squarely fall within the ambit of section 17 (i} (b) of the Registration Act and hence are compulsorily registerable 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 E;xhibits 8 21 and 822 are not admissible in evidence for the purpose of proving primary purpose of partition. H

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18Copy pinpoint18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthya/a Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 A.P. (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, ifthe appellants/defendants want to mark these documents for collateral purpose it is open 0 forthem to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.

19Copy pinpoint19. Accordingly, Civil Appeal is partly allowed holding that . Exhibits B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.

Kalpana K. Tripathy Appeal partly allowed.