YELLAPU UMA MAHESWARI &ANR.versusBUDDHA JAGADHEESWARARAO & ORS.

                        (2015] 11 S.C.R. 849


                YELLAPU UMAMAHESWARI &ANR.                        A
                                  v.
             BUDDHA JAGADHEESWARARAO & ORS.
                   (Civil Appeal No. 8441 of 2015)
                                                                  B
                        OCTOBER 08, 2015
           · [RANJAN GOGOi AND N.V. ~AMANA, JJ.]
          Deeds and Documents:
r
,,          Unregistered documents - Admissibility of - In suit of c
     partition - Defendant introduced Exbt B-21and Exbt B-22
f
•     (Deed of Memorandum witnessing earlier partition and an
     Agreement respectively) - Both the documents were held
     by courts below as not admissible - On appeal, held: s.49 of
                                                                   D
     Registration Act imposes a bar on admissibility of an
     unregistered document which are required to be registered
     u/s. 17 of the Act - Admissibility of a document is entirely
     dependent upon the recitals contained in the document -
      The contents of both the documents exhibited by the E
     defendant show that they were compulsorily registerable
     documents uls. 17(i)(b) - Since the documents were not
     registered, were inadmissible in evidence for proving factum
     of partition - Registration Act, 1908 - ss. 17 and 49.
                                                                   F
            Unregistered documents - Exhibited in Partition suit-
      Whether admissible for collateral purpose - Held: 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 primary purpose G
     i.e. division of joint properties by metes and bounds - An
     unstamped instrument is not admissible, even for collateral
     purpose, until the same is impounded - Hence, the
     unregistered documents, in the present case are admissible
     in evidence for collateral purpose subject to payment of H
                                    849
850         SUPREME COURT REPORTS               (2015] 11 S.C.R.


A     stamp duty, penalty, proof and relevancy- Stamp Act, 1899.

           Partly allowing the appeal, the Court                    ..
       HELD: 1.1 Section 17 (1)(b) of the Registration Act,
  1908 mandates that any document which has the effect
B
  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
c thatare required to be registered u/s 17 of the Act. [Para             \,
  15] [858-8] .

           1.2 It is well settled that the nomenclature given to         I
                                                                         4
      the document is not decisive factor but the nature and
      substance of the transaction has to be determined with
D
      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
E     introduce the document in question. A reading of both
      Exhibits 8-21 and 8-22 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
F     inadmissible document ~s envisaged under Section 49
      of the Registration Act. Hence, Exhibits 8-21 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
G     inadmissible in evidence for the purpose of proving the
      factum of partition between the parties. Thus, Exhibits
      8 21 and 822 are not admissible in evidence for the
      purpose of proving primary purpose of partition. [Para
      17] [859-D-H]
H
       YELLAPU UMA MAHESWARI v. BUDDHA                        851
             JAGADHEESWARARAO

       2. In a suit for partition, an unregistered document   A
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     B
the same is impounded. Hence, if the appellants/
defendants 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 Exhibits B-21 and   C
B-22 for collateral purpose subject to proof and
relevance. Therefore, Exhibits B-21 and B-22 are
admissible in evidence for collateral purpose subject to
payment of stamp duty, penalty, proof and relevancy.          D
[Paras 18 and 19] [860-C-E]

     Chinnappa Reddy Gari Muthya/a Reddy Vs.
     Chinnappa Reddy Gari VankatReddy AIR 1969
     A.P. (242)- referred to.
                                                              E
                  Case Law Reference

AIR 1969A.P. (242)         referred to.        Para 18

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.          F
8441 of2015

      From the Judgment and Order dated 27.12.2013 of the
High Court of Judicature atAndhra Pradesh at Hyderabad in
Civil Revision Petition No. 3419 of2Q13
                                                              G
      V. V. S. Rao, Guntur Prabhakar, Ambati Srinivas,
Vijayshree, G. Pramod Kumar for the Appellants.

    G. V. R. Choudary, K. Shivraj Choudhuri, A. Chandra
Sekhar, P. S. Kumar for the Respondents.                H
852         SUPREME COURT REPORTS                   [2015) 11 S.C.R.


A          The Judgment of the Court was delivered by

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

            2. 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.

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

D          4. 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
        5. 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.

H          6. The appellants herein (Defendant Nos.1 &2) resisting
          YELLAPU UMA MAHESWARI v. BUDDHA                                853
         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.

       7. 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
854         SUPREME COURT REPORTS                    [2015] 11 S.C.R.


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.

             8. The plaintiff/respondent No.1 took objection with regard
B     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
C     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
D     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.

E       9. 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
F 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
G that even both the exhibits are not admissible for collateral
  purpose also. Aggrieved by that, the present appeal is filed.

            10. We have heard the learned senior counsel for the
      appellants/defendant Nos.1 & 2 and the learned counsel for
H     the respondents/plaintiff.
         YELLAPU UMAMAHESWARI v. BUDDHA                             855
        JAGADHEESWARARAO [N. V. RAMANA, J.]

          11. 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.

       12. 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.

       13. 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?

      14. 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
856     SUPREME COURT REPORTS                     [2015] 11 S.C.R.


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
   YELLAPU UMAMAHESWARI v. BUDDHA                             857
  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
858          SUPREME COURT REPORTS                  [2015] 11 S.C.R.


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

            15. 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.

       17. 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,           F
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               G
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
860          SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A       18. 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
B 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
C 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.
E           19. 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.