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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 2 nd OF AUGUST, 2023
MISC. PETITION No. 390 of 2023
BETWEEN:-
TILAKRAJ SINGH S/O SHRI JAGDISH SINGH, AGED
ABOUT 49 YEARS, OCCUPATION: AGRICULTURIST
VILLAGE HINOUTI TAHSIL RAMPUR BAGHELAN
DISTRICT SATNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AWADHESH KUMAR MISHRA - ADVOCATE)
AND
1. JAGDISH SINGH S/O LATE SHRI CHANDIDEEN
SINGH, AGED ABOUT 77 YEARS, VILLAGE
HINOUTI TAHSIL RAMPUR BAGHELAN DISTRICT
SATNA (MADHYA PRADESH)
2. RAMNATH SINGH S/O SHRI JAGDISH SINGH,
AGED ABOUT 45 YEARS, R/O VILLAGE HINOUTI
TAHSIL RAMPUR BAGHELAN DISTRICT SATNA
(MADHYA PRADESH)
3. SMT. MAMTA SINGH D/O SHRI JAGDISH SINGH
W/O SHRI INDRAJEET SINGH, AGED ABOUT 47
YEARS, R/O VILLAGE SELHANA TAHSIL RAMPUR
BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
4. SMT. SAVITA SINGH D/O SHRI JAGDISH SINGH
W/O SHRI SAMARJEET SINGH, AGED ABOUT 43
YEARS, R/O VILLAGE SELHANA TAHSIL RAMPUR
BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
5. SMT. LALITA SINGH D/O SHRI JAGDISH SINGH
W/O SHRI RAJKUMAR SINGH, AGED ABOUT 35
YEARS, R/O VILLAGE PATRAHAI TAHSIL RAMPUR
BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
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6. PRISM JOHNSON LIMITED COMPANY THROUGH
ITS AUTHORIZED PERSON R.K. GUPTA AGED
ABOUT 60 YEARS S/O SHRI MLL GUPTA (POST
GENERAL MANAGER ACCOOUNT DEPARTMENT)
PRISM CEMENT LIMITED MANKAHRI AT
PRESENT R/O VILLAGE MANKAHRI TAHSIL
RAMPUR BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
7. RAJEEV SINGH PARIHAR S/O NOT MENTION,
AGED ABOUT 50 YEARS, OCCUPATION: SUB
REGISTRAR OFFICE OF SUB RAGISTRAR
RAMPUR BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
8. RAHUL PANDEY S/O RAMFAL PANDEY, AGED
ABOUT 29 YEARS, R/O VILLAGE NEMUA TAHSIL
RAMPUR BAGHELAN DISTRICT SATNA SERVICES
PROVIDER MP 01344106201500349 TAHSIL
RAMPUR BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
9. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR SATNA DISTRICT SATNA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI NITYA NAND MISHRA - ADVOCATE FOR RESPONDENT NO.1, SHRI
ARPAN PAWAR - ADVOCATE FOR CAVEATOR AND SHRI SANTOSH
YADAV - GOVERNMENT ADVOCATE FOR RESPONDENT NO.9/STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 227 of the Constitution of India has been filed
challenging the order dated 07.01.2023 contained in Annexure-P/1.
2. Learned counsel appearing for the petitioner submitted that by the
impugned order, the trial Court has affirmed the objection raised by the
respondent no.6 that document dated 08.06.2010 is a deed which creates and
relinquish right, therefore, the same is required to be compulsory registered.
The document in question is not registered, therefore, same cannot be exhibited
in evidence.
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
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3. Learned counsel for the petitioner further submitted that the document
is only memo of partition. No partition has been done by document itself,
therefore, no rights has been created by document in question. In view of the
same, order passed by the Civil Court dated 07.01.2023 be set aside and the
Civil Court be directed to permit the petitioner to exhibit the said document in
evidence.
4. Learned counsel appearing for the respondents opposed the petition
and submitted that by documents itself, rights has been created. Some of the
entries made in the document shows that there is relinquishment of rights by the
parties. In view of the same, no error has been committed by the trial Court in
upholding the objection of respondent No.6. Counsel for the respondent No.6
further placed reliance upon the judgment reported in 2021 SCC Online 2564
Ganga Shankar Dubey Vs. Sindhu Bai and Others. Paragraphs No.11, 12
and 13 are quoted as under:-
"11. In order to deal with different
propositions, it may be safely concluded
in the light of the above legal position as
under:
(I). The admissibility of a particular
document in evidence is to be adjudged
in light of the relevant provisions of the
Act of 1908 as well as of the Indian
Stamp Act 1899.
(ii). As per the provisions of Section 17
and 49 of the Act of 1908, an
unregistered document which is
compulsorily registerable cannot be
admitted in evidence except in a suit for
specific performance of contract or as
evidence of any collateral transaction,
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
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not required to be effected by registered
instrument.
(iii). The collateral purpose for which,
unregistered document is intended to be
tendered in evidence, must be
`independent of' or `divisible from' the
very object and purpose of such
document for which, it is executed.
(iv). No unregistered document which is
compulsorily registerable can be
admitted in evidence in the name of
collateral purpose which would
essentially tend to affect the right, title
and interest of the parties for which,
such document is executed;
(v). An unstamped or insufficiently
stamped document which is required to
be stamped cannot be admitted in
evidence for any purpose including
collateral purpose. However, such
document can be tendered in evidence
after payment of deficit stamp duty and
penalty as adjudicated by Collector
(Stamps) under the provisions of The
Indian Stamp Act 1899 subject to it's
admissibility under the provisions of the
Act of 1908;
(vi). If an unregistered document which
is compulsorily registerable is found to
be inadmissible in evidence under
Section 49 of the Act of 1908, the same
cannot be admitted in evidence even if,
it is duly stamped as per the Indian
Stamp Act, 1899.
12. In the present case, the suit has been filed for
declaration of title over the suit property on the
basis of the deed alleged to have been executed
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
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by the son of plaintiffs giving up his rights over
the property in favour of his mother. Thus, the
document in question is certainly a relinquish
deed which is compulsorily registerable under
Section 17 (B) of the Act of 1908, therefore, as
per Section 49 of the Act of 1908, the same
cannot be admitted in evidence to establish the
right, title and interest of the plaintiffs over the
suit property.
13. The plaintiffs intend to use this relinquish
deed for the purpose to establish their possession
over the property in the name of collateral
purpose, but such purpose cannot be termed as
`independent of' or `divisible from' the very
purpose of this document in any manner. If in the
garb of such collateral purpose, this relinquish
deed is admitted in evidence, the very object of the
provisions of Section 17 and 49 of the Act of 1908
would be redundant and frustrated. Thus, the
document in question cannot be admitted in
evidence, for the said collateral purpose."
5. Learned counsel for the respondents further placed reliance upon the
judgment reported (2018) 7 SCC 646 Shyam Narayan Prasad Vs. Krishna
Prasad and others. Paragraphs No.20, 21 and 22 are quoted as under:-
20. Section 17(i)(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 Registration 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
Registration Act. Since, the deed of exchange
has the effect of creating and taking away the
rights in respect of an immovable property,
namely, RCC building, it requires registration
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
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under Section 17. Since the deed of exchange
has not been registered, it cannot be taken into
account to the extent of the transfer of an
immovable property.
21. In Roshan Singh & Ors. v. Zile Singh & Ors.
1988 (2) SCR 1106, this Court considering the
admissibility of an unregistered partition deed,
held as under:
“Section 17(i)(b) lays down that a document for
which registration is compulsory should, by its
own force, operate or purport to operate to create
or declare some right in immovable propert. Two
propositions must therefore flow: (1) A
partition may be affected orally; but if it is
subsequently reduced into a form of a document
and that document purports by itself to effect a
division and embodies all the terms of bargain, it
will be necessary to register it. If it be not
registered, S.49 of the Act will prevent its being
admitted in evidence. Secondary evidence of the
factum of partition will not be admissible by
reason of S.91 of the Evidence Act, 1872.”
(emphasis supplied)
22. It is clear from the above judgment that the
best evidence of the contents of the document is
the document itself and as required under
Section 91 of the Evidence Act the document
itself has to be produced to prove its contents.
But having regard to Section 49 of the
Registration Act, any document which is not
registered as required under law, would be
inadmissible in evidence and cannot, therefore,
be produced and proved under Section 91 of the
Evidence Act. Since Exhibit P2 is an
unregistered document, it is inadmissible in
evidence and as such it can neither be proved
under Section 91 of the Evidence Act nor any
oral evidence can be given to prove its contents.
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
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Therefore, the High Court has rightly discarded
the exchange deed at Exhibit P2."
6. It is submitted that since document is compulsory registered under
section 17 and in view of section 49 of the Registration Act, no error has been
committed by the trial Court.
7. Heard learned counsel for the parties.
8. Perused the documents dated 08.06.2010 contained in Annexure-P/3,
relevant part of Annexure-P/3 is quoted as under:-
**cVokjk iqYyh esa of.kZr Hkwfe;ksa ds Hkwfe Lokeh izFke i{k txnh'k flag] firk
Lo0 Jh pUnhnhu flag gSA tks f}rh; i{k] r`rh; i{k ,oa prqFkZ i{k ds firk gSA rFkk
ifjokj ds eqf[k;k gSA ifjokj ds eqf[k;k dh gSfl;r ls izFke i{k n~okjk ebZ 2008 esa
foHkktu fd;k tkdj fgLlk fn;k x;k FkkA mlh foHkktu dk ys[k i= vkt rS;kj
fd;k tk jgk gSA foHkktu dk fooj.k cVokjk iqYyh esa nf'kZr gSA**
9. Section 17 (1(b) of the Registration Act is quoted as under:-
" (l) 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 Indian Registration Act, 1866, or the Indian
Registration Act, 1871, or the Indian Registration Act, 1877, or this
Act came or comes into force, namely:--
(a) xxxxxxx;
(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;
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
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(c) xxxxxxx;
(d) xxxxxxx;
(e) xxxxxxx;
10. On perusing document dated 08.06.2010, it is found that document
itself does not create any right neither any rights has been relinquished by the
parties. The land which has already been sold has been mentioned in said deed.
The land has been sold by some other documents and not by document dated
08.06.2010. Further document does not bring into operation partition between
one parties. Partition has already been effected and it is only memorandum of
document dated 08.06.2010.
11. In view of the same, neither any rights has been created nor any rights
has been relinquished by Batwara Pulli dated 08.06.2010. Hence, order dated
07.01.2023 passed by First Civil Judge Class-I Senior Divion Ramput Baghelan
District Satna is set aside. Accordingly, petition is allowed.
12. The trial Court is directed to permit the petitioner to exhibit the
document as evidence.
(VISHAL DHAGAT)
JUDGE
pn
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 10-08-2023
15:08:52
