2024:BHC-NAG:2674

Judgment 1
16.wp.1154.23.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

WRIT PETITION NO.1154 OF 2023

01 Ashok Jethanand Nawani, Aged about 58

years, Occupation – Business, Resident of
Sankalp Colony, Nandura, District
Buldhana
02 Sou. Sharda Ashok Nawani, Aged about
55 years, Occupation – Household work,
Resident of Sankalp Colony, Nandura,
District Buldhana. ...Petitioners

// VERSUS //

01 Jethanand Sundardas Nawani (Dead),

Aged about 82 years, Occupation –
Business;
02 Ramesh Jethanand Nawani, Aged about
57 years, Occupation – Business, Resident
of Nandura, Tahsil Nandura, District
Buldhana.
03 Sou. Seema Ramesh Nawani, Aged about
50 years, Occupation – Household work,
Resident of Near Vithal Mandir,
Nandura, District Buldhana.
04 Sou. Asha Ramesh Talreja, Aged about 65
years, Occupation – Household work,
Resident of Bhusawal, Tahsil Bhusawal,
District Jalgaon.
05 Sou. Kaushalya Hargundas Tarwani, Aged
about 60 years, Occupation – Household
work, Resident of Amravati, Tahsil and
District Amravati.
06 Sou. Maya Ramdas Batheja, Aged about
52 years, Occupation – Household work,
Resident of Bhusawal, District Jalgaon.
 Judgment 2
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Amended as per
07 Sarita @ Mahima Goverdhandas Ahuja,
Court order dated Aged 40 years, Occupation Housewife,
21.03.2023
A.S. Manohar, Adv. resident of Ulhasnagar, Tahsil Kalyan,
District Thane. ... Respondents

______________________________________________________________
Shri A.S. Manohar, Advocate for Petitioners.
Shri Abhijeet Khare, Advocate for Respondent Nos.1 and 2.
______________________________________________________________

CORAM : ANIL S. KILOR, J.

DATED : 22nd FEBRUARY, 2024

ORAL JUDGMENT

1. Heard.

2. RULE. Rule is made returnable forthwith. Heard finally by

consent of the parties.

3. The objection raised to give Exhibit to the agreement dated

12.05.1994 on the ground that, the right has been created in the

immovable property by way of the said agreement and therefore, as per

Section 34 of the Maharashtra Stamp Act, 1958 the document is required

to be registered and duly stamped, came to be rejected. Hence, this

petition.

4. The respondent Nos.1 and 2 filed a Regular Civil Suit No.

10 of 2020 seeking a declaration, permanent injunction and accounts

Judgment 3
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with regard to land bearing Survey No.8/1, Plot Nos.6 and 7, Plot

No.36/1, Admeasuring 614.10 sq.mtr. and the Mangal Karyalal

constructed thereupon.

5. During the evidence of PW-1, an objection was raised to the

document at Serial No.3 filed along with list of document at Exh.4

namely an agreement dated 12.05.1994, to the effect that, it requires

compulsory registration and as per Section 34 of the Maharashtra Stamp

Act, 1958 shall be duly stamped.

6. The said objection was opposed by the respondent Nos.1

and 2 on the ground that, the said document is not relating to transfer of

right in the immovable property but it is relating to sharing of profit and

losses in the business only.

7. The learned trial Court rejected the objection on the ground

that, as there is no transfer of right and interest in the immovable

property, the document is not required to be registered in view of Section

17 of the Registration Act, 1908.

8. I have heard the learned counsel for the respective parties.

Judgment 4
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9. Shri Manohar, learned counsel for the petitioners states that,

the document in question i.e. the agreement dated 12.05.1994, more

particularly, Clause 1 and 3 creates title and therefore, the said document

is required to be compulsory registered under Section 17 of the

Registration Act, 1908.

10. It is submitted that, the learned trial Court has committed

error in holding that, no title is created by way of the said document. He,

therefore, prays for quashing and setting aside the impugned order

passed by the learned trial Court rejecting the objection.

11. On the other hand, Shri Khare, learned counsel for the

respondent Nos.1 and 2 submits that, the said document cannot be

treated as document creating title in anybody’s favour. It is submitted

that, even if a document which requires compulsory registration, if not

registered, the same can be used for collateral purposes as provided under

Section 49 of the Registration Act, 1908. In support of his submission,

he has placed reliance in the judgment of the Hon’ble Supreme Court of

India in the case of S. Kaladevi ..vs.. V.R. Somasundaram and others ,

reported in (2010) 5 SCC 401.

Judgment 5
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12. In light of the rival submissions of the parties, I have

perused the record and the impugned order.

13. The whole controversy thus, in the present matter revolves

around the agreement dated 12.05.1994 and more particularly, Clause 1

and 3 of the said agreement, which read thus:

^^1- ;k tkxsP;k [kkyhy IykWV Eg.kts ‘kkUrhlqUnj ukokuh Le`rh Hkou vkf.k nqdkus
T;koj bekjr mHkh djko;kph vkgs rks IykWV i{k ua- 1 ;kP;k ekydhpk vlqu
R;kps {ks=QG 70 X 90 vls vkgsr o rks R;kauh fn- 20-01-78] 17-4-79
jksth [kjsnh dsyk gksrk-
3- gh bekjr eaxydk;kZy; o R;kaP;k cktwus gks.kkjh nqdkus ;k e/;s i{k ua- 1 rs
6 g;kaph lkj[;k fg’;kr ekydh jkghy-**

14. The Hon’ble Supreme Court of India in the case of S.

Kaladevi (Supra), has held thus :

“13. Recently in the case of K.B. Saha and Sons (P) Ltd. v.
Development Consultant Ltd, this Court noticed (SCC pp.576-77,
para 33) the following statement of Mulla in his Indian Registration
Act, (7th Edn., at p. 189):
"The High Courts of Calcutta, Bombay, Allahabad, Madras,
Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon
and Jammu & Kashmir; the former Chief Court of Oudh; the
Judicial Commissioner's Court of Peshawar, Ajmer and Himachal
Pradesh and the Supreme Court have held that a document which
requires registration under Section 17 and which is not admissible
for want of registration to prove a gift or mortgage or sale or lease is
nevertheless admissible to prove the character of the possession of
the person who holds under it."
This Court then culled out the following principles : (K.B. Saha
case1, SCC p.577, para 34)
"1. A document required to be registered, if unregistered is not
admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an

evidence of collateral purpose as provided in the proviso to Section
49 of the Registration Act.
Judgment 6
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3. A collateral transaction must be independent of, or divisible

from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself
required to be effected by a registered document, that is, a
transaction creating, etc. any right, title or interest in immovable
property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of
registration, none of its terms can be admitted in evidence and that
to use a document for the purpose of proving an important clause
would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added,
namely, that a document required to be registered, if unregistered,
can be admitted in evidence as evidence of a contract in a suit for
specific performance.”

15. The above referred principles culled out by the Hon’ble

Supreme Court of India and more particularly, Clause 5 says that, if a

document is inadmissible in evidence for want of registration, none of its

terms can be admitted in evidence and that to use a document for the

purpose of proving an important clause would not be using it as collateral

purpose.

16. In light of above referred principle, if Clause 1 and 3 are

looked into, I have no hesitation to hold that, it creates title particularly

in light of the case of the plaintiff that, the sale deed in relation to the

land in question and referred in the Clause 1 of the agreement, was

executed in the name of the defendant No.1. Though, it is the case of the

plaintiff that, it was his self-acquired property and out of love and

affection, he purchased it in the name of the defendant No.1, the fact

remains that, the sale deed stands in the name of defendant No.1 and
Judgment 7
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therefore, the title stands in the name of defendant No.1 unless proved

otherwise.

17. In the above referred backdrop, Clause 1 says that, the

plaintiff No.1 is the owner of the land in question and Clause 3 gives

equal share to all the plaintiffs and defendants in the marriage hall and

the shops constructed over the said land, which certainly creates title in

favour of plaintiffs and defendants.

18. In the circumstances, I have no hesitation to hold that, the

learned trial Court committed error in holding that no title is created in

favour of anybody by way of the document namely Exh.186. In the

circumstances, I pass the following order :

i) The writ petition is allowed.

ii) The order rejecting the objection to Exh.186 is hereby

quashed and set aside and consequently, the objection is

upheld.

Rule is made absolute in above terms. No costs.

(ANIL S. KILOR, J)

C.L.Dhakate
 TM
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