MUSA Vs. AMIR WANI

JUDGEMENT

(1.) A perusal of the document which has been held inadmissible in evidence by the trial court would show that it does certainly create and declare a right, title and interest in immoveable property, and as such it compulsorily requires registration. The document being unregistered, it would not be admissible in evidence under S. 49, Registration Act, if it is produced as evidence of any transaction affecting any immovable property. But a perusal of S. 49 would show that a compulsorily registerable document, though unregistered, and inadmissible in evidence of a transaction affecting immovable property, may yet be admitted as evidence for any purpose other than that of creating or declaring a right to immovable property. It is true that in the Indian Registration Act a proviso to the following effect: "Provided that an unregistered document affecting immovable property and required by this Act or the transfer of property Act, 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, or as evidence of part performance of a contract for the purpose of S. 53A of the Transfer of Property Act 1882 or as evidence of any collateral transaction not required to be effected by registered instrument," has been added to S. 49 by an amendment of the year 1929, but no such proviso has been added to S. 49 of our Registration Act. But it has been held by many Indian High Courts in a number of cases that the proviso enacting that a document which is required to be registered may, though not registered, yet be received as evidence of any collateral transaction not required to be effected by a registered instrument, is simply declaratory of what was the law even before the amendment was effected in S. 49 of the Indian Registration Act. Even as early as 1883 the Calcutta High Court in a Full Bench case reported as - Ulfatunnisa v. Husain Khan, 9 Cal 520 A has expressed this view. Such being the state of law, the absence of the proviso to S. 49 of our Act would make no difference. The result would be that the document in question, though inadmissible if produced as evidence of any transaction affecting any immovable property, would yet be admissible to prove a collateral transaction. In - "Varada Pillai v. Jcevarathnammal, AIR 1919 PC 44 B, a dispute in mutation proceedings was settled by an oral gift of the immovable property, and subsequently petitions were filed in the Court of the Collector reciting the fact of the gift. Later on the gift was held to be invalid, as it should have and could have been effected only by means of a registered instrument. The matter having gone to the Privy Council, it was held by their Lordships that the petitions, unregistered as they were, could not be used as evidence of the gift, but their Lordships added that these petitions may nevertheless be referred to as explaining the nature and character of the possession held by the donee.

(2.) IN the case before me, the document in question has declared the right and title of the defendant in some land. The document is not registered, but pursuant to this document possession was transferred to the defendant in the year 1993. Since then the defendant has been in possession right upto the year 2007 when a suit for possession was instituted against him. The defendant has resisted the suit on the ground of adverse possession also. As such the deed in question can certainly be used as explaining the nature and character of the possession held by the defendant.

(3.) I , therefore, accept this revision application, set aside the order of the trial Court, and further direct that the document in question be admitted in evidence.