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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   8441              OF 2015 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO.  12788   OF 2014

YELLAPU UMA MAHESWARI & ANR.        ...APPELLANTS

VERSUS

BUDDHA JAGADHEESWARARAO & ORS.  ...RESPONDENTS

J U D G M E N T

N.V. RAMANA, J.

Leave granted.

2. This Appeal has been preferred aggrieved by the orders passed  

by the High Court of Judicature of Andhra Pradesh in CRP No. 3419  

of 2013, dt. 27/12/2013 wherein and whereby the learned Judge has  

dismissed  the  Revision  Petition  preferred  by  the

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Appellants/Defendant Nos. 1 & 2 by confirming the orders passed in  

O. S No. 10 of 2004, dt. 08/07/2013 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.

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 ¼th  share in Item No. 1, ½  

share in Item No. 2 of the suit schedule properties.

5. It  is  the  specific  case  of  the1st 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  dt.  

22/05/1964 in a sound and disposing 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  No.1  and  the  defendant  

Nos.1  &  2/appellants  became  entitled  to  the  plaint  Schedule  

properties  in  equal  shares.  On his  demand,  when the defendants

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failed to partition the properties by giving him his legitimate right, he  

has approached the Court by filling the above suit.

6. The appellants herein (Defendant Nos.1 & 2)  resisting the plea  

of  the  plaintiff/respondent  No.1  filed  the  written  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/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 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/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.

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Mahalakshsamma in a sound and disposing state of mind executed a  

Registered 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, 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  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  plaintiff/respondent  No.1  and  the  

defendant No.1/appellant 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  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

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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.

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 B21 and Exhibit B22 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  B21  

and B22 are unregistered and unstamped documents, they are not  

admissible in evidence. The Trial Court gave a specific finding that

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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  the  

respondents/plaintiff.

11.   It is urged by the learned senior counsel Mr. V. V. S. 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 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,  still  the  unregistered  documents  are  admissible  in  

evidence for collateral purpose.  

12. The learned counsel  Mr.  G.V.R.  Choudary,  appearing for  the  

respondents, on the other hand, has submitted that the Courts below

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were perfectly right in coming to a conclusion that Exhibits B21 and  

B22  are  compulsorily  registerable  documents  and  prayed  for  

dismissal of the Suit.

13. Now the issue that falls for consideration is:

(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?

(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 Registration Act,  

1908.

Sec. 17 of the Registration Act, 1908

Documents of which registration is compulsory.—      (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 Registration Act, 1866, or the Registration Act,  1871, or the Registration Act, 1877, or this Act came or comes  into force, namely:—

(a)  Instruments of gift of immovable property;

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16.    Coming to the facts on hand, the defendant No.1 wanted to  

mark Exhibits B21 and B22, according to her, these two documents  

are Agreement and a Memorandum which were unregistered and  

unstamped  documents  and  do  not  require  registration.  We have  

seen Exhibits B21 and B22 which are placed before us. Exhibit B22,  

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 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 Mahalakashamma  

and left  over  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  No.  1 and the plaintiff/respondent  No.1  

and the defendant No.1/appellant No.1 shall not raise any dispute

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over  this.   Coming  to  Exhibit  B21,  date  05/06/1975 which  is  an  

agreement between Mahalakashmma, plaintiff/respondent No.1 and  

defendant No.1/appellant No.1 wherein at Clauses 4 to 6 the recitals  

pertain  to  relinquishment  of  shares  between  the  parties  to  the  

agreement. It is stated in the Memorandum, Ext. B 22, 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 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  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 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

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the recitals contained in that document but not on the basis of the  

pleadings set up by the party who seeks to introduce the document  

in  question.   A 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 B-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 Exhibits B 21 and B22 are not admissible in  

evidence for the purpose of proving primary purpose of partition.

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 Muthyala   

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

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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, 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 B- 22 for  

collateral purpose subject to proof and relevance.

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.  

..................................J.                  (RANJAN GOGOI)     

                                                            ……………................J.                                   (N.V. RAMANA)

New Delhi, October 08, 2015