Karnataka High Court: Hemant Chandangoudar, J. allowed the petition and quashed the impugned order.
The facts of the case are such that the plaintiffs in the original suit filed an application for partition and separate possession of their legitimate share. The defendants therein sought to produce an unregistered partition deed so as to establish the prior partition that took place which was opposed by the plaintiffs. The Trial Court refused to permit petitioners to mark the said unregistered document on the ground that the same does not fall under the purview of the proviso to Section 49 of the Indian Registration Act. Hence the instant writ petition under Article 226 and 227 of the Constitution of India was filed.
Counsel for the petitioners relied on judgment Srinivasa v. Huchappa, 2014 (2) KCCR 1605 and submitted that the Trial Court has erred in refusing to permit the petitioners/defendants to mark the unregistered partition deed as evidence of collateral purpose as the requirement of registration can be considered at the time of considering the matter n merit and not at the time of recording of evidence.
Counsel of the respondents submitted that the document sought to be produced is a compulsorily registerable document. It was also submitted that the said document cannot be used for collateral purpose as the same does not fall under the purview of Section 49 of the Indian Registration Act, 1908 and hence the impugned order is legal and does not call for interference.
The Court observed that on perusal of proviso to Section 49 of the Indian Registration Act, 1908 would indicate that the immovable property which is compulsorily registerable under the Registration Act, 1908 may be taken as evidence for the purpose of collateral; transaction. It was further observed that the issue involved in this case was examined in the case of Srinivas (supra), wherein it is held that at the stage of recording of evidence, an order permitting marking of unregistered document as evidence is not liable to be interfered with.
The Court thus held that “in view of Section 49 of the Registration Act, 1908 and the decision laid down in the case of Srinivasa (supra) the impugned order passed by the Trial Court is not sustainable in law.”
In view of the above, writ petition was allowed.[Nagppa v. Ketappa, Writ Petition No. 108153 of 2015, decided on 06-03-2021]
Arunima Bose, Editorial Assistant has reported this brief.