ORDER
S.S. Subramani, J.
1. Plaintiff in O.S.No. 406 of 1993 on the file of the District Munsif Court, Arupukottai is the revision petitioner Suit filed by him was for declaration of title and recovery of possession. The plaintiff alleged that on 25.5.1947, there was a panchayat and a partition was effected and the same was recorded in a note book and all the sharers have also affixed their signature in that document. The plaintiff properties were allotted to one of the sharers Karuppiah Konar and on his death, the property devolved on his widow Vellammal and the plaintiff. It is also alleged that the Vellammal also died and the plaintiff is the absolute owner of the property. The defendants are now interfering with the possession and enjoyment of the property wherein the plaintiff has put up a construction. The suit was therefore, filed for declaration and consequential reliefs.
2. The defendant has filed a written statement.
3. After suggesting issues, parties went on trial when P.W.1 was being examined, a document was marked as Ex.A-1. At the time of marking the document, there was no objection. It is seen on the next day, an application was filed on behalf of the defendant’s side as I.A. was early as 1957 to set aside the marking of the document and delete the Ex.A-1 from evidence. It is alleged that the Ex.A-1 should not have been admitted in evidence since it is an unregistered partition deed. It was submitted on their behalf that under Section 49 of the Indian Registration Act, a document which requires registration, if not registered, is not admissible in evidence and therefore cannot be looked into for any purpose. According to them, Ex.A-1, was admitted in evidence without taking into consideration that whether the document requires registration or not. The mistake has been committed by court which has to be rectified.
4. The said I.A. seriously opposed by the plaintiff and contend that once the document is marked, it cannot be challenged thereafter. It is further submitted that even if the document Ex.A-1 is treated as partition deed, it cannot be looked into for collateral purposes.
5. After hearing both sides, the trial court held that Ex.A-1 requires registration and therefore it cannot be admitted in evidence. The earlier order for marking the same was set aside and the document eschewed from evidence. The said order of the lower court is challenged in this revision.
6. Learned Counsel for the petitioner submitted that the procedure adopted by the lower court is not proper and the goes against the settled legal proceedings. It is submitted that once a document is marked, in the subsequent stage of same proceding the court cannot delete the same or eschew the same from the evidence and the defendant also is not entitled to file an application for the said purpose. Learned Counsel further submitted that at any rate, if the document could be used for proving collateral purpose then the marking of the document will have to continue and the lower court’s order is liable to be interfered with other purposes also.
7. As against the said submission, learned Counsel for the respondent submitted that if the document is not admissible under any law, the court cannot mark it against the provisions of law, The court is therefore, competent to set aside the marking of the document. It is further submitted, the document is marked only for proving partition and it is only by virtue of the document the partition has taken place which requires registration and therefore, it cannot be used as evidence at all.
8. Heard both sides, In regard to the first submission that the court has to treat the document in evidence, once it is marked and has no power to delete the same, I do not think the submission could be accepted. The very same question came for consideration in the decision Chavakula Yanadamma v. Chavakula Venkateswaralu . In that case also, no objection was raised at the time when the document was marked, But, subsequently, it is found that the document is inadmissible in evidence. An objection was raised by the defendant as to its admissibility, the Division Bench of this Court in para 3 of the judgment held thus:
The fact that an objection as to the admissibility of a document on the ground of its non-registration is taken at a late stage of the trial may be taken into consideration in awarding costs, but it cannot be a ground for treating the document as admissible in evidence if by law it is inadmissible.
9. In view of the said decision, the contention of the learned Counsel is rejected. The court has power to reconsider the admissibility of a document though it is admitted by inadvertence or the mistake of without considering its admisisbility. There is no question of principle of estoppel or waiver for application in such cases. If a law prohibits the admission of a document in evidence, that court cannot admit the same merely because it was not objected by the defendant or merely because the objection was taken belatedly. If a document is found to be inadmissible in evidence, and it is brought to the notice of the court, the court is bound to rectify the mistake.
10. The other question requires for consideration is whether the order of the court below was right when it held Ex.A-1 his to be eschewed from evidence is correct.
11. A xerox copy of the document was placed before me at the time of argument by the learned Counsel for the respondent. From a reading of the document, I understand that even prior to the deed there was discussion between the parties and due to the intervention of mediator and other well wishers, an arrangement was made and all the sharers agreed to the suggestion of the mediators and consequent to the same, a memo was filed. The relevant portion read thus:
Mediators are also attestors of the deed. An argument was taken by the learned Counsel for the respondent that on the basis of this document partition has taken place and therefore it requires registration. I do not think the submission of the learned Counsel is to be accepted. It is clear from the said deed, the document came into existence as a result of an arrangement between the sharers through the effort of mediators and the same has been recorded in that document.
12. Assuming that the document dated 25.4.1947 requires registration, cannot that document be used for any purpose. Section 49 of the Indian Registration Act permits the admissibility of document which requires registration to be used for collateral purposes. What are the collateral purposes and what is the collateral purpose was considered in Ramlaxmi Ramchhodlal v. Bank of Baroda , a Division Bench has considered this question in regard to an unregistered deed of partition. It was held thus:
The expression “collateral” transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word “collateral” is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.
13. In Mareboyina Nagamma v. Madala alias Koranki Nagamma , their Lordships said that an unregistered deed of partition can be used in evidence for collateral purposes and can be relied on as proof of division of status.
14. In Mukhram Rai and Ors. v. Chandradeep Rai and Ors. A.I.R. 1936 Pat. 68, it was held,
Where parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time the court might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned.
15. In R. Selvaraj v. R. Radhakrishna Pillai alias R.R. Krishna Pillai and Anr. (1976)1 M.L.J. 105, in para 16 of the judgment, their Lordships said,
Admissions in an unregistered deed is evidence to prove the same and particularly to establish that some of the properties covered by it are the self-acquisitions of one of the executants of the same.
16. In Neelakantan Sreedharan v. Subba Bhakthan Naryana Bhakthan 1975 K.L.T. 128, the question came for consideration was whether unregistered lease deed beyond the period of year to be used in evidence. In that case, it is held thus:
The rent deed is executed by the lessee alone, It is also not registered and therefore it is inadmissible to prove the creation of a lease by an instrument. But, it is admissible to prove the creation of a lease by oral agreement accompanied by delivery of possession as mentioned in Section 107 of the Transfer of Property Act. The rent deed can be relied on to establish the jural relationship between the parties. It contains an admission or an acknowledgment by the defendant who sought to be made liable that he is a tenant and that is the best evidence that one can possibly have as to the oral agreement of a lease. It is well known that documents relating to sales, leases and mortgages come into existence only after agreements are arrived at between the parties to these transactions. The lessor and lessee generally agree to the terms of the tenancy before hand and then reduce to writing what has been agreed upon. In such cases oral agreement of lease can be spelt out of the rent deed executed by the lessee and there can be no bar for a court from looking into such a document for this purpose.
17. From the above decisions, it was clear that an unregistered document can be relied on to prove admission, that the parties have divided among themselves.
18. In a similar case, a Division Bench decision reported in Balakottiah v. Renga Reddy , wherein their Lordships said that an unregistered lease deed can be relied on for proving the admission. It was held thus:
A document (Kabuliat) though unregistered is admissible in evidence for a collateral purpose of proving the admission contained therein. A person deriving title from the person who made the admission cannot say that he is not bound by the admission though it is open to him to rebut the admission by producing evidence or giving some satisfactory explanation.
19. From these decisions, it is clear, the admission of an unregistered deed which requires registration can be relied on for collateral purposes and admission need not be by registered document. An admission of partition does not make any right, title, interest in properties. The admission by the executants of the deed, that they have separated themselves and they have taken possession of separate schedules of properties can be proved on the basis of the document. That will be a collateral purpose. What are the items which each party took on the basis of the prior division consequent of which the deed was written also can be taken note of in such cases. By relying of this document, the plaintiff is not contending that he has obtained title of this property. What he proves is that he obtained right on the basis of mutual discussion and admitted in that document. The reliance can be placed for such purpose and that will not offend Section 17 of the Indian Registration Act.
20. The finding of the lower court that it has power to reconsider the admissibility is correct. The finding that Ex.A-1 has to be eschewed from the evidence is not correct, According to me, the marking of the document is proper.
21. In the result, the impugned order is set aside and the C.R.P. is allowed. No costs. The lower court is directed to proceed with the suit in accordance with law taking into consideration of Ex.A-1 also. Consequently, C.M.P.No. 13914 of 1997 is closed.