ORDER
S.S. Subramani, J.
1. This revision is filed under Article 227 of the Constitution of India, by the plaintiff in O.S.826 of 1985, on the file of District Munsif’s Court, Poonamallee. Petitioner herein filed the suit to direct the respondent to deliver possession of the suit property and for consequential reliefs. In the plaint, it is alleged that the plaint schedule property is the ancestral property of Dharmalinga Naicker and his sons and they were residing in that property. For the purpose of meeting the marriage expenses of his daughter, Dharmalinga Naicker wanted to raise loan, and for the said purpose, he approached the defendant, who is a money lender. He wanted a sum of Rs. 3,250. Since the defendant insisted on security and also wanted to enjoy the property in lieu of interest, possession was handed over to him. It is said that possession of the defendant is only as a charge-holder, and he was the mortgagee for all purposes. Since the defendant was having possession and was enjoying the property for the past more than eight years, if the amount is calculated as per Tamil Nadu Debt Relief Act, only a sum of Rs. 650 is payable and the balance must be treated to have been discharged in view of the appropriation of the income. A lawyer’s notice was issued asking the defendant to surrender possession, which was not complied with. The suit was, therefore, filed for the reliefs stated above.
2. In the written statement filed by the respondent herein, he said that for meeting the marriage expenses of his daughter, late Dharmalinga Naicker executed a sale deed though it was unstamped or unregistered. It is his case that pursuant to that document, he obtained possession and he is in possession as owner. He also effected improvements to the suit property. It is his case that his possession as mortgagee as alleged by plaintiff is not true, and the sale was executed for valuable consideration, and for family necessity. He further says that the suit filed for recovery of possession without a prayer for setting aside the sale is not maintainable. He also pleaded that the age of the plaintiff is wrongly stated.
3. On the above pleadings, parties went on trial. It is seen that both the plaintiff and defendant were examined, and the case was posted for arguments. When plaintiff was examined as P.W.1, he was confronted with a document alleged to have been executed in favour of defendant by Dharmalinga Naicker P.W.I denied the execution of such a deed. Long thereafter, an application was filed by the respondent in I.A.No. 1103 of 1995 to excuse the delay in filing the document dated 29.3.1975, referred to in the written statement. In the affidavit filed in support of the application, it was averred that Dharmalinga Naicker executed the said sale deed and it was for necessity and consideration. The plaintiff has not accepted the same and has given a different version about the circumstances under which the respondent came into possession. It is, therefore, alleged in the petition that he reserved the document to confront the plaintiff during the course of examination. But the plaintiff did not accept the same. Moreover, the document was liable for stamp duty and penalty, which was paid. Thereafter, when the document was about to be marked, petitioner raised objection for reception of the document. Therefore, defendant filed I.A. along with an affidavit for excusing the delay in filing the document.
4. A detailed counter affidavit was filed by the petitioner herein explaining as to why the document should not be admitted in evidence. He also contended that the document itself is concocted one and, therefore, invalid. He further said that the document is not stamped, nor was it registered, and no right could be claimed under that document by the respondent herein. He prayed for dismissal of the application.
5. By the impugned order, Lower Court found that the delay could be condoned and the document could be made use of for collateral purpose. In that view of the matte the application was allowed. The said Order is under challenge in this revision.
6. Learned counsel for the revision petitioner submitted that even though an application was filed to condone the delay in receiving the document, the lower court has gone beyond the scope of the application itself. When the admissibility of the document itself is in question, the finding that it could be used for collateral purpose amounts to a finding that the document is genuine. According to learned counsel, he has seriously disputed the validity of the document and there is a specific plea that it is a concocted document. When such serious allegations are made in the counter, the order of the lower court that it could be used for collateral purpose amounts to prejudging the issue. He further contended that no legal grounds have been made to excuse the delay. The suit was filed in 1983, and the present document is filed only in the year 1995. It is not sufficient reason to allege that the defendant wanted to confront the plaintiff with the document when he disputed the same, and, therefore, he reserved it for being presented in Court at the appropriate time.
7. Learned counsel for respondent submitted that subsequent to this Order, the document was put to the witness and the same was marked subject to objection, and it was at that stage, the revision was filed. He further contended that only judgment is to be pronounced and the entire arguments are over, and at this stage, if the court interferes in the discretionary order, the same will affect the respondent adversely and will cause him great hardship.
8. Taking into consideration the rival submissions, I feel that the petitioner is entitled to succeed for more than one reason.
9. In the written statement filed by the defendant, in paragraph 6, it is said that he obtained possession of the property pursuant to the sale deed and he is enjoying the same as owner. In the statement, it is further said that it is on the basis of the document dated 29.3.1975, he obtained possession. In the entire written statement, defendant has said that he is the owner and the property was sold to him for valuable consideration and for family necessity. The defendant cannot plead adverse possession in this case since the document alleged to have been executed is dated 29.3.1975 and the suit was filed in 1983. Admittedly, the suit is one for recovery of possession, thereby admitting the respondent’s possession. Respondent admits that the document is not registered. It was originally executed in a plain paper. Subsequently the stamp duty and penalty was paid. Once it is found that it is not a registered document, ownership cannot pass Under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act. A collateral purpose as refered to in Section 49 of the Indian Registration Act must be for any purpose other than that of creating, declaring, assigning, limiting or extinguishing the right to immovable property.
10. In Panchapageesa v. Kalyanasundaram, a Division Bench of this Court has held thus:-
“To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the concluding words of the new proviso to Section 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression “collateral purpose” is no doubt a very vague one and the court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to be conveyed by the document. But by the simple device of calling it a “collateral purpose” a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if registered.
To quote Sir George Lowndes in James R.R. Skinner v. Robert Hercules Skinner ILR 51 All 771: AIR 1929 PC 269 (Z22) the collateral purpose to which the document is put should be nothing else than an evasion of the statute and render almost nugatory the hither to well-established rule relating to the limited uses to which an unregistered partition deed can be put to.
These principles are elaborately set out in the following recent well known decisions cited before us: In Muruga Muddliar v. Subba Reddiar, (FB) (Z 23), a Bench of five Judges held:
“Per Rajamanner, C.J.: Section 49(C) of the Registration Act prohibits the use of an unregistered instrument in any legal proceeding in which such a document is sought to be relied on in support of a claim to enforce or maintain any right, title or interest to or in immovable property. So long as the document is not sought to be relied on as evidence of any right, title or interest to or in immovable property, there is nothing to prevent the document being received in evidence.
Per Satyanarayana Rao, J.: The prohibition against admissibility enacted by Section 49 of the Registration Act is not an absolute one, but the section renders the unregistered document inadmissible only for the two limited purposes specified Clauses (a) and (c) and leaves it available to be used in evidence for other purposes.”:
In it held:-
“Although an unregistered partition deed and sale deeds are inadmissible in evidence to prove the terms of the partition or title to the immovable property transferred thereunder they are admissible for a collateral purpose to determine the nature and character of possession, and other materials on the record can also be taken into consideration for the purpose of coming to a decision that the possession was referable to a division of properties between the parties concerned.
The word “partition” involves two concepts (1) change, of status, (2) division of property. Severance of status does not require to be proved by any documentary evidence at all, nor it is necessary for the purpose of actual division of the property between the members of a joint family that a written instrument is essential, where there is evidence that there was an actual division of the property between the parties and that they went into possession of their respective shares in accordance with that division, and there are also other circumstances to show that the conduct of the parties are inconsistent with anything except the factum of separation, a court of law may very well hold, apart from any instrument of partition (which happens to be unregistered) that the parties had separated in status and effected a partition of the family properties.
This would be a perfectly legitimate course to adopt. Unregistered instruments, such as partition deed, sale deed, receipt, etc., which require to be registered may be admitted and relied on for the purpose of proving the disruption of status and division of property, separate possession and separate dealings by the parties. Though not admissible to prove title to the immovable properties in question, they could be referred for the collateral purpose of showing that the parties were dealing with the properties in their separate possession on the footing that there had been a partition between the members of the family.
Unregistered sale deeds would also be admissible under the proviso to Section 49, Registration Act, to prove part performance Under Section 53-A, Transfer of Property Act, besides being admissible for the collateral purpose of separate possession and separate dealing and enjoyment. (All relevant Madras decisions discussed). In it was held:
“The expression “collateral transaction in the proviso to Section 49, Registration Act, is not used in the sense of an ancillary or a subsidiary transaction to a main or principal transaction. The transaction as recorded could be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of 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.
A memo of partition of immovable property belonging to a Hindu joint family which is required to be registered but which is not registered would be inadmissible under the said provisions of Section 49 of the Registration Act as evidence of the terms or details of the partition. But the partition i.e., the severance of joint status which is not required to be effected by a registered instrument would be a collateral transaction, evidence of which would certainly be admissible under the proviso to Section 49 and the memo of partition through unregistered would be admissible to prove the fact of such partition.
In Mt. Thakura v. Sukhrai Sinch, it was held:
A partition chitti which merely records that certain persons named therein have been allotted certain properties described therein at a private partition need not be registered Under Section 17(1)(b). Even if it requires registration, it can be used for the collateral purpose of proving the nature of possession in view of Section 49.
That latest decision is Appeals Nos. 81, 789 of 1948 dated 10.5.1955 (Mad) laying down that oral evidence of the terms of a document which is inadmissible, in evidence for want of registration is not admissible as this would be a case of virtually admitting an unregistered partition deed to prove details of the partition and how the property was divided and to whom allotted amounting to an indirect (sie), as in of the statute.
11. On going through the written statement as well as the application, we find that what the defendant wants to prove is, the factum of sale. He has no case anywhere in the written statement or in the application that he wants to prove a document for collateral purpose. When there is no such case put forward, the lower court, assuming that it could be used for collateral purpose, has gone beyond the case of the parties. When the defendant has a definite case that possession passed on the basis of the sale deed, and if the sale could not be proved, to make use of the document for the purpose of possession, cannot be said as a collateral purpose. From a reading of the written statement, I understand that he claims possession as owner. When the ownership could not be had, when there is no registered deed and possession is also part of that transaction, it cannot be said that it is a collateral purpose as found by the lower court. Whether any ground has been made out to admit the document? It is true that a discretion has been exercised by the lower court and in the normal circumstances, this court should not interfere. But, when the discretion exercised has seriously affected the rights of the other party, this Court is entitled to invoke its jurisdiction to rectify that mistake. The reason mentioned is that he thought of confronting the plaintiff with the document, and when the plaintiff did not admit the execution of such document, he thought of producing the same in Court. He also says that he had to produce the document before the Collector for paying the stamp duty and penalty. Those reasons cannot be said as sufficient cause. The defendant cannot think that his case will be supported by the plaintiff and, therefore, he waited for the production of the document. If that was in his mind, the reason stated by him cannot be recognised by Court. For paying stamp duty and penalty, from 1975 to 1983, what the defendant did for eight years, is also not explained.
12. Plaintiff has seriously opposed the reception of the document, and has, in fact, denied the very execution of such a document. He has also said that the document has been created for the purpose of this suit. Without taking into consideration that objection, the lower court has ordered that it could be marked for a collateral purpose as if the document is genuine. If the genuineness of a document is questioned, the execution of the document itself will have to be proved and that cannot be a collateral purpose. Without considering any of these legal contentions, the lower court, as if it is a routine matter, has allowed the application. The order of the court below, is, therefore, liable to be set aside, and the Civil Revision Petition is to be allowed.
13. Learned counsel for revision petitioner submitted that subsequent to the impugned order, evidence was also let in.
14. If any such evidence has been let in subsequent to the passing of the impugned order basing the claim of the defendant as per the deed dated 29.3.1976, that part of the evidence will not be taken into consideration by the lower court and the same will be eschewed from the records. The Civil Revision Petition is allowed as indicated above, however, without any order as to costs. C.M.P.No. 5510 of 1997 is dismissed.