decided is not whether possession of the land comprising in the form of nine feet
wide way was delivered by the respondent to the petitioners or not or whether the
respondent is creating hindrance in the peaceful use of the same by petitioners or
not but the question to be addressed is whether conferment of right upon the
petitioners over the other land of the respondent to use it as a way to have access
to the land sold to them by way of the document in question amounts to creation,
declaration, assignment, limitation or extinguishment of a right, title or interest to
or in an immovable property within the meaning of Section 17 (1)(b) of the Act.
This provision provides that any instrument which purports or operates to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value and of one hundred
rupees, upwards to or in immovable property is compulsorily registrable. In the
present case, the petitioners are claiming that land measuring 599 square yards
was sold by the respondent to them by way of document dated 15.12.2000. A
reading of this document clearly shows that the land described therein was sold
by respondent to the petitioners in lieu of sale consideration of Rs.1,07,820/- and
possession of it was also delivered to them and from the date of its execution all
rights stood transferred in favour of the petitioners and that of the respondent got
extinguished. Thus, the document in question is an instrument requiring
compulsorily registration as per the requirement of Section 17(1)(b) of the Act.
Although, by way of document in question the respondent further agreed to
provide the petitioners right of way to have access to the land so sold over his
other land, but conferment of that right cannot be said to be a right separate and
independent from the land so sold and the same cannot be considered in isolation.
The respondent agreed to provide the petitioners right to way over his other land
only by the reason that the land described in the document was sold by him to the
petitioners. Thus, the right so conferred is part and parcel of the sale of land, and
the same has been conferred by the same document and, therefore, it also
required compulsory registration.
Apart from that, even if for the sake of arguments, it is admitted that
conferment of right of way is a separate right independent of the sale of land,
even then, in my considered opinion, such right of way can be conferred by a
registered document only. As per the document in question and as per the claim
of the petitioners themselves, the respondent agreed to provide them a nine feet
wide way over his other land. What are the consequences of such conferment ? In
my opinion as a result of such conferment right, title or interest in the land
comprising in the way which was vested in respondent, got extinguished and
limited and right to use it as a way got created and declared in favour of the
petitioners. Thus, as per the requirement of Section 17(1)(b) of the Act as a result
of conferment of right of way on the petitioners right, title and interest of the
respondent extinguished and limited and right was created and declared in favour
of the petitioners and any document conferring any such right is compulsorily
registrable. It is also to be noted that as per the definition of the term 'immovable
property' as provided under Section 2(6) of the Act, the term 'immovable property'
includes rights to ways also. In the light of the provisions of Section 17(1)(b) of
the Act, if the term 'immovable property' is considered, it becomes manifest that a
right of way can be created or conferred by a person over his land in favour of
any other person by a registered document only. In the present case also the
respondent could have conferred upon the petitioners right of way over his land
by executing a registered document only. In the case in hand although there is no
transfer of ownership in the land over which the right of way is being claimed by
the petitioners and which has been denied by the respondent but right of way is
included in the definition of immovable property as defined under Section 2 (6) of
the Act. Thus, the document which creates, declares, assigns, limits or
extinguishes a right of way in or over a land is required to be registered.
Effect of non-registration of documents required to be registered is
provided in Section 49 of the Act. It provides that no document required by
Section 17 of the Act to be registered shall affect any immovable property
comprised therein or shall be received as evidence of any transaction affecting
such property or conferring such rights unless it is registered. It is well settled
legal position that a document required to be registered, if unregistered, is not
admissible in evidence under Section 49 of the Act. In the present case,
conferment of right of way by respondent over his other land in favour of the
petitioners but transfer of immovable property as per the definition of the term as
provided under Section 2 (6) and it is not less than creation, declaration and
assignment of property rights in favour of the petitioners and extinguishing of
right, interest and title of the respondent in his land, it could be effected by a
registered document only and the document in question being unregistered is not
admissible in evidence.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR.
S. B. CIVIL WRIT PETITION No.18594/2011.
Shree Chand & Ors. Vs. Civil Judge (Sr.Div.) & Anr.
Date of Order : 25.5.2016
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Citation:AIR 2016 Raj 191
Heard learned counsel for the parties.
Admissibility of a document dated 15.12.2000 styled as a writing, it
being unregistered, is the core question to be addressed in this writ petition.
Another issue to be considered and decided is whether right of way through and
over the other land of defendant-respondent as claimed by the plaintiff-petitioners
falls within the purview of 'collateral transaction' as provided under Proviso to
Section 49 of the Registration Act (hereinafter referred to as the 'Act') and the
document in question is admissible in evidence despite the fact that it is
unregistered as required under Section 17 of the Act.
Brief relevant facts leading to filing of this writ petition are that
plaintiff-petitioners filed a suit for permanent injunction with the averment that
defendant-respondent sold land measuring 599 square yards to them and in
respect of the said sale a writing dated 15.12.2000 on a stamp paper of the value
of Rs.100/- was executed by respondent in their favour and possession of the said
land was also delivered and they are enjoying the same after constructing three
houses over it. It was also averred that by way of the same document the
respondent further agreed to provide them a nine feet wide way from his other
land for the purpose of to have access to the land so sold to them. It was averred
that initially respondent declined to provide way to them as per the agreement
dated 15.12.2000, but ultimately a nine feet wide way provided by him to them
and since then they were using the same without any hindrance by any person
including the respondent and there was no other way available to them to have
access to their aforesaid plot of land. It was further averred that on 26.5.2004 the
respondent without any right illegally and in contravention of the said agreement
to provide way for the use of petitioners started making hindrance and
interference in the same and threatened to close it unless some more money is
paid to him. It was prayed that a decree for permanent injunction restraining the
respondent not to interfere in the use of the said land as a way be granted. The
respondent filed written statement and denied all the material plaint averments
and certain other objections were also raised. It is to be noted that land
measuring 599 square yards was sold for a sole consideration of Rs.1,07,820/-
only. During the pendency of the suit, an application came to be filed by the
respondent with a prayer that the document dated 15.12.2000 being unregistered
is not admissible in evidence. In the reply to the application, it was averred that
the document in question can be admitted in evidence for collateral purpose.
By way of the impugned order dated 15.10.2011 passed in Civil Suit
No.129/2005 by Civil Judge (Jr.Division), Neem-ka-Thana Sikar, application filed
by the respondent was allowed and document in question was held to be not
admissible in evidence for any purpose for want of registration which has been
challenged by the petitioners by way of this civil writ petition filed under Article
226 readwith Article 227 of the Constitution of India.
It was submitted by the learned counsel for the petitioners that the
petitioners are in peaceful possession of the land which was sold to them by
respondent by way of document in question and they are enjoying it after
constructing houses over it and there is no dispute of any kind between them in
respect of this land and no relief of any kind has been sought by them in the suit
so far as this land is concerned. It was further submitted that as no other way was
available to have access to the land so sold to them, which is a part of a larger
plot of the respondent, by way of the said document, the respondent agreed to
provide them a nine feet wide way, out of his other land, only as a facility to have
access to their aforesaid land without transferring title or ownership to them in
any manner. It was also submitted that although the respondent initially resiled
from his promise to provide facility of way over and through his remaining land,
but later on with the intervention of respectful persons of the locality, as per the
agreement a nine feet way was provided and the petitioners started to use it, but
subsequently respondent started making interference and threatened them not to
use his land as way which compelled them to file suit for permanent injunction. It
was further submitted that petitioners are claiming neither ownership right nor
possession over the land comprising in the way belonging to respondent as it was
never sold or agreed to be sold to them but they are claiming merely right of way
over it, which does not create ownership right in them. It was submitted that as
per Section 17(1)(b) of the Act, a document is required to be compulsorily
registered only when it creates, declares, assigns, limits or extinguishes any right,
title or interest in immovable property having value of Rs.100/- or more and not
otherwise. It was submitted that mere claim by a person of right of way over the
land of other person as no other way is available to him to have access to his land
does not come within the purview of Section 17(1)(b) of the Act. It was also
submitted that otherwise also the document in question is admissible in evidence
for 'collateral purpose' as provided under Proviso to Section 49 of the Act. It was
submitted that 'collateral transaction' means a transaction other than creating,
declaring, assigning, limiting or extinguishing a right, title or interest in immovable
property and whether a transaction is a 'collateral transaction' or not would
depend upon the facts of the case and the relief sought. It was submitted by the4
learned counsel for the petitioners that in the present case the petitioners are
claiming right of way only over the other land of respondent as agreed by him as
no other way is available and their claim is at the most for 'collateral purpose' not
effecting in any manner the right, title or interest of the respondent over it.
In support of his submissions, learned counsel for the petitioners
relied upon the case of S. Kaladevi Vs. V. R. Somasundaram & Ors. reported
in 2010 (1) WLC (SC) 672.
On the other hand, learned counsel for the respondent submitted
that as per the document in question a parcel of land measuring 599 square yards
was sold by respondent to the petitioners in lieu of sale consideration of
Rs.1,07,820/- and for want of registration this document is not admissible in
evidence for any purpose as no right, title or interest transferred to the petitioners
in absence of a registered sale deed. It was further submitted that according to
this document respondent further agreed to provide a nine feet wide way to the
petitioners to have access to the land so sold but this part of the document cannot
be read independently and in isolation and it is an inseparable part and parcel of
the main document under which the land was sold and, therefore, the whole of
the document is inadmissible in evidence for want of registration. It was submitted
that without land so sold mere right of way conferred upon the petitioners has no
value in itself and, therefore, the real issue to be considered and decided is
whether document in question as a whole is inadmissible in evidence for want of
registration. It was also submitted that otherwise also even that part of the
document under which right of way was agreed to be given by the respondent
over his other land required compulsory registration as a result thereof exclusive
right to use that land as a way was created, declared and otherwise assigned in
favour of the petitioners and right, interest and title of the respondent in it was
limited and extinguished. Inviting attention towards Section 17(1)(b) of the Act, it
was submitted that any transaction creating, declaring, assigning, limiting or5
extinguishing right, title or interest in immovable property can be effected only by
a registered document and as per the Section 49 of the Act for want of
registration such document cannot affect the property comprised therein and such
document cannot be received as evidence of any transaction affecting such
property. It was submitted that in absence of registration the document in
question neither conferred any right upon the petitioner in the land which it
purports to be sold to them nor conferred any right upon them to use the other
land of the respondent as a way to have access to the land so sold. It was further
submitted that when the document in question cannot be received in evidence to
prove sale of the land itself, there is no question to receive it in evidence to prove
that respondent agreed to provide nine feet wide of his land to petitioners to use
it as a way. It was also submitted that the document in question cannot also be
received in evidence even for any 'collateral transaction' as such document can be
received in evidence for such 'collateral transaction' only when it is not required to
be effected by registered instrument. According to learned counsel for the
respondent 'collateral transaction' must be a transaction not itself required to be
effected by a registered document, that is, a transaction creating, declaring,
assigning, limiting or extinguishing any right, title or interest in immovable
property, but in the present case conferment of right of way upon the petitioners
creates, assigns or declares right in their favour and right of respondent in his
land gets limited and extinguished and, therefore, the document in question is
not admissible in evidence even as evidence for a collateral transaction. In the
present case, the petitioners are claiming that as a result of document in question
they have an exclusive and uninterrupted right in the land of respondent to use it
as a way to have access to the land sold to them. In support of his submissions,
learned counsel for the respondent also relied upon some decisions.
In the present petition the question relevant to be considered and
decided is not whether possession of the land comprising in the form of nine feet
wide way was delivered by the respondent to the petitioners or not or whether the
respondent is creating hindrance in the peaceful use of the same by petitioners or
not but the question to be addressed is whether conferment of right upon the
petitioners over the other land of the respondent to use it as a way to have access
to the land sold to them by way of the document in question amounts to creation,
declaration, assignment, limitation or extinguishment of a right, title or interest to
or in an immovable property within the meaning of Section 17 (1)(b) of the Act.
This provision provides that any instrument which purports or operates to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value and of one hundred
rupees, upwards to or in immovable property is compulsorily registrable. In the
present case, the petitioners are claiming that land measuring 599 square yards
was sold by the respondent to them by way of document dated 15.12.2000. A
reading of this document clearly shows that the land described therein was sold
by respondent to the petitioners in lieu of sale consideration of Rs.1,07,820/- and
possession of it was also delivered to them and from the date of its execution all
rights stood transferred in favour of the petitioners and that of the respondent got
extinguished. Thus, the document in question is an instrument requiring
compulsorily registration as per the requirement of Section 17(1)(b) of the Act.
Although, by way of document in question the respondent further agreed to
provide the petitioners right of way to have access to the land so sold over his
other land, but conferment of that right cannot be said to be a right separate and
independent from the land so sold and the same cannot be considered in isolation.
The respondent agreed to provide the petitioners right to way over his other land
only by the reason that the land described in the document was sold by him to the
petitioners. Thus, the right so conferred is part and parcel of the sale of land, and
the same has been conferred by the same document and, therefore, it also
required compulsory registration.
Apart from that, even if for the sake of arguments, it is admitted that
conferment of right of way is a separate right independent of the sale of land,
even then, in my considered opinion, such right of way can be conferred by a
registered document only. As per the document in question and as per the claim
of the petitioners themselves, the respondent agreed to provide them a nine feet
wide way over his other land. What are the consequences of such conferment ? In
my opinion as a result of such conferment right, title or interest in the land
comprising in the way which was vested in respondent, got extinguished and
limited and right to use it as a way got created and declared in favour of the
petitioners. Thus, as per the requirement of Section 17(1)(b) of the Act as a result
of conferment of right of way on the petitioners right, title and interest of the
respondent extinguished and limited and right was created and declared in favour
of the petitioners and any document conferring any such right is compulsorily
registrable. It is also to be noted that as per the definition of the term 'immovable
property' as provided under Section 2(6) of the Act, the term 'immovable property'
includes rights to ways also. In the light of the provisions of Section 17(1)(b) of
the Act, if the term 'immovable property' is considered, it becomes manifest that a
right of way can be created or conferred by a person over his land in favour of
any other person by a registered document only. In the present case also the
respondent could have conferred upon the petitioners right of way over his land
by executing a registered document only. In the case in hand although there is no
transfer of ownership in the land over which the right of way is being claimed by
the petitioners and which has been denied by the respondent but right of way is
included in the definition of immovable property as defined under Section 2 (6) of
the Act. Thus, the document which creates, declares, assigns, limits or
extinguishes a right of way in or over a land is required to be registered.8
Effect of non-registration of documents required to be registered is
provided in Section 49 of the Act. It provides that no document required by
Section 17 of the Act to be registered shall affect any immovable property
comprised therein or shall be received as evidence of any transaction affecting
such property or conferring such rights unless it is registered. It is well settled
legal position that a document required to be registered, if unregistered, is not
admissible in evidence under Section 49 of the Act. In the present case,
conferment of right of way by respondent over his other land in favour of the
petitioners but transfer of immovable property as per the definition of the term as
provided under Section 2 (6) and it is not less than creation, declaration and
assignment of property rights in favour of the petitioners and extinguishing of
right, interest and title of the respondent in his land, it could be effected by a
registered document only and the document in question being unregistered is not
admissible in evidence.
Now, it is to be seen whether the document in question can be
admitted in evidence for collateral purpose. Proviso to Section 49 of the Act
provides that an unregistered document affecting immovable property and
required to be registered as per Section 17, may be received as evidence of any
collateral transaction not required to be effected by registered instrument. Thus,
an unregistered document is admissible in evidence only for that collateral
purpose which in turn is not required to be effected by a registered instrument.
The expression 'collateral purpose' is 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 collateral one or it is to establish indirectly the title, interest or
right to immovable property sought to be conveyed by the document. In this
regard, Hon'ble Supreme Court in the case of K. B. Saha & Sons Pvt. Ltd
Development Consultant Ltd reported in (2008) 8 SCC 654 has laid down
the following propositions : 9
1. A document required to be registered, if unregistered is not
admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence
of collateral purpose as provided in the proviso to Section 49 of the
Registration Act.
3. A collateral transaction must be independent of, or divisible from,
the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to
be effected by a registered document, that is, a transaction creating,
etc. any right, title or interest in immovable property of the value of
one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration,
none of its terms can be admitted in evidence and that to use a
document for the purpose of proving an important clause would not
be using it as a collateral purpose.
Hon'ble Allahabad High Court in the case of Ratan Lal Vs. Hari
Shankar reported in AIR 1980 Allahabad 180 has observed that 'collateral
purpose' referred to Section 49 of the Act has a limited scope and meaning. The
term would not permit the party to establish that the deed created, declared,
assigned, limited or extinguished a right to immovable property. The term
'collateral transaction' means a transaction other than creating, declaring,
assigning, limiting or extinguishing a right, interest or title in an immovable
property. Collateral purpose is that which is by the side or distinct from the main
purpose. In the present case, the petitioners are claiming that by way of the
document in question right of way was conferred upon them, they were allowed
to use it to have access to the land sold to them by respondent, but later on he
created hindrance in their use of the way. If the facts of the case are examined,
the suit being for permanent injunction and sole basis thereof being the document
dated 15.12.2000, which is not registered, on the strength of which the petitioners
are claiming their right of way over the other land of the respondent, the10
production of the said document cannot be said to be for 'collateral purpose'. This
is because the recital therein with regard to conferment of right of way is not
independent of or divisible from the transaction for the purpose to which the
document was executed, which is required to be registered. 'Collateral purpose' is
the purpose which is independent of or divisible from the purpose for which the
document was executed and of which the law required registration. A collateral
transaction must be independent of or divisible from the transaction to effect
which the law required registration. A collateral transaction must be a transaction
not itself required to be effected by a registered document, that is, a transaction
creating any right, title or interest in immovable property of the value of one
hundred rupees and upwards. In the present case, the purpose for which the
document in question is sought to be produced cannot be said to be a collateral
purpose.
The net result of all this discussion is that the document in question
is inadmissible in evidence for any purpose for want of registration.
Consequently, the writ petition as well as the stay application is
dismissed.
(PRASHANT KUMAR AGARWAL),J.
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