An unregistered document can be received in evidence for collateral purposes, such as proving possession of the property, under the proviso to Section 49 of the Registration Act, 1908, provided that the document also complies with the provisions of the Stamp Act and stamp duty and penalty are paid.

ORDER :

This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved of the order, dated 22.11.2017, passed in O.S.No.36 of 2011 on the file of the Court of X Additional District & Sessions Judge, Krishna, at Machilipatnam.

2. Heard Sri Sai Gangadhar Chamarty, learned counsel for the revision petitioner/plaintiff and Sri M. Radha Krishna, learned counsel the respondents/defendants.

3. The facts, in brief, are that the plaintiff filed a suit for cancellation of registered non-possessory agreement of sale-cum-general power of attorney, dated 10.12.2019, executed by defendants 1 and 2 in favour of 3rd defendant alleging fraud and collusion. The plaintiff filed a suit in O.S.No.52 of 2009 on the file of the Court of Principal District Judge, Machilipatnam, against the 1st defendant for recovery of amount due under the promissory note, dated 30.06.2008, executed by the 1st defendant. As the 1st defendant failed to discharge the same, the plaintiff filed I.A.No.342 of 2009 in O.S.No.52 of 2009 seeking attachment of the schedule property before judgment. In spite of giving an undertaking not to alienate the schedule property, the 1st defendant filed counter stating that the schedule property was mortgaged to State Bank of Hyderabad, Machilipatnam, towards security and the 1st defendant already alienated the schedule property and has no salable interest over the same. It is the contention of the plaintiff that the property hypothecated to the State Bank of Hyderabad and the schedule property in I.A.No.342 of 2009 in O.S.No.52 of 2009 are one and the same and the registered non-possessory agreement-cum-general power of attorney is created with a view to defeat and delay the suit claim of the plaintiff. Hence, the suit was filed.

4. The defendants 1 and 2 filed separate written statements and in respect of the document in question, they stated that the 3rd defendant is a bona fide purchaser of the schedule property, purchased the same for valuable consideration of Rs.41,81,000/-from defendants 1 & 2 and paid a sum of Rs.36,00,000/-and also paid the balance of Rs.5,80,000/-to the defendants 1 & 2 on 18.12.2009. The 3rd defendant filed separate written statement and further contended that he obtained receipt from defendants 1 and 2 and thereafter, he sold away the property to the 4th defendant long prior to the filing of the suit. On receipt of suit summons, he came to know about the previous transaction and the suit filed by the plaintiff in O.S.No.52 of 2009 and about filing of petition in I.A.No.342 of 2009 for attachment before judgment in the suit. During trial, when the 3rd defendant was intending to mark the money voucher issued for Rs.5,80,000/-by the defendants 1 and 2 on 18.12.2009, counsel for the plaintiff raised an objection for marking the same as exhibit on the ground that it is neither a mere money voucher nor a receipt, but possession was delivered after receiving Rs.5,80,000/-and as such, it is a deed of conveyance and is liable to be registered and necessary stamp duty and penalty are to be collected and therefore, the said document cannot be admitted in evidence.

5. After hearing both the parties, the trial Court held that the document which is styled as money voucher, requires registration as possession is delivered by virtue of that document and it cannot be admitted in evidence unless stamp duty and penalty are paid by the 3rd defendant.

6. Hence, this revision by the plaintiff.

7. The revision petitioner is mainly aggrieved by the direction of the trial Court permitting the 3rd defendant to take steps for payment of stamp duty and penalty for use of the document for collateral purpose of proving possession of the property. It is argued that a document which requires registration but not registered cannot be looked into as evidence and in this regard, the following decisions have been cited:

(i) Ponnapola Seetha Ramaiah v. Snagala Sreenivasulu, 2012 (6) ALT 549

(ii) Golla Dharmanna v. Saka