An unregistered document which is compulsorily registrable and is more than 30 years old can be received in evidence for collateral purposes, but not in support of any substantive and clear right.

HARISH TANDON, J.

1. THIS revisional application is directed against an order no. 33 dated 27.4.2009 passed by the Civil Judge (Junior division), 1st Court, Contai in Title Suit no. 32 of 2006.

2. THE plaintiff/petitioner filed a suit for declaration of the title and permanent injunction. It is contended by the petitioner in the plaint of the said Title Suit no 32 of 2006 that on the basis of the unregistered amicable family settlement/partition one of the original owner namely Kailash possessed "Ka" schedule property and upon the death of the said Kailash the property devolved upon his widow and three sons who subsequently sold the property to one Prabhabati. Upon the death of Prabhabati her two sons namely Chittaranjan and Vimcharan executed a deed of exchange amongst themselves and the suit property came to be possessed and owned by Chittranjan and after his death his son namely Tarjen is occupying the same. THE defendant/opposite parties disputed the said contention of the petitioner in the written statement. THE said deed of family settlement/partition was tendered in evidence by the petitioner but the same was not exhibited and was marked "X" for identification by the trial court. Subsequently an application was filed for exhibiting the said unregistered deed dated 22nd October 1940 on two-fold grounds. Firstly that the document is more than 30 years old and secondly the said document has come from the proper custody. The said application was contested by the defendant/opposite parties by filing the written objection. It is contended that all the cosharers did not sign on the said settlement deed. A specific defence is taken that unless the said document is registered the same cannot be exhibited in view of the embargo created under section 49 of the Registration Act.

3. THE trial court dismissed the said application holding that the said document cannot be marked as an exhibit. Assailing the said order the present revisional application is filed.

4. THE learned Advocate appearing for the petitioner submits that the trial court ought to have consider that the document is more than 30 years old and section 90 of the Evidence Act permit such document to be taken on evidence. He further submits that it has been specifically averred in the evidence in relation to the custody of the said document and upon satisfaction that the document is coming from a proper custody the court cannot deny to admit the said document under section 90 of the Evidence Act. Lastly, he concludes that the impugned order is not sustainable. THE learned Advocate appearing for the opposite parties submits that the purported document is not registered and cannot be admitted in evidence in view of the bar created under section 49 of the Registration Act. He further submits that the document which is unregistered is not admissible in evidence even for collateral purposes as has been held in case of Smt. Jamna Bai vs. Tulsi Ram reported in AIR 1997 Rajasthan 85. Having considered the respective submissions of the parties, this is a suit for declaration of right, title and interest in respect of the immovable property. The plaintiff/petitioner is tracing their title through the purported unregistered deed of family settlement/partition executed on 22nd October 1940.

5. SECTION 49 of the Registration Act provides that no document which is required under section 17 to be registered shall be received as an evidence of any transaction affecting the property unless the same is registered. SECTION 17(1)(b) of the Registration Act postulates that non-testamentary instruments which purport or operate 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 of one hundred rupees and upwards, to or in immovable property. On conjoint reading of the aforesaid section if by a non-testamentary instrument any right to the immovable property having a value of more than o