Unregistered documents affecting immovable property cannot be admitted as evidence of a transaction affecting the property, unless for a collateral purpose.

1. The revision petitioner is the B Party in a S.145 proceedings initiated by the Executive First Class Magistrate of Muvattupuzha. In proof of his possession of the property in dispute the B. Party produced a copy of a gift deed. The original was unregistered and so objection was raised to the admissibility of the document. The learned Magistrate upheld the objection and this petition is filed to quash the order. The short question that arises for decision is whether the document could be admitted in evidence.

2. S.17 of the Indian Registration Act (Act XVI of 1908) enjoins that instruments of gift of immovable property should be registered.

S. 49 of the Act says:

"No document required by S.17 or by any provision of the Transfer of Property Act, 1882 to be registered shall

(a) affect any immovable property comprised therein, or b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1887, or as evidence of part performance of a contract for the purposes of S.53-A of the Transfer Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."

3. It was pointed out in Bai Gulabbai v. Dattagarji (9 Born. L.R. 393) that collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.

Therefore a compulsorily registrable document if unregistered is inadmissible under S.49(c) as evidence of a transaction affecting the immovable property comprised therein. It is not disputed in this case that the gift deed is a document coming within

S. 17, but the argument of the learned counsel for the petitioner is that it is to be used only for a collateral purpose to prove possession.

4. A leading case on this question is the decision in Varada Pillai v. Jeevarathnammal (AIR. 1919 P.C. 44). The question there was, whether there had been a valid gift of immovable properties and whether the donee had acquired a title by adverse possession. The documents were certain petitions which had been presented to the Collector, who was asked to register the properties in the name of the donee. Their Lordships said that as a gift of immovable property is required to be made by a registered deed the petitions could not be used as evidence of title, but it was permissible for the court to look at them in order to ascertain the nature and character of the possession held by the person named in the petition. In delivering the judgment of the Board Viscount Cave observed:

"In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore, in her own right and not as trustee or manager of her mother and aunt."

The decision in effect was that, as the property had come to her in the circumstances indicated and as she had held it for 12 years, she had obtained title by adverse possession. It will be noted that in that case she was actually in possession and the Judicial Committee held that the unregistered documents could be examined with a view to ascertaining the nature of the possession. That certainly would be a case of using the document for a collateral purpose.

5. In Muruga Mudaliar v. Subba Reddiar (AIR. 1951 Mad. 12) Rajamannar, C. J., observed:

"S. 49 (c) of the Registration Act prohibits the use of an unregistered instrument in any legal proceedings 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