1972 (1) TMI 118

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....rms of the award could not be passed. 3. The learned Subordinate Judge after framing a number of issues considered only the question with regard to the admissibility of the document. In his view the award dated 10-11-1955 embodied a partition of immovable properties worth more than Rs. 100/- and was, therefore, compulsorily registrable under Section 17 of the Indian Registration Act. Being compulsorily registrable the award could not be admitted in evidence for the purpose of passing a decree. He also had that the award was not duly stamped and for that reason also it was inadmissible in evidence. Accordingly, he dismissed the suit. 4. The plaintiffs went in appeal to the High Court. The appeal was placed before a Full Bench for disposal. The court held that the award was not inadmissible on the ground that it embodied a partition. In its opinion it was admissible in evidence so far as it did not affect immovable property. It further held that a decree could be passed in terms of that part of the award which was severable from any other part of it which was invalid for any reason. As regards the contention that the document was unstamped the High Court held that the document ....

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....rtion of this agreement is as follows : At present Mattapalli Venkataswamy has ceased to be a minor and attained majority. Therefore, we take again executed this Panchayat mutchilika in your favour. On 26-5-52 during the minority of 4th individual (Venkataswamy) of us, the immovable properties etc. belonging to our joint family had been partitioned. Venkataswamy, the 4th individual of us has also agreed to the said partition. Now we have executed again this mutchilika in your favour requesting you to partition the remaining properties. This agreement is important in two respects. One is that more than two years before the agreement the immovable properties of the family had been orally partitioned and, secondly, Venkataswamy who had now attained majority accepted the partition of those properties. Then on 28-8-1955 a third agreement was entered into. It is Ext. A-3. The relevant portion of this agreement is as follows : In pursuance of the panchayat mutchilika executed by us in your favour, we requested you to pass as award taking into consideration the chitta balance pertaining to our joint family, the paddy account relating faslis 1347, 1348, and 1349 as per ....

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.... and in the possession and enjoyment of your joint family, the lands etc. mentioned in Schedule B (referred to have come to you) and each of you obtained individual and separate possession of the lands that came to his share and you were in enjoyment peacefully and without any disturbance or dispute. This recital is consistent with the parties own admission about the partition in Ext. A. 2 namely the second arbitration agreement dated 10-10-1954. The partition of the immovable properties had been effected in about the middle of 1952 and the parties were since then in possession of the lands etc. which had been allotted to their share. The recital in the award is no more than a reference to an existing fact and does not support to create or declare, by virtue of the award itself, right title or interest in immovable property. Therefore, as shown in Kashinathsa Yamosa Kabadi, etc. v. Narsingsa Bhaskarsa Kabadi, etc. [1961] 3 SCR 792 the award cannot be regarded as compulsorily registrable on the ground that it embodies a partition. So far as the charge is concerned it is created for the first time by the award and it is not disputed that the transaction of the charge would require....

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....ce of any transaction affecting such property.... unless it has been registered. Since the charge was not registered it will be correct to say that the document will not affect the immovable properties of the appellants sought to be charged. It will not also be received as evidence of any transaction affecting such property that is to say, in this case, as evidence of the charge. It should be noted that the section does not say that the document cannot be received in evidence at all. How that it says is that the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision which was accepted for a long time by the High Courts has been duly recognised by the Amending Act 21 of 1929 which added a proviso to the section. The proviso clearly empowers the Courts to admit any unregistered document as evidence of a collateral transaction not required to be registered. 11. The direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect....