Pushpabai Nilkanth Patil & Ors. v. Shyamsunder Radheshyam Agrawal & Ors.

10 wp 872 of 2026.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.872 OF 2026 Pushpabai Nilkanth Patil and Ors. ...PetitionersversusShyamsunder Radheshyam Agrawal and Ors. …Respondents Mr. Simil Purohit, Sr. Advocate with Ms. Janhavee Joshi, Mr. Maulik P. Vorai/by Pramodkukar and Co., for Petitioners. Mr. Vineet Naik, Sr. Advocate with Mr. Amogh Singh, Mr. Pavan Patil, Mr.Prithviraj Gole with Mr. Chintan Shah, Mr. Shubham Saraf, Mr. Tanmay A.Deshmukh, Mr. Siddhesh Pednekar, for Respondent Nos.1 to 7. CORAM: N.J.JAMADAR, J. DATE : 28 JANUARY 2026 ORDER : 1.Heard the learned Counsel for the parties. 2.This Petition under Article 227 of the Constitution of India assails thelegality, propriety and correctness of an order dated 5 January 2026 passedby the learned Civil Judge, Thane, whereby the learned Civil Judge admittedthe unregistered Agreements for Sale cum Development dated 20 July 1994,12 October 1994, 27 April 2006 and 19 September 2004 and marked them asexhibits. 3.By an earlier order dated 26 October 2016, those documents wereimpounded under the provisions of Section 33 of the Maharashtra Stamp Act,1958. Upon adjudication by the Collector of Stamps, the Plaintiffs paid therequisite stamp duty and penalty on the aforesaid instruments. Thus, theSSP 1/7 10 wp 872 of 2026.docPlaintiffs filed an application (Exh.234) for admitting those instruments inevidence. 4.The Petitioners – Defendants resisted the application on the groundthat the instruments were not admissible in evidence as they wereunregistered and the bar under Section 49(c) of the Registration Act, 1908comes into play. Since the Plaintiffs had not instituted suits for specificperformance of the contract purportedly evidenced by the said instruments,the proviso to Section 49 had no application. 5.By the impugned order, the learned Civil Judge was persuaded to admitthose documents in evidence, keeping open the issue of evidentiary value ofthose documents. 6.Being aggrieved, the Defendants have invoked the writ jurisdiction. 7.Mr. Simil Purohit, learned Senior Advocate for the Petitioners, wouldsubmit that the suit is for declaration of title to the suit properties and anegative declaration that Defendant Nos.1 to 33 have no right, title andinterest, and Defendant Nos.45 and 46 cannot claim any right, title andinterest in the suit properties on the strength of the deed of conveyance dated7 February 2008 executed by Defendant Nos.1 to 33 in favour of DefendantNos.45 and 46, and the consequential reliefs. Conspicuous by its absence isthe prayer for specific performance of the contract contained in the aforesaidagreements. Thus, those documents cannot be admitted in evidence bySSP 2/7 10 wp 872 of 2026.docinvoking the proviso to Section 49 even for a collateral purpose. 8.Mr. Purohit would urge that, the Plaintiffs were asserting possessionover the suit properties under the said documents and not independentthereof. Collateral purpose ought to be independent of the main transaction.To buttress this submission, Mr. Purohit placed reliance on a judgment of theSupreme Court in the case of K.B.Saha and Sons Pvt. Ltd. V/s.Development Consultant Limited1. 9.In contrast, Mr. Naik, learned Senior Advocate for the Respondents –Plaintiffs would support the impugned order. Taking the Court through theaverments in the plaint, Mr. Naik would submit that the claim of title of thePlaintiffs over the suit property is based on a registered deed of conveyancedated 18 February 2008 and not on the aforesaid agreements. 10.The core controversy between the parties revolves around the questionof acquisition of lawful title over the suit properties on the strength of the deedof conveyance dated 18 February 2006, propounded by the Plaintiffs, and thedeed of conveyance dated 7 February 2008, propounded by DefendantNos.45 and 46. Thus, the latter part of the proviso to Section 49 which permitsadmission of an unregistered document as evidence of collateral transaction,squarely governs the case. To this end, Mr. Naik placed reliance on ajudgment of the Supreme Court in the case of S. Kaladevi V/s.1(2008) 8 SCC 564SSP 3/7 10 wp 872 of 2026.docV.R.Somasundaram and Ors.2. 11.Since the Plaintiffs claim of title stems from registered deed ofconveyance dated 18 February 2006 and the declaratory reliefs as to titlepredominantly flow from the said deed of conveyance, the objection on behalfof the Defendants that, since the suit is not for specific performance of thecontract contained in the subject agreements, they cannot be received inevidence under first part of the proviso appears inapposite. 12.On the aspect of admissibility of a document which is not registered, asevidence of a collateral transaction, which is not required to be effected by aregistered instrument, the legal position is absolutely clear. The decision ofthe Supreme Court in the case of K.B.Saha and sons Pvt. Ltd. (supra), onwhich reliance was placed by Mr. Purohit, culls out the principles, as under : “1.A document required to be registered, ifunregistered is not admissible into evidence under Section49 of the Registration Act. 2.Such unregistered document can however be usedas an evidence of collateral purpose as provided in theproviso to Section 49 of the Registration Act. 3.A collateral transaction must be independent of, ordivisible from, the transaction to effect which the lawrequired registration. 4.A collateral transaction must be a transaction notitself required to be effected by a registered document,that is, a transaction creating, etc., any right, title or2(2010) 5 SCC 401SSP 4/7 10 wp 872 of 2026.docinterest in immovable property of the value of one hundredrupees and upwards. 5.If a document is inadmissible in evidence for wantof registration, none of its terms can be admitted inevidence and that to use a document for the purpose ofproving an important clause would not be using it as acollateral purpose.”13.In the case of S. Kaladevi (supra), the Supreme Court extracted theaforesaid principles and added one more principle, namely, that a documentrequired to be registered, if unregistered, can be admitted in evidence asevidence of a contract in a suit for specific performance. 14.The proviso to Section 49, as is evident, carves out two exceptions. Inthe case at hand, the applicability of the latter limb of the proviso, namely, useof an unregistered instrument as evidence of collateral transaction, deservesto be examined. Collateral transaction should not be a transaction affectingimmovable property, but a transaction which may be incidentally connectedwith the main transaction. Such collateral transaction must not be atransaction which is itself required to be effected by a registered instrument. 15.In the case of Korukonda Chalapathi Rao and Anr. V/s. KorukondaAnnapurna Sampath Kumar3, the Supreme Court while dealing with thesecond limb of the proviso to Section 49, examined the question as to whatwould constitute a collateral transaction. The Supreme Court held, if it were3(2022) 15 SCC 475SSP 5/7 10 wp 872 of 2026.doccollateral transaction, then an unregistered document can indeed be used asevidence to prove the same. The Supreme Court posed questions, wouldpossession being enjoyed or the nature of the possession on the basis of theunregistered document be a transaction and further would it be a collateraltransaction ? 16.With reference to the previous pronouncements, the Supreme Courtfound the answer in the affirmative. A reference was made to a decision inthe case of Varatha Pillai V/s. Jeevarathnammal4, wherein the Privy Counciltook a view that, though unregistered, the document can be used to explainthe nature of the possession of a person. 17.In the case of Roshan Singh and Ors. V/s. Zile Singh and Ors.5, theSupreme Court enunciated that, even otherwise, the document whichpurportedly effected the partition can be looked into under the proviso tosection 49, which allows document which would otherwise be excluded to beused as evidence of ‘any collateral transaction not required to be effected bya registered instrument’. In the said case as well, the Supreme Court referredto the decision of the Privy Council in the case of Varatha Pillai V/s.Jeevarathnammal (supra), wherein the Privy Council had allowed theunregistered deed of gift which required registration to be used not to provethe gift ‘because no legal title passed’ but to prove that the donee thereafter41981 SCC Online PC 505(2018) 14 SCC 814SSP 6/7 10 wp 872 of 2026.docheld in her own right. The Supreme Court held, why the same rule could notbe made applicable to the said case before the Supreme Court. 18.The upshot of aforesaid consideration is that, an unregisteredinstrument cannot be looked into if it affects the immovable property bycircumventing the mandate contained in Section 49 of the Registration Act,1908. However, where the collateral purpose, like factum, nature andcharacter of possession and the chain of transactions culminating in thetransaction evidenced by a registered instrument, become relevant, anunregistered instrument which throws light on such collateral purpose, can beadmitted in evidence. 19.No infirmity can be found in the impugned order. 20.The Writ Petition, thus, stands dismissed. ( N.J.JAMADAR, J. )SSP 7/7