Whether Court Can Consider Unregistered document as Evidence – Let’s check

By Adv sudheesh s kumar -

Let’s Have a look in to the basic Provisions which deals with Documents:

As per Section 56 of the Bharatiya Sakshya Adhiniyam, 2023, the contents of document has to be proved either by primary or secondary evidence. Primary evidence means the document itself produced for the inspection of the court and secondary evidence includes those documents mentioned under section 58 of the Bharatiya Sakshya Adhiniyam, 2023.  

Section 17 of the registration Act Mandates that registration of certain documents and Section 49(c) of the registration Act states that No document required registration under section 17 to be registered shall be received as evidence of any transaction  affecting such property or conferring such power, unless it has to be registered.  The proviso of Section 49 makes an exception to the aforesaid provision in case of a suit for specific performance and collateral transaction not required to be effected by registered instrument.

Thereby an unregistered document can be used as evidence only for a suit for specific performance or for proving any collateral transaction not required to be effected by registered instrument.

What is collateral transaction?

In K.B. Saha and Sons Private Limited v. Development Consultant Limited ,(2008) 8 SCC 564 – Held that,

  • A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
  • Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
  • A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
  • A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
  • If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
In S. Kaladevi Vs. V.R. Somasundaram and Ors., (2010) 5 SCC 401, this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. 

In Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639 – The SC has add one more principles in addition to the principles laid in K.B. Saha and Sons Private Limited v. Development Consultant Limited, that is, that  a   document  is  required  to  be registered,   but   if   unregistered, can   still   be   admitted   as evidence   of   a   contract   in   a   suit   for   specific   performance.

I am a Legal professional - practicing as a counsel before the High Court of Kerala and the Trial Courts Mainly in Kottayam Zone. I graduated with a bachelor’s degree in Bachelor of Commerce from Mahatma Gandhi University (2014-17) and a bachelor’s degree in law from University of Calicut (2018-21). From November 2021 onwards till July 2022 , I was a Junior trainee at the Firm Tharakan and George Associates. Now I am an Associate Litigator at Tharakan and George Associates. Civil Commercial litigation, Consumer Litigation , Drafting of Legal Documents , Preparation of Title deeds , Registration of Firms and Society are my primary areas of practice. Opinions expressed by me here are in my personal capacity, and may not be conclusive. My LinkedIn profile is available at https://www.linkedin.com/in/adv-sudheesh-s-kumar-632977234/

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