Brahaman Swarnkar Samaj, Pali & Others vs. Medh Kshatriya, Swarnkar Samaj Vikas Samiti, Pali & Another AIR 2014 Raj. 37
The respondent No.1 – plaintiff filed a suit for cancellation of a trust deed, getting it declared void and for permanent injunction against the petitioner-defendants, inter alia, seeking relief for cancellation of the trust deed registered on 31- 05-1997 by the defendant Samaj and permanent injunction in the nature of non-interference in the right of the plaintiff to worship in the temples, which were subject matter of the trust deed. The suit was, inter alia, founded on an agreement dated 15-07-1968 said to have been executed qua the temples between the parties.
The said document dated 15-07-1968 was filed and the same was sought to be exhibited in evidence; petitioner No.1 filed the application, inter alia, with the averments that as in the document dated 15-07-1968, there is a version relating to the property being joint, the same is undervalued and requires registration u/s. 17 of the Registration Act, 1908 and as the document has been undervalued and is unregistered, the same cannot be led in evidence and cannot be marked as an exhibit; it was prayed that it be held that the document was inadmissible.
The Court observed that a bare reading of the document dated 15-07-1968 reveals that the parties therein have termed the same as writing between two temples and further goes on to state that the said both temples have been joint from the beginning and the same would remain so in future also.
The contents of said document, which start with an indication that both the temples are joint merely indicate the existing state of affairs, as on the date of executing the document, recites the status from before the execution of the document and as to what was to continue in future. As per the said document, the property i.e., the temples in question were joint from the beginning and would continue to remain so, does not bring into existence any new state of affairs different from what was existing. The document thereafter merely goes on to indicate that none of the two Samaj would claim exclusive possession and both would be entitled to spend money on the said temples, but would not claim reimbursement of the same.
For a document to be compulsorily registrable u/s. 17(1)(b) of the Act of 1908, it is necessary that the same should purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest to or in the immovable property. So far as the creation of any right, title or interest as submitted by learned counsel for the petitioners is concerned, in view of the clear language of the document, which indicates a pre-existing right, it cannot be said that any right was ‘created’ by the said document in favour of any of the parties.
In so far as the ‘declaration’ as envisaged by section 17(1)(b) of the Act of 1908 is concerned, as the word ‘declare’ has been placed alongwith create, limit or extinguish and the said words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to, the said word ‘declare’ has to be read ejusdem generis with the words create, assign or limit. For a document to fall within the ambit of 17(1)(b) of the Act of 1908 on its declaration, it must imply a declaration of will and not a mere statement of fact, as there is a clear distinction between a mere recital of a fact and something which in itself create a title.
Therefore, the document in question is not compulsorily registrable under provisions of section 17(1)(b) of the Act of 1908.
