The question of admissibly of Unregistered document is matter of discussion always at legal faternity. I am trying to add some valuable inputs into this topic.
At the outset, It is settled legal position that an unregistered document does not become void just for want of registration. It is a valid document and admissible as collateral evidence. In this article we are talking about those document which ideally should be registered but remain unregistered because of various reasons and produce before court as evidence.
Outlook on the relevant provisions:
Section 68 of Evidence Act says that a document, which should be registered under the law, should not be used as evidence until at least one attesting witness has given the testimony but the proviso says that any non-testamentary document would not require the attesting witness unless the document worthiness is not questioned.
Section 17 of Registration Act give provision of the documents which should mandetarily registered beyond all doubts and Section 49 do the provision for ‘Effect of non-registration of document required to be registered’ and proviso ( c ) be received as evidence of any transaction affecting such property on conferring such power, unless it has been registered
Section 35 of Indian Stamp Act says that ‘ No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by the law or consent of parties authority of receive evidence unless such instrument is duly stamped’. Section 33 of the Stamp Act says that Court has power to impound an unregistered document to take them as evidence
Legal precision is necessary to get clarity in some what complex and provisions which are crossing each other
This point is very well elaborate by Courts at various Judgements.In view of the proviso to section 17 & Section 49 of Registration Act read with section 68 of the Evidence Act, even an unregistered document could be read and used as evidence for collateral purposes. (Bhanwarlal & others Vs. Heera Lal (MPLJ 2001(2), Page 502).
It can be seen for the collateral purpose but it could not be read as admissible evidence and the executors and witness of the document should examine the testimony of the unregistered document. ( Phoolbai and Others Vs Kodulal and others, 1973 Jlj Short Note, 20, Page 17).
The nature of the collateral evidence (unregistered document)) does not require to be effected by registered document. The admission in unregistered document, which amounted to declaration of title in the property, could not be used in evidence. Just by marking a document as an exhibit does not dispense with its proof and exhibiting a document without establishing by testimony of the executor or witness, shall not give any effect event to a registered document. (Sait Tarajee Khimchand and others Vs Yelamarti Satyam and others AIR 1971, Sc Page, 1865) .
Even the content of Thirty Years Old document could not be presumed to be true by virtue of presumption attached to such document. ( Mohinnumddin and others Vs President Municipal Committee Khargoan) 1993, JLJ page 67.
The admission of the content of a document is best evidence that an opposite party can rely upon, unless it is successfully withdrawn or proved erroneous. (Narayan Bhawantrao Gosavi Vs. Gopal Vinayak Gosavi & oth. AIR, 1960, SC Page 100)
The Court Procedure for impounding : When plaintiff produced a unregisterd document before court then at evidence, court may order the plaintiff to impound the document and take the original document in its custody. Court, then send the document to registration office for calculation of the stamp duty and registration. The amount to be deposited with the court. Registrar then stamped the document and send back to court with certificate of registration. Court then asks the parties on testimony and oral evidence for the document
Therefore, as a conclusion it can be said that unregistered document is weak evidence. It is treated as collateral evidence and the attesting witnesses should give their testimony for the same. The unregistered document shall be asked for Impunding by the court before to take it as evidence. After completion of process of impounding of document, the testimony of witness shall start. Though, court may skip this based on circumstances and fact of the case. Remember, Legal hirers of the attesting witness are not competent and trustworthy witness. Merely exhibiting a document does not serve any purpose, no matter, whether it is unregistered or a registered document.
Source : * (MPHT 2008 Part-19), Indian Registration Act, Stamp Act & Evidence Act.