Much can be said in favour of the view which was taken by Thakore J. The point, however, which we have got to consider is what is a collateral transaction within the meaning, of the proviso toSection 49, Registration Act. The expression "collateral" transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word "collateral" is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.
An obvious illustration of this is the transaction which is recorded in the memo of partition before us. The transaction therein recorded was a transaction of partition of the moveable and immoveable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration, and not being registered could not be admitted in evidence under the terms of Section 49, Registration Act. There wag, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be effected under Hindu law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there wag a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition, i.e., severance of joint status, thus would be a collateral transaction, and would certainly tell within the proviso to Section 49, Registration Act.
The partition of immoveable property belonging to the joint family which requires to be effected by a registered instrument would be inadmissible in evidence under the main provisions ofSection 49, Registration Act, but the partition, i. e., the severance of joint status, which is not required to be effected by a registered instrument, would be a collateral transaction, evidence of which would certainly be admissible under the proviso to the section, and the memo of partition which was inadmissible for want of registration would certainly be admissible to prove the fact of such partition. With respect, therefore, we are not inclined to accept the opinion of Thakore J., and would prefer to follow the view expressed in Narmadabai v. Rupsing, which as already observed before, has been approved of and is in accordance with the decision of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar.
Bombay High Court
Ramlaxmi Ranchhodlal vs The Bank Of Baroda Ltd. on 1 February, 1952
Equivalent citations: AIR 1953 Bom 50, (1952) 54 BOMLR 667, ILR 1953 Bom 339
Bench: Bhagwati, Dixit
