NARAYANASWAMY v. MUNIAMMA — 1973 DIGILAW 11 (KAR)

( 1 ) THESE two second appeals can be disposed of together as they arise out of one and the same suit, OS. 47/60, on the file of the Second Munsiff, bangalore City. These two appeals are by the two defendants in that suit. Both these appeals are directed against the judgment and decree in Regular appeal No. 81 of 1967 made by the learned Civil Judge, Bangalore distsict, Bangalore. ( 2 ) THE relevant facts, briefly stated, are' as follows: the suit of the respondents-plaintiffs is for redemption or in the alternative for specific performance of an agreement to reconvey executed by the appellant in RSA. 993/67 on 17-2-1958 in favour of the plaintiffs. The lands concerned in the suit were conveyed to the first appellant herein, (first defendant) on 13-11-1958 for a consideration of Rs. 600 on the specific understanding that it was only nominal and the entire transaction represented a mortgage. It is pursuant to that understanding that on 17-12-1958 the first defendant executed the agreement of reconveyance in question. The defence, inter alia, is that it was an out right sale and not a part of any mortgage agreed to between the parties. As regards the agreement to reconvey dt. 17-12-1958, the plea, in substance, is that it was a forgery. The trial Court dismissed the suit. On appeal by the plaintiffs, the lower appellate Court decreed the suit in regard to the relief of specific performance of the agreement to reconvey Hence, these two appeals preferred by the two defendants. ( 3 ) BEFORE adverting to the main contention, it is convenient to dispose of rsa. 981/69 at this stage. This appeal is by the second defendant in the suit. His defence is that he is a bonafide purchaser for value without notice of the prior agreement to reconvey in favour of the plaintiffs. The finding in regard to this question has been held against him by the Court below. But, what is contended in this appeal is that he was a tenant even prior to the purchase from the first defendant, and therefore, his possession ought to be protected. In this view of the matter, the portion of the decree relative to delivery of actual physical possession ought to be modified or set aside as the case may be. This contention is clearly unacceptable. In this view of the matter, the portion of the decree relative to delivery of actual physical possession ought to be modified or set aside as the case may be. This contention is clearly unacceptable. No plea has been raised specifically in regard to this question, much less an issue raised in regard to it. For the first time in evidence, such a case has been advanced on his behalf. I do not, therefore, feel persuaded to accept this contention. This appeal therefore, is liable to be dismissed. ( 4 ) TURNING now to the 6ther appeal, RSA. 993/69, the contention in the main urged on behalf of the appellant (first defendant) is that the agreement to recovey, i. e. , Ex. P1, would be unenforceable in the absence of registration and that the suit agreement in effect limits the right in the prior reconveyance by sale deed dt. 13-11-1958, executed in favour of the appellant and thus falls within the purview of the provisions of S. 17 (1), (b) of the Registration Act. This submission is sought to be supported by a decision of the High Court of Bombay in Gajanan Narayan Patkar v. Jivangiri Chamelgiri, AIR 1926 Bom. 131. I am unable to accede to this contention. ( 5 ) IT is no doubt true that in the said case, the decision in which is rendered by a Divsion Bench of that Court, it is laid down that an agreement to reconvey which purports to limit the purchaser's interest in the immovable property conveyed under the sale deed required registration and if unregistered, it could not be made the foundation of a suit for specific performance. This view has not found favour in a Full Bench decision of the same Court in Harikisandas Bhagvandas v. Bai Dhanu, AIR 1926 Bom. 497, FB. In the latter case, a question of inadmissibility of the agreement of sale or reconveyance on the ground that it required registration was raised. The said agreement was executed contemporaneously with the sale deed Ex. 38. One of the learned Judges composing the Court, namely Fawcett, J. , while making a reference to the Full Bench observed thus:"it, therefore, seems clear that the two documents, evidence one transaction, and that the second document, Ext. 39, was not an independent transaction arranged, as an after-thought subsequent to the execution of Ext. 38. 38. One of the learned Judges composing the Court, namely Fawcett, J. , while making a reference to the Full Bench observed thus:"it, therefore, seems clear that the two documents, evidence one transaction, and that the second document, Ext. 39, was not an independent transaction arranged, as an after-thought subsequent to the execution of Ext. 38. The plaintiffs also treated the two documents as one transaction by their allegation that they evidenced a mortgage. The lower Court's view that Ext. 39 cannot be treated as a separate document entirely apart from the sale deed. Ext. 38, is, in my opinion, clearly correct. " ( 6 ) IT is in this context that Shah, J. one of the Judges constituting the Full bench, in his separate but concurring opinion has stated the position thus:"the real test, in my opinion, is not whether the transaction is the same, but whether the intention of the parties in a given case is to create or limit the right in immovable property worth Rs. 100 and over by an agreement not registered or to keep strictly within the limits contemplated by Cl. (v) of S. 17, sub-sec. (2 ). Where there is nothing in the terms of the agreement to show that by itself it creates or limits any right in immovable property, but merely gives a right to obtain another document and where the intention of the parties ex hypothesi, as contemplated by the question, is to treat the documerit as strictly limited by the terms, I do not see any reason why the exemption allowed under the said clause of the section should not take effect with reference to it. " ( 7 ) AGAIN the learned Judge observed thus :" The question, whether a particular agreement satisfies the requirements of Cl. (v. of S. 17, sub-sec (2), must depend upon the terms of the document For instance, if the agreement purports to create some right in immovable property, and also gives a right to obtain another document in future, it would not satisfy the requirements of that clause. (v. of S. 17, sub-sec (2), must depend upon the terms of the document For instance, if the agreement purports to create some right in immovable property, and also gives a right to obtain another document in future, it would not satisfy the requirements of that clause. But in the present case, the terms of the document do not go beyond the requirements of the clause and where the intention of the parties as found or assumed in the question is to keep it strictly within the limits of its terms, the mere fact that it is a part of the same transaction and is not an independent transaction is not sufficient to render the said clause inapplicable or to treat the document as anything more than what it purports to be, viz. , an agreement by the vendee to reconvey the property to the vendor on payment of money by him. " ( 8 ) IT is, therefore, clear from the above contention that an agreement to reconvey would clarly fall within the exemption indicated in S. 17 (2) (v) of the Registration Act. In this view, it would be clear that the decision relied on by the appellant, namely Gajanan Narayan Patkar's case (1), is clearly distinguishable, if not held as not laying down the law correctly. This contention is also, in my opinion, liable to be rejected on the ground that it is opposed to the express statutory provision as indicated in the proviso to S. 49 of the Registration Act. The relevant portion of that section reads thus :" No document required by section 17 or by any provision of the transfer of Property Act, 1882, to be registered shall- (a ). . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . (c) be received as evidence of any transaction affecting such property or conferring such power, unless it as been registered; provided that an un-registered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purpose of S. 53a of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. " ( 9 ) IT is plain from the above proviso, that even on the assumption that the agreement to reconvey in question required registration as contended before me a suit for specific performance could be founded on such a document. The result of the above discussion is that by virtue of the provisions of s. 17 (2) (v) and the proviso to S. 49 of the Registration Act, the agreement to reconvey in the case on hand does not require registration, and therefore, is clearly admissible in evidence. No other contention was urged on behalf of the appellants in these two appeals. The judgment and decree impugned herein do not, therefore, call for interference, and have to be sustained. In the result, these appeals fail and are dismissed with costs of respondents-plaintiffs (one set only ). --- *** --- .