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1980 DIGILAW 57 (BOM)

Maruti Nana Yerme v. Laxman Santram Chepure

1980-02-13

A.N.MODY

body1980
JUDGMENT - MODY A.N., J.: - By a registered sale-deed dated 7-4-1971 certain lands situated at village Manandi, taluka Abamadpur, district Osmana had were sold by the respondent to the petitioner at a price of Rs. 13,000. A sum of Rs. 8,000 was paid by the petitioner to the respondent at or before the execution of the same and as recorded in the sale-deed the balance amount of Rs. 5,000 was agreed to be paid on or before 7-4-1972. According to the respondent, petitioner failed to pay the balance amount and the respondent filed the suit before the Civil Judge, Junior Division, Ahamadpur, being Regular Civil Suit No. 65 of 1974 for recovery of the said amount and for the charge. In his written statement the petitioner who was the original defendant alleged that he had paid a sum of Rs. 4,000 leaving a balance of Rs. 1,000 which he was ready and willing to pay. 2. According to the petitioner payment of Rs. 3,800 was evidenced by a receipt signed by the respondent. It appears that the respondent has denied the genuineness of the signature. The petitioner, therefore, submitted an application to the learned Civil Judge for an examination of the said receipt by Handwriting Expert and applied for sending the receipt in dispute along with certain other documents which the respondent had admittedly signed for comparison and opinion of the Handwriting Expert. On 29-3-1978 this application was all owed and the documents were ordered to be sent to the Handwriting Expert. From the record it does not appear as to whether this order was passed after bearing the respondents advocate. I do not find any complaint on record as to the said order having been passed ex parte. 3. It appears that thereafter the respondents advocate applied that the said documents should not be sent to the Handwriting Expert on the ground that the receipt in dispute was not registered as required by section 17(1), (c) of the Registration Act and hence was inadmissible in evidence, and the same need not be examined by a Handwriting Expert. On 24-4-1978, this contention of the respondent was upheld and it was ordered that the same should not be submitted to the examination of any Handwriting Expert. On 24-4-1978, this contention of the respondent was upheld and it was ordered that the same should not be submitted to the examination of any Handwriting Expert. It is this order which is challenged by the petitioner in this application on the ground; (a) that the order dated 24-4-1978 is without jurisdiction and the learned Judge could not revoke his earlier order dated 29-3-1978 and(b) that the receipt is not covered by section 17(1), (c) of the said Act and does not require registration. 4. It may be noted that the admissibility of the documents in evidence has to be argued only when the document is sought to be tendered in evidence and cannot be decided earlier. Hence, the learned Judge should not have decided the question of admissibility on the mere application without waiting for the receipt being tendered in evidence It is only at that time that the question of admissibility of a document can arise for decision. 5. Taking ground(b) first it is not possible to bold that the receipt requires registration. What is required to be registered is an instrument which acknowledges the receipt or payment of any consideration on account of creation etc. of right, title or interest to or in any immovable property for the value of Rs. 100 and upwards. The word “consideration” in this connection must receive the same meaning as given in the Contract Act. The consideration, therefore, would include not only the amount paid but also a promise to pay in future. Once a sale deed is executed on payment of the entire consideration or on payment of part of the consideration along with a promise to pay the balance in future the document in transfer is complete and the consideration is the ~payment and promise to pay. Any amount paid subsequently in fulfilment of the promise to pay cannot be said to be consideration on account of creation of any right, title or interest in immovable property. Receipt for such payment does not require registration. 6. Mr. Solshe relied upon the decision of the Lahore High Court in(Ghulam Mohammad v. Sarkhru)l A.I.R. 1934 Lah. 910. The said judgment has no application in the present case. The facts on which the said judgment is based are not very clear. Receipt for such payment does not require registration. 6. Mr. Solshe relied upon the decision of the Lahore High Court in(Ghulam Mohammad v. Sarkhru)l A.I.R. 1934 Lah. 910. The said judgment has no application in the present case. The facts on which the said judgment is based are not very clear. But it would appear that on the facts in that case it was held that the money paid amounted to consideration on account of the creation ,..... of rights in immovable property. In any event in the present case the transfer is complete and so is the consideration and what is paid is in payment of discharge of debt which became due as I have already pointed out. 7. In so far as the ground(a) is concerned, in my opinion the learned Judge was not right in revoking his earlier order which he had passed, on the ground that the receipt required registration. Once having referred the matter to the Handwriting Expert, he ought not to have revoked the said order in the manner he has done. Such an order no doubt is an interim order and can be revoked if a proper case is made out. However, such an order cannot be revoked on the ground alluded to by him in as much as the question of registration or non-registration can arise only when the receipt is sought to be tendered as an exhibit. 8. In the circumstances, the order dated 24-4.1978 is set aside. Rule absolute in terms of prayer (c). Respondent to pay the costs of the petition. Rule made absolute. -----