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Andhra High Court · body

2008 DIGILAW 1025 (AP)

Attirala Chinnamma v. Gummadi Ravindraiah

2008-11-28

G.YETHIRAJULU

body2008
ORDER Civil Revision Petition NO.3210 of 2008 is filed by the petitioner in I.A.No.737 of 2007 who was the defendant in O.S.No.17 of 2004 on the file of the Court of the Principal District Judge, Nellore. The suit was filed by the respondent herein, for specific performance of an unregistered agreement of sale. During the pendency of the suit, I.A.No.737 of 2007 was filed by the petitioner herein, requesting the Court to frame preliminary issue regarding the maintainability of the suit on the basis of an unregistered agreement of sale, in view of Section 17 (1) of the Registration Act. 2. Civil Revision Petition NO.3211 of 2008 is filed by the petitioner in I.A.No.81 of 2008 who was the defendant in O.S.No.61 of 2006 on the file of the Principal District Judge, Nellore being aggrieved by the order of the lower Court in not framing the preliminary issue regarding the maintainability of the suit in view of Section 17 (1) of the Registration Act. The suit was filed by the respondent herein, for specific performance of an unregistered agreement of sale. During the pendency of the suit, I.A.No.81 of 2008 was filed under Order 14 Rule 2 read with Section 151 CPC by the present petitioner, seeking to frame the preliminary issue regarding the maintainability of the suit in view of Section 17 (1) of the Registration Act, and to decide the same at the first instance. 3. The respondent herein resisted both the applications. The trial Court has dismissed both the applications on the ground that there are no merits in those petitions. Being aggrieved by the same, the defendants preferred these revision petitions. Since the issue involved in both the matters is one and the same, they are clubbed and this common order is passed. 4. The contention of the revision petitioner is that the suit was filed by the plaintiff for specific performance of an unregistered agreement of sale, therefore, without registration of the said agreement of sale, it cannot be enforced and hence, the suits cannot be maintained. He further submitted that in view of Section 17 (1) of the Registration Act, the agreement of sale is compulsorily registrable and as the suit agreements are not registered documents, the suits are not maintainable under law. 5. He further submitted that in view of Section 17 (1) of the Registration Act, the agreement of sale is compulsorily registrable and as the suit agreements are not registered documents, the suits are not maintainable under law. 5. The learned counsel for the respondent submitted that the proviso to Section 49 of the Registration Act exempted registration of agreement of sale, on the basis of which, suits for specific performance are filed, therefore, they are maintainable under law. 6. Section 49 of the Act reads as follows:- "Effect of non-registration of documents required to be registered:- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall,- (a) affect any immovable property comprised therein, or (b) confer any power to adopt: or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable 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 any collateral transaction not required to be effected by registered instrument." 7. After going through the said Section, it is very clear from the proviso that the unregistered document can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act 1877 or as an evidence of any collateral transaction not required to be affected by registered instrument. I? 8. Section 17 of the Registration Act describes the documents, which are compulsorily registrable. 9. I? 8. Section 17 of the Registration Act describes the documents, which are compulsorily registrable. 9. Section 17 (1) of the Act reads as follows:- "Documents of which registration is compulsory:- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act NO.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely: (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) *[leases of immovable property] (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports of operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property: 10. The learned counsel for the respondent has relied on a judgment rendered by this Court in Dadi Reddy Sivanarayana Reddy v. Kasi Reddy Chinnamma1, wherein this Court observed as follows:- "A document produced for inspection of the Court cannot be admitted in evidence under Section 49 (c) of the Registration Act, if it, requires registration under Section 17 of the said Act. Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing any right, title or interest, but merely creating right to obtain another document does not require registration under Section 17 (1) of the Registration Act. As a necessary corollary a document of contract for sale of immovable property creating right to obtain another document shall not require registration by reason of the payment of earnest money or whole or part of purchase money by the purchaser. As a necessary corollary a document of contract for sale of immovable property creating right to obtain another document shall not require registration by reason of the payment of earnest money or whole or part of purchase money by the purchaser. In any event, the prohibition under Section 49 (c) of the Registration Act does not apply to an unregistered document effecting immovable property in a suit for specific performance under the Specific Relief Act or as evidence of any collateral transaction not required to be effected by registered document. In this case, the heading as well as the last clause in the agreement describes the document as sale agreement. It further says that the vendor shall execute another document at the office of the sub-registrar as and when required. In the light of these compelling circumstances, the clause that vendor sold the property to be enjoyed by the plaintiff and his heirs does not conclusively extinguish the rights in defendant and hence does not require registration. Not only explanation to Section 7 but proviso to Section 49 of the Registration Act comes into play." 11. The above judgment clearly indicates that the document in question will not come within the purview of Section 17 (1) of the Registration Act and as there is a specific proviso under Section 49 of the Act that an unregistered agreement can be received as an evidence in a suit for specific performance, the lower Court has rightly come to the conclusion that there is no force in the contention raised by the defendant. 12. After going through the orders passed by lower Court, the relevant provisions and the judgment rendered by this Court, I am of the view that there are no grounds to interfere with the orders passed by the Court below. 13. Hence, the Civil Revision Petitions are dismissed.