JUDGMENT This Appeal arises out of the impugned judgment dated 31-05-2011, passed by the Learned District Judge, Special Division-I, Sikkim at Gangtok, in Title Suit No. 15 of 2010, whereby suit for declaration, recovery of possession, etc., filed by the Appellant against the Respondents was dismissed. 2. The case of the Appellant as would be material for the purpose of this Appeal is that the Respondent No.2 who is the father of the Appellant, is the owner of Schedule A properties that includes Plots No. 303 and 313 purchased by him from one Shri Tara Nidhi Sapkota, his elder brother. It is stated that out of the Schedule A property a portion measuring about 20 x 20 and 40 x 75 out of Plot No. 404 were sold out to one Shri Budhilal Khulal and one Shri Khem Raj Koirala respectively of the same village. At the time when the suit was filed, the Appellant was still a minor and was represented by his mother and next friend, Smt. Deo Maya Sapkota. The genesis of the dispute is traced to April, 2004, when the Respondent No. 1 constructed a kutcha house on Plot No.451 on being permitted to do so by the Defendant No. 2, the latter having pledged the said Plot to the father of the Respondent No. 1 against a sum of Rs. 1661.55. When confronted, the Respondent No.1 claimed that Plot No. 451, described in Schedule B to the plaint which is the suit land, was purchased by him from Respondent No. 2. It is stated that in the first place the Respondent No. 2 had never sold that suit land to the Respondent No. 1 and, in the second it was claimed to be his ancestral property inherited by his father, the Respondent No. 2, from Late Dharmananda Sapkota, the father of the Respondent No. 2 and the grandfather of the Appellant. Therefore, in the absence of consent of the Appellant and his mother, the sale is a nullity, void, illegal and inoperative in law. It is further averred that effots were made through the Panchayat and other village elders to settle the matter expressing his and his mothers readiness to repay the dues of his father to the Respondent No. 1 to get the suit land redeemed but, the Respondent No. 1 avoided taking part in the meetings. It is further averred that effots were made through the Panchayat and other village elders to settle the matter expressing his and his mothers readiness to repay the dues of his father to the Respondent No. 1 to get the suit land redeemed but, the Respondent No. 1 avoided taking part in the meetings. On the above causes, the Appellant prayed for various reliefs, principals of which were (a) declaration that the suit property is an ancestral and coparcenary property of the Appellant and his father, the Respondent No. 2, (b) for cancellation of sale of the suit land, if any, by the Respondent No. 2 in favour of the Respondent No. 1 and declaring the title of Respondent No. 2 over the Schedule B land and (c) for possession of the suit property in favour of the Appellant with a direction upon the Respondent No. 1 to remove his kutcha house from the suit land. 3. The Respondent No. 1 contested the suit by filing a written statement wherein he has denied all material allegations made by the Appellant and pleaded, inter alia, that the suit is barred by the principles of waiver, estoppel, acquiescence and other laws analogous thereto. That the suit was brought in collusion between the Appellant, his mother and the next friend and Respondent No. 2 and that the Appellant did not have the locus standi to file the suit. 4. It is the case of the Respondent No. 1 that he had decided to settle at Linkey for which purpose he had constructed a pucca house there, but the Appellants father, the Respondent No. 2 herein, also related to him as paternal uncle, asked him to live near him at Samdong and, as he was in dire need of money to run his house, offered a plot of land on sale for him to construct a house. In due regard to such offer and the wishes of his uncle, the Respondent No.1 shifted to Samdong in the year 2003 and stayed with the Respondent No. 2 until completion of his own house. In due regard to such offer and the wishes of his uncle, the Respondent No.1 shifted to Samdong in the year 2003 and stayed with the Respondent No. 2 until completion of his own house. In pursuance of his offer, the Respondent No. 2 sold him a dry field bearing Plot No. 451, i.e. the Schedule B land, on 01-03-2004 by a Sale Deed document duly executed by him in his house in presence of the Appellant, the Appellants mother, the Respondent No. 2 himself and other witnesses. The Respondent No. 1 then constructed a pucca house on the land having four rooms with separate toilets and bathrooms by taking loans from his relatives which he repaid in the year 2005 after obtaining another one from the State Bank of India, Dickchu Branch. Having thus purchased the suit land, the Respondent No. 1 not only constructed the pucca house but also substantially developed it by planting fodder and fruit plants. 5. On the basis of the pleadings the learned trial Court framed the following five Issues : (i) Whether the suit land is an ancestral co-parcenary property of the plaintiff and the defendant No. 2? (ii) Whether defendant No. 2 had executed the sale-deed dated 1-3-2004 in respect of the suit land and whether the defendant No.1 raised a pucca house over the said land? (iii) Whether there was any legal necessity to sell the suit land ? (ci) Whether the defendant No. 1 destroyed the fodder plants, other small trees and saplings worth more than Rs. 10,000/- in and around the suit land. If so, whether the plaintiff is entitled to the damages ? (v) To what relief or reliefs is the plaintiff entitled to ? 6. In support of his case, the appellant-plaintiff examined four witnesses, the plaintiff-witness No. 1 (for short P.W. 1) being the mother, Deo Maya Sapkota. 7. Upon consideration of the evidence on record, the learned trial Court decided all the issues against the appellant resulting in the dismissal of the suit vide the impugned judgment. 8(a). Before this Court, Mr. N. Rai, Senior Advocate appearing on behalf of the Appellant as Legal Aid Counsel, submitted that the finding on Issue No. 1 ought to have been in favour of the Appellant as the oral and documentary evidence clearly established that the suit land was a part of the ancestral property of the Appellant. 8(a). Before this Court, Mr. N. Rai, Senior Advocate appearing on behalf of the Appellant as Legal Aid Counsel, submitted that the finding on Issue No. 1 ought to have been in favour of the Appellant as the oral and documentary evidence clearly established that the suit land was a part of the ancestral property of the Appellant. Referring to the evidence of P.W.1, the mother and natural guardian of the Appellant, Deo Maya Sapkota, it was submitted that she has categorically stated that plot No. 451 was inherited by her husband, Respondent No. 2, which forms part of the properties mentioned in the parcha-khatian, in the name of the Appellants gransfather Late Dharmananda Bahun, Exhibit E1, which her husband, the Respondent No. 2, had never sold to the Respondent No. 1 and that even if such a sale had taken place it was invalid for want of her consent and that of the Appellant. (b) As far as Issue No. 3 is concerned, it was submitted that the Respondent No. 1 failed to establish the existence of legal necessity for the Respondent No. 2 to sell the suit land, there being no evidence at all on this, apart from his own as D.W. 1. It is submitted that the conclusion of the learned Trial Court on this was based solely upon a solitary sentence drawn from the deposition of P.W. 1, Deo Maya Sapkota, that at the relevant time we did not have sufficient money to run our house and in clear conflict with the overwhelming evidence to the contrary. (C) On the finding on Issue No. 2, the submission of Mr. Rai was that there was sufficient evidence in support of the Appellants contention that sale of the suit land had not taken place and that the house constructed by the Respondent No. 1 on the suit land was a kutcha one. It was then submitted that document Exhibit D1 which is the foundation of the case of the Respondent No. 1 as being the Sale Deed, has not been proved at all. It was then submitted that document Exhibit D1 which is the foundation of the case of the Respondent No. 1 as being the Sale Deed, has not been proved at all. It was pointed out that Exhibit D1 neither contains the date of its execution nor is it stamped nor registered nor did the persons involved in the sale transaction, namely, the Respondent No. 2, Bhawani Prasad Sapkota and Krishna Prasad Sapkota, the father of Respondent No. 1, enter the witness box to depose on the question. Even the Appellant was not examined on this aspect. Therefore, Exhibit D1 was not only an invalid document, but its very genuineness quite suspect and, by application of Section 54 of the Transfer of Property Act, 1882, title of the suit land cannot be said to have passed on to the Respondent No. 1 on the strength of such invalid document, even if it is considered to be a Sale Deed. In support of his submission, reliance was placed by the Learned Counsel on the decision of a Division Bench of this Court in the case of Bishnu Kumar Rai v. Minor Mahendra Bir Lama and others, AIR 2005 Sikkim 33, and the relevant portion to which reference was made reads as follows : 11. ........................................... This document Exhibit D-1 is a Money Receipt on the face of it without revenue stamp/fee and also not a registered document and without bearing the date of the execution or writing of such document on it. According to us, it is difficult to treat this document Exbt. D1 as an Agreement for Sale or Deed of Sale. ....................................... 12. As discussed above, except this document in the form of Money Receipt there are no documents like Sale Deed or Agreement for sale. We are of the view that this document Exhibit D-1 does not amount to sale in terms of Sections 54 of the Transfer of Property Act and such document is not a registered instrument. It is not a valid sale deed in the eye of law and apart from that the proper identity of the land, in question under the said Money Receipt is vague as discussed above. It is not a valid sale deed in the eye of law and apart from that the proper identity of the land, in question under the said Money Receipt is vague as discussed above. .......................It is also well settled that the benefit, of doctrine of part performance is not available in the absence of a valid document from which the Court can ascertain the terms of the document with reasonable certainty. In the case in hand, such document marked Exhibit D-1 is not a document for enforcement of the part performance as it was not drawn in accordance with law as highlighted above. ................................ (d) Apart from the above, Mr. Rai also relied upon the decision of a Division Bench of the Delhi High Court in the case of G. Ram v. Delhi Development Authority, AIR 2003 Delhi 120 and of the Rajasthan High Court in the case of Devendra Singh and others v. State of Rajasthan and others, AIR 2002 Rajasthan 66 on the principle underlying Section 54 of the Transfer of Property Act, 1882. (e) It was next contended that from the very words Dhan Rashid appearing in the document Exhibit D1 proves that it is at best a money receipt but not a Sale Deed at all and that even if we consider it to be an agreement of sale, the title of the property agreed to be sold still remains with the vendor. In support of his contention Mr. Rai relied upon the case of Dharma Naika v. Rama Naika & another, AIR 2008 SC 1276 in Paragraph 6 of which it has been held as follows : 6. ................................ the word Transfer as defined under the Act is an inclusive definition. That is to say, it includes sale as well as agreement for sale, although an agreement for sale under the Transfer of Property Act is not a transfer and the right, title or interest in the land does not pass until the sale deed is executed and registered. Sale has been defined in Section 54 of the Transfer of Property Act which means transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. As noted herein-earlier, an agreement to sell does not by itself create any interest of the proposed vendee in the immovable property but only creates an enforceable right in the parties. As noted herein-earlier, an agreement to sell does not by itself create any interest of the proposed vendee in the immovable property but only creates an enforceable right in the parties. (See : Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) through LRs. (2004) 8 SCC 614 : AIR 2004 SC 4342. Therefore, it is clear that under the general law, that is, under the Transfer of Property Act, an agreement for sale is not the same as sale and in the case of an agreement for sale, the title of the property agreed to be sold still remains with the vendor but in the case of sale, title of the property is vested with the vendee. Therefore, an agreement for sale is an executory contract whereas sale is an executed contract. (f) It was further submitted that the Learned Trial Court has fallen in error in her findings at Paragraphs 21 to 25 of the impugned judgment in assuming that Exhibit D1 is a Sale Deed, when it is in the evidence of P.W.1, Deo Maya Sapkota, D.W.2, Tika Ram Dahal and D.W.3, Khus Narayan Khatiwada that no Sale Deed in the prescribed form as prevalent in the State of Sikkim was executed by the Respondent No. 2 apart from the document, Exhibit D1. Therefore, the case of the Respondent No. 1 that a Sale Deed had been executed in respect of the suit land by the Respondent No.2 in his favour, was obviously not true. The Learned Counsel went on to submit that there are categorical statements in the deposition of P.W. 1, Deo Maya Sapkota, that the Respondent No. 2 had not sold the suit land to the Respondent No. 1 which, as per him, supports the case of the Appellant that there was no such sale belying the claim of the Respondent No. 1 to the contrary. Referring to the statement of P.W.2 in his cross-examination that he did not see defendant No. 1 giving money to the defendant No. 2, that of D.W. 2 that no money was paid to the defendant No. 2 and of D.W.3 that the defendant No. 2 was not paid any amount of money by the defendant No. 2, it was submitted that since no money was paid to the vendee, the Respondent No. 2, one of the essential ingredient of sale as defined under the Transfer of Property Act, 1882, had not been fulfilled and, therefore, the claim of the Respondent No. 1 fails on this account also. Reliance on this was placed upon the case of Dhanbarti Koerin v. Shyam Narain Mahton and others, AIR 2007 Patna 59 the relevant portion reads as under : 12. The very definition of the sale shows that the sale is a transfer of property for consideration and without consideration, the sale is invalid and no title can be transferred. Since the first appellate Court has found that the sale deed of the plaintiff was without consideration and while discussing substantial question, of law No. 1, I have also come to the conclusion that the sale-deed of the plaintiff was of without consideration and as such the same was not a valid and legal document and through the said sale-deed no valid title was passed to the plaintiff. .................. (g) As per Mr. N. Rai, the document Exhibit D1 cannot be considered as a piece of evidence as it has not been proved in accordance with law. Neither the executant of Exhibit D1, i.e. Respondent No. 2, nor the beneficiary, Krishna Prasad Sapkota, the father of the Respondent No. 1, were examined to prove that such a document had indeed been prepared and that the Respondent No. 2 had appended his signature Exhibit D1(a). Referring to the decision of Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bombay 201 it was submitted that the mode of proof of a document has been laid down under Sections 61, 62 and 63 read with Sections 61 to 66 and 67 of the Evidence Act, 1872. Emphasis was laid by him on the following portions of the judgment : 19. At this juncture, Sections 61, 62 and 63 of the Evidence Act need to be loked into. Emphasis was laid by him on the following portions of the judgment : 19. At this juncture, Sections 61, 62 and 63 of the Evidence Act need to be loked into. Section 61 lays down that contents of the documents may be proved either by primary or secondary evidence. This Section is based upon the principle that best evidence in the possession or power of the party must be produced. What the best evidence is, depends upon facts and circumstances of each case. Generally speaking, the original document is the best evidence. The contents of every written paper are, according to the ordinary and well established rules of evidence, required to be proved by the original document, and by that alone, if the document is in existence. 20. The mode of proving the contents of the documents has been dealt with in Sections 61 to 66. As already stated hereinabove mere production of the documents purporting to have been signed or written by certain persons is no evidence of its authorship. It is necessary to prove their genuineness and execution. Proof, therefore, has to be given of the handwriting, signature and execution of a document. No writing can be received in evidence as a genuine writing until it has been proved to be a genuine one, and none as a forgery until it has been proved to be a forgery. A writing, by itself, is not evidence of the one thing or the other. A writing, by itself, is evidence of nothing, and therefore is not, unless accompanied by proof of some sort, admissible as evidence. 21. Section 67 refers to documents other than documents required by law to be attested. It says that the signature of the person alleged to have signed a document (i.e. execution) must be proved by producing evidence to the effect that the signature purporting to be that of the executant is in fact in his handwriting as laid down by the Apex Court in Venkatachala v. Thimmajamma, AIR 1959 SC 443 and the other matter in the document (i.e. its body) must also be proved by proof of the handwriting of the person or persons purporting to have written the document. The term execution is not defined in any statute. The term execution is not defined in any statute. It means completion, i.e. the last act or acts which complete a document and in English Law this is known as signing, sealing and delivering. The ordinary meaning of executing a document is signing it as a consenting party thereto. 23. The definition of proved given under Section 3 must be read along with Section 67 which requires that there must be specific evidence that the signature purporting to be that of the executant is in the hand-writing of the executant. Until this is done, the Court cannot proceed to consider whether execution is proved. In other words Section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document. Original of the public document must be proved in the manner required by the provisions of the Evidence Act (see C. H. Shah v. S. S. Malpathak, AIR 1973 Bom 14 ). (h) To the same effect, reliance was placed upon the decision of Ramkrishna Girish-chandra Dode and others v. Anand Govind Kelkar and others, etc., AIR 1999 Bombay 89 and to the decision of the Apex Court in the case of Bishwanath Rai v. Sachhidanand Singh, AIR 1971 SC 1949 . (i) It was finally submitted that the claim of the Respondent No. 1 having purchased the suit land and thereafter constructed a pucca house thereon stands belied as it has come in the evidence of Respondent No. 1 that he only pays Dhuri Khajana and not the land revenue. It is his submission that Dhuri Khajana is paid by a tenant and, if the Respondent No. 2 had indeed purchased the suit land, he ought to have been paying the revenue for the suit land as prescribed by law. 9(a). Mr. D. R. Thapa, Learned Counsel appearing on behalf of the Respondent No. 1, submitted that the suit was a collusive one and filed at the behest of the Respondent No. 2, which is fully established by the following statements appearing in the evidence of the P.W. 1 : P.W. 1, Deo Maya Sapkota ................................It is true that I stay with the defendant No. 2 and the plaintiff. It is true that I have good relation with defendant No. 2 & the plaintiff. It is true that whenever we do any work, we do it in concenses (sic). It is true that I have good relation with defendant No. 2 & the plaintiff. It is true that whenever we do any work, we do it in concenses (sic). It is true that I have personally engaged Shri Naren Rai as my counsel. It is true that to engage counsel I had gone to Offices. It is true that I had only gone to D.C. Office to engage my counsel and I had also gone up to one office. It is true that my husband, defendant No. 2 went to the Offices to collect the documents & to engage the counsel and I am persuing (sic) the case in the Court. It is true that my husband, defendant No. 2 had filed a civil case against his elder brother Shri Tara Nidhi about 15-16 years back. It is true that my husband, defendant No. 2 has knowledge about civil cases. It is true that as my husband, defendant No. 2 used to do civil cases as such, I do not have knowledge about civil cases................. As per the Learned Counsel the above evidence stands fully corroborated by the evidence of the other witnesses, both Plaintiffs as well as the Defendants. (b) As regards Issue No. 1, it is submitted that there is no evidence at all to support the case of the Appellant that the suit is an ancestral coparcenary property and that none of the documents filed on behalf of the Appellant have been proved. P.W.1, the mother and next friend of the Appellant and his principle witness, was unable to identify any of the documents. Specific reference in this regard was made to the following statement of the P.W. 1 : P.W. 1 Deo Maya Sapkota ................It is true that I can identify A-1, B-1, C-1 but I cannot identify D-1, E-1 and F-1. It is not a fact that I can identify A-1, B-1 & C-1. .................. (c) It was next contended that Exhibit B1, the parcha-khatian standing in the name of the Respondent No. 2, clearly conflicts with the averments contained in Paragraph 3 of the plaint in as much as it is stated that out of the said Schedule A properties the defendant No. 2 had purchased plot Nos. 303 and 313 from Shri Tara Nidhi Sapkota, the elder brother of defendant No. 2. 303 and 313 from Shri Tara Nidhi Sapkota, the elder brother of defendant No. 2. If Plot No. 451 which figures in Exhibit B1 was an ancestral property of the Appellant, it ought to have also figured in the parcha-khatian of the father of the Respondent No. 2, Exhibit-E1. The fact that it was not would imply that the suit land was not inherited by the Respondent No. 2 from his father. It is then submitted that even assuming for a moment that the suit land is an ancestral coparcenary property, it has come in the evidence of P.W. 1 that my husband received a sum of 1661.55 from the defendant No. 1 as at the relevant time we did not have sufficient money to run our house thereby unequivocally supporting the case of the Respondent No. 1 that the suit land had been sold due to legal necessity of the family of the Respondent No. 2. (d) On Issue No. 2, Mr. D. R. Thapa submitted that the evidence available on the record fully establishes the factum of the execution of the Sale Deed dated 01-03-2004 and that the Respondent No. 1 had constructed a pucca house on the land. Referring to Exhibit D1, the words Chinti Bikri appearing therein indubitably establishes that the land had been sold. That the factum of sale of the suit land vide Exhibit D1 stands proved on the strength of the Appellants own evidence. The Learned Counsel drew the attention of this Court to the evidence of P.W. 2, Dol Nath Gautam, P.W. 3, Bal Krishna Dahal and P.W. 4, Abhi Chandra Koirala and pointed out the following appearing in their depositions : P.W. 2, Dol Nath Gautam It is true that one Chintey Bigree Kakaj was prepared by the defendant No. 2 in my presence on 1-3-2004. It is true that when the said Chintey Bigree Kakaj was prepared, there were other 3 witnesses namely, Abhi Chandra Koirala, Tika Ram Dahal and K. N. Khatiwada. It is true that the said Chintey Bigree Kakaj was prepared in the house of the defendant No. 2 and defendant No.2 signed Chintey Bigree Kakaj in my presence. ............. P.W. 3, Bal Krishna Dahal ..................... It is true that I had heard from the village people that defendant No. 1 & the defendant No. 2 had executed one document relates to the said land. .............. ............. P.W. 3, Bal Krishna Dahal ..................... It is true that I had heard from the village people that defendant No. 1 & the defendant No. 2 had executed one document relates to the said land. .............. P.W. 4, Abhi Chandra Koirala It is true that Chintey Bigree Document was executed in the house of defendant No. 2. It is true that when I signed on the said Chintey Bigree Kakaj one Kunta Nepal (Panchayat), one D. N. Gautam & one Chandra Bdr. Kharka were present. It is true that when I signed on Chintey Bigree Kakaj the wife of the defendant No. 2 & his son plaintiff were also present. It is true that while executing the Chintey Bigree Kakaj, the defendant No. 2 had told that he would do the registration of land in favour of the defendant No. 1. .......................... (e) He also referred to the evidence of D.W. 2, Tika Ram Dahal and D.W. 3, Khus Narayan Khatiwada, the relevant portions of which are as under : D.W. 2, Tika Ram Dahal ..................................... 3. Thereon 1-03-2004, the defendant No. 2 had invited me and other people to his house to execute land documents in favour of the Defendant No. 1 and accordingly in presence of the witnesses, one Sale Deed documents/Chinti Bikri document was executed as per the instruction of the defendant No. 2 and the defendant No. 2 and the other witnesses have signed on the said document in my presence and the plaintiff and her mother was also present when the said document was executed. 4. That after few days, the defendant No. 1 constructed a pucca house consisting of four rooms on the said land sold by the Defendant No. 2. The foundation stone of the said hour was laid down by the defendant No. 2 in presence of the plaintiff and her mother. Abi Chandra Koirala, who performed Bhumi Puja on the said land and I was present. ............................................ D.W. 3, Khus Narayan Khatiwada ..................................... 2. The foundation stone of the said hour was laid down by the defendant No. 2 in presence of the plaintiff and her mother. Abi Chandra Koirala, who performed Bhumi Puja on the said land and I was present. ............................................ D.W. 3, Khus Narayan Khatiwada ..................................... 2. Thereon 1-03-2004, the defendant No. 2 had also invited village Amin, myself and other people to his house to complete all the legal formalities of registration process and to execute Sale Deed documents in favour of the Defendant No. 1, however the concerned Amin of that area did not come, so on the request of the Defendant No. 2, I scribed one Sale Deed document/Chinti Bikri in the presence of other witnesses and the Defendant No. 2 promised in presence of other witnesses, that, the Defendant No. 2 shall complete the legal formalities of the registration of the said land. 3. That the said Chinti Bikri was scribed by me as per the instruction of the Defendant No. 2 in presence of witness namely Abi Chandra Koirala, Tika Ram Dahal, D. N. Gautam. The Defendant No. 2 and all the witnesses have signed on the said Chinti Bikri in my presence. 4. That while making the said Chinti Bikri document, the Defendant No. 2 had told all the witnesses that he received the considerate amount of Rs. 1661.55 from the Defendant No. 1 for the said sold land being Plot No. 451 and the Defendant No. 2 would personally register the same in favour of Defendant No. 1 as per law. 5. That on the day of the execution of the said Chinti Bikri document, the plaintiff and the wife of the Defendant No. 2 were also present. 6. That the defendant No. 1 had constructed a pucca house consisting of four rooms on the land sold by the Defendant No. 2 in the year 2004. ............................................ (f) The above statements having not been contradicted or demolished in their cross-examinations, it stands fully established that the suit land was sold by the Respondent No. 2 to the Respondent No. 1 vide the document Exhibit D1 and in pursuance thereof, the Respondent No. 1 had constructed a pucca house in which he is living, falsifying the claims of the Appellant to the contrary. It was then submitted that the plea made on behalf of the Appellant that the land was only pledged against the money borrowed by the Appellants father from the Respondent No. 1 is unsustainable both in law and in facts, in view of the clear proof of sale of the suit land by the Respondent No. 2 in favour of the father of the Respondent No. 1 and, that immovable property cannot be a subject-matter of a pledge in terms of the Section 172 of the Contract Act. 10. Upon consideration of the pleadings, evidence and the rival contentions raised on behalf of the parties, in my view, findings on Issue Nos. 1, 2 and 3 would be sufficient to determine the questions in controversy in the present Appeal. 11. In the impugned judgment, the Learned Trial Court has noted, and rightly so, that the Respondent No. 2 was proceeded ex parte when he failed to respond to the notices issues by the Court even after due service. Leaving this aspect to be dealt with later, we may in the first instance take up the issues referred to above in the backdrop of the pleadings, evidence on record, the rival submissions of the Learned Counsel and the findings contained in the impugned judgment. As a decision on Issue No. 3 would be dependant upon the finding on Issue No. 1, these are taken up together. 12. Issue No. 1 Whether the suit land is an ancestral coparcenary property of the plaintiff and the defendant No. 2. Issue No. 3 Whether there was any legal necessity to sell the suit land? (a) The basis of the claim of the Appellant that the suit land is his ancestral property, is that it was inherited by the father of the Appellant, i.e. the Respondent No. 2, from his grandfather, Dharmananda Sapkota. Upon examination of the evidence on record, I find that apart from P.W. 1, Deo Maya Sapkota, the mother and next friend of the Appellant, none of the other three witnesses for the Plaintiff/Appellant, namely, P.W. 2, Shri Dol Nath Gautam, P.W. 3, Shri Bal Krishna Dahal P.W. 4, Shri Abhi Chandra Koirala, have stated anything in support of this contention. The Appellant has taken support on this upon a khatian-parcha, Exhibit E1, i.e. revenue records, pertaining to the landed properties standing in the name of Dharmananda Sapkota, the grandfather of the Appellant. However, on close scrutiny of this document, it is found that except for some other Plots with which we are not concerned, Plot No. 451 is not at all mentioned but is only found in Ext.B1, the parcha-khatian of the Respondent No. 2, Bhawani Shankar Sapkota, that is said to reflect all the landed properties inherited by him from his father, Dharmananda Sapkota, contained in parcha-khatian, Exhibit E1. If the claim made by the Appellant that Plot No. 451 is one of his ancestral properties, it ought to have also figured in the parcha-khatian, Exhibit E1, pertaining to the grandfather going by the Appellants own story that Exhibit B1 constitutes the entirety of his ancestral property. (b) It is the submission of Mr. Rai, the Learned Senior Counsel for the Appellant, that the discrepancy in the parcha-khatians cannot be held against the Appellant as the Plot numbers figuring in the parcha-khatian, Exhibit E1 underwent changes as a consequence of which the parcha-khatian, Exhibit B1, standing in the name of Respondent No. 2 came into existence. The submission of Mr. Rai in substance is that the land mentioned in Exhibit E1 would be inclusive of Plot No. 451 and that this fact found in the oral evidence of the Appellant has not been denied by the Respondent No. 1 and, therefore, by necessary implication it stood admitted. When questioned by this Court, Mr. Rai admitted that he had led no evidence to prove that Exhibit E1 also includes Plot No. 451. Under such circumstances, it is difficult to accept the claim of the Appellant that the suit land is the ancestral property of the Appellant forming part of those reflected in Exhibit E1 recorded in the name of his grandfather. 13. Issue No. 2 Whether defendant No. 2 had executed the Sale Deed dated 01-03-2004 in respect of the suit land and whether the defendant No. 1 raised a pucca house over the said land? 13. Issue No. 2 Whether defendant No. 2 had executed the Sale Deed dated 01-03-2004 in respect of the suit land and whether the defendant No. 1 raised a pucca house over the said land? (a) This issue, in my view, is the crucial one as it is seen that the basis of the claim of the Respondent No. 1 over the suit land is that it was sold to him by the Respondent No. 2 vide Sale Deed dated 01-03-2004, Exhibit D1. The Appellant has asserted that such a sale had not taken place at all and that the document Exhibit D1 is a questionable document prepared fraudulently by the Respondent No.1. However, upon consideration of the evidence on record, it is undeniable that Exhibit D1 was indeed executed. This we find established by the Appellants own witnesses material portion of whose evidence have been reproduced above while dealing with the submission of Respondent No. 1, In fact, D.W. 2, Tika Ram Dahal, has stated in the most clear, categorical and unambiguous terms that the Sale Deed document/Chinti Bikri document was executed as per the instructions of the Respondent No.2 in presence of the Appellant and his mother. D.W.3, Khus Narayan Khatiwada, the scribe of the document Exhibit D1, has supported D.W.2 on this when he stated that he scribed a Sale Deed document/Chinti Bikri on the request of Respondent No. 2 in presence of other witnesses and that the Respondent No. 2 promised that he shall complete the legal formalities of getting the document registered. These witnesses are found to have remained firm and their statements undemolished in their cross-examinations having proved the document, Exhibit D1, and identified the signature of the executant who is the Respondent No. 2 and, their own signatures appearing on the document. (b) Mr. Rai reiterated his submission that since the executant Respondent/Defendant No.2 has not entered in the witness box to prove the content of the document, in law it cannot be said that the document and its intent are proved. (c) I do not find substance in the submission of Mr. Rai as it has already been noted that D.W.3, Khus Narayan Khatiwada who scribed the document Exhibit D1, has himself entered the witness box and proved its contents duly supported by the attesting witness, namely, D.W. 2, Tika Ram Dahal. (c) I do not find substance in the submission of Mr. Rai as it has already been noted that D.W.3, Khus Narayan Khatiwada who scribed the document Exhibit D1, has himself entered the witness box and proved its contents duly supported by the attesting witness, namely, D.W. 2, Tika Ram Dahal. Apart from these witnesses produced by the Respondents, it has also been noted that the Appellants own witnesses, namely, P.W. 2, Dol Nath Gautam and P.W. 4, Abhi Chandra Koirala have most unequivocally corroborated them as is evident from the extract of their statements reproduced above. The most clinching evidence is that of P.W. 1, Deo Maya Sapkota, the mother and next friend of the Appellant completely supporting these witnesses as is evident from the following portion of her cross-examination : ................ It is true that the defendant No. 2 had executed one Chintey Bigree Kakaj on 1-3-2004 and I can identify the said Chintey Bigree Kakaj. She volunteers to say that we have sold the suit land to the defendant No. 1. It is true that when that Chintey Bigree Kakaj was executed on 1-3-2004 one Abhi Chandra Koirala, Dol Nath Gautam and one Kharka was present, and other witness expired. It is true that I am not aware of any pledge documents pertaining to the plot No. 451........ (d) In these circumstances, I have no hesitation to agree with the Learned Trial Court that there was a sale transaction in respect of the suit land which is expressed in the document, Exhibit D1. (e) Insofar as the question as to whether the house constructed by the Respondent No.1 was a pucca one or a kutcha one is, in my view, quite irrelevant when it stands admitted that he is living on the suit land. In any case, the terms pucca and kutcha are relative and interchangeable for what is pucca for one can be kutcha for another. 14. Having thus held so, the next question that falls for consideration is as to whether (i) document Exhibit D1 can be considered as a Deed of Sale and (ii) whether an unstamped and unregistered document can convey title and ownership of the suit land in favour of the Respondent No. 1. (a) Mr. 14. Having thus held so, the next question that falls for consideration is as to whether (i) document Exhibit D1 can be considered as a Deed of Sale and (ii) whether an unstamped and unregistered document can convey title and ownership of the suit land in favour of the Respondent No. 1. (a) Mr. Rai submitted that in the admitted position that the document Exhibit D1 is not in the prescribed Sale Deed form prevalent in the State, it cannot be treated as a Sale Deed and, in any case being obviously unstamped and unregistered, it is an invalid document and no title can be conveyed thereby. Referring to Section 54 of the Transfer of the Property Act, Rules 20, 24 and 28 of the Sikkim Registration Rules, 1930, and the decisions referred to earlier, it was submitted that no transfer of an immovable property can be made without a registered instrument. (b) The question for consideration is indeed a vexed one. The document Ex.D1 and the oral evidence clearly establish that the Respondent No. 2 had intended to sell the suit land to the father of the Respondent No. 1. Contrary to the submission of Mr. N. Rai, the document Exhibit D1 does not appear to be a plain Dhan Rashid or a money receipt. We may reproduce below the English translated version of Exhibit D1 for convenience: I, Bhawani Shankar Sapkota, resident of Raley Khesi block (East Sikkim), am giving a written money receipt to Krishna Prasad Sapkota, resident of same block finally sold a dry field within Plot No. 451 within my Dhada Parcha for Rs. 1661.55 (Rupees Sixteen hundred sixty one fifty five paisa) on this day of 1-3-2004. I shall register this land in favour of Krishna Prasad Sapkota as per the Government Rules. There will be no objection and right from my family members and I sign herein with full sense and knowledge in presence of the witnesses. Sd/- Bhawani Sapkota 1. Sd/- Abhi Chandra Koirala 2. Sd/- Tika Ram Dahal 3. Sd/- D. N. Gautam 4. Sd/- Khus Narayan Khatiwada (underlining mine) The word used in Exhibit D1 is the Nepali term Chinti Bikri, i.e. complete sale. As evident from the contents, it begins with he is giving a written money receipt. Sd/- Bhawani Sapkota 1. Sd/- Abhi Chandra Koirala 2. Sd/- Tika Ram Dahal 3. Sd/- D. N. Gautam 4. Sd/- Khus Narayan Khatiwada (underlining mine) The word used in Exhibit D1 is the Nepali term Chinti Bikri, i.e. complete sale. As evident from the contents, it begins with he is giving a written money receipt. It also categorically states that he has finally sold the dry field and that he shall register this land in favour of the vendee as per Government Rules. This cannot in any manner be considered as a plain money receipt. (c) The document also cannot be a Sale Deed in view of the specific promise made by the vendor that I shall register this land in favour of ....................... as per the Government Rules implying thereby that execution of a Sale Deed and its registration was an anticipated action of the vendor, the Respondent No. 2. Therefore, the question that arises is what would be the nature of this document? Upon consideration of its entirety, in my view, the document would fall within the meaning of an agreement to sell or a contract for sale as can be deduced reasonably from the promise of getting the land registered in favour of the vendee. On this anvil question that further arises is as to what would be the effect of such a document in the admitted position of the parties that the Respondent No. 1 has been paid and the Respondent No. 2 had received the consideration value amounting to `1661.55 and the Respondent No.1 put in possession of the suit land. In my view, based on the records and the evidence, as also the stand of the Respondent No.1, the case would fall squarely under Section 53A of the Transfer of Property Act, 1882, as the act of the parties in furtherance of the document, Exhibit D1 would amount to part performance of the agreement contained therein. Section 53A is reproduced below for convenience: 53A. Part performance. Section 53A is reproduced below for convenience: 53A. Part performance. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. (d) The principle underlying Section 53A and its necessary ingredients have been set out in the case of Nathulal v. Phoolchand, AIR 1970 SC 546 which we may reproduce below: 9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are; (1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract; (3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract. If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. (underlining mine) (e) It therefore follows from the above, that if the requisite conditions as prescribed under Section 53A of the Transfer of Property Act, 1882, as enumerated in the foregoing passage are satisfied, it is immaterial if the instrument though required to be registered, is not registered, or where there is an instrument for transfer, it has not been completed in the manner prescribed by law. Once a transferee has taken possession of the property and continues to be in possession, a transferor or any person claiming under him would be debarred from enforcing against the transferee any right in respect of such property. This, therefore, answers the issue raised by Mr. N. Rai as regards the document Exhibit D1 being invalid for not being in the prescribed sale deed, unstamped and unregistered. (f) In the case of Ghulam Qadir and another v. Ghulam Hussain, AIR 1973 Jammu & Kashmir 11 the Full Bench of that Court relying upon the decision of a Division Bench of the Bombay High Court held as follows: 8. We find ourselves in complete agreement with the observations made by their Lordships in the aforesaid case. It is manifestly clear that where the plaintiff voluntarily executes a contract of sale puts the proposed vendee in possession of the property and receives the entire consideration money, there is no special equity in his favour to allow him to turn round and claim the property after a long time merely because the price of the property has increased. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the Court aid him to commit fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the property. 9. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the Court aid him to commit fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the property. 9. For these reasons we find that even though the possession of the defendant may be permissive, since the plaintiff has received the entire consideration money and allowed the position to be changed to the prejudice of the defendant, he will be stopped from repudiating the sale transaction and recovering possession from the defendant. On this ground alone, in our opinion, the defendant is entitled to succeed. (underlining mine) (g) It may be pertinent to note here that in the above case also an issue similar as in the present case was under consideration which is evident from the following extract from the factual aspect of the judgment : 6. ..........................In the instant case, however, under the terms and recitals of the agreement to sell no time limit was fixed for execution of the sale deed and in these circumstances time would continue to run from the date when the plaintiff had notice that performance was refused................ (h) In the case of Durga Prasad and others v. Kanhiyalal and others, AIR 1979 Rajasthan 200 it has been held as under : 5. .................... In granting relief under Section 53-A of the T.P. Act, the question whether a contract is specifically enforceable or not, has no bearing at all. The provisions of Sections 10 and 12 of the Specific Relief Act are quite distinct from Section 53-A of the T.P. Act. It has been laid down in Bharat Chandra Das v. Md. Ramjan Choudhury, (1941) 45 Cal WN 489 and Jahangir Begum v. Gulam Ali Ahmed, AIR 1955 Hyd 101 that Section 53-A applies even when the specific performance of a contract is barred or the contract is otherwise unenforceable. The doctrine of part performance embodied in Sec. 53-A of the T.P. Act is an equitable doctrine. The object of this Section is to prevent a transferor or his successor any interest from taking any advantage on account of the non-registration of the document, provided, the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. The object of this Section is to prevent a transferor or his successor any interest from taking any advantage on account of the non-registration of the document, provided, the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. This right is available to the transferee as defence in order to protect his possession. Thus, a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Thus, there is no force in the arguments of the learned counsel for the appellant that when no suit for specific performance could be filed by the defendants, they were not entitled to any defence under Section 53-A of the T.P. Act. (i) In the case of Sardar Govindrao Mahadik and another v. Devi Sahai and others (1982) 1 SCC 237 : AIR 1982 SC 989 it has been held as under : 13. ............... The party who altered its position under the contract must have done some act under the contract and it would amount to fraud in the opposite party to take advantage of the contract not being in writing. Such a situation arose where one of the parties to the oral agreement altered its position and when specific performance was sought after taking advantage under oral contract, set up the defence available under the Statute of Frauds. .......................... The departure under our law is that when giving it a statutory form in Section 53-A of the Act the existence of a written contract has been made sine qua non and simultaneously the statute also insists upon proof of some act having been done in furtherance of the contract. The act relied upon as evidencing part performance must be of such nature and character that its existence would establish the contract and its implementation. Each and every act subsequent to contract by itself may not be sufficient to establish part performance. The act must be of such a character as being one unequivocally referable to the contract and having been performed in performance of the contract. ....................... 31. ................................. Each and every act subsequent to contract by itself may not be sufficient to establish part performance. The act must be of such a character as being one unequivocally referable to the contract and having been performed in performance of the contract. ....................... 31. ................................. To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. ......................... Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Therefore, the correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non-registration as defence, a defence analogous to Section 4 of the Statute of Frauds. (underlining mine) (j) In the case of Dharmaji alias Baban Bajirao Shinde v. Jagannath Shankar Jadhav, AIR 1994 Bombay 254 a Single Bench of that Court which I am in respectful agreement has held as under : 4. Scrutiny of Sec. 53A would indicate that the necessary conditions for application of the provisions are : (1) There is a written contract signed by or on behalf of the transferor to transfer the immovable property for consideration. (2) The terms of the contract pertaining to transfer are clearly discerniable. Scrutiny of Sec. 53A would indicate that the necessary conditions for application of the provisions are : (1) There is a written contract signed by or on behalf of the transferor to transfer the immovable property for consideration. (2) The terms of the contract pertaining to transfer are clearly discerniable. (3) Transferee in part performance of the contract is either put in possession or is continued in possession and has done some act in furtherance of the contract. (4) Transferee has performed or is willing to perform his part of the contract. Wherever the above conditions are fulfilled the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question even though the contract though required to be registered is not registered or where there is instrument of transfer, the transfer is not legally complete. 5. The section recognize in a modified form English doctrine of equity of part performance, which is designed to relieve the rigour of law and provides a remedy when a transfer or an agreement to transfer falls short of legal requirements. It is meant to protect transferees who for appropriate consideration take possession, spend money and/or put in labour in improvements relying on the terms of the contract which for want of registration or any other legal requirement cannot be proved or cannot confer title on them. Thus the crux of the provision seems to be that mutual covenants are operative though title is not transferred as a result, the transferee though cannot seek to enforce his title can resist the attack on his rights under the contract, which would include right to retain possession. Often it is said that the right cannot be used as a sword and can be used only as a shield. If this right as a shield is available to him as a defendant, I do not see any justification for a view that it would be denied to him even if by force of circumstances he as a law abiding citizen is compelled to approach the Court as a plaintiff to use that shield. If this right as a shield is available to him as a defendant, I do not see any justification for a view that it would be denied to him even if by force of circumstances he as a law abiding citizen is compelled to approach the Court as a plaintiff to use that shield. The transferee is entitled to resist any attempt on the part of the transferor to disturb transferees lawful possession under the contract of sale and his position either as a plaintiff or as a defendant should make no difference. Contrary interpretation viz., the transferee can use the shield only as a defendant and not as a plaintiff, would defeat the very spirit of S. 53A for it will be possible for an over powering transferor to forcibly dispossess the transferee even against the convenants in the contract and compel him to go to the Court as a plaintiff. As far as letter of law is concerned, there is nothing which militates against the above object oriented interpretation. (underlining mine) (k) In the case of State of Uttar Pradesh v. District Judge and others, AIR 1997 SC 53 it has been held as under : 7. .................. That Section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said land till they are legally conveyed by Sale Deed to the proposed transferees. .............. (l) Reference to the multiple of decisions have been necessitated, as in each of those decisions there are varying aspects of Section 53A, Transfer of Property Act, 1882, dealt with that are material for the matter in lis before us. Section 53A of the Transfer of Property Act, 1882, as we have seen, has been inserted on the principle of estoppel against the wrongdoer and of equity in favour of the wronged. Section 53A of the Transfer of Property Act, 1882, as we have seen, has been inserted on the principle of estoppel against the wrongdoer and of equity in favour of the wronged. In the present case, there does not appear to be any equity in favour of the Plaintiff or the vendor, the Respondent No. 2, because by his own act and free-will the agreement to sell was executed and possession of the suit land delivered to the Respondent No.1 after having received the entire consideration money. The Respondent No. 1, the proposed vendee, after having taken possession, has considerably developed the land and has been living in a house constructed by him after the execution of the document after being put in possession thereof by the Respondent No. 2. We find that it is the Respondent No. 2, the father of the Appellant, who has failed to act in terms of the agreement by executing proper deed of sale and getting it registered as promised by him. Therefore, the Plaintiff or the Respondent No. 2 cannot be allowed to take advantage of their own fault by being allowed to recover possession of the suit land from the Respondent No. 1. (m) We may also refer to the case of Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi, AIR 2002 SC 960 . In this decision the principle under Section 53A of the Transfer of Property Act, 1882, was considered in the light of Section 27A of the Specific Relief Act and the Limitation Act, 1963 and it has been held that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. (n) Similarly, reference may also be made to Seshamma v. N. M. Haneef and others, AIR 2010 (NOC) 653 (Madras) wherein it has been held that from the fact of payment of entire consideration by the purchaser to the vendor considered with the fact of him being inducted into possession of the property, it can be presumed that the purchaser is ready and willing to perform his obligation under the sale agreement and, therefore, would be entitled to protection under Section 53A of the Transfer of Property Act, 1882. (o) The next that falls for consideration is the principle laid down by a Division Bench of this Court in Bishnu Kumar Rai, AIR 2005 Sikkim 33 (supra) cited on behalf of the Appellant and its implication insofar as this case is concerned. On careful scrutiny of the decision, the facts obtaining in that case widely differ from the present one. In that case, the document based upon which the Defence was set up was clearly a money receipt which is evident from the document reproduced in Paragraph 11 of the judgment. It was, therefore, held that the document could not be considered as an agreement for Sale or Deed of Sale. The doctrine of part performance was also not given benefit of to the vendee in the absence of a valid document from which the Court could ascertain the terms of the document with reasonable certainty. As regards the question of the document being unstamped and unregistered as required under the State Law prescribed under Notification No. 385/G dated 11th April, 1928, read with Notification No. 2947/G dated 22nd November, 1946, it was held that the document could not be validated or admitted in Court to prove the title or other matters contained in the document, on payment of penalty, as it could not be registered as a Sale Deed which is essential for seeking protection under those Notifications. (p) Contrary to what transpires in the above case, the document Exhibit D1 in the present case, as we have seen, is worded differently and would squarely fall within the meaning of contract for sale appearing under Section 54 or an agreement for sale. I have carefully perused Notification No. 385/G dated 11-04-1928, and with all respects I find that Their Lordships have not noticed the exception provided thereto. I have carefully perused Notification No. 385/G dated 11-04-1928, and with all respects I find that Their Lordships have not noticed the exception provided thereto. For the sake of convenience and better appreciation, we may reproduce the said Notification below: SIKKIM STATE GENERAL DEPARTMENT Notification No. 385/G; All Kazis, Thikadars and Managers of Estates. In continuation of the previous rules on the subject, His Highness the Maharaja of Sikkim is pleased to order the Law of Registration applicable in the State shall be amended. Notification No. 314 and 2283-36/G, dated 23rd February, 1907 and 19th July, 1922, respectively shall be read and applied as under : Any document such as mortgage and sale deeds, and other important documents and deeds, etc. will not be considered valid unless they are duly registered. The contents of an unregistered document (which ought in the opinion of the Court to have been registered) may be provided (sic) in Court but a penalty upto fifty times the usual registration fee shall be charged. Exception : Handnotes duly stamped shall be exempt from registration penalty. BY ORDER OF HIS HIGHNESS THE MAHARAJA OF SIKKIM Gangtok Gyaltsen Kazi The 11th April, 1928. General Secretary to H.H. The Maharaja of Sikkim SIKKIM STATE GENERAL DEPARTMENT Notification No : 2947 G Amendment of Para 2 of Notification No : 385/G dated the 11th April, 1928. An unregistered document (which ought in the opinion of the Court to have been registered) may however be validated and admitted in Court to prove title or other matters contained in the document on payment of a penalty upto fifty times the usual registration fee. Issued by order of H. H. the Maharaja of Sikkim. Gangtok T. Tsering The 22nd Nov., 46 (Offs) General Secretary to H.H. The Maharaja of Sikkim (underlining mine) (q) It is quite evident from the above, that the requirement of registration and the penalty prescribed for non-registration has been made an exception in respect of a hand-note duly stamped. Therefore, by necessary implication, it would mean that all hand-notes are required to be stamped. The requisite Rules prevailing in respect of stamps on documents has been prescribed under Sikkim State Rules Re. Court Fees and Stamps on Documents that was issued in furtherance of Notification No. 1933/J dated 31-03-1921, the relevant portions of which are as under : ..................................... Therefore, by necessary implication, it would mean that all hand-notes are required to be stamped. The requisite Rules prevailing in respect of stamps on documents has been prescribed under Sikkim State Rules Re. Court Fees and Stamps on Documents that was issued in furtherance of Notification No. 1933/J dated 31-03-1921, the relevant portions of which are as under : ..................................... (1) The Sikkim stamp marked R shall only be used affixing on handnote, agreements, bonds, deed vouchers etc., executed amongst the people themselves in order to validate the document. (2) Any document which in accordance with the schedule in this notification should have been stamped, is discovered to be unstamped or insufficiently stamped, shall be charged a penalty which may extend to fifty times the stamp value so defaulted. (3) The stamp value on a document or its penalty shall be payable by the person in whose favour the document is executed. (4) The stamp to be fixed on a document shall be so fixed at the time of execution of a document and cancelled by the signature of the person executing the document. (5) The stamps marked R shall be known as Revenue stamps as distinguished from the Court fee stamps. ....................................... (r) I have also carefully scrutinised the Schedule provided under the said Rules and find that they do not contain anything prescribed as regards hand-notes agreements, bonds, deeds, vouchers, etc., except for the pleadings in different forms to be submitted before different forums and authorities. No other Rules are found prescribing the value of the stamps marked R required to be affixed on hand-notes and the other documents mentioned in Rule 1. Under these circumstances, the necessity of affixing stamps on hand-notes does not appear to be well laid down but rather vague and impracticable. (s) There is another aspect of the matter that falls for consideration as regards the Notification dated 11-04-1928. In Clause (ii) of the said Notification, it has been provided that the contents of an unregistered document (which ought in the opinion of the Court to have been registered) may however be validated and admitted in Court to prove on the condition that a penalty up to fifty times of the usual registration fees shall be paid. The exception to payment of such penalty has been made in respect of handnotes duly stamped. The exception to payment of such penalty has been made in respect of handnotes duly stamped. This exception as per the Notification would be relevant only for the purpose of the hand-notes being proved in Court. Had it not been for the exception, even hand-notes duly stamped would fall within the purview of the penalty provision. However, as is clear from the Notification, discretion has been vested in the Courts to consider as to whether the document ought to have been registered. In other words, it has been left for the Court to decide as to which document in its opinion ought to have been registered when it is called upon to decide upon such documents. The mandate under the Notification that all the documents as contained in Clause (i) thereof, namely, mortgage, sale deeds and other important deeds, etc., must necessarily be registered, therefore, would be relevant only for the purpose of its admissibility as evidence in a pending lis before a Court. (t) So much for the aforesaid two notifications, but as one goes through the Old Laws, one will come across Rules Relating to Transfer of Immovable Property (Based on the Law of Contract and Transfer of Property Act of India) dated 18-01-1950 which we may reproduce below : RULES RELATING TO TRANSFER OF IMMOVEABLE PROPERTY (Based on the Law of Contract and Transfer of Property Act of India) 1. All contract for sale of immoveable property must be in writing signed by the parties and attested by not less than two witnesses. If an earnest money has been paid it should be mentioned clearly in the document. Clear description of the property with boundaries must be given. The contracts will be binding on the properties and will be enforced in Court. 2. A sale or mortgage of immoveable property must be in writing signed by the Vendor or by the parties in case of mortgage, and attested by not less than two witnesses. If one of the parties or both are illiterate their thumb impression must be attested by the scribe. It must also contain the following matters : (a) consideration in cash or kind, and when paid or delivered, (b) encumbrances, if any, (c) assessment of the land (rent), (d) full description of the property with boundaries, (e) full name of the parties with their fathers name and residence. It must also contain the following matters : (a) consideration in cash or kind, and when paid or delivered, (b) encumbrances, if any, (c) assessment of the land (rent), (d) full description of the property with boundaries, (e) full name of the parties with their fathers name and residence. (f) any other matter, which is necessary to incorporate in the document. Once the document is executed and consideration passes the contract is complete and is enforceable. It must be in the model prescribed form attached to these rules so far as prescribed form attached to these Rules are practicable, and be drawn in duplicate each party keeping a copy. NOTES : Biyaj Masikata and Siraney Thailo are mortgages 3. A lease of immoveable property for every one year must be in writing signed by both the parties and attested by not less than two witnesses. In lieu of witnesses, it may be certified by the Tashildar or Revenue Inspector. If the executants are illiterate their thumb impression must be attested by the scribe. It must mention the following matters : a) Duration of the lease. b) Rent in cash (in case of house) c) Kut in case of land (quality must be mentioned). d) Full description of the property with boundaries. e) Any other matter which is necessary to incorporate in the lease. 4. These Rules will have no retrospective effect. All sale and mortgage must be registered as provided under the Registration Rules. 5. The maximum rate of interest chargeable will be 12% per annum. 6. Sec. 54 Transfer of Property Act. Sale of immoveable property. Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upward in the case of reversion or other intangible thing can be made only by a registered instrument. Sd/- (J. S. Lall, ICS) 18-1-50 Dewan of Sikkim State. (u) On a bare reading of the above, it is quite evident that the provisions of the Transfer of Property Act, 1882, has been fully adopted making Section 54 applicable under Clause 6 thereof. Sd/- (J. S. Lall, ICS) 18-1-50 Dewan of Sikkim State. (u) On a bare reading of the above, it is quite evident that the provisions of the Transfer of Property Act, 1882, has been fully adopted making Section 54 applicable under Clause 6 thereof. Since the Transfer of Property Act, 1882 was brought in force in Sikkim with effect from 01-09-1984, under Clause (n) of Article 371F of the Constitution of India, Section 53A of the Act would necessarily be applicable. Even if these Rules are considered to be applicable now in view of it being protected under Article 371F(k) of the Constitution of India, there is nothing in it to restrict the application of Section 53A of the Transfer of Property Act, 1882. (v) Keeping the above position in view, the conduct of the vendor, the Respondent No. 2, and the altered circumstances of the vendee as a consequence of the promise extended to him and the performance of his part of the agreement, namely, making payment or the full consideration value, taking over the possession of the suit land, construction of his dwelling house and the improvements made thereupon, the principle of equity would necessarily come in the aid of the vendee and, the vendor, the Respondent No. 2, would be barred by the principle of estoppel in upsetting vendees possession of the suit land. For these reasons and also as an agreement of sale need not necessarily be registered, this Court is of the opinion that non-registration of Exhibit D1 does not in any manner diminish the value of the document as a valid document subject, of course, to the proof of its contents as required under the Evidence Act, 1872. This burden also appears to have been discharged by the Respondent No. 1, as Khus Narayan Khatiwada, the scribe of the document, has appeared as D.W.3 and proved it duly supported by the attesting witness, Tika Ram Dahal, D.W. 2 and also the Appellants own witnesses, P.W. 1, his mother and next friend, P.W. 2, Dol Nath Gautam and P.W. 4, Abhi Chandra Koirala. (w) In any case, their Lordships in the very case of Bishnu Kumar Rai (supra) were pleased to hold in Paragraph 13 as under : 13. ................................ .......................... (w) In any case, their Lordships in the very case of Bishnu Kumar Rai (supra) were pleased to hold in Paragraph 13 as under : 13. ................................ .......................... According to us, such notifications cannot override the related statutory provisions of the Transfer of Property Act, 1882, and apart from it, we do not see any reason for causing registration of the alleged money receipt dated Nil, Exhibit D-1 document as sale deed. ................................. (x) We have also noticed from the decision in the case of Nathulal v. Phoolchand, AIR 1970 SC 546 (supra) that once the requirements of Section 53A is fulfilled the rights thereunder would come in the aid of a transferee even though the contract is not registered even though registration may be a necessity. (y) In the case of Girija Nandan Singh and others v. Girdhari Singh and others, AIR 1951 Patna 277 where as many as six unregistered documents were involved, it has been held as follows : 19. ..........................This fact, as held by the Courts below, is borne out by the receipts; as also by the documents Exs. C-1 to C-6 which, in my opinion, are admissible not only for the collateral purpose of proving separate possession but also admissible in proof of part performance under Section 53A, T.P. Act; and also by the oral evidence on the point. .................. (z) Considering the conspectus of decisions referred to above, I have no hesitation to hold that the Respondent No. 1 is entitled to the aid of Section 53A and, therefore, cannot be dispossessed of the suit land. 15. Even otherwise, from the evidence appearing on the records, there can be no manner of doubt that the suit has been brought by the Respondent No. 2 in collusion with the Appellant and the mother and the next friend representing the Appellant. Apart from the statement in cross-examination of P.W. 1 reproduced above, the evidence of the Plaintiffs own witnesses alluded to earlier clearly go to show that the Plaintiffs mother, P.W. 1, was fully aware of the execution of the document Exhibit D1. I also find that the Respondent No. 2 had taken the initiative for filing the suit. This also stands fortified by the fact that the Appellant was a minor at the time when the suit was filed ostensibly represented by the mother and natural guardian, namely, Deo Maya Sapkota, P.W. 1. I also find that the Respondent No. 2 had taken the initiative for filing the suit. This also stands fortified by the fact that the Appellant was a minor at the time when the suit was filed ostensibly represented by the mother and natural guardian, namely, Deo Maya Sapkota, P.W. 1. On the admitted fact of the property having been sold or intended to be sold by her husband, the Respondent No. 2, to the Respondent No. 1, her plea of her husband not having obtained her consent is obviously an afterthought with the sole object of misleading the Court that tantamounts to abuse of the process of the Court and playing fraud thereupon. This finding gets reassured by her own evidence in the most ambiguous and categorical terms which has remained uncontroverted and firm, that the property was sold by her husband for a value of `1661.55 as they did not have sufficient money to run their house thereby also indicating that the sale of the property was on account of a legal necessity. A significant feature of this case which adds to this Courts conviction of this suit being a collusive one is prayer (b) contained in the plaint which reads as follows : (b) A decree for cancellation of the sale, if any, made by Defendant No. 2 in favour of Defendant No. 1 declaring the title of defendant No. 2 over the schedule B land. 16. This prayer, in my view, reveals the interest of the Respondent No. 2 and the real intent behind the suit and that the appellant is only his front. Had it been filed genuinely by the Appellant, the prayer would naturally be that the decree be passed in his favour either for himself or for being him declared as a co-owner with the Respondent No. 2. 17. Apart from the above, the Plaintiff has also failed to prove that the suit land is his ancestral property as claimed by him as it is not found recorded in the revenue record, Exhibit E1, pertaining to the grandfather, but only in Exhibit B1, the one pertaining to his father, the Respondent No. 2. It has been fairly conceded by Mr. N. Rai that no evidence was led by him to prove that Exhibit E1 includes the suit land also. It has been fairly conceded by Mr. N. Rai that no evidence was led by him to prove that Exhibit E1 includes the suit land also. This Court is also not impressed by the point that only Dhuri Khajana was paid by the Appellant and not the Land Revenue as urged by Mr. N. Rai. Dhuri Khajana is a house tax paid by a person which only proves that the Appellant was living on the suit land. Land revenue naturally would not be paid by him as the title of the land has not yet passed on him for want of registration of the Sale Deed that was to be executed by the Respondent No. 2 in terms of the document Exhibit D1, a promise which he had failed to fulfil. Therefore, I find that the issue has been rightly decided by the Learned Trial Court in favour of the Respondent No. 1 and do not find any reason to differ with it. 18. Finally, there is another aspect which is quite striking as regards the question of non-joinder of Krishna Prasad Sapkota, the father of the Respondent No. 1. The suit appears to have been filed impleading Respondent No. 1 presuming that the transaction with regard to the suit land under Exhibit D1 had taken place with him. However, Exhibit D1 clearly shows that the transaction was in fact entered into between Krishna Prasad Sapkota, the father of the Respondent No. 1 and Bhawani Shanker Sapkota, the father of the Appellant but, strangely, the former was not impleaded as a party to the suit. The other significant aspect of the case which, in my view, would weigh heavily against the Appellant is that his father, the Respondent No. 2, although was impleaded as Defendant No. 2, was proceeded ex parte having failed to appear despite service of notice upon him. It is quite strange to note that when admittedly the Appellant, his mother and the Respondent No. 2 were living together under the same roof, he chose not to appear in the suit. The suit would, therefore, also fail for non-impleadement of Krishna Prasad Sapkota by application of proviso to Order I, Rule 9 of the Code of Civil Procedure, 1908, as he is a necessary party in the absence of whom the matter in controversy cannot be fully adjudicated upon. 19. The suit would, therefore, also fail for non-impleadement of Krishna Prasad Sapkota by application of proviso to Order I, Rule 9 of the Code of Civil Procedure, 1908, as he is a necessary party in the absence of whom the matter in controversy cannot be fully adjudicated upon. 19. For the reasons aforesaid, the Appeal stands dismissed. No order as to costs. 20. Let a copy of this judgment be transmitted to the Learned Trial Court along with the records forthwith for its due compliance. Appeal dismissed.