Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 742 (RAJ)

Hawa Kanwar v. Vala Ram

2012-03-26

BELA M.TRIVEDI

body2012
JUDGMENT 1. - The present petition is directed against the order dated 26.2.2009, passed by the Additional District Judge (Fast Track) Jalore,(hereinafter referred to as the "Trial Court") whereby the Trial Court has dismissed the application of the petitioners defendants by holding that the agreement dated 30.7.2003, could not be received in evidence in view of Section 17 read with Section 49 of the Registration Act, 1908, (hereinafter referred to as "the Act"). 2. It has been submitted by learned counsel Mr. Amit Mehta, for the petitioners that the said agreement was required to be compulsorily registered in view of Section 17(f) of the Registration Act (Rajasthan Amendment Act). According to him, under the said Provision of the Rajasthan Act, if the agreement is to sell immovable property possession whereof has been or is handed over to the purported purchaser, then such agreement was required to be compulsorily registered, and in the instant case, the agreement in question having not been registered, the trial court has committed an error in allowing the said agreement to be received in evidence. However, the learned counsel Mr. R.J. Poonia for the respondent No.1-plaintiff, has submitted that in view of Section 49 of Registration Act, the agreement, though required to be registered under Section 17(f) of the Act, could be received in evidence in a suit for specific performance of the agreement and, therefore, the trial court has rightly passed the impugned order. 3. Having regard to the submissions made by the learned counsels for the parties, and from the impugned order it transpires that the respondent no. 1-plaintiff has filed the suit against the respondent no.2 and the petitioners (defendants), seeking specific performance of agreement dated 30.7.2003, executed by the respondent-defendant Vala Ram in favour of the respondent-plaintiff Vaja Ram. The present petitioners being subsequent purchasers, submitted an application before the trial court not to receive the said agreement in question in evidence in view of Section 17(f) of the Rajasthan Registration Act. It is needless to say that Section 17 of the Registration Act provides for the documents which are required to be compulsorily registered. There is State Amendment of Rajasthan in the said Section wherein clause (f) has been added, which reads as under:- "17(f) "Agreement to sell immovable property possession whereof has been or is handed over to the purported purchaser". 4. There is State Amendment of Rajasthan in the said Section wherein clause (f) has been added, which reads as under:- "17(f) "Agreement to sell immovable property possession whereof has been or is handed over to the purported purchaser". 4. In this regard, Section 49 of the Registration Act which provides for the effect of non-registration, is also required to be reproduced, which reads as under:- "49. Effect of non-registration of documents required to be registered.- No document required by section 17[ or by any provision of the Transfer of Property Act, 1882(4 of 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(4 of 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(3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument]." 5. From bare reading of the said proviso to Section 49, it clearly transpires that an unregistered document required by the Registration Act or the Transfer of Property Act, could be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act or as evidence of any collateral transaction not required to be effected by registered instrument. In view of said proviso to Section 49, the agreement in question could be received in evidence, the suit having been filed by the plaintiff for the specific performance of the said agreement. There being no error committed by the trial court by passing the impugned order, the present petition deserves to be dismissed and is accordingly dismissed.Petition dismissed. *******