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Madhya Pradesh High Court · body

2015 DIGILAW 156 (MP)

Manish v. Anil Kumar

2015-02-04

PRAKASH SHRIVASTAVA

body2015
ORDER : PRAKASH SHRIVASTAVA, J. 1. This writ petition under Article 227 of the Constitution of India is at the instance of the plaintiffs in the suit challenging the order of the trial Court dated 8-5-2014, whereby the trial Court has allowed the respondent's application and has held that since agreement to sale is not registered therefore, it is not admissible in evidence. In brief, the petitioners have filed suit for specific performance and for possession raising the plea that respondents had agreed to sale the suit property to petitioners and had received the part consideration on 19-1-2011 and on 25-1-2011 sale agreement was executed and further part consideration amount was paid. The respondents had filed an application under section 17 of Indian Registration Act (for short Act) read with section 49 on the ground that since the sale agreement is not registered, therefore, it is not admissible in evidence and the trial Court while allowing the respondent's application has taken the view that sale agreement being unregistered is inadmissible in evidence. 2. Learned counsel for petitioners submits that the sale agreement is admissible in evidence in terms of proviso to section 49 of Indian Registration Act. 3. As against this, counsel for respondents have submitted that since by way of State Amendment section 17(1)(b) has been added requiring registration of the sale agreement and the said provision is repugnant to proviso to section 49 of the Act, therefore, section 17(1)(b) will prevail in terms of Article 254 of Constitution and sale agreement being unregistered cannot be exhibited in evidence. 4. I have heard learned counsel for the parties and perused the record. 5. Undisputedly, the sale agreement dated 25-1-2011 is unregistered. Section 17(f) of the Act has been inserted by The Registration (Madhya Pradesh Amendment) Act, 2009 with assent of the President by way of notification dated 14th January, 2010. The relevant part of amended section 17 of Act reads as under: "17. 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, 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: .................... ......................... ......................... 17(f) any document which purports or operates to effect any contract for sale of any immovable property." 6. In terms of the above provision an agreement to sale is required to be registered. 7. Section 49 of The Registration Act, which is relevant for the present purpose provides as under: "49. Effect of non-registration of document 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. 8. Under section 49 of the Act a document required to be registered under section 17 of Act or by any provision of Transfer of Property Act, 1882 cannot be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered, but an exception has been carved out by way of proviso in respect of suit for specific performance to the effect that such a document can be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. 9. Supreme Court in the matter of S. Kaladevi Vs. V.R. Somasundaram and Others, (2010) 5 SCC 401 while considering similar issue in respect of an unregistered sale deed filed in a suit for specific performance has held as under: "The main provision in section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to section 49 of 1908 Act." Supreme Court in the matter of K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., (2008) 8 SCC 564 has laid down the following principles: "21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: 1. A document required to be registered is not admissible into evidence under section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." 10. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." 10. In the matter of S. Kaladevi (supra) Supreme Court has added one more principle in the aforesaid principle by holding that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. Thus, it is clear that in the suit for specific performance an unregistered agreement to sale may be received in evidence for the limited purpose as provided in proviso to section 49 of the Registration Act. 11. Trial Court though has noted the judgment of the Supreme Court in the matter of S. Kaladevi (supra) but has wrongly distinguished it on the ground that the judgment relates to oral agreement and unregistered sale deed without appreciating that ratio of said judgment is applicable in the present case. Trial Court has committed an error in holding that under proviso to section 49 of Act, an unregistered agreement to sale is not admissible in evidence. Such a view of the trial Court runs counter to very provision contained in the proviso as also the judgments noted above. 12. The argument of counsel for petitioner that State amendment in section 17(1)(f) for which President's assent has been obtained will prevail in view of Article 254 of Constitution because it is repugnant to proviso to section 49 of Act cannot be accepted because in view of the judgment in the matter of M. Karunanidhi Vs. Union of India and Another, (1979) 3 SCC 431 : (1979) SCC(Cri) 691 before any repugnancy between the Central Act and the State Act can arise, following conditions are required to be satisfied: (i) That there is a clear and direct inconsistency between the Central Act and the State Act; (ii) That, such an inconsistency is absolutely irreconcilable; (iii) That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. 13. 13. In the present case, there is no such direct irreconcilable inconsistency between section 17(1)(b) and proviso to section 49 of the Registration Act. The scope of proviso to section 49 of Act is very limited to the extent of receiving such document as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. 14. Counsel for respondents has placed reliance upon judgment of the Supreme Court in the matter of Raghunath and Others Vs. Kedar Nath, (1969) 1 SCC 497 but that was not a case of specific performance of contract nor proviso to section 49 of Act has been examined in that matter. Similar is the position in respect of the Division Bench judgment of Allahabad High Court in the matter of Vijay Kumar Sharma Vs. Devesh Behari Saxena, AIR 2008 All 66 . In the judgment of Rajasthan High Court in the matter of Raju Ram vs. Khinyaram, reported in AIR 2014 (NOC) 83 (Raj.) also the effect of proviso to section 49 of Act has not been examined. 15. Thus the trial Court has committed an error in holding that the sale agreement in question being unregistered is inadmissible in evidence. Hence, the impugned order of trial Court cannot be sustained and is hereby set aside. 16. Writ petition is accordingly disposed off. C.C. as per rules.