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Madhya Pradesh High Court · body

2016 DIGILAW 611 (MP)

Chandmal s/o Hemraji v. Labhchand s/o Hemraji

2016-07-26

VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. Heard. 2. That the petitioners No.1 and 2 and the respondent No.1 are the real brothers. Their Father late-Hemraj died long back and the petitioners' and the respondent No.1 are engaged in the agricultural activities. 3. Petitioners have filed the suit before the Civil Court seeking permanent injunction, partition and specific performance of the agreement. The contention of the petitioners before the Civil Court was that the defendant No.1 has executed the agreement to sale dated 28.11.1997 in favour of the plaintiff/petitioner but later on he was not ready to execute the sale deed. Hence, the cause of action has arisen and the present civil suit was filed. 4. That during the pendency of the suit, petitioners sought permission from the Civil Court to file the document dated 28.11.1997 for exhibit in the evidence. Vide order dated 09.03.2015, the Civil Court has rejected the same application on the objection raised by the respondents, as the same is unregistered and insufficiently stamped. Later on, the said documents was referred to the Collector of Stamps in which vide order dated 13.04.2015 eight percent additional stamp duty was paid along with penalty and the said document was impounded. He further submits that by virtue of Proviso to Section 49 under the Registration Act, 1908 of the said documents is not necessary to be register in a suit for specific performance, therefore, the Civil Court has wrongly passed the order dated 09.03.2015. 5. In reply, Counsel for the respondents submits that the Civil Court has rightly held that the document dated 28.11.1997 is in the nature of sale deed and therefore, it is required to be compulsorily registered and the Civil Court has not committed any error while passing the order. 6. I have learned counsel for the parties and perused the record. 7. The document dated 28.11.1997 which is filed as Annexure-P/2 in the writ petition, which was executed by the defendant No.1 in favour of the plaintiff in which he has agreed to sale the land to the plaintiff in total consideration of Rs. 60,000/- and out of Rs. 60,000/-, Rs. 1,000/- was paid initially and remaining Rs. 29,000/- and Rs. 30,000/- was agreed to pay later on. 60,000/- and out of Rs. 60,000/-, Rs. 1,000/- was paid initially and remaining Rs. 29,000/- and Rs. 30,000/- was agreed to pay later on. Prima facie from the language of the documents, it appears to be agreement to sale because the total sale consideration was not paid and same was agreed to paid later on, therefore, the Court has wrongly held that it is a document in the nature of sale deed. 8. The Supreme Court in the case of S. Kaladevi v. V.R. Somasundaram and Others reported in [2010(3) MPLJ 500] has considered the scope of proviso to Section 49 in a case of specific performance and held that as per the proviso to Section 49 unregistered documents affecting the immovable property can be admitted in the evidence in a suit for specific performance. Such unregistered sale deed can also be admitted in a evidence for collateral transactions. Para-11 of the judgment is reproduced below: Para-11. 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 1980 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 an 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. 9. 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. 9. This issue also came up for consideration before the Division Bench of this Court in the case of Akshay Doogad v. State of MP and Others reported in 2016 (2) M.P.L.J. 156. 10. In view of the law laid down in the case of S. Kaladevi and Akshay Doogad (Supra), the impugned order dated 09.03.2015 is hereby set-aside and the Civil Court is directed to proceed and permit the plaintiff to exhibit the document dated 28.11.1997. 11. With the aforesaid directions, the writ petition is allowed. No order as to costs. Certified copy as per Rules.