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2017 DIGILAW 2 (MP)

Devi Singh Kushwah v. Surajbhan Singh Gurjar

2017-01-02

ROHIT ARYA

body2017
ORDER 1. This writ petition by defendant under Article 227 of the Constitution of India is directed against the order dated 28.7.2016 passed in Civil Suit No.40A/2015 by the trial Court. The application objecting to the admissibility of the agreement to sell dated 16.3.2015 for want of registration in view of section 17(1)(f) of the Registration Act, 1908 (For short, 1908 Act') under the Madhya Pradesh Amendment Act, 2009 (in section 17 of the Act) which 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 No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely : - (f) any document which purports or operates to effect any contract for sale of any immovable property.” has been rejected by the trial Court, on the premise that in the light of the proviso to section 49 of the 1908 Act, the unregistered agreement to sell can be looked into in a contract for agreement to sell as contemplated. Hence, for want of registration, the document cannot be ignored. 2. Learned senior counsel for the petitioner while criticizing the impugned order contends that once by way of Madhya Pradesh State amendment, section 17(1)(f) has been incorporated in the 1908 Act with the assent of the President of India, therefore, in the light of Article 254 of the Constitution of India, the State amendment shall prevail over the existing proviso to section 49 of the 1908 Act. Hence, for want of registration of the agreement to sell, the same cannot be used as a piece of evidence in a suit for specific performance of an agreement to sell. According to him, the proviso to section 49 of the 1908 Act has no relevance or applicable. Learned senior counsel has relied upon the judgment of the Hon'ble Supreme Court reported in (2011)7 SCC 616 A. Subhash Babu v. State of Andhra Pradesh and another to bolster his submission. 3. According to him, the proviso to section 49 of the 1908 Act has no relevance or applicable. Learned senior counsel has relied upon the judgment of the Hon'ble Supreme Court reported in (2011)7 SCC 616 A. Subhash Babu v. State of Andhra Pradesh and another to bolster his submission. 3. Per contra, learned counsel for the respondent submits that similar arguments were advanced before coordinate Bench of this Court at Indore reported in 2015(2) MPLJ 645 Manish and another v. Anil Kumar s/o Kaluramji Patidar and others and this Court has rejected such contentions holding that there is no direct inconsistency between the provisions as contained under section 17(1)(f) and proviso to section 49 of the 1908 Act, as such, both provision can be harmoniously read. It is submitted that the proviso to section 49 of the 1908 Act only contemplates that unregistered document may be received as evidence of a contract in a suit for specific performance and not beyond that. Therefore, the unregistered agreement to sell can be acted upon for the aforesaid purpose as provided for. As such, there is no illegality or jurisdictional error in the impugned order warranting interference by this Court under Article 227 of the Constitution of India. Accordingly, it is prayed that writ petition deserves to be dismissed. 4. Heard. 5. The Registration Act, 1908 is a central legislation enacted by the parliament in the field of registration of deeds and documents as detailed in sl.No.6 of the concurrent list. Section 17 thereof provides that registration of documents is compulsory and section 49 provides for effect of non-registration of document required to be registered. The proviso appended thereto is relevant 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 to be registered shall — Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, [ * * * * ] or as evidence of any collateral transaction not required to be effected by registered instrument. 6. 6. According to the learned senior counsel, there is apparent inconsistency between the provisions of section 17(1)(f) and proviso to section 49 of the 1908 in view of Article 254(2) of the Constitution of India, and since the amendment made by the State legislature with the assent of the President of India shall prevail over already existing provision enacted by the parliament, hence, for want of registration of the agreement to sell, the same cannot be acted upon for any purpose whatsoever. 7. Though the contention of the learned senior counsel at the first blush appears to be attractive but in the opinion of this Court, it pales into insignificance for the reason that to conclude that there is conflict between the provisions of the State amendment/enactment with the assent of the President of India and the existing parliamentary enactment, twin-requirement is to be fulfilled, firstly; there has to be repugnancy between the Central Act and the State Act and secondly; the presidential assent has to be held as non-existent. The proper test for determining the same is indeed to find out the dominant intention of both the legislatures and whether such dominant intention of both the legislatures are alike or different [Rajiv Sarin and another v. State of Uttarakhand and others, (2011) 8 SCC 708 ]. 8. Before adverting to the rival contention advanced by the parties on merits, this Court has carefully gone through the judgment of the Hon'ble Supreme Court relied upon by the learned senior counsel in the case of A. Subash Babu (supra), and finds that there is no quarrel about the proposition of law with reference to the mandate contained under Article 254 of the Constitution of India as interpreted by the Hon'ble Supreme Court therein, inasuch as by way of the amendment, the State legislature of Andhra Pradesh with Presidential assent has brought amendment in the CrPC, and made offfence under sections 494 and 495 IPC as non-cognizable and, therefore, the existing provisions of sections 494 and 495 IPC have been held to be repugnant and give way to the amended provisions in the State of Andhra Pradesh. 9. In the case in hand, true it is, that section 17(1)(f) has been incorporated by the Madhya Pradesh State Amendment Act. 9. In the case in hand, true it is, that section 17(1)(f) has been incorporated by the Madhya Pradesh State Amendment Act. On a careful reading of the provisions of section 17(1)(f) and section 49 of the 1908 Act, in the opinion of this Court, if both are read together there is no conflict or repugnancy between the two as the main part of section 49 itself provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall affect any immovable property comprised therein, or confer any power to adopt, ….. However, in the proviso to section 49 of the 1908 Act, exception is carved out whereunder 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 (3 of 1887) or Therefore, the exception being carved in the proviso is for the limited purpose of treating the unregistered document as evidence of a contract in a suit for specific performance and not beyond that. The proviso neither contemplate the effect nor consequences flowing from non-registered document. (Emphasis supplied) 10. In view of the above, there is no inconsistency or conflict between section 17(1)(f) and the proviso to section 49 of the 1908 Act. As such, the argument advanced by the learned senior counsel with the help of judgment of the Hon'ble Supreme Court in the case of A. Subash Babu (supra), cannot be countenanced. That apart the view taken by this Court finds support from the view taken by coordinate Bench of this Court in the case of Manish and another (supra). 11. Writ petition sans merit and is hereby dismissed.