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2018 DIGILAW 2445 (ALL)

Devendra Singh v. Vipul Upadhyaya

2018-12-03

RAJIV JOSHI

body2018
JUDGMENT : 1. Heard Sri Ramendra Asthana, learned counsel for the appellants and Sri Atul Kumar Srivastava, learned counsel for the defendant-respondent no.1. 2. This second appeal has been filed by the plaintiff-appellants against the judgment and decree dated 21.8.2018 whereby the lower appellate court has dismissed the Civil Appeal No. 16 of 2015 filed by the plaintiff-appellants affirming the decree of the trial court dated 16.12.2014 and dismissing the suit of the plaintiffs for grant of decree of permanent injunction restraining the defendants from selling the land in dispute. 3. The facts as reflect from the record are thus: 4. Original Suit No. 739 of 2006 was filed by the plaintiffs for grant of permanent injunction restraining the defendants from selling the land in question to anybody else except them. An agreement to sell was executed by the defendants in favour of the plaintiff on 5.1.2004 for total sale consideration of Rs. 1, 25,000/- (One lacs Twenty Five Thousands), out of which an amount of Rs. 75,000/-(Seventy Five Thousands) was paid towards earnest money and the rest amount was agreed to be paid within a year at the time of execution of sale-deed. 5. It is averred in the plaint that the agreement of sale was a notarized instrument and on the execution of the said agreement, the possession of the land was handed over to the plaintiffs and that the plaintiffs were always ready and willing to perform their part of contract but the defendants used to avoid the same. 6. It is further averred in the plaint that on 15.6.2006 the defendant no. 1 executed a registered sale deed in favour of the defendant no. 2 and after its execution he wants to take forcible possession. Therefore, the suit for injunction was filed. The defendants contested the matter by filing their separate written statement and denied execution for any agreement to sell and further stated that the said agreement is not admissible in the evidence for want of registration which is mandatory. 7. It is further stated that the plaintiffs are not in a possession of the land in dispute and the suit filed by the plaintiffs for injunction is not maintainable. 8. 7. It is further stated that the plaintiffs are not in a possession of the land in dispute and the suit filed by the plaintiffs for injunction is not maintainable. 8. On the basis of the pleadings of the parties in all seven issues were framed by the trial court, of which one relevant issue was as to whether the plaintiffs are entitled for execution of sale deed on the basis of agreement to sell dated 5.1.2004 and entitled for grant of temporary injunction. 9. After considering the materials on record and the pleadings of the respective parties, the trial court vide judgment and order dated 16.12.2014 dismissed the suit of the plaintiffs' with costs. 10. Aggrieved by the order of the trial court, the plaintiffs filed an appeal bearing Civil Appeal No. 16 of 2015 which too was dismissed vide judgment and decree dated 21.8.2018. 11. The contention of learned counsel for the plaintiff-appellants is that the agreement to sell dated 5.1.2004 cannot be said to be inadmissible for want of registration and could not be said to be a waste paper as it has been duly notarized and therefore, the trial court as well as appellate court have committed illegality while holding that the registration of the agreement to sell in question is mandatory and it is inadmissible for want of registration. In support of his contention he relied upon the 1st proviso to Section 49 of the Registration Act, 1908 by stating that even otherwise the unregistered document is admissible for the collateral purpose. In support of his contention he has further placed reliance upon paragraph no. 19 of judgment of this Court in the case of Sushil Kumar Soni (Sarraf) Vs. Smt. Sheela reported in 2016 (1) ARC 59 as well as paragraph no. 15 and 16 of the judgment of this Court in the case of M/s Shiv Shambhu Pictures Pvt. Ltd. & Ors. Vs. Lokeshwar Prasad & Ors reported in 2016 (114) ALR 428. 12. On the other hand, learned counsel for the defendant-respondents submits that the document in question i.e. agreement to sell is inadmissible for want of registration and the registration of the said documents is mandatory in view of Section 17 of the Registration Act 1908. Vs. Lokeshwar Prasad & Ors reported in 2016 (114) ALR 428. 12. On the other hand, learned counsel for the defendant-respondents submits that the document in question i.e. agreement to sell is inadmissible for want of registration and the registration of the said documents is mandatory in view of Section 17 of the Registration Act 1908. He further submits that as per the case of the plaintiffs on the basis of the part performance of the aforesaid agreement, possession has been delivered to the plaintiffs, and therefore, the provisions of Section 51-A are attracted. He further placed reliance of Section 17(1A) of the Registration Act, 1908 which shows for consideration of the contract to transfer the possession for the purpose of Section 53-A of the Transfer of Property Act, the instrument compulsorily requires registration on or after commencement of Registration And Other Related Laws (Amendment) Act 2001 (in short 2001) and in case such document is not registered on or after such commencement then they shall have no effect for the purpose of said Section 53-A 13. I have considered the rival submissions raised by both the learned counsel for the parties and perused the record. 14. In order to appreciate the arguments of learned counsel for the appellants with regard to the admissibility of unregistered document and what does it mean by collateral purpose, has to be considered in light of Section 49 of the Registration Act 1908. Section 49 of the Registration Act is quoted as under: “49. Effect of non-registration of documents required to be registered. – No document required by Section 17 [or by any provisions 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.]” 15. The Apex Court in K. B. Saha & Sons (P) Ltd Vs. Development Consultant Ltd. Reported in (2008) 8 SCC 564 : considered the proviso of Section 49, paragraph no. 34 of the said judgment is quoted as under: “34.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, if unregistered 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.” 16. Paragraph no. 19 of the judgment of Shushil Kumar Sone (supra) relied upon is quoted hereunder: 19. It is, thus, evident that an unregistered documents can be looked into for collateral purposes, though, otherwise, it is inadmissible in evidence. A collateral purpose is such which is not required to be evidenced or affected by a registered document. 17. Paragraph no. 15 &16 of the judgment of Shiv Shambhu Pictures (supra) relied upon is quoted hereunder. “15. Since in the State of U.P. even a contract for sale is required to be registered, unless it is registered, it cannot be held to be a contract in law, enforceable, and such unregistered document as such would not be admissible for the purpose of relying its own stipulations, as discussed above. 16. Moreover, in the present case we are not dealing with the document of completed contract of sale, i.e., sale-deed but a document which is claimed to be a promise to sell certain immovable property on consideration. 16. Moreover, in the present case we are not dealing with the document of completed contract of sale, i.e., sale-deed but a document which is claimed to be a promise to sell certain immovable property on consideration. If this kind of agreement for sale could have been executed even by unregistered document, the position may have been different, but in the State of U.P. even such a contract has to be compulsorily registered. Therefore, the general principle of Section 49 Proviso would apply that an unregistered document would not be admissible in evidence except for "collateral purposes". 18. Regarding collateral pruposes, this Court Shushil Kumar Soni (supra) has observed in paragraph no. 22 as under:- “22. What a "collateral purpose" is not defined in Act, 1908. In Webster's Seventh New Collegiate Dictionary, expression 'collateral', has been given meaning as "accompanying as secondary or subordinate". To the same effect is the meaning given in Black's Law Dictionary, Ninth Edition. The meaning according to this Dictionary is "supplementary; accompanying, but secondary and subordinate". The Jowitt's Dictionary of English Law, published by Sweet & Maxwell Limited, 1977, Second Edition defines 'collateral' as something which is by the side of or distinct from, a certain thing. In brief, it can be said that collateral purpose is only a "secondary purpose". 19. In the present case, the suit was filed for grant of decree for permanent injunction restraining the defendants not to sale the disputed property other than plaintiffs themselves. The basis of the suit is unregistered notarized instrument (agreement to sell) whereby the possession has been delivered to the plaintiffs and the plaintiffs are claiming the right on the basis of part performance of contract as per Section 53-A of the Transfer of Property Act. 20. From the perusal of the judgments of Hon'ble Apex Court as well as Section 49, it is apparent that the unregistered document which is required to be registered under Section 17 of the Registration Act is inadmissible but can be looked into for collateral purpose. 21. The sale has been defined under Section 54 of the Act and there is an U.P. Amendment in Section 54 vide 30 of U.P. Act no. 51 of 1976 which came into force w.e.f. 1.1.1977 which made registration of contract of sale obligatory. 21. The sale has been defined under Section 54 of the Act and there is an U.P. Amendment in Section 54 vide 30 of U.P. Act no. 51 of 1976 which came into force w.e.f. 1.1.1977 which made registration of contract of sale obligatory. Section 54 of the Act is applicable in the State of U.P. The aforesaid amended Section 54 is quoted as under: "54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made. Such transfer, in the case of tangible immovable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Such contract can be made only by a registered instrument." (emphasis added) 22. It mandates that the agreement to sell executed after 1.1.1977 can be registered in view of Section 17 of the Registration Act. 23. Even Section (1-A) of the Registration Act mandates for compulsory registration of contract for transfer of possession for the purposes of Section 53-A of the Transfer of Property Act on or after commencement of registration and other related law amendment Act of 2001. The provisions of Section 17(1-A) is reads as under: “17. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]” 24. From the provisions as quoted above, it is apparent that the registration is mandatory for the agreement to sell transferring the property in order to claiming the benefit of Section 53-A of the Act. 25. From the provisions as quoted above, it is apparent that the registration is mandatory for the agreement to sell transferring the property in order to claiming the benefit of Section 53-A of the Act. 25. In view of the above, since the unregistered agreement to sell is the basis of the suit and its registration being compulsory, the courts below have rightly dismissed the suit of the plaintiff-appellants and the contention so raised by learned counsel for the appellant in this regard has no merit and is accordingly repelled. 26. The proposed substantial questions of law framed by the appellants in the appeal do not involve any legal issue. 27. The appeal is devoid of merit, and is accordingly dismissed.