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2020 DIGILAW 393 (RAJ)

Shantilal v. Vinod Kumar

2020-02-19

ARUN BHANSALI

body2020
JUDGMENT Arun Bhansali, J. - This writ petition has been filed by the petitioner aggrieved against the order dated 06.12.2019 (Annex.11) passed by the trial court, whereby the application filed by the petitioner pertaining to admissibility of document dated 18.04.1984 on account of the same being deficiently stamped and unregistered, has been rejected. 2. The petitioner filed a suit for specific performance of contract against the respondent Vinod Kumar. 3. In the written statement, a plea was taken that the land in question was purchased by father of the defendant pursuant to the document ^^fo'ks"k vf/kdkj i=^^ dated 18.04.1984 and therefore, he had no authority to enter into the agreement and therefore, the suit was liable to be rejected. 4. During evidence of the defendant, when document in question was sought to be marked as exhibit, an application was filed by the petitioner that the document was inadmissible in evidence on account of same being insufficiently stamped and unregistered. 5. A reply to the application was filed contesting the averments made by the petitioner. 6. The trial court by its order impugned (Annex.11), came to the conclusion that the document was merely a specific power, whereby the father of the defendant was authorized to participate in the auction and the same was not a transfer document so as to require registration and consequently, rejected the application. 7. Learned counsel for the petitioner submitted that the trial court was not justified in rejecting the application filed by the petitioner, inasmuch as, looking to the nature of document, the same has created right in favour of 50 persons named therein and as such, the same would be governed by the provisions of Section 17(1)(b) of the Registration Act, 1908 ('the Act of 1908') and was liable to be registered and in absence whereof, the document was inadmissible in evidence. 8. Further submissions have been made that the document in question in any case was a power of attorney and was therefore, governed by provisions of Section 17(1)(g) of the Act of 1908 and therefore, rejection of the application in this regard was not justified. 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 10. 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 10. The facts are not in dispute, wherein the defendant raised the plea that on account of the document dated 18.04.1984, he could not have entered into the agreement to sale and sought rejection of the suit on that ground. The document in question has been titled as ^^fo'ks"k vf/kdkj i=^^ wherein the named 50 persons had authorized father of the defendant, to participate in the auction proceedings and further, the terms inter-se were indicated including the terms that the amount would be contributed equally by them, all would be responsible for payment and that the property in question, would be treated joint qua all. 11. The nature of document, essentially is an agreement between the parties for the purpose of father of the defendant to participate in the auction proceedings and certain inter-se terms were also indicated. 12. A perusal of the inter-se terms, clearly indicate that the same essentially pertain to an agreement to obtain a future document and the same apparently did not create any right in the property in present. It is not in dispute that pursuant to the said agreement, no subsequent action has taken place and the application filed on behalf of the 18 out of 50 persons under Order I, Rule 10 CPC also stands rejected by the trial court and therefore, apparently, nothing turns on the plea claimed by the petitioner regarding the document creating right in favour of the said persons for the purpose of necessity of registration and payment of stamp duty. 13. 13. So far as the plea raised based on Section 17(1)(b) of the Act of 1908 is concerned, the same provides for compulsory registration of non-testamentary instruments which purport to operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in immovable property, however, the said provision is inter-alia subject to clause (v) sub-section (2) of Section 17, which provides that the document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest in immovable property, but merely creating a right to obtain another document which will when executed, create, declare, assign, limit or extinguish any such right, title or interest is excluded from the purview of provisions of Section 17(1)(b) of the Act of 1908. 14. In view thereof, the plea raised in this regard apparently has no substance. 15. So far as reliance placed on the provisions of Section 17(1) (g) of the Act of 1908 is concerned, the same pertains to irrevocable power of attorney relating to transfer of immovable property in any way. 16. Besides the fact that there is no term in document in question, which indicates that the document is irrevocable, the document essentially is for purchase of the property and not for its transfer and as such, the same in any case would not fall within the purview of the said provision. However, the same is besides the fact that the provision itself come into existence in the year 1989 and document was executed way-back in the year 1984 and as such, the said provision even otherwise had no application. 17. In view of the above discussion, there is no substance in the present writ petition, the same is, therefore, dismissed.