Judgment : (Naresh Kumar Chandravanshi, J.) 1. This first appeal has been preferred by the appellant/plaintiff under Section 96 of the Code of Civil Procedure , 1908, challenging the judgment and decree dated 02.11.2007 passed by District Judge, Mahasamund in Civil Suit No.8A/2006, dismissing the civil suit filed by the appellant/plaintiff against respondent/defendants to the extent of registration of sale deed in respect of suit property. However, alternative relief sought for by the plaintiff for refund of advance amount of Rs.40,000/-, has been granted by the trial Court in his favour. [For sake of convenience , the parties would be referred to as per their status shown in the plaint filed before the trial Court] 2. Facts of the case, in nutshell are that, the plaintiff filed civil suit against defendants stating inter alia that defendant No.1 entered into agreement to sell suit property, i.e. piece of Khasra No.138 numbered as 138/2, area 0.56 hectare, situated at village Jhuipali, PH No.14, Revenue circle and Tahsil Basna, Distt. Mahasamund to him, as ‘Karta’ for sale consideration of Rs.1 lakh per acre. He had also received Rs.40,000/- as advance amount from the plaintiff and executed an agreement to sell on 08.3.2003 in stamp paper. Defendant No.1 had agreed to execute registered sale deed till 31.03.2003 after receiving outstanding sale consideration. He had also handed over possession of the suit property to the plaintiff, since then he is in possession over it. Despite repeated oral request to execute the sale deed, defendant No.1 kept procrastinating and assured the plaintiff that sale deed will be registered in his favour after entering names of defendants 2 & 3 (sons of defendant No.1) in revenue record as major, as their names have been recorded as minor. Subsequently, names of defendants 2 & 3 have been entered in revenue record on 04.01.2004 as major, thereafter the plaintiff again asked defendant No.1 for registration of sale deed, but, he did not do it even after service of legal notice, rather defendants 2 & 3 sold suit property to defendant No.4 vide registered sale deed. Therefore, the plaintiff filed civil suit for registration of sale deed in his favour by defendants 1 to 3 and he has also prayed that sale deed dated 06.01.2006 executed by defendants 2 & 3 in favour of defendant No.4 be declared null and void. Therefore, the plaintiff filed civil suit for registration of sale deed in his favour by defendants 1 to 3 and he has also prayed that sale deed dated 06.01.2006 executed by defendants 2 & 3 in favour of defendant No.4 be declared null and void. Alternatively, he also sought relief for refund of advance amount with interest of 9%. 3. Defendants 1 to 3 remained ex-parte before the trial Court and they have not filed any written statement. Defendant No.4 filed written statement, in which she has denied substantive pleading of the plaintiff. She has denied that defendants 1 to 3 are members of the joint family and defendant No.1 is ‘Karta’ of the family, rather there was mutual partition between defendants 1 to 3, as such, defendant No.1 had no right to sell the suit property owned by defendants 2 & 3 as defendant 2 & 3 were recorded owner of it and they had attained the age of majority. She has further pleaded that she has purchased the suit property vide registered sale deed dated 06.01.2006 after payment of full sale consideration, as such she is bonafide purchaser. Hence, the plaintiff is not entitled to get any relief sought for by him in the plaint. 4. The trial Court on the basis of pleading put forth by the parties, has framed as many as 10 issues, recorded evidence of the parties and after considering the same, partly allowed the suit holding therein that the plaintiff has failed to prove that defendant 1 to 3 were members of the joint family and defendant No.1 has executed agreement to sell (Ex-P/9) as Karta of the joint family, rather defendants 2 & 3 were major on the date of execution of agreement to sell dated 08.3.2003, as such, defendant No.1 had no right to sell the suit property of defendant No.2 & 3, rather defendant No.4 is bonafide purchaser, as such, the plaintiff is not entitled to enforce the agreement Ex- P/9, but since defendant No.1 has received Rs.40,000/- as advance amount in respect of sale consideration, therefore, the plaintiff is entitled to get that amount from defendant No.1 along with 6% interest per annum. 5. 5. Learned counsel appearing for the appellant/plaintiff submits that though defendant No.2 Sunil Kumar and defendant No.3 Pradeep Kumar were recorded owner of the suit property, but that land was purchased in their name by their father Laxminarayan Soni/defendant No.1 when they were minor. He further submits that being natural guardian of his minor sons, i.e. defendants 2 & 3, Laxminarayan Soni had executed agreement to sell the suit property to the plaintiff, being Karta of the joint family. He further submitted that the learned trial Court has held that defendant No.1 executed agreement to sell (Ex-P/9) in favour of the plaintiff in respect of the suit property and has also obtained Rs.40,000/- as advance amount, but the trial Court has wrongly held that defendants 1 to 3 were not members of the joint family and defendant No.1 was not a Karta of that family, as evidence in this regard is unrebutted. Learned counsel further submitted that as per agreement to sell Ex-P/9, on the date of execution of the aforesaid document, defendants 2 & 3 were minor, but the learned trial Court has held that they had attained majority on the basis of their age mentioned in sale deed Ex-P/8 dated 06.01.06 executed by defendants 2 & 3 in favour of defendant No.4. But mere mentioning age of the defendants 2 & 3 in the aforesaid sale deed is not a conclusive proof for determination of their age on 08.3.2003. Therefore, it is prayed that finding recorded by the trial Court is perverse and illegal, hence, the impugned judgment may be set aside and decree may be granted in favour of the plaintiff. 6. Per contra, learned counsel appearing for respondent No.4 would submit that though alleged agreement dated 08.3.2003 was executed by defendant No.1 Laxminarayan Soni, in which, defendants 2 & 3 have been stated to be minor, but on that date, defendants 2 & 3 had attained majority and this fact has also been admitted by the plaintiff in para 8 of his examination-in-chief. It is submitted that defendants 2 & 3 had executed sale deed on 06.01.2006 (EX-P/8) in respect of the suit property in favour of defendant No.4, in which they have disclosed their age as 24 years and 22 years respectively, therefore, the learned trial Court has rightly held that on the date of alleged execution of agreement to sell (Ex-P/9) i.e. on 08.3.2003, they were not minor. Learned senior counsel further submitted that as per the agreement to sell (Ex-P/9), possession of suit property was handed over to the plaintiff, but it was not got registered therefore, it does not vest any right to the plaintiff in view of the provisions of contained in Section 17 (1A) of the Registration Act , hence, the appeal is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Plaintiff Hirendra Kashyap (PW-1) has stated in his deposition that on 08.3.2003, defendant No.1 had executed agreement to sell (Ex-P/9) in his favour for sale of suit property for sale consideration of Rs.01 lakh per acre and defendant No.1 has also received Rs.40,000/- as advance amount. He has further stated that defendant No.1 had also handed over the possession of suit property to him and since then he is in possession over it. Anil Kumar Nag (PW-2) is the witness of Ex-P9. He has also supported the statement of the plaintiff. Defendants 1 to 3 are the main contesting parties in respect of the aforesaid facts, but, they remained ex-parte before the trial Court and they have not even filed written statement. As such, aforesaid fact is found to be uncontroverted. Further, in cross-examination made on behalf of defendant No.4, nothing has been elicited to discard aforesaid fact. On the basis of aforesaid evidence, the learned trial Court has held that defendant No.1 had executed agreement to sell (Ex-P/9) on 08.3.2003 in favour of the plaintiff to sell the suit property and has also received Rs.40,000/- as advance amount against sale consideration, which is finding of fact based on evidence. Therefore, this Court also affirm aforesaid finding of the trial Court to that extent. 9. As per deposition of the plaintiff Hirendra Kashyap (PW-1), defendant No.1 had executed Ex-P/9 as Karta of joint family of defendant 1 to 3, but this fact has not been mentioned in Ex-P/9. Therefore, this Court also affirm aforesaid finding of the trial Court to that extent. 9. As per deposition of the plaintiff Hirendra Kashyap (PW-1), defendant No.1 had executed Ex-P/9 as Karta of joint family of defendant 1 to 3, but this fact has not been mentioned in Ex-P/9. Though defendant 2 & 3 have been stated to be minor in Ex-P/9, and defendant No.1 had executed that document as their guardian, but the plaintiff himself has admitted in his examination in chief as well as in cross-examination also that on the date of execution of agreement to sell (Ex-P/9) dated 08.3.2003, defendants 2 & 3 were major though their names were entered as major in the year 2004. Even in the registered sale deed (Ex-P/8) executed by defendants 2 & 3 in favour of defendant No.4, age mentioned by them also shows that on the 08.3.2003, they had attained the age of majority. Even age of defendant 2 & 3 shown in the plaint also shows that on 08.3.2003, they had attained the age of majority. To prove their date of birth, birth certificate or any other documents etc, has not been filed but in civil cases, facts are required to be proved on the basis of preponderance of probabilities, as such non filing of such documents does not give any benefit to the plaintiff to hold that the defendant 2 & 3 are minor, rather on the basis of evidence brought on record and admission made by the plaintiff himself, it is found proved that on the date of execution of Ex-P/9 dated 08.3.2003, defendant 2 & 3 were adults. As such, finding recorded by the trial Court that the plaintiff has failed to prove that defendant 1 to 3 were members of the joint family and defendant No.1 was Karta of that family and defendant 2 & 3 were minor on the date of execution of the sale deed Ex-P/9 are also upheld. 10. The plaintiff has filed instant civil suit seeking decree of execution of registered sale deed in his favour from defendants 1 to 3 on the strength of agreement to sell (Ex-P/9) dated 08.3.2003 executed by defendant No.1 in his favour. It is also the claim of the plaintiff that it was put in possession by virtue of that agreement. Reading of the agreement would show that it is not registered. 11. It is also the claim of the plaintiff that it was put in possession by virtue of that agreement. Reading of the agreement would show that it is not registered. 11. When the plaintiff claimed that it was put to possession of the suit property by agreement, then question arises that, whether such agreement was admissible in evidence. The question, therefore, further arises that whether it would come under the definition of conveyance in terms of Section 2(10) of the Indian Stamp Act, which reads as under : “2. Definitions .- In this Act unless there is something repugnant in the subject or context - *** (10) Conveyance.-- 'Conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter-vivos and which is not otherwise specifically provided for by Schedule I;” 12 . The then State of M.P., by Second Amendment Act 1990 (22 of 1990) has substituted Article 23 of Schedule 1(A) and Explanation has been added. The explanation appended to Article 23 of Schedule 1(a) of the Stamp Act as substituted by section 6 of the Act (22 of 1990) which reads as follows. Explanation.- For the purpose of this article, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser before execution or after execution of, such agreement without executing the conveyance in respect thereof then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly: Provided that, the provisions of Section 47-A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section : Provided further that where subsequently a conveyance is effected in pursuance of such agreement of sale the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance, subject to a minimum of Rs.10.” 13. The aforesaid Explanation has come into force with effect from 26.09.1990. The ratio laid down in the matter of Omprakash v Laxminarayan and Others , (2014) 1 SCC 618 emphasizes that the explanation creates a legal fiction. The aforesaid Explanation has come into force with effect from 26.09.1990. The ratio laid down in the matter of Omprakash v Laxminarayan and Others , (2014) 1 SCC 618 emphasizes that the explanation creates a legal fiction. The agreement to sell shall be deemed to be a conveyance and stamp duty is leviable on an instrument whereby the possession has been transferred. Therefore a perusal of the agreement shows that it would amount to conveyance within the meaning of section 2(10) of the Stamp Act and necessarily should have been stamped according to Schedule 1-A of Rule 23 which requires 7 1/2% stamp duty would be payable on the market value. 14. Likewise Section 35 of the Stamp Act provides that instruments not duly stamped is inadmissible in evidence and cannot be acted upon. Section 35 of the Act would be relevant in the facts and circumstances of the case which is quoted hereunder: "35. Instruments not duly stamped inadmissible in evidence, etc. 14. Likewise Section 35 of the Stamp Act provides that instruments not duly stamped is inadmissible in evidence and cannot be acted upon. Section 35 of the Act would be relevant in the facts and circumstances of the case which is quoted hereunder: "35. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that-- (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. 15. Likewise Section 17 of the Registration Act , 1908 and Section 49 of the Registration Act , 1908 would also be relevant here and quoted below. 15. Likewise Section 17 of the Registration Act , 1908 and Section 49 of the Registration Act , 1908 would also be relevant here and quoted below. Section 17 of the Registration Act , 1908 is reproduced hereunder :- 17. Documents of which registration is compulsory.— (l) 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:— (a) Instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub- section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (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. (2) Nothing in clauses (b) and (c) of sub- section (l) applies to — (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such Company; or (v) any document other than the documents specified in sub- section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or 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; or (vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding; or (vii) any grant of immovable property by Government; or (viii) any instrument of partition made by a Revenue Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage- money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. Section 49 of the Registration Act , 1908 is quoted below for ready reference : 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 ( 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”. 16. Thus, Section 17 (1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents which are required to be registered u/s 17 of the Act. The said proposition is laid down in Yellapu Uma Maheshwari and Another v. Buddha Jagadheeswara Rao and others., (2015) 16 SCC 787 . 17. The said proposition is laid down in Yellapu Uma Maheshwari and Another v. Buddha Jagadheeswara Rao and others., (2015) 16 SCC 787 . 17. In the matter of R. Hemalatha v Kashthuri , 2023 SCC Online SC 381 their Lordships of the Supreme Court held that as per proviso to Section 49 of the Registration Act , an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act 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, however, subject to Section 17 (1A) of the Registration Act . 18. The Supreme Court in the matter of R. Hemalatha (supra) held that as per proviso to Section 49 of the Registration Act , 1908 an unregistered agreement is admissible for suit of specific performance, however, in para 26 of the said decision it was held that exception to the proviso of Section 49 is provided under Section 17 (1A) of the Registration Act . Section 17 (1A) provides that the document containing contract for consideration of any immovable property for purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered. Section 53A provides that transfer of possession by transferee by way of contract. In the instant case as per the pleading of plaint the possession was transferred after and according to the agreement which makes Section 53A of the TP Act read with Section 17 (1A) of the Registration Act applicable in the case. Thus, the case in hand falls within the exception of proviso to Section 49 of the Registration Act , therefore, registration in the instant case was necessary and agreement cannot be held admissible. 19. Reverting to the facts of the instant case, the plaintiff has claimed that vide Ex-P/9, defendant No.1 had handed over the possession of the suit property, but agreement to sell Ex-P/-9 is not a registered document, therefore, that document is not admissible in evidence, as such, it cannot be enforced. 20. 19. Reverting to the facts of the instant case, the plaintiff has claimed that vide Ex-P/9, defendant No.1 had handed over the possession of the suit property, but agreement to sell Ex-P/-9 is not a registered document, therefore, that document is not admissible in evidence, as such, it cannot be enforced. 20. Even otherwise, as has been discussed in the preceding paragraph that, defendant No.1 was not recorded owner of the suit property rather his sons defendant 2 & 3 were recorded owners of it and on the date of agreement, they were major, it has also not been proved that they were members of joint family and defendant No.1 was Karta, therefore, he has no right to sell or entered into agreement to sell the suit property, hence, on this count also the plaintiff is not entitled to get relief of execution of sale deed from defendant 1 to 3, as defendants 2 & 3 had not executed that document. Rather defendant 2 & 3 have sold the suit property by registered sale deed to defendant No.4. 21. In view of the above discussion, I do not find any infirmity or illegality in the impugned judgment and decree passed by the trial Court, hence, the same is upheld. 22. In the result, the appeal being devoid of merit, deserves to be and is hereby dismissed. 23 . A decree be drawn accordingly. 24. In view of above, pending IA(s), if any, stands disposed of.