Bombay High Court
Sanghmitra W/O Lokchand Ilamkar And ... vs Homraj S/O Wasudep Ganvir on 9 October, 2025
2025:BHC-NAG:11286
05. SA 127.25.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.127 OF 2025
APPELLANTS :- 1) Sanghamitra w/o. Lokchand Ilamkar,
Orig. Defendants
Aged about 63 yrs. Occ.- Agriculturist
2) Lokchand s/o. Bhokaji Ilamkar,
Aged about 69 yrs. Occ.- Agriculturist
Both are R/o Village-Dhanla(Channa)
Tahsil-Lakhani, Distt. Bhandara
..VERSUS..
RESPONDENT :- Homraj s/o. Wasudeo Ganvir.
Orig. Plaintiff Aged about 52 yrs. Occ.-Cultivator
R/o Village Jambhali (Sadak).
Tahsil-Sakoli District-Bhandara.
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Mr.A. P. Mishra, Advocate for Appellant.
Mr. Nitin Vyawahare, Advocate for the Respondent.
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CORAM : ROHIT W. JOSHI, J.
DATE : 09.10.2025
ORAL JUDGMENT :
1) Heard finally with consent of learned counsel for
the respective parties.
2) The present Second Appeal arises out of concurrent
decrees for specific performance of contract passed against
the present appellants. The appellants had entered into an
05. SA 127.25.odt
agreement of sale dated 05.06.2010, inter alia, agreeing to
sell 0.56 H.R., of land out of 0.96 H.R. of land bearing Gat
No. 408. This land was the subject matter of a suit for
partition between appellant No.1, her sisters and mother. In
execution of the said decree for partition 0.48 H.R., of land
has come to the share of appellant No.1. In view of this
development, a subsequent agreement dated 16.12.2010,
came to be executed between the parties. The first two
agreements, as can be seen from paragraph No.3 of the
written statement, are not in dispute. Subsequently, another
agreement dated 22.08.2011 was executed between the
parties for extension of time to execute and register the sale
deed which is disputed by the defendants. The agreed sale
consideration is Rs.1,25,000/-, out of which Rs.1,10,000/- is
admittedly paid by the respondent/plaintiff to the appellants/
defendants.
3) The learned Trial Court has decreed the suit
holding that the agreements were duly proved and that the
plaintiff was ready and willing to perform his part of the
contract all throughout.
05. SA 127.25.odt
4) Aggrieved by the said decree for specific
performance of contract, the defendants preferred an appeal,
which also met with the same fate. Both the learned Courts
have concurrently held that the agreements in question were
duly proved and that the plaintiff was ready and willing to
perform his part of the contract. The said concurrent decrees
for specific performance of contract are the subject matter of
challenge in the present Second Appeal.
5) Mr. Mishra, learned Advocate for the appellants, has
raised a contention that the agreement of sale contains a
recital that possession of the suit property was delivered to
the plaintiff under the agreement and the agreement is,
therefore, a "conveyance", as such the document was
required to be registered in view of Section 17 of the
Registration Act. He contends that, in view of Section 49 of
the Registration Act the document is inadmissible and,
therefore, the suit was liable to be dismissed.
6) The contention is liable to be rejected in view of the
proviso to Section 49 of the Registration Act, which clearly
stipulates that an unregistered agreement can be read in
05. SA 127.25.odt
evidence in a suit for specific performance of contract.
7) The proviso is sought to be dealt with by Mr. Mishra
contending that the said proviso will be applicable only in
cases where the agreement of sale is not coupled with
possession.
8) In this regard, it will be appropriate to refer to
Section 17(1A) of the Registration Act, 1908 which read as
under :-
"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 (48 of 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."
9) Perusal of the provision will indicate that if an
agreement is coupled with possession and is unregistered,
then it cannot have any effect for the purpose of Section 53-A
05. SA 127.25.odt
of the Transfer of Property Act. This is the only restriction
imposed. There is no other provision under the Registration
Act which makes registration of agreement of sale coupled
with possession compulsory and/or which provides that an
unregistered agreement of sale coupled with possession will
not be admissible in evidence.
10) The requirement of registration is, therefore, not
applicable in a suit for specific performance of contract,
where the document is to be proved for the purpose of
enforcement of the contract. In a situation where an
agreement of sale is coupled with possession and it is not
registered, the prospective purchaser cannot seek protection
under Section 53-A of the Act. However, the document will
be admissible in evidence in a suit for specific performance of
contract to prove the contract.
11) The next limb of the argument of the learned
Advocate is that an agreement of sale coupled with
possession is a conveyance within the meaning of Article 25
in Schedule-I of the Maharashtra Stamp Act, 1958 and
therefore registration of document was compulsory. The
05. SA 127.25.odt
Registration Act and Maharashtra Stamp Act are two separate
enactments. The definition of "conveyance" under Article 25
of the Stamp Act cannot be read into the provisions of
Registration Act. The provision of Article 25 will be relevant
only for the purpose of payment of stamp duty.
12) It is observed that the documents are not
adequately stamped. Had an objection been raised to the
admissibility of the documents while the same were marked
during the course of evidence, the contention of Mr. Mishra
that they were not admissible for want of adequate stamp
duty could be accepted. However, it is undisputed that such
an objection was not raised while the documents were
marked as Exhibit. Had such an objection been raised while
the documents were being exhibited, the plaintiff could have
considered impounding the documents by making payment of
appropriate stamp duty along with interest and penalty. In
view of Section 35 of the Maharashtra Stamp Act, such
objection cannot be entertained once the document is marked
as an exhibit.
13) The second contention, with respect to the
05. SA 127.25.odt
documents being inadequately stamped and therefore,
inadmissible, is liable to be rejected.
14) Mr. Mishra further contends that the agreement is
not enforceable in view of the provisions of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings
Act. I am afraid the said contention could not have been
entertained by the learned Civil Court, as also this Court
while hearing a said Second Appeal arising out of the decree
for specific performance of contract.
15) Jurisdiction of the Civil Court to decide issues
which the authorities under the Fragmentation Act are
competent to decide is clearly barred in view of Section 36-A
of the Fragmentation Act. Likewise, Section 36-B provides
that if any issue relating to the provisions of the
Fragmentation Act, which is required to be decided by
authorities under the said Act, arises for consideration in a
suit, the Civil Court shall refer such issue(s) to the competent
authority under the Act for determination of the same. The
legal position in this regard is clarified by the judgment of
this Court in the matter of Geetabai Vs. Kailash, reported in
05. SA 127.25.odt
(2019) 1 AIR Bom. R 538 (Paragraphs 14 and 16).
16) It will also be pertinent to mention that decree in a
suit for specific performance of contract is in the nature of a
preliminary decree and the suit is deemed to be pending even
after initial decree for specific performance is passed. Till this
stage, the Court is only required to examine as to whether the
parties have entered into the agreement, whether the
agreement is enforceable and is the plaintiff entitled to relief
of specific performance or not.
17) In view of the above, the objection pertaining to the
Fragmentation Act could not have been entertained by the
Trial Court at this stage.
18) There are two provisions under the Fragmentation
Act, which impose restrictions on right to transfer, viz.
Section 7 and Section 31. Section 7 is attracted in cases
where a notice, as contemplated under Section 6(2) of the
Act, is recorded in the relevant revenue record of rights or
village record. The pleadings and evidence of defendants are
silent in this regard. The bar under Section 31 applies only
with respect to a holding which is allotted under the
05. SA 127.25.odt
provisions of the Fragmentation Act. It is also not the case of
defendants that the holding (suit property) was allotted
under the Fragmentation Act. Both, these provisions will,
therefore, not be applicable. The legal position in this regard
is clarified by judgment of this Court in the matter of
Putlabai Lakhu Pawar...Vs...Shiva Dhondi Pawar, reported in
(1980) MhLJ 547. It will also be profitable to refer to the
judgment in the matter of Jairam Baban
Makode...Vs...Bhagirathabai Mitharam Patil, reported in 2005
(2) AllMR 360, wherein it is laid down that the bar Under
Section 7 will not be attracted unless the notice contemplated
under Section 6(2) is published and given in accordance with
the procedure prescribed. Relevant observations in paragraph
No.5 of the judgment are reproduced herein below for ready
reference:-
"5. In the thus apparent that until and
unless the land is notified as fragment as
contemplated by Section 6(2) of the Fragmentation
Act, bar under Section 7 cannot be pressed into
service. The provisions of sub-section (2) of Section 6
prescribes notice of every entry made under sub-
section (1) as given in the manner prescribed for
giving notice of entry in the register of Mutation. The
05. SA 127.25.odt
said procedure for giving notice of entry in the
Mutation register is mentioned in Section 150(2) of
Maharashtra Land Revenue Code and it requires a
complete copy of entry to be displayed at a
conspicuous place in the Chavadi and also written
intimation to be given to all persons appearing from
the record of rights or register of mutations to be
interested in mutation. Thus, it is apparent that here,
after holding the land to be a fragment under Section
6(1) of Fragmentation Act, notice thereof ought to
have been published in a conspicuous place in the
chavdi and also should have been given in writing to
at least owners of that land. The Sub-Divisional
Officer as also the revisional authority have not
recorded any finding in this respect. Until and unless
the finding that the land was notified as fragment as
contemplated by Section 6(2) of the Fragmentation
Act is reached, bar under Section 7(1) could not have
been invoked and could not have been utilised by
these authorities to set aside the sale deeds. Thus,
very jurisdiction fact is found to be missing in these
orders"
19) In the present case, there is no pleading or evidence
regarding notice under Section 6(2).
20) That apart, it is also necessary to take into
consideration as to what is the standard area prescribed
under the Act in a particular local area. This also, is
essentially a question of fact for which appropriate pleadings
and evidence are required which are pertinently absent in the
05. SA 127.25.odt
present case.
21) A contention is also raised that although defendant
No.1 has 0.48 H.R., share in the land bearing Survey No.408,
the agreement was for 0.56 H.R., of land. Mr. Mishra, refers
to Section 26 of the Specific Relief Act to contend that this
mistake, which was mutually committed while mentioning
the area of the suit property in the agreement dated
05.06.2010, was required to be corrected by filing a suit as
contemplated under Section 26 of the Specific Relief Act. He
contends that the parties could not, on their own, correct the
agreement as is done under the subsequent agreement dated
16.12.2010.
22) I am afraid the contention cannot be accepted.
Where the parties are ad-idem on a certain mistake and deem
it appropriate to correct the mistake mutually, it will be
absolutely unnecessary that a civil suit must be filed. The
contention with respect to Section 26 is also, therefore,
rejected.
23) Mr. Mishra then contends that admittedly,
defendant No.2 is not the owner of the suit property, and yet
05. SA 127.25.odt
a decree for specific performance of contract is passed against
him. Undisputedly, defendant No. 1 is the wife of defendant
No.2. She is the undisputed owner of the suit property.
24) The decree for specific performance is passed
against defendant Nos. 1 and 2 since both are parties to the
agreement to sell. Since defendant No.1, who is the owner of
the property, is also directed to execute the sale deed under
the decree for specific performance of contract, the
contention of Mr. Mishra is technical in nature and, therefore,
cannot be entertained in view of Section 99 of the Code of
Civil Procedure, 1908.
25) In that view of the matter, in the considered opinion
of this Court, no substantial question of law arises for
consideration in the present Second Appeal. The Second
Appeal stands dismissed, with no order as to costs.
(ROHIT W. JOSHI, J.)
Tanmay...
