Gujarat High Court
Ashok D Motiyani vs Gul(Gulabrai)Jamromal Kaurani on 23 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 478 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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ASHOK D MOTIYANI
Versus
GUL(GULABRAI)JAMROMAL KAURANI & ORS.
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Appearance:
MR RUSHABH R SHAH(5314) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
SERVED BY AFFIX. (R) for the Respondent(s) No. 2
VMP LEGAL(7210) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/07/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Rushabh R. Shah for the
petitioner, learned advocate Mr. Hardik Brahmbhatt for
respondent No.1.1 to 1.5 and learned advocate Mr. Vimal M.
Patel for respondent No.4.
2. Though served, none appeared on behalf of rest of the
respondents.
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3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief.
"(a) allow this petition.
(b) issue appropriate writ, order or direction quashing and setting
aside the judgment and order passed by the learned 2 nd Senior Civil
Judge, Gandhidham-Kutch, dated 17/12/2011 in Special Civil Suit
No.45/2008 vide Exh.38;
(c) pending admission and/or final disposal of this petition, the
execution, implementation and operation of the order passed by the
learned 2nd Senior Civil Judge, Gandhidham-Kutch, dated 17/12/2011
in Special Civil Suit No.45/2008 vide Exh.38 be stayed;
(d) to call for the Records and Proceedings of Special Civil Suit
No.45/2008 pending before the 2nd Additional Senior Civil Judge,
Gandhidham-Kutch;
(e) to pass any other appropriate and just order/s as may be
deemed fit to the present petition."
Short facts of the case
4. The petitioner herein is original plaintiff who instituted
Special Civil Suit No. 45 of 2008 against the respondents
herein who are original defendants seeking specific
performance of an agreement to sell executed between
plaintiff and original defendant No.1 in relation to the suit
property. It appears that such agreement to sell was neither
registered nor duly stamped according to respondent No.1-
defendant No.1. So, he has filed impugned application below
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Exh. 38 in the aforesaid suit, thereby, requested the trial
Court to impound such agreement to sell executed between
the parties to the agreement, produced at mark 3/2 on the
ground that which is not duly stamped.
4.1 After hearing the parties, the trial Court vide its order
dated 07.12.2011 allowed the impugned application, which is
impugned in the present writ application,. Thus, the original
plaintiff has preferred the present writ application.
Submission of the petitioner-original plaintiff
5. Learned advocate Mr. Rushabh Shah for the petitioner -
original plaintiff would submit that the trial Court has
committed serious error of law by impounding an agreement
to sell executed between the parties produced at mark 3/2
that too without considering the relevant provisions of law.
He would further submit that as per Section 49 of the Indian
Registration Act, 1908 (hereinafter referred to as the 'Act,
1908'), such agreement to sell is neither required to be
registered nor the question of payment of adequate stamp
would arise.
5.1 Learned advocate Mr. Shah would further submit that
there are catena of the decisions of the Hon'ble Apex Court
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and so also by this Court clearly held that in a case like the
present one, an agreement to sell which is not registered/
not duly stamped, can be received in evidence. According to
submission of the learned advocate Mr. Shah, there is
jurisdictional error committed by the trial Court while
impounding agreement to sell in question.
5.2 To buttress his argument, learned advocate Mr. Shah
would refer and rely upon the decision of the Hon'ble Apex
Court in the case of R. Hemalatha Vs. Kashthuri reported in
(2023) 10 SCC 725.
5.3 Making the above submission, learned advocate Mr.
Shah would request this Court to allow the present writ
application.
Submission of the respondents/ defendants
6.0 Learned advocate Mr. Hardik Brahmbhatt for
respondent No.1.1 to 1.5 - defendant No. 1.1 to 1.5 would
submit that as such there is no error committed by the trial
Court while allowing the impugned application filed by the
defendant No.1 and this Court should not interfere with the
order impugned in the present writ application while
exercising its power under Article 227 of the Constitution of
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India. He would further submit that by way executing an
agreement to sell, interest has been created in the
immovable property thereby, such agreement/document
requires to be duly stamped and having not duly stamped,
such document requires to be impounded by the trial Court
as Section 35 of the Gujarat Stamp Act, 1958.
6.1 Learned advocate Mr. Brahmbhatt would further
submit that the trial Court has correctly observed that as per
the case of plaintiff, subsequent to agreement to sell
executed between the parties, the plaintiff was put in
possession, albeit, it is disputed fact. Nonetheless, if it is case
of the plaintiff that he was put in possession on the strength
of such agreement to sell, such document needs to be duly
stamped and requires to be registered.
6.2 So, learned advocate Mr. Brahmbhatt would submit
that there is no merit in the present writ application which
requires to be rejected.
7. Learned advocate Mr. Vimal Patel appearing for
respondent No.4 - defendant No.4 would submit that in fact
defendant No.4 is wrongly joined in the suit and as such not
required to be joined in a suit for specific performance
wherein defendant No.4 is not party to such agreement
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executed between the plaintiff and defendant No.1.
Nonetheless, he would request this Court that an
appropriate order may be passed in the interest of justice.
Point for determination
8. (i) Whether an agreement to sell executed between
the parties whereby, the plaintiff was not put in possession
requires to be duly registered and stamped or not?
(ii) Can the trial Court impound such agreement to sale -
document as per Section 35 of the Gujarat Stamp Act, 1958?
Analysis
9. The facts which are narrated hereinabove are not in
dispute. The agreement to sell executed between the parties
produced at mark 3/2 in the suit, clearly suggest that by way
of such agreement to sell, the plaintiff was not put in
possession. Such document i.e. agreement to sell need not
required any registration as per Section 17 of the Act, 1908
because of the proviso of Section 49 of the Act,1908 which
carved out an exception in relation to such type of document
need not required any registration.
10. Thus, such agreement to sale/document is not
compulsory required to be registered under the Act, 1908,
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thereby, the question of its duly stamped is pale into
insignificance.
11. As such the issue germane in the matter is squarely
covered by the several decisions of the Hon'ble Apex Court
but not to burden the judgment, I would like to refer and rely
upon the recent decision of this Court dated 10.07.2025
delivered in the case of Shree Sadguru Prerna Association
and Ors. Vs. Atulkumar Mansukhlal Shah passed in Special
Civil Application No. 9276 of 2025, wherein held thus:-.
"10.1 To better understand and to appreciate the contours of
controversy germane in the matter, I would first like to refer the relevant
provision of law i.e. Sections 17 and 49 of Registration Act, 1908 (herein
after reads as Act, 1908) 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:-
(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
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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 (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.]
(2) Nothing in clauses (b) and (c) of sub-section (1) 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
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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
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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. 6.2 An
agreement to sell though compulsory require registration As per
Section 49 of the Registration Act, , if not registered, it can still be
received in evidence, thereby can be exhibited. To have better
understanding of law at least for the petitioners, al-beit, I reproduce
Section 49 of the Registration Act.
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.]"
10.2 The harmonious reading of the aforesaid provisions would lead
to only conclusion that despite there is an amendment in Section 17 in
Act, 1908 thereby sub-section 1A has been incorporated in Section 17
but no reciprocal amendment carried out in Section 49 of Act, 1908 then
unregistered agreement to sale including such agreement whereby
possession of suit property delivered to plaintiff still be received as
evidence in a suit for specific performance. If it be so, how one can
agitate that such document cannot be exhibited.
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10.3 Be that as it may, while rejecting the review application on
19.04.2025, the trial Court has relied upon the decision of the Hon'ble
Apex Court in the case of R. Hemalatha Vs. Kashthuri passed in Civil
Appeal No. 2535 of 2023 and at least after going through such order,
petitioner's need to drop his objection but it appears that despite
drawing his attention, still doubt persist in his mind which landed him
before this Court, thus file present writ application.
10.4 This Court had also an occasion to decide similar controversy
involved in the present case, of course on a different factual situation but
after considering the aforesaid decision of the Hon'ble Apex Court and
also keeping in mind the provisions of Section 17 & 49 of the
Registration Act, 1908, in the case of Chetna Nailesh Gandhi V/S
Jayshreeben Kalyanbhai Mashruwala & Anrs. in its decision dated 20-
01-2025 passed in Appeal from Order No. 239 of 2024, held thus :-
"8.10 At this stage, it is pr ofitable to read and rely upon the
decision of Hon'ble Supreme Court of India in the case of R.
Hemalatha Vs. Kashthuri reported in (2023) 10 SCC
725 wherein it has been so held as under :-
"17..........The short question posed for the consideration of this Court
is effect of Section 17(1)(g) of the Registration Act applicable to the
State of Tamil Nadu by which Section 17(1)(g) of the Registration Act
has been inserted and instruments of agreement relating to sale of
immovable property of the value of Rs.100/- and upwards is made
compulsorily registrable and whether such unregistered agreement
relating to sale of immovable property can be received in evidence in
a suit for specific performance?
23. Thus, as per the proviso to Section 49, an unregistered
document affecting the immovable property and required by the
Registration 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 document.
25. At this stage, it is required to be noted that the proviso to Section
49 came to be inserted vide Act No.21 of 1929 and thereafter,
Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect
from 24.09.2001 by which the documents containing contracts to
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transfer or consideration any immovable property for the purpose of
Section 53 of the Transfer of Properties Act is made compulsorily to
be registered if they have been executed on or after 2001 and if such
documents are not registered on or after such commencement, then
there shall have no effect for the purposes of said Section 53A. So,
the exception to the proviso to Section 49 is provided under Section
17(1A) of the Registration Act. Otherwise, the proviso to Section 49
with respect to the documents other than referred to in Section 17(1A)
shall be applicable.
26. Under the circumstances, as per the 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(1- A) of the Registration Act. It is not the case on behalf
of either of the parties that the document/agreement to sell in
question would fall under the category of document as per Section
17(1-A) of the Registration Act. Therefore, in the facts and
circumstances of the case, the High Court has rightly observed and
held relying upon the proviso to Section 49 of the Registration Act
that the unregistered document in question, namely, unregistered
agreement to sell in question shall be admissible in evidence in a suit
for specific performance and the proviso is exception to the first part
of Section 49.
8.11. If one examined the ratio of the decision in the case of R.
Hemalatha (supra), the controversy which was germane before the
Hon'ble Supreme Court of India was precisely about admissibility of
the unregistered agreement to sale in a suit for specific performance.
In the case of R. Hemalatha (supra), the Apex Court has reiterated
the law on the issue and in clear terms held that if the suit is for the
specific performance of unregistered agreement to sale, such
unregistered document is admissible in evidence. Once the document
is held to be admissible in evidence, automatically suit would be
maintainable if its performance is sought for in the suit where terms of
such agreement (document) is alleged to have been breached by the
defendant."
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(emphasized supplied)
10.5 Even for betterment for all, recently also on dated 8th
May, 2025, the Hon'ble Apex Court in the case of Muruganandam Vs.
Muniyandi (died) through Lrs. passed in Civil Appeal No. 6543 of 2025
arising out of SLP(C) No. 10893 of 2021 reported in 2025 INSC 652,
wherein in somewhat similar factual situation, after observing the effect
of Section 49 of the Registration Act, allowed agreement to sell to be
exhibited wherein also the plaintiff was put in possession on the strength
of such agreement to sell. The relevant observation of the aforesaid
decision reads as under :-
"3. Short facts leading to the filing of this appeal are as follows. It is
the case of the appellant that on the basis of an agreement of sale
dated 01.01.2000, the respondent agreed to sell his property upon
receiving part consideration of Rs. 5000/- and also put the appellant
in possession of the property. Subsequently, i.e. on 01.09.2002, it is
alleged by the appellant that the parties have agreed that the property
should be sold at the rate of Rs. 550 per cent and in furtherance of
the said transaction the appellant also paid a sum of Rs. 10,000/- and
is said to have paid balance consideration from time to time.
However, as the respondent was not taking any steps for executing
the sale deed, he was compelled to institute a suit 1 for specific
performance of the agreement and also for a permanent injunction.
4. Pending disposal of the suit, the appellant filed an interlocutory
application2 under Order 7, Rule 14 (3) read with Section 151 of the
Code of Civil Procedure, 19083, for bringing on record and marking
the document dated 01.01.2000. In the said application, the appellant
averred that for genuine reasons he was unable to produce the said
document, which got mixed up with other documents. He averred that
a photocopy of the said document was anyway enclosed with the
plaint and therefore the respondent/defendant will not in any way be
prejudiced if the prayer in the interlocutory application is allowed and
the original of the said document is received and marked.
5. Learned Trial Court by order dated 21.04.2015 dismissed the said
application holding that the reasons for not producing the original is
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not convincing and also that the said document was unstamped and
unregistered and as such barred under Section 35 of the Indian
Stamp Act, 1989, and that Section 17 of the Registration Act, 1908.
6. The appellant filed a Civil Revision Petition before the High Court
and by the order impugned before us the High Court held that the
document was unstamped and unregistered and cannot be brought
on record.
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9. Having considered the matter in detail, we are of the opinion
that the prayer of the appellant in the interlocutory application falls
under proviso to Section 49 of the Registration Act which provides
that an unregistered document affecting immovable property may be
received as evidence of a contract in a suit for specific performance.
The proviso also enables the said document to be received in
evidence of a collateral transaction. Section 49 reads as follows:
"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--
(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, 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."
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10. In Kaladevi (supra), this Court has held that an unregistered
document may be received as evidence of a contract in a suit seeking
specific performance. The relevant portion from the decision is as
follows:
"12. The main provision in Section 49 provides that any
document which is required to be registered, if not registered,
shall not affect any immovable property comprised therein nor
such document shall be received as evidence of any
transaction affecting such property. The proviso, however,
would show that an unregistered document affecting
immovable property and required by the 1908 Act or the
Transfer of Property Act, 1882 to be registered may be
received as an evidence to the contract in a suit for specific
performance or as evidence of any collateral transaction not
required to be effected by registered instrument. By virtue of
the proviso, therefore, an unregistered sale deed of an
immovable property of the value of Rs 100 and more could be
admitted in evidence as evidence of a contract in a suit for
specific performance of the contract. Such an unregistered
sale deed can also be admitted in evidence as an evidence of
any collateral transaction not required to be effected by
registered document. When an unregistered sale deed is
tendered in evidence, not as evidence of a completed sale,
but as proof of an oral agreement of sale, the deed can be
received in evidence making an endorsement that it is
received only as evidence of an oral agreement of sale under
the proviso to Section 49 of 1908 Act."
11. It is also evident from the plaint that the document dated
01.01.2000 is referred to and in fact a photocopy of the said
document is filed along with the plaint. It is the case of the appellant
that the document sought to be brought on record is intended only to
be used as a proof of the oral agreement of sale and that it is
permitted under Section 49 of the Registration Act. Under these facts
and circumstances, we are of the opinion that the appellant can be
permitted to introduce the said document dated 01.01.2000. We
make it clear that we have not expressed any opinion on the contents
of the document and it is also open for the respondent/defendant to
raise and contest the relevancy and validity of the document as are
permissible in law and it is for the Trial Court to consider the
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submissions and pass appropriate judgment/order as it considers
appropriate."
(emphasis supplied)
12. Thus, in view of the aforesaid provisions and position of
law propounded by the Hon'ble Apex Court in its number of
decisions followed in aforesaid decision of this Court, it is
clear like a day that an agreement to sell even coupled with
the possession can be received in evidence and be given
exhibit.
13. It is required to be mentioned here that in the aforesaid
decision, issue germane was regarding exhibiting an
agreement sell which was not registered and duly stamped
and in light of such facts of that case, it was decided as
above.
14. In the case on hand, the trial Court has while
completely went to wrong direction that subsequent to
agreement to sell, if plaintiff was put in possession as
claimed, having created interest in the immovable property,
such agreement to sell requires to be duly stamped. Even as
per settled that mere execution of agreement to sale is not
creating any right, title or interest in the immovable
property. The trial Court has completely lost sight the
aforesaid provisions of law, more particularly proviso to
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Section 49 of the Act, 1908 and also failed to observe the
ratio of the aforesaid decision of the Hon'ble Apex Court
referred hereinabove, which ultimately resulted into
miscarriage of justice.
15. Having considered the aforesaid facts and
circumstances and provision of law, would lead to one
conclusion that the trial Court has committed jurisdictional
error while allowing the impugned application, thereby
wrongly ordered to impound the agreement to sell in
question.
16. It is true that this Court should sparingly exercise its
power under Article 227 of the Constitution of India but at
the same time, when it is found that the trial Court has
committed serious error of law and or jurisdictional error, to
keep the trial Court within its bound, this Court requires to
exercise its supervisory jurisdiction so vested in it as per
Article 227 of the Constitution of India. (See : Waryam Singh
v/s Amarnath - AIR 1954 SC 215).
Conclusion
17. The upshot of the aforesaid observations, discussions
and reasons, this Court finds that the trial Court has
committed serious error of law and so also jurisdictional
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error by impounding agreement to sell executed between
the plaintiff and defendant No.1 on the ground that it is not
duly stamped.
18. It is hereby held that such agreement to sell executed
between the parties whereby, plaintiff was not put in
possession of suit property, neither requires to be
compulsory registered nor required to be stamped for
registration in law. Such agreement-document can be
received in evidence, as per proviso to Section 49 of the
Registration Act, 1908.
19. The trial Court has committed jurisdictional error while
ordered impounding such agreement to sale - document
placing reliance upon Section 35 of the Gujarat Stamp Act,
1958.
20. Before parting, it is made clear that this Court has
neither gone into nor examined the merit of the suit, except
examining the aspect of the impugned application so filed by
defendant No.1.
21. Thus, in view of aforesaid, the impugned order dated
17.12.2011 passed by 2nd Senior Civil Judge, Gandhidham-
Kutchh below Exh. 38 in Special Civil Suit No. 45 of 2008 is
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hereby quashed and set aside. Consequently, the impugned
application filed below Exh. 38 by defendant No.1 in the
aforesaid suit is hereby rejected.
22. In the light of the aforesaid conclusion, the present writ
application deserves to be allowed, which is hereby allowed.
Rule is made absolute to the aforesaid extent. Interim relief
granted earlier, stands vacated forthwith. The trial Court
shall proceed with the suit at the earliest. The parties to
extend their co-operation to trial Court for early adjudication
of the suit.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
