Gujarat High Court
Shree Sadguru Prerna Association vs Atulkumar Mansukhlal Shah on 10 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9276 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
yes
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SHREE SADGURU PRERNA ASSOCIATION & ORS.
Versus
ATULKUMAR MANSUKHLAL SHAH
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Appearance:
MR BRIJ V SHETH(10594) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/07/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Brij V. Sheth for the
petitioners at length.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief:
"(a) Your Lordship may be pleased to admit and allow this
application;
(b) Your Lordships may kindly be pleased to quash and set aside
the order of exhibiting Mark 103/1- document, that was passed below
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Ex. 101 Application in Special Civil Suit no. 16/2010 on 28/01/2025
(Annexure - A);
(c) Your Lordships may kindly be pleased to stay the proceedings
of Special Civil Suit no. 16/2010 which is pending before Additional
Senior Civil Judge, Rajkot, till the final outcome of this application;
(d) Your Lordships be pleased to grant such other and further
reliefs in favour of the petitioners as deemed fit in the interest of
justice."
Short facts of the case
3. The petitioners herein are original defendants, whereas
respondent is original plaintiff, who instituted Special Civil
Suit No. 16 of 2010 pending before the Senior Civil Judge,
Rajkot seeking specific performance of agreement to sell
executed by the defendants in his favour.
3.1 After completion of the pleadings of the parties and
framing of the issues, suit reached at the stage of recording
of the evidence of the plaintiff and at that stage the plaintiff
gave an application below Exh. 101 to get his documents
exhibited which came to be partly allowed by the trial Court
vide its order dated 20.01.2025, whereby the documents
which are submitted and Mark - 103/1, 103/3 & 103/5 have
been given exhibit with objection of defendants.
3.2 The defendants appear to have been more aggrieved
by giving tentative exhibit to the documents which is
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agreement to sell produced and marked as 103/1 contending
inter-alia that it is not duly stamped and having not
registered as per Section 17 of the Indian Registration Act
then, could not have been received in evidence and as such
even not allow to be given tentative exhibit which was
wrongly given by the trial Court.
3.3 It is the case of the defendants that agreement to sell
showing that the plaintiff was put in possession of the suit
property, thereby, such agreement to sell coupled with
possession requires to be duly stamped and compulsory
registered and having not done so, no tentative exhibit can
be given to such document.
3.4 Further, it appears that after passing of the impugned
order by the trial Court, first the defendants have preferred
review application filed below Exh. 114, which came to be
rejected by the trial Court vide its order dated 19.04.2025.
Nonetheless, reason best known to the defendants, the said
order of review is not challenged before this Court.
3.5 So, feeling aggrieved and dissatisfied with the order
dated 20.01.2025 passed by the trial Court below Exh. 101,
thereby order tentative exhibit to documents mark as 101/1
along with others, the defendants have preferred the
present writ application.
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Submission of the petitioners- defendants
4.0 Learned advocate Mr. Brij Sheth for the petitioners
would submit that the order impugned in the present writ
application is ex-facie erroneous, without jurisdiction and
contrary to the provisions of law, requires to be quashed and
set aside. He would submit that the agreement to sell in
question executed between the parties wherein it has been
referred that plaintiff was put in possession of the suit
premises, thereby such agreement to sell coupled with
possession was executed which required duly stamped and
registration and having not done so, such documents could
not have been exhibited that to tentative exhibited.
4.1 Learned advocate Mr. Sheth woud further submit that
as per the decision of the Hon'ble Apex Court in the case of
Bipin Shantilal Panchal Vs. State of Gujarat reported in
2001 (3) SCC 1, all documents can be given tentative exhibits
irrespective of objections raised by the party except in a case
if objection related to deficiency of stamp duty of a
document, the Court has to decide the objection before
proceeding further.
4.2 According to learned advocate Mr. Sheth, the trial
Court has failed to appreciate the aforesaid decision and law
laid down by the Hon'ble Apex Court in the case of Bipin
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Shantilal Panchal (supra) thereby, committed serious error
of law.
4.3 Learned advocate Mr. Sheth would further rely upon
the decision of the Hon'ble Apex Court in the case of Javer
Chand Vs. Pukhraj Surana reported in 1961 AIR SC 1655
would contended that whenever such dispute raise about
admissibility of document which is not duly stamped, such
objections requires to be decided at the threshold when
raised and no tentative exhibit can be given to such
documents.
4.4 Making the above submission, learned advocate Mr.
Sheth would request this Court to allow the present writ
application.
Point for determination
5. Whether in the facts and circumstances of the case, is
there any gross error of law and or any jurisdictional error
committed by the trial Court while giving tentative exhibit to
agreement to sell executed between the parties produced at
mark as 103/1 as plaintiff was put in possession on the basis of
such agreement to sell as observed in agreement itself?
Analysis
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6.0 The submissions which are canvassed by the learned
advocate for the petitioners is thoroughly misconceived at
law inas much as made un-noticed the provisions of law.
6.1 The law on the subject is well settled and not required
to any much scrutiny by this Court but as it has been
impacted in the matter, answer accordingly.
6.2 To better understand and to appreciate the contours of
controversy germen in the matter, I would first like to refer
the relevant provision of law i.e. section 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
payment of any consideration on account of the creation, declaration,
assignment, limitation or extinction of any such right, title or interest; and
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(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 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
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(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.]
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(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.]"
6.3 The harmonious reading of the aforesaid provisions
would lead to only conclusion that despite there is an
amendment in S. 17 in Act, 1908 thereby sub-section 1A has
been incorporated in S.17 but no reciprocal amendment
carried out in S. 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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6.4 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.
6.5 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 profitable 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
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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 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
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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."
(emphasized supplied)
7. 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
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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 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
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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."
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
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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 submissions and pass
appropriate judgment/order as it considers appropriate."
(emphasis supplied)
8. Thus, in view of the aforesaid provisions and position of
law propounded by the Hon'ble Apex Court in its number of
decisions (referred herein above), an agreement to sell even
coupled with the possession can be received in evidence and
be given exhibit.
9. Having reached to the aforesaid conclusion, the
judgment which are cited by the learned advocate Mr. Sheth
for the petitioners would not be applicable to facts of the
present case. As such, the issue of insufficiency stamped
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would not germane in the case on hand. So far as the
document - agreement to sell needs to be exhibited albeit,
its contents need to be proved by the plaintiff if not
admitted by defendant.
10. According to my view, as such the trial Court has
benefited the defendant by given it a tentative exhibit to
agreement to sell produced @ Mark 103/1. Otherwise, in the
view of the aforesaid law laid down by the Hon'ble Apex
Court and also considering Section 49 of the Registration
Act, such agreement to sell produced at Mark 103/1 requires
to be exhibited without any objection at all. It is also well
settled law that mere exhibiting the document would not
proving the document as contents are require to be proved
by the parties concerned.
11. Before parting, it is now well settled legal position of
law that mere error of law in passing any order by the Civil
Court would not be a ground to interfere with the order
passed by the Civil Court while exercising power under
Article 227 of the Constitution of India by this Court unless
such order is either erroneous, perverse, arbitrary, and or
contrary to the provisions of law and or made without
jurisdiction. The petitioner could not made out any of such
grounds in his present writ application and as such none of
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the said ingredients have been found present in the case.
[See - (i) Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and
7) and (ii) Garment Craft v. Prakash Chand Goel, reported
in (2022) 4 SCC 181 (Para 15 and 16)]
Conclusion
12. In light of the aforesaid facts and circumstances and
position of law, I am of the view that agreement to sale
including an agreement whereby plaintiff put in possession
of suit property allow to be received in evidence and should
be exhibited. Its contents need to be proved by plaintiff in
accordance with law.
13. The upshot of the aforesaid leads to only one conclusion
that there is no illegality, irregularity and or any jurisdictional
error committed by trial Court while passing impugned
order.
14. As such, the present writ application lacks merit, which
requires to be rejected, same is hereby rejected. No order as
to cost.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
