Karnataka High Court
Chikkaiah Alias Marilingaiah vs Sakamma on 16 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
W.P. NO.17656 OF 2021 (GM-CPC)
BETWEEN
1. CHIKKAIAH ALIAS MARILINGAIAH
SINCE DEAD BY HIS LRS
1A. NANJAMMA,
W/O LATE CHIKKAIAH @ MARILINGAIAH,
AGED ABOUT 55 YEARS,
1B. SHEKARGOWDA @ HANUMANTHAIAH
S/O LATE CHIKKAAIAH @ MARILINGAIAH,
AGED ABOUT 43 YEARS,
1C. SUKANYA
W/O NANJUNDEGOWDA
D/O LATE CHIKKAAIAH @ MARILINGAIAH,
AGED ABOUT 45 YEARS,
ALL ARE R/O SHETTIHALLI VILLAGE,
KASABA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT.
1D. CHIKKEGOWDA
S/O LATE CHIKKAIAH @ MARILINGAIAH,
AGED ABOUT 41 YEARS,
1E. YASHODHA
W/O MAHALINGAIAH,
D/O LATE CHIKKAIAH @ MARILINGAIAH,
AGED ABOUT 39 YEARS,
2
ALL ARE R/O YARAGANAHALLI VILLAGE,
ATHAGURU HOBLI,
MALAGARANAHALLI POST,
MADDUR TALUK
MANDYA DISTRICT-571 476.
...PETITIONERS
(BY SRI D R RAVISHANKAR, SENIOR ADVOCATE FOR
SRI SARAVANA S, ADVOCATE)
AND
1. SAKAMMA
W/O PUTTASWAMY,
AGED ABOUT 45 YEARS,
2. KUMAR
S/O PUTTASWAMY,
AGED ABOUT 31 YEARS,
3. KIRAN
S/O PUTTASWAMY,
AGED ABOUT 29 YEARS,
ALL ARE R/AT MALAGARANAHALLI VILLAGE,
KASABA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571 476.
....RESPONDENTS
(BY SRI H B CHANDRASHEKAR, ADVOCATE FOR R1 TO 3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED 02ND MARCH, 2021 PASSED BY THE PRINCIPAL JUNIOR CIVIL
JUDGE AND JMFC MADDUR ON IA.NO.14 UNDER ORDER XVIII RULE 17
R/W SEC.151 OF CPC AND IA FILED BY THE PLAINTIFF U/S 151 OF
CPC IA NOT GIVEN IN COURT BELOW IN O.S.NO.17 OF 2013
PRODUCED AS ANNEXURE-H TO MARK THE DOCUMENT AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
This writ petition is filed by the plaintiffs in OS No.17 of
2013 on the file of the Principal Civil Judge and JMFC, Maddur,
Mandya District, challenging the order dated 02.03.2021,
regarding the admissibility of the Agreement of Sale Deed dated
04.10.2006.
2. Brief facts are that original plaintiff has filed a suit
for Specific Performance based on the unregistered Agreement
of Sale Deed dated 04.10.2006. At the time of marking the said
document before the trial court, same was objected by the
defendants, hence, the trial court by its order dated 02.03.2021,
rejected the prayer of the plaintiff to mark the said unregistered
Agreement of Sale Deed. Feeling aggrieved by the order the trial
court, the legal representatives of original plaintiff have
preferred this petition.
3. Heard Sri. D.R.Ravishankar, learned senior counsel
appearing on behalf of Sri.Saravana S., for legal representatives
of the plaintiff and sRi. H.B.Chandrashekar, learned counsel for
respondents 1 to 3.
4. Sri D.R. Ravishankar, learned senior counsel
appearing for the petitioners invited the attention of this court to
the provisions contained under Section 17 of Registration Act,
1908 (hereinafter referred to as "Act"), particularly, Section 17
(1-A) and also Section 49 of the Act. He placed reliance on the
judgment of Hon'ble Apex Court in the case of S. Kaladevi Vs.
V.R.Somasundaram and Others, reported in (2010) 5 SCC
401 and the order of this court passed in Writ Petition
No.100296 of 2014 dated 12.09.2014 and argued that, as per
proviso to Section 49 of the Act, an unregistered Agreement of
Sale to be received as evidence of contract in a suit for specific
performance and therefore, he submitted that, the finding
recorded by the trial court requires interference in this writ
petition.
5. Per Contra, Sri H.B.Chandrashekar, learned counsel
appearing for the respondents sought to justify the impugned
order stating that, the entire case of the plaintiffs is based on
the Agreement of Sale Deed dated 04.10.2006 and therefore, he
sought to support the impugned order passed by the trial court.
6. In the light of the submission made by learned
counsel appearing for the parties, I have carefully considered
the impugned order passed by the trial court by considering the
provisions contained under Section 17(1-A) of the Act, which
reads as under:
"17.(1-a) 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."
7. It is also relevant to extract, proviso to Section 49 of
Act, which read as under:
"49. Effect of non-registration of documents
required to be registered.--no document required by
Section 17 1[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 (1 of 1877), or as evidence of
any collateral transaction not required to be effected by
registered instrument."
8. the conjoined reading of Section 17(1-A) and along
with Section 49 of the Act, even an unregistered Agreement of
Sale, in a suit for Specific Performance can be received as
evidence, however, the only bar is, plaintiff cannot seek relief of
Section 53 of the Transfer of Property Act. In this regard, it is
relevant to extract paragraph 12 of the judgment in the case of
Kaladevi (supra), which reads as under:
"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.
proviso, however, would show that an unregistered
document affecting immovable property and required by
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 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."
9. Following the law declared by the Hon'ble Apex Court
referred to above and order this court passed in the Writ Petition
No.100296 of 2014, stated supra, I am of the view that the trial
court has committed an error in rejecting the application to mark
Agreement of Sale dated 04.10.2006. Therefore, the trial court
is directed to accept Agreement of Sale dated 04.10.2006, which
is an unregistered document, however, the embargo is that the
plaintiff cannot seek relief of Section 53 of Transfer of Property
Act. Accordingly, the writ petition is allowed. Impugned Order
dated 02.03.2021 passed by Principal Civil Judge and JMFC,
Maddur, on Ia.14 in OS. No.17 of 2013 is set aside.
Sd/-
JUDGE
SB
