Madhya Pradesh High Court
Chandrika Prasad Tiwari vs Prasant Tripathi on 2 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2nd OF MAY, 2024
MISC. PETITION NO. 938 OF 2020
BETWEEN:-
CHANDRIKA PRASAD TIWARI, S/O RAMESHWAR
PRASAD TIWARI, AGED ABOUT 52 YEARS,
FARMER, R/O BADHAIYA KHEDA, TEHSIL PATAN,
DISTRICT JABALPUR (M.P.).
... PETITIONER/DEFENDANT NO.1
(BY SHRI VIPIN YADAV - ADVOCATE)
AND
1. PRASHANT TRIPATHI, S/O PRADEEP KUMAR
TRIPATHI, AGED ABOUT 27 YEARS, R/O
BHAIDAIYA KHEDA, TEHSIL PATAN, DISTRICT
JABALPUR.
...RESPONDENT/PLAINTIFF
2. STATE OF M.P. THROUGH COLLECTOR
JABALPUR.
... RESPONDENT
(NO. 1 BY SHRI DINESH UPADHYAY - ADVOCATE)
(NO.2 BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on : 03.04.2024
Pronounced on : 02.05.2024
2
................................................................................................................................................
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the court pronounced the following:
ORDER
Petitioner has filed this petition under Article 227 of the
Constitution of India questioning the validity of the order dated
07.01.2020 (Annexure P/4) passed in Civil Suit No. 51-A/2014 by XV
Additional District Judge, Jabalpur
2. The facts of the case and the issue involved in the case lie in a
narrow compass as would be clear from the narration of the facts stated
infra:
3. The respondent No.1/plaintiff filed a suit for specific performance
of contract and alternatively for refund of amount paid at the time of
execution of agreement to sale.
4. During pendency of suit, the documents, which are the foundation
of claim i.e. agreements to sale dated 25.11.2011 and 30.06.2012,
though got impounded by the plaintiff with the permission of the court
and thereafter an objection was raised by the defendant/petitioner about
admissibility of the said documents saying that the said documents
required to be registered as per the provisions of Section 17 of the
Registration Act, 1908 (for short 'Act, 1908') and if they are not
registered those cannot be taken into evidence for any purpose even for
collateral purpose. The trial court by order dated 07.01.2020 (Annexure
P/4) has rejected the objection raised by the petitioner saying that an
issue has been framed in respect of the said document dated 25.11.2011
and as such it is not proper to refuse to lead evidence in respect of the
said document and that being so it is also not proper to refuse to take the
said document into evidence, albeit the court has observed that the
acceptability of the said document will be decided only after recording
the evidence. The said order of the court has given rise to this petition.
5. Learned counsel for the petitioner has submitted that Section 17
(1A) of the Act, 1908 provides registration of document i.e. agreement
to sale because Section 53A of the Transfer of Property Act, 1882 relates
to transfer of immovable property. He has submitted that the document,
if not registered, cannot be used for any purpose even for collateral
purpose in view of the amendment made in the Act, 1908 by inserting
provision i.e. Section 17(F), which has been introduced and inducted in
the Act w.e.f. 14.01.2010 as published in the State Gazette. He has
submitted that if Section 49 of the Act, 1908 is read in furtherance of the
amended provision of Section 17(F), it would be clear that the said
document even cannot be used in a suit for specific performance or for
any collateral purpose. He has also submitted that the objection raised
by the counsel for the respondent about maintainability of petition
saying that it is premature as the Court has not taken documents in
question into evidence is not sustainable reason being the impugned
order, according to learned counsel, is very specific and complete
because the Court has rejected the objection raised by the petitioner and
observed that the documents can be used in evidence, but acceptability
of the same shall be decided only after recording the statements of
witnesses. He has submitted that once the document is taken on record
and exhibited, the objection about its acceptability cannot be raised at
later point of time and therefore petition cannot be dismissed on the
ground of maintainability because it has been filed properly and the
impugned order has rightly been assailed. In support of his contention,
learned counsel has placed reliance upon a judgment reported in (2008)
8 SCC 564 - K.B. Saha and Sons Private Limited vs. Development
Consultant Limited.
6. Per contra, learned counsel appearing for the respondent/plaintiff
has submitted that the nature of suit in the present facts and
circumstances of the case is required to be seen. He has submitted that
the plaintiff has filed the suit for specific performance of contract and
also claimed the alternative relief saying that if the same is not possible,
the amount paid at the time of execution of agreement be refunded to
him and according to him that is the collateral purpose and the
documents of agreement can be used to ascertain the amount paid by the
plaintiff to the defendant in performance of sale. He has also submitted
that according to him the petition is premature because the court has not
accepted the documents in evidence and observed that the said
documents will be taken into evidence only after recording the
statements and as such this is not the proper stage when the order can be
assailed and as such he submits that the petition is liable to be dismissed
as premature. He has placed reliance upon the judgments reported in
(2018) 7 SCC 639 - Ameer Minhaj vs. Dierdre Elizabeth (Wright)
Issar and (2010) 5 SCC 401-S. Kaladevi vs. V.S. Somasundaram &
others.
7. Heard the rival contention of the learned counsel for the parties
and also perused the record. Considering the submissions made by the
learned counsel in totality, the basic question emerges for adjudication
whether the document i.e. agreement to sale (Annexure P/1), though
unregistered, can be accepted in evidence for collateral purpose in a suit
for specific performance of contract or not?
8. First of all, this Court has to decide the objection raised by the
counsel for the respondent/plaintiff about maintainability of the petition
saying that it is premature for the reason that the trial court has not
accepted the document in evidence but observed that about acceptability
of document, the decision will be taken only after recording the
evidence. I have perused the impugned order and observation made
therein. The submission of the counsel for the respondent/plaintiff
cannot be accepted and petition cannot be considered to be premature
reason being the trial court has allowed the parties to lead evidence in
respect of the said document saying that an issue has already been
framed in respect of that document i.e. agreement to sale and it would
not be proper to refuse to lead evidence on the said document. To make
it more clear, it is appropriate to quote the observation made by the trial
court in the impugned order, which reads thus:
Þizdj.k ds voyksdu ls ;g nf'kZr gS fd bdjkjukek fnukad
25-11-2011 dks iwoZ ihBklhu vf/kdkjh }kjk vkns'k fnukad 07-
10-2016 ds vuqlkj dysDVj vkWQ LVkEi tcyiqj ls fof/k
vuqlkj eqnzkad o 'kkLrh izkIr dj ifjc) djus gsrq vknsf'kr
fd;k x;k gSA mDr vkns'kkuqlkj mDr bdjkjukek baikmaM fd;s
tkus ds mijkar vfHkys[k ij izLrqr fd;k x;k gSA izdj.k ds
rF; ekuuh; U;k;n`"Vkar ls fHkUu izrhr gksrs gSaA izdj.k oknh
lk{; dh voLFkk esa gSA izdj.k esa mDr vuqca/k i= ds fu"iknu
ds laca/k esa okniz'u dh jpuk dh xbZ gSA vr% mDr nLrkost
izdj.k esa lk{; esa izLrqr fd;s tkus ls badkj djuk U;k;ksfpr
izrhr ugha gksrk gSA nLrkost dh xzkg~;rk ds laca/k esa fujkdj.k
lk{; mijkar fd;k tk;sxkA vr% mDr nLrkost dks lk{; esa
uk fy;s tkus ds laca/k esa izLrqr vkosnu Lohdkj ;ksX; uk gksus
ls fujLr fd;k tkrk gSAß
9. On a bare perusal of the observation made by the trial court in the
impugned order, as is quoted above, I do not find any substance in the
submission made by the counsel for the respondent because once the
objection raised and decided by the court by an order then it gives cause
of action to the parties to challenge the said order, if the said order is not
acceptable to them. As such, in my considered opinion, in any manner
the petition cannot be said to be premature because the order passed by
the court below, which is impugned in this petition, gives cause of
action to the petitioner to challenge the same because he is not satisfied
with the said order. The objection, therefore, raised by the learned
counsel for the respondents with regard to maintainability of petition is
accordingly rejected.
10. Now this Court has to answer the question whether a document
i.e. agreement to sale, though unregistered, can be accepted in evidence
for collateral purpose in a suit for specific performance of contract or
not?
11. Indisputably the document i.e. agreement to sale (Annexure P/1)
revealing that the land for which the said document has been executed is
in possession of the purchaser and that document is an unregistered
document.
12. Learned counsel for the petitioner has stressed much upon the
provisions of Act, 1908 and submitted that as per Section 17(1A) of the
Act, 1908 registration of a document i.e. agreement to sale any
immovable property showing contract to transfer the same for
consideration under Section 53-A of the Transfer of Proper Act, 1882, is
a mandatory requirement. The respective provision has been inserted by
way of amendment of Act 48 of 2001, which, for the purpose of
convenience, is being reproduced hereinbelow:
"17(1-A) The documents containing contracts to
transfer for consideration, any immovable property for
the purpose of Section 53-A of the Transfer of
Property Act, 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 purpose of said section 53-A"
13. Learned counsel for the petitioner has further submitted that
Section 17(1) of the Act, 1908 specifically provides about compulsory
registration of documents mentioned therein. For the purpose of present
case, Section 17(1)(f) is relevant, which reads as under:
"(f) any document which purports or operates to effect
any contract for sale of any immovable property;"
14. Before reaching to a firm decision on the issue involved in the
case at Bar, it is appropriate to take note of the case laws referred by the
learned counsel for the parties.
15. Learned counsel representing the petitioner has placed heavy
reliance in re K.B. Shah (supra), but on a careful reading of the
observation made by the Supreme Court in the said case, I am of the
opinion that the said case law is of no help to the petitioner for the
reason that in the said case while dealing with the issue the Court has
considered the provisions of Section 49(c) of the Act, 1908 and proviso
thereto and also the provisions of Section 108 of the Transfer of
Property Act. In the said case the Supreme Court has observed that a
document required to be registered, if unregistered, is not admissible in
evidence under Section 49 of the Act, 1908, however, it can be used as
an evidence for collateral purpose/transaction as provided in Section 49
and proviso appended thereto. The Court has further clarified that
collateral transaction must be independent of, or divisible from the
transaction which requires registration. The Court observed that use of
unregistered document to prove an important clause thereof would not
be a use for collateral purpose. In the said case the appellant therein let
out the premises in question to respondent-Company for residential use
and as per Clause 9 of the lease deed, the tenanted premises would be
used and occupied by a particular officer of the Company and if the
Company intended to use the premises for occupation of any other
officer, it would seek written consent of the landlord and the landlord
had option to agree or disagree. After vacation of the premises by the
previous officer, the Company sought allotment of the said premises in
favour of its another officer. The landlord/appellant objected the same
and filed eviction suit relying upon Cl. 9 of the agreement. The Supreme
Court considering the provisions of the Act and various decision
referred in the said case, dismissed the appeal of the appellant. Thus,
comparison of the facts of the said case with the case at hand makes it
clear that they are altogether different from each other.
16. On the other hand, learned counsel for the respondent has placed
reliance in the cased of S. Kaladevi and Ameer Minhaj (supra). In re
S.Kaladevi (supra) considering Section 17 and 49 of the Act, 1908, the
Supreme Court observed as under:
"7. After having heard Mr K.V. Viswanathan, learned
Senior Counsel for the appellant and Mr T.S.R.
Venkatramana, learned counsel for the respondents, we
are of the opinion that having regard to the proviso to
Section 49 of the Registration Act, 1908 (for short "the
1908 Act"), the trial court erred in not admitting the
unregistered sale deed dated 27-2-2006 in evidence
and the High Court ought to have corrected the said
error by setting aside the order of the trial court.
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 the 1908 Act.
16. The issue before us is only with regard to the
admissibility of the unregistered sale deed dated 27-2-
2006 in evidence and therefore, it is neither
appropriate nor necessary for us to consider the
contention raised by the learned counsel for the
respondents about the maintainability of the suit as
framed by the plaintiff or the circumstances in which
the sale deed was executed. If any issue in that regard
has been struck by the trial court, obviously, such issue
would be decided in accordance with law. Suffice,
however, to say that looking to the nature of the suit,
which happens to be a suit for specific performance,
the trial court was not justified in refusing to admit the
unregistered sale deed dated 27-2-2006 tendered by
the plaintiff in evidence.
18. The result is that the appeal is allowed, the order of
the High Court dated 13-11-2008 and that of the trial
court dated 11-12-2007 are set aside. The trial court
shall mark the unregistered sale deed dated 27-2-2006
tendered by the plaintiff in her evidence and proceed
with the suit accordingly. The parties shall bear their
own costs."
Thus, it is clear that the Supreme Court taking note of the
provisions Section 49 of the Act, 1908 has held that an unregistered
document could be received in evidence in a suit for specific
performance of contract. It is also observed by the Supreme Court that
even an unregistered sale deed can also be admitted in evidence for any
collateral transaction.
17. Likewise, in re Ameer Minhaj (supra), the Supreme Court has
not only considered Section 49 but also considered the amended
provision of the Act, 1908 i.e. Section 17(1-A) and observed as under:-
"8. The limited issue, as considered by the trial court
and the High Court at the instance of Respondents 1 &
2 (Defendants 3 & 4), was about receiving the three
documents produced by the appellant (plaintiff) as
evidence. The trial court had examined the issue with
reference to the provisions of the Registration Act only
and had left open all other questions regarding the
validity, genuineness and binding nature of the said
documents, including whether the same were hit by the
provisions of the 1899 Act and the 1882 Act. The trial
court opined that those aspects could be decided on the
basis of evidence, both oral and documentary, to be
adduced by the parties.
9. In other words, the core issue to be answered in the
present appeal is whether the suit agreement dated 9-7-
2003, on the basis of which relief of specific
performance has been claimed, could be received as
evidence as it is not a registered document. Section
17(1-A) of the 1908 Act came into force with effect
from 24-9-2001. Whereas, the suit agreement was
executed subsequently on 9-7-2003. Section 17(1-A)
of the 1908 Act reads thus:
"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 16 of 1864, or the Indian
Registration Act, 1866 (20 of 1866), or the
Indian Registration Act, 1871 (8 of 1871) or the
Indian Registration Act, 1877 (3 of 1877), or
this Act came or comes into force, namely--
***
(1-A) The documents containing contracts to
transfer for consideration, any immovable
property for the purpose of Section 53-A 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
53-A."
XXX XXX XXX
10. On a plain reading of this provision, it is amply
clear that the document containing contract to transfer
the right, title or interest in an immovable property for
consideration is required to be registered, if the party
wants to rely on the same for the purposes of Section
53-A of the 1882 Act to protect its possession over the
stated property. If it is not a registered document, the
only consequence provided in this provision is to
declare that such document shall have no effect for the
purposes of the said Section 53-A of the 1882 Act. The
issue, in our opinion, is no more res integra. In S.
Kaladevi v. V.R. Somasundaram [S. Kaladevi v. V.R.
Somasundaram, (2010) 5 SCC 401 : (2010) 2 SCC
(Civ) 424] this Court has restated the legal position
that 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 as evidence making an endorsement that it is
received only as evidence of an oral agreement of sale
under the proviso to Section 49 of the 1908 Act.
11. Section 49 of the 1908 Act reads thus:
"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 (1 of 1877), or as evidence of
any collateral transaction not required to be
effected by registered instrument."
12. In the reported decision, this Court has adverted to
the principles delineated in K.B. Saha & Sons (P) Ltd.
v. Development Consultant Ltd. [K.B. Saha & Sons
(P) Ltd. v. Development Consultant Ltd., (2008) 8
SCC 564] and has added one more principle thereto
that a document is required to be registered, but if
unregistered, can still be admitted as evidence of a
contract in a suit for specific performance. In view of
this exposition, the conclusion recorded by the High
Court in the impugned judgment [Dierdre Elizabeth
(Wright) Issar v. Ameer Minhaj, 2016 SCC OnLine
Mad 31541] that the sale agreement dated 9-7-2003 is
inadmissible in evidence, will have to be understood to
mean that the document though exhibited, will bear an
endorsement that it is admissible only as evidence of
the agreement to sell under the proviso to Section 49
of the 1908 Act and shall not have any effect for the
purposes of Section 53-A of the 1882 Act. In that, it is
received as evidence of a contract in a suit for specific
performance and nothing more. The genuineness,
validity and binding nature of the document or the fact
that it is hit by the provisions of the 1882 Act or the
1899 Act, as the case may be, will have to be
adjudicated at the appropriate stage as noted by the
trial court after the parties adduce oral and
documentary evidence.
13. Reverting to the registered general power of
attorney, the same has been executed by the original
Defendant 1, predecessor-in-title of Respondents 1 & 2
(Defendants 3 & 4), in favour of Respondent 3
(Defendant 2). Being a registered document, in our
opinion, the trial court was justified in observing that
there is a legal, rebuttable presumption that the same
has been duly stamped. As observed by the trial court,
the question as to whether the document is hit by the
provisions of the 1882 Act or the 1899 Act can be
decided after the parties adduce oral and documentary
evidence. The High Court, in our opinion, therefore,
should have stopped at that instead of analysing the
said instrument by invoking the principle of
incorporation by reference to the agreement to sell
dated 12-11-1995. For, the appellant (plaintiff) is not a
party to the said document. Indeed, the executor of the
document, original Defendant 1 and Defendant 2, in
whose favour the same has been executed, are parties
to the present suit. The principal document, namely,
the agreement to sell dated 12-11-1995, as rightly
noticed by the courts below, was executed prior to
coming into force of Section 17(1-A) of the 1908 Act.
That provision has been made applicable
prospectively. Hence, the same was not required to be
compulsorily registered at the time of its execution.
Even if it was required to be registered, keeping in
view the purport of Section 49 read with Section 17(1-
A) of the 1908 Act, the same could be received as
evidence for a limited purpose, without having any
effect for the purposes of Section 53-A of the 1882
Act.
14. As a result, the trial court was right in overturning
the objection regarding marking and exhibiting these
documents as urged by Respondents 1 and 2
(Defendants 3 and 4), while making it clear that the
question regarding the genuineness, validity and
binding nature of the documents, including as to
whether it is hit by the provisions of the 1882 Act or
the 1899 Act, as the case may be, would be decided at
the appropriate stage.
15. The High Court has adverted to the decision in
Avinash Kumar Chauhan v. Vijay Krishna Mishra
[Avinash Kumar Chauhan v. Vijay Krishna Mishra,
(2009) 2 SCC 532 : (2009) 1 SCC (Civ) 649] , which,
however, deals with the power of the Court to
impound insufficiently stamped instruments in
exercise of its power under Section 35 of the 1899 Act.
That issue will have to be considered by the trial court
at the appropriate stage which has already been kept
open.
16. Accordingly, this appeal ought to succeed by
restoring the order of the trial court dated 1-6-2016 in
the above terms. The trial court shall decide all other
issues concerning the validity, genuineness,
applicability and binding nature of the documents
including whether it is hit by the provisions of the
1882 Act or the 1899 Act on its own merits and
uninfluenced by the observations made by it or by the
High Court."
18. In view of the law laid down by the Supreme Court in the cases of
S. Kaladevi and Ameer Minhaj (supra) referred by the respondent,
which are the case laws of later point of time to that of the case law of
K.B.Saha (supra) referred by the petitioner, this Court has no other
option but to follow the said principle of law because the issue involved
in the present case is similar to that has been answered by the Supreme
Court in the case of Ameer Minhaj (supra). The Supreme Court in
paragraph 13 has dealt with the situation which is exactly existing in the
present case and observed that the trial court was right in overturning
the objections regarding marking and exhibiting the documents and the
admissibility of the same will be decided at the appropriate stage. In the
case at hand also the trial Court by the impugned order has allowed to
lead the evidence on the document in question but observed that the
admissibility of that document in evidence shall be decided after
recording evidence and as such the objection raised by the petitioner
about leading evidence on the said document has been rejected by the
trial court.
19. It is also pertinent to mention here that although an amended
provision i.e. Section 17(1)(A) has been inserted in the Act, 1908, but no
change and amendment has been made in consequence thereto in
Section 49 and on the contrary proviso appended thereto provides that
even an unregistered document can be received in evidence in a suit for
specific performance of contract for any collateral transaction. As such,
I do not find any substance in the submission made by the learned
counsel for the petitioner that after amendment in Section 17 by
introducing Section 17(1-A) the existing legal position got changed and
now only registered document can be taken into evidence in a suit for
specific performance of contract and even for collateral purpose. The
Supreme Court has very specifically laid down the legal position in this
regard, which is contrary to the submission made by the learned counsel
for the petitioner.
20. In view of the discussion made hereinabove and taking note of the
legal position settled by the Supreme Court in the cases referred
hereinabove, I am of the opinion that the impugned order does not suffer
from any patent illegality and the trial Court has not exceeded its
jurisdiction. As such, interference in a petition under Article 227 of the
Constitution of India is not warranted.
21. In the result, petition fails and is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
Raghvendra
RAGHVENDRA
SHARAN SHUKLA
2024.05.04
11:24:08 +05'30'
