Specific performance on unregistered document
4WhatIsRight
(Querist) 11 May 2012
This query is : Resolved
i sincerely thank all the contributors.
ashutosh mishra
(Expert) 11 May 2012
an unregistered agreement is not enforceable in UP
ajay sethi
(Expert) 11 May 2012
an unregistered document, affecting immoveable property and required to be compulsorily registered either under the Registration Act or under the Transfer of Property Act, may be received as evidence of contract in a suit for specific performance.
Suhail A.Siddiqui
(Expert) 11 May 2012
There is no doubt Unregistered document could not enforce but an aggrieved person may sought for specific performance with the document and corroborative evidence.
ajay sethi
(Expert) 11 May 2012
In the judgment reported in (2010) 5 SCC 401, the judgment reported in AIR 1999 SC 2958 = (1999) 7 SCC 114 was relied on and the Honourable Supreme Court laid down the following principles " "1. A document required to be registered, if unregistered is not admissible in evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence for collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
9. Therefore, from the Supreme Court judgments referred to above, a document, that requires to be registered, if unregistered, can be admitted in evidence as proof of contract in a suit for specific performance
ajay sethi
(Expert) 11 May 2012
Madras High Court
P.A.Thangarajan vs G.Annadurai on 7 January, 2011
DATE: 7.1.2011.
CORAM
THE HON'BLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)No.3035 of 2010
and
M.P.No.1 of 2010
P.A.Thangarajan Petitioner
vs.
1. G.Annadurai
2. Gokulakannan Respondents
Civil Revision Petition against the order dated 27.1.2010 in I.A.No.1042 of 2008 in O.S.No.284 of 2008 on the file of the Principal Sub Court, Tiruppur.
For petitioner : Mr.M.Venkatachalapathy,
Senior Counsel for
Mr.M.Sriram
For respondents: Mr.N.Manokaran
ORDER
The first defendant in O.S.No.284 of 2008 on the file of the Sub Court, Tiruppur is the revision petitioner.
2. The respondents/plaintiffs filed the suit for specific performance directing defendants 1 to 7 to execute and register the sale deed as per document dated 30.3.2005. The case of the respondents/plaintiffs as seen in the plaint is that the first defendant agreed to sell the property of the plaintiffs for a consideration of Rs.2,50,000/= and the entire sale consideration was paid by the first plaintiff and on 30.3.2005, a sale deed was executed on Rs.20/= stamp paper and it was agreed that the sale deed would be presented for registration by paying the balance stamp duty on an auspicious day fixed by the first plaintiff and both the parties agreed for the same. Thereafter, the first defendant refused to register the sale deed and therefore, the suit was filed. The first defendant filed I.A.No.1042 of 2008 under order VII Rule 11(a) and (d) of the Code of Civil Procedure to reject the plaint on the ground that the plaint does not show any cause of action and it is barred by limitation.
3. It is stated by the first defendant in his counter affidavit that even according to the plaint, a contract was completed by execution of the sale deed and therefore, the plaintiff cannot file a suit for specific performance and he has to work out his remedy as per the provisions of the Registration Act by presenting the document for compulsory registration and the civil court has no jurisdiction to direct registration of the document. It is his further case that the alleged sale deed was dated 30.3.2005 and the suit was filed in the year 2008 and therefore, it is also clearly barred by limitation as per the provisions of the Registration Act.
4. The application filed by the revision petitioner for rejection of the plaint was dismissed by the Trial Court and as against the same, this revision is filed.
5. Mr.M.Venkatachalapathy, learned Senior Counsel for the revision petitioner submitted that even according to the plaint allegation, a sale deed was executed on 30.3.2005 on a stamp paper and admittedly, it was not written on duly stamped papers and now, they want to enforce that document to get a relief of specific performance and that document cannot be received in evidence as per the provisions of the Indian Stamp Act as it was not duly stamped. According to the learned Senior Counsel, the document dated 30.3.2005 cannot be construed as a sale agreement and it is an executed contract and only remedy available to the person is to present the document for compulsory registration as per the provisions of the Registration Act and that has to be done within the period stipulated by the Registration act and having waited for more than the period prescribed for presenting the document, a suit for specific performance cannot be entertained and according to him, there is nothing to be enforced as per the document dated 30.3.2005 as it is an executed contract.
6. On the other hand, Mr.N.Manoharan, learned counsel for the respondents/plaintiffs submitted that though the plaintiffs could have taken proceedings under the Registration Act for compulsory registration of the document, it is also open to them to file a suit for specific performance and the civil court has got jurisdiction and relied upon the following judgments in support of his contention:- i) KALAVAKURTI VENKATA SUBBAIAH v. BALA GURAPPAGARI GURUVI REDDY (AIR 1999 SC 2958)
ii) S.KALADEVI v. V.R.SOMASUNDARAM ((2010) 5 SCC 401)
iii)INDIRANI @ VEDANAYAKI v. CHITRA (2008(3) TLNJ 398).
7. According to me, the court below rightly dismissed the application filed by the revision petitioner. In the judgment reported in AIR 1999 SC 2958, it has been held as follows:- "The analysis of the provisions of Section 77 of the Registration Act made by us above would indicate that it would apply only if a matter is pertaining to registration of a document and not for a comprehensive suit as in the present case where the relief prayed for is directing the defendant to register the sale deed dated July 2, 1979 in favour of the plaintiff in respect of the plaint schedule property and if he so fails to get a registration in favour of the plaintiff for permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property. The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The First Appellate Court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. The said Court noticed that there was an agreement to transfer the immovable property in the suit by the defendant to the plaintiff on the terms stated in the sale deed. Such an agreement to sell the immovable property in suit could be specifically enforced under the provisions of the Specific Relief Act. Therefore, the First Appellate Court was of the opinion that the plaintiff was alternatively entitled to base his claim of specific performance on the plea of oral agreement to sell and, inasmuch as there are further reliefs sought for, it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, held that such relief for specific performance could be granted."
8. In the judgment reported in (2010) 5 SCC 401, the judgment reported in AIR 1999 SC 2958 = (1999) 7 SCC 114 was relied on and the Honourable Supreme Court laid down the following principles " "1. A document required to be registered, if unregistered is not admissible in evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence for collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
9. Therefore, from the Supreme Court judgments referred to above, a document, that requires to be registered, if unregistered, can be admitted in evidence as proof of contract in a suit for specific performance. In the judgment reported in 2008 (3) TLNJ 398, this court has held that when two alternative remedies are available to the plaintiff, one under the Registration Act and another before the civil court, the plaintiff is entitled to approach the civil court and there is no need to exhaust the remedy available under the Registration Act.
10. Therefore, in this case also, the plaintiff is entitled to file a suit for specific performance on the basis of the document dated 30.3.2005 and it cannot be stated that the suit is barred by limitation or the plaint does not show any cause of action. Hence, I do not find any merit in the contentions of the revision petitioner. In the result, the civil revision petition is dismissed. No costs. The connected Miscellaneous Petition is also dismissed.
ssk.
To
1. The Principal Sub Judge,
Tiruppur.
2. The Record Keeper,
V.R. Section,
High Court,
Chennai
Shonee Kapoor
(Expert) 11 May 2012
Ld. Sethi has given you enough dope.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
4WhatIsRight
(Querist) 11 May 2012
i hope it will help.
thank you ajay sir.
ashutosh mishra
(Expert) 12 May 2012
I still say "NOT ENFORCEABLE IN UP".
THERE IS STATE AMENDMENT IN THE LAW.
N.K.Assumi
(Expert) 12 May 2012
Ashutosh, you mean Amendment in Specific Relied Act?If so why dont you post the same in the forum?
ashutosh mishra
(Expert) 12 May 2012
Assumi!
To appreciate my point of view one need to go with UP Act No.57 of 1976 which is in force w.e.f.01.01.1977.I do not have its soft copy so not able to load.
Sub section (1) of Section 17 of the Registration Act enumerates those categories of documents of which registration is compulsory. Clause (v) of sub section (2) of section 17, after its amendment by U.P. Act no. 57 of 1976, which came into force on 01.01.1977, reads as follows:
17(2) Nothing in clauses (b) and (c ) of sub-section (1) applies to-
(i)......................
(ii).....................
(iii).....................
(iv)......................
(v) any document, other than contract for sale, not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest 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; .....
In view of the aforesaid provision, the contract for sale of immovable property in Uttar Pradesh has to be a registered document. Section 49 of the Registration Act, as applicable in Uttar Pradesh after its amendment by U.P. Act No. 57 of 1976, provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 or of any other law for the time being in force, to be registered shall affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered. In view of this provision, an unregistered agreement to sell of immovable property is inadmissible in evidence.
N.K.Assumi
(Expert) 12 May 2012
That means no oral agreement is enforceable in UP? even under the Specific Relief Act?
4WhatIsRight
(Querist) 12 May 2012
thank you all for contributing your valued knowledge.
