Vs. V.R. Somasundaram & Ors.  INSC 267 (12 April 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3192 OF
2010 [Arising out of SLP (C) No. 1451 of 2009] S. Kaladevi .... Appellant V.R.
Somasundaram & Ors. ....Respondents
short question is one of admissibility of an unregistered sale deed in a suit
for specific performance of the contract.
appellant and the respondents are plaintiff and defendant nos. 1, 2 and 3
respectively in the suit presented in the Court of Subordinate Judge, Gobichettipalayam.
The plaintiff in the suit claimed for the reliefs of directing the defendants
to 1 execute a fresh sale deed with regard to the suit property in pursuance of
an agreement for sale dated 27.02.2006 on or before the date that may be fixed
by the court and failing which execution of the sale deed by the court. She
also prayed for grant of permanent injunction restraining the defendants from
disturbing with her peaceful possession and enjoyment of the suit property.
According to the plaintiff, 1st defendant for himself, as the guardian father
of 3rd defendant and 2nd defendant jointly entered into an oral agreement with
her on 27.02.2006 to sell the suit property for a consideration of Rs.
1,83,000/-. It was agreed that the sale deed, in pursuance of the oral
agreement for sale, would be executed and registered on the same day. The
plaintiff purchased the stamp papers; paid the entire sale consideration to the
defendants; the defendants put the plaintiff in possession of the suit property
and also executed a sale deed in her favour. On 27.02.2006 itself, the said
sale deed was taken to the Sub- Registrar's office. The Sub-Registrar, however,
informed that in view of an order of attachment of the suit property the sale
deed could not be registered. The sale deed, thus, could not be registered. The
defendant nos. 1 and 2 then promised the plaintiff that they would amicably
settle the matter with the concerned party who had obtained attachment of the
suit property 2 and get the sale deed registered no sooner the attachment was
raised. The plaintiff averred that she called upon the defendants to get the
sale deed registered, but the defendants avoided the same by putting forth the
reason that attachment in respect of the suit property was subsisting. On
04.02.2007 however, the plaintiff called upon defendant nos. 1 and 2 to
cooperate in getting the sale deed registered, but instead of doing that the
defendants attempted to interfere with her possession and enjoyment of the suit
property necessitating action by way of suit.
1st defendant filed written statement and traversed plaintiff's case. He denied
having entered into an oral agreement for sale with the plaintiff for himself
and as a guardian father of 3rd defendant and the 2nd defendant jointly on
27.02.2006 as alleged.
denied having delivered physical possession of the suit property to the
plaintiff. The 1st defendant set up the defence that he had taken loan from one
Subramaniam and when Subramaniam demanded the repayment thereof, he approached
plaintiff and requested her to lend Rs. 1,75,000/- as loan. Upon plaintiff's
insistence that 1st defendant should execute an agreement for sale in her
favour, he and the 2nd defendant signed the document believing that to be
agreement for sale on 27.02.2006 and went to the office of Sub-Registrar for
getting the 3 agreement for sale registered. However, when the Sub-Registrar
asked the 1st defendant whether the consideration has been received and sale
deed could be registered, he and the 2nd defendant learnt that plaintiff had
fraudulently obtained the signatures on sale deed by falsely stating that it
was only an agreement for sale and hence they went away refusing to agree for
the registration of the said document.
6. On the
basis of the pleadings of the parties, the issues were struck. It appears that
on 05.12.2007 at the time of examination of PW. 1, the unregistered sale deed
dated 27.02.2006 was tendered for being marked. The counsel for the defendants
objected to the said document being admitted in evidence being an unregistered
sale deed. The trial court by its order dated 11.12.2007 sustained the
objection and refused to admit the sale deed in evidence.
plaintiff unsuccessfully challenged the order of the trial court dated 11.12.2007
by filing revision petition before the High Court and hence this appeal by
having heard Mr. K. V. Vishwanathan, 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, 4 1908 (for short, `1908 Act'), the trial court erred in not admitting the
unregistered sale deed dated 27.02.2006 in evidence and the High Court ought to
have corrected the said error by setting aside the order of the trial court.
T.S.R. Venkatramana, learned counsel for the respondents, however, strenuously
urged that 1908 Act is a complete code by itself and is a special law and,
therefore, any dispute regarding the registration, including the refusal to
register by any party, is covered by the provisions of that Act and the remedy
can be worked out under it only. He referred to Sections 71 to 77 of the 1908
Act and submitted that refusal to register a document by a party is
exhaustively dealt with by the said provisions and the provisions of the
Specific Relief Act, 1963 (for short, `1963 Act') cannot be and should not be
invoked in a case of failure to register a document which is complete in other
respects, except for want of registration. Learned counsel for the respondents
submitted that the defendants refused to admit execution of the said document
before the concerned Sub- Registrar because of the fraud played by the
appellant (plaintiff) inasmuch as instead of writing an agreement to sell, she
got executed a full fledged sale deed contrary to the agreement and
understanding. The defendants accordingly walked out of the 5 office of
Sub-Registrar without admitting the execution of the sale deed and under these
circumstances the only remedy available to the appellant was to get an
endorsement "registration refused" and then file an application
before the Registrar under Section 73 of the 1908 Act. He also referred to
Section 3 of 1963 Act and submitted that the provisions of 1963 Act would not
override the provisions of 1908 Act.
Section 17 of 1908 Act is a disabling section. The documents defined in clauses
(a) to (e) therein require registration compulsorily. Accordingly, sale of
immovable property of the value of Rs. 100/- and more requires compulsory
registration. Part X of the 1908 Act deals with the effects of registration and
non- registration. Section 49 gives teeth to Section 17 by providing effect of
non-registration of documents required to be registered.
49 reads thus:
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 6 (c) be received as
evidence of any transaction affecting such property or conferring such power,
unless it has been registered:
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
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
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 7 also be admitted in evidence as
an evidence of any collateral transaction not required to be effected by
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.
Recently in the case of K.B. Saha and Sons Private Limited v. Development
Consultant Limited1, this Court noticed the following statement of Mulla in his
Indian Registration Act, 7th Edition, at page 189:- "......The High Courts
of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu,
Rajasthan, Orissa, Rangoon and Jammu &
the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar,
Ajmer and Himachal Pradesh and the Supreme Court have held that a document
which requires registration under Section 17 and which is not admissible for
want of registration to prove a gift or mortgage or sale or lease is
nevertheless admissible to prove the character of the possession of the person
who holds under it......"
8 SCC 564 8 This Court then culled out the following principles:- "1. A
document required to be registered, if unregistered is not admissible into
evidence under Section 49 of the Registration Act.
unregistered document can however be used as an evidence of collateral purpose
as provided in the proviso to Section 49 of the Registration Act.
collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required registration.
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
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
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.
Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy2, the question
presented before this Court was 2 (1999) 7 SCC 114 9 whether a decree to
enforce the registration of sale deed could be granted. That was a case where
respondent therein filed a suit for specific performance seeking a direction to
register the sale deed.
contention of the appellant, however, was that decree for specific performance
based on unregistered sale deed could not be granted. This Court noticed the
provisions contained in Part XII of 1908 Act, particularly Section 77, and
difference of opinion between the various High Courts on the aspect and
observed:- "The difference of opinion amongst the various High Courts on
this aspect of the matter is that Section 77 of the Act is a complete code in
itself providing for the enforcement of a right to get a document registered by
filing a civil suit which but for the special provision of that section could
not be maintainable. Several difficulties have been considered in these
decisions, such as, when the time has expired since the date of the execution
of the document whether there could be a decree to direct the Sub-Registrar to
register the document.
other hand, it has also been noticed that an agreement for transfer of property
implies a contract not only to execute the deed of transfer but also to appear
before the registering officer and to admit execution thereby facilitating the
registration of the document wherever it is compulsory. The provisions of the
Specific Relief Act and the Registration Act may to a certain extent cover the
same field but so that one will not supersede the other. Where the stage
indicated in Section 77 of the Act has reached and no other relief except a
direction for registration of the document is really asked for, Section 77 of
the Act may be an exclusive remedy. However, in other cases it has no
application, inasmuch as a suit for specific performance is of a wider
amplitude and is primarily one for enforcement of a contract and other
consequential or further relief. If a party is seeking not merely the
registration of a sale deed, 10 but also recovery of possession and mesne
profits or damages, a suit under Section 77 of the Act is not an adequate
Court then held that the first appellate court rightly took the view that under
Section 49 of the 1908 Act, unregistered 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. It was held:
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.....
issue before us is only with regard to the admissibility of 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 learned counsel for the
11 respondents about the maintainability of suit as framed by the plaintiff or
the circumstances in which the sale deed was executed.
issue in that regard has been struck by the trial court, obviously, such issue
would be decided in accordance with law.
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
argument of learned counsel for the respondents with regard to Section 3(b) of
1963 Act is noted to be rejected.
to understand how the said provision helps the respondents as the said
provision provides that nothing in 1963 Act shall be deemed to affect the
operation of 1908 Act, on documents. By admission of an unregistered sale deed
in evidence in a suit for specific performance as evidence of contract, none of
the provisions of 1908 Act is affected; rather court acts in consonance with
proviso appended to Section 49 of 1908 Act.
result is that 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 12 her evidence and proceed with the suit accordingly. The parties shall
bear their own costs.
....................................J. [R.V. RAVEENDRAN]
....................................J. [R.M. LODHA]
APRIL 12, 2010.