Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Ors. - (Supreme Court) (04 Jul 2018)

Document containing contract to transfer right, title or interest in an immovable property for consideration is required to be registered, if party wants to rely on same

MANU/SC/0685/2018

Civil

Instant appeal emanates from the decision of the High Court dated 2nd December, 2016 allowing the application preferred by Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4) whereby the admissibility of the documents produced by the Appellant (Plaintiff) in the suit filed by him for relief of specific performance of contract with alternative relief of refund of advance amount and permanent injunction against the Defendants was questioned. The core issue to be answered in the present appeal is whether the suit agreement dated 9th July 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.

As per Section 17(1A) of Registration Act, 1908/1908 Act 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 53A of the Stamp Act, 1882 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 53A of the 1882 Act. The issue is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., present Court has re-stated 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.

The registered General Power of Attorney has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, 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, 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 12th November, 1995. For, the Appellant (Plaintiff) is not a party to the said document. Indeed, the executor of the document - original Defendant No. 1 and the Defendant No. 2 in whose favour the same has been executed, are parties to the present suit. The principal document, namely, the agreement to sell dated 12th November, 1995, as rightly noticed by the Courts below, was executed prior to coming into force of Section 17(1A) 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(1A) of the 1908 Act, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of 1882 Act.

As a result, the Trial Court was right in overturning the objection regarding marking and exhibiting these documents as urged by Respondent Nos. 1 & 2 (Defendant Nos. 3 & 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 1882 Act or the 1899 Act, as the case may be, would be decided at the appropriate stage.

Accordingly, this appeal ought to succeed by restoring the order of the Trial Court dated 1st June, 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. The appeal is allowed.

Relevant : S. Kaladevi v. V.R. Somasundaram and Ors., MANU/SC/0246/2010

Tags : SUIT AGREEMENT DOCUMENT ADMISSIBILITY