REPORTABLE
IN THE 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
Vs.
V.R. Somasundaram & Ors. ....Respondents
JUDGMENT
R.M. LODHA,J.
Leave granted.
2. The short question is one of admissibility of an
unregistered sale deed in a suit for specific performance of the
contract.
3. The 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
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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.
4. 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
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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.
5. The 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.
He also 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
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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.
7. The 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 special leave.
8. After 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,
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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.
9. Mr. 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
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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.
10. 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.
Section 49 reads thus:
"S.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
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(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 (3 of
1877), or as evidence of any collateral transaction
not required to be effected by registered instrument."
11. 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
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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.
12. 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 &
Kashmir; 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......"
1
(2008) 8 SCC 564
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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.
2. Such unregistered document can however be
used as an evidence of 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.
13. In Kalavakurti Venkata Subbaiah v. Bala Gurappagari
Guruvi Reddy2, the question presented before this Court was
2
(1999) 7 SCC 114
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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.
The 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.
On the 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,
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but also recovery of possession and mesne profits
or damages, a suit under Section 77 of the Act is
not an adequate remedy."
14. This 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:
"......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.....
".
15. The 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
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respondents about the maintainability of 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.
16. The argument of learned counsel for the respondents
with regard to Section 3(b) of 1963 Act is noted to be rejected.
We fail 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.
17. The 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
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her evidence and proceed with the suit accordingly. The parties
shall bear their own costs.
....................................J.
[R.V. RAVEENDRAN]
....................................J.
[R.M. LODHA]
NEW DELHI
APRIL 12, 2010.
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