Madras High Court
R.Sarojini vs Dharmarajan on 1 February, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.(MD)Nos.343 to 345 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)Nos.343 to 345 of 2014
and
CROSS OBJ.(MD)Nos.10 to 12 of 2014
R.Sarojini ...Appellant/Respondent/Plaintiff (in all appeals)
..Respondent/Appellant/Respondent/Plaintiff
(in all cross objections)
Vs.
1.Dharmarajan
2.Malini Dharmarajan
3.T.T.Krishnan ..Cross Objectors/1-3 Respondents/Appellants/
Defendants
..Respondents/Appellants/Defendants
4.S.Jeyarani ..Respondent
(in S.A.(MD)No.343 of 2014)
(Respondent No.4 was impleaded vide Court order dated 23.08.2017)
1.Kausalya
2.T.T.Krishnan ..Cross Objectors/1-2 Respondents/Appellants/
Defendants
..Respondents/Appellants/Defendants
3.S.Jeyarani ..Respondent
(in S.A.(MD)No.344 of 2014)
(Respondent No.3 was impleaded vide Court order dated 23.08.2017)
1.Vijayalakshmi
2.Meena Giri
3.Minor Harshavarthini
rep by her mother and guardian, Manjula
W/o.Ganesh Kumar, No.14, 7th Street, Amman Nagar,
Ellakudi Village, Kattur, Trichy.
4.T.T.Krishnan ..Cross Objectors/1-4 Respondents/Appellants/
Defendants
..Respondents/Appellants/LRs of the Defendants
5.S.Jeyarani ..Respondent
(in S.A.(MD)No.345 of 2014)
(Respondent No.5 was impleaded vide Court order dated 23.08.2017)
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http://www.judis.nic.in
S.A.(MD)Nos.343 to 345 of 2014
COMMON PRAYER: These Second Appeals are filed under Section 100 of the
Civil Procedure Code, against the judgment and decree dated 29.11.2013 in
A.S.Nos.23, 24 and 22 of 2013 on the file of the Principal District Judge,
Tiruchirappalli, partly modifying the judgment and decree dated 29.01.2013 in
O.S.Nos.453, 454 and 458 of 2006, respectively on the file of the Principal
Subordinate Judge, Tiruchirapalli.
COMMON PRAYER: These Cross Objections are filed under Order 41 Rule 22
of the Civil Procedure Code, against the judgment and decree dated
29.11.2013 in A.S.Nos.23, 24 and 22 of 2013 on the file of the Principal District
Judge, Tiruchirappalli, partly modifying the judgment and decree dated
29.01.2013 in O.S.Nos.453, 454 and 458 of 2006, respectively on the file of the
Principal Subordinate Judge, Tiruchirapalli.
For Appellants : Mr.A.R.L.Sundaresan
Senior Counsel
for Ms.AL.Gandhimathi
(in all Appeals)
(for respondents in Cross Objs.)
For R1 and R2 : No Appearance
For R3 : Ms.N.Krishnaveni
Senior Counsel for Mr.P.Thiagarajan
For R4 : Mr.V.Nagarajan
for Ms.A.Pushpanathan
(S.A.(MD)No.343 of 2014)
For R1 : No Appearance
For R2 : Ms.N.Krishnaveni
Senior Counsel for Mr.P.Thiagarajan
For R3 : Mr.V.Nagarajan
for Mr.A.Pushpanathan
(S.A.(MD)No.344 of 2014)
For R1 to R3 : No Appearance
For R4 : Ms.N.Krishnaveni
Senior Counsel for Mr.P.Thiagarajan
For R5 : Mr.V.Nagarajan
for Mr.A.Pushpanathan
(S.A.(MD)No.345 of 2014)
For Cross
Objector : Ms.N.Krishnaveni
Senior Counsel for Mr.P.Thiagarajan
(for T.T.Krishnan in all Cross Objs.)
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S.A.(MD)Nos.343 to 345 of 2014
COMMON JUDGMENT
Aggrieved over the findings of the First Appellate Court reversing the decree and judgment passed by the trial Court decreeing the suit filed for specific performance, the present appeals have been filed.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Second Appeal, are as follows:-
In O.S.No.453 of 2006, it is the case of the plaintiff that larger extent of the land measuring to an extent of 7.83 cents in S.F.No.360, Gundur Village, Trichy District shown as 'A' Schedule property belongs to one Venkatachalam Chettiar. After his demise his wife executed a settlement deed in favour of one Mariayayee Ammal. The said Mariayayee Ammal executed a registered sale deed bequeathing the 'A' schedule property to the first defendant, her grandson. The first defendant has executed a gift deed in favour of his sisters namely, the first defendant in O.S.No.454 of 2006 and the first defendant in O.S.No.458 of 2006 for an extant of 4.50 acres and the remaining area namely, 3.33 cents were retained by the first defendant, which is shown as 'B' schedule property.3/33
http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 On 13.03.2006, the second defendant agreed to sell the 'B' Schedule property for an extent of 3.33 cents to the plaintiff for a total consideration of Rs.3,66,300/-, i.e., Rs.1,10,000/- per acre and the plaintiff has received a sum of Rs.1 lakh as an advance towards the sale consideration and executed the sale receipts.
(ii) Similarly, the first defendant in O.S.No.454 of 2006 has also agreed to sell the property of 2.00 acres of land for a total consideration of Rs.2.20 lakhs and executed sale receipt after receiving a sum of Rs.1 lakhs as an advance on 20.03.2006.
(iii) Similarly, the first defendant in O.S.No.458 of 2006 has also executed a sale receipt for selling the property to an extent of 2.50 acres for a total sale consideration of Rs.2.75 lakhs and received a sum of Rs.1 lakh as advance on 13.03.2006.
(iv) The first defendants in O.S.Nos.454 and 458 of 2006 are none other than the sisters of the first defendant in O.S.No.453 of 2006. After receipt of advance amount and executing the sale receipts, the first defendant in O.S.No.458 of 2006 has received further advance of Rs.1 lakh on 25.06.2006 and made necessary endorsement on 25.06.2006. At the time of receiving advance of Rs.1 lakh, the second defendant in O.S.No.453 of 2006 had also given title deeds and patta passbook to the plaintiff.4/33
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(v) The plaintiff was always ready and willing to purchase the properties under the said sale receipts. However, the defendants, after receiving the part consideration, are evading to perform the contract. Therefore, the plaintiff has issued a legal notice on 22.11.2006. On receipt of such notice, the contesting defendants in all the three suits replied to the said notice stating that they have sold the properties in favour of a third party. Hence, it is the contention that on enquiry, the plaintiff came to know that on 20.11.2006, the first defendant in O.S.No.453 of 2006 has manipulated a false document in the name of the third defendant in O.S.No. 453 of 2006 and the second defendant in O.S.No.454 and 458 of the 2006. Hence, it is the contention that the third defendant in O.S.No.453 of 2006 and the second defendant in O.S.No.454 and 458 of 2006 is not a bona fide purchaser and the documents are not supported by any consideration. Hence, it is the contention that the plaintiff was always ready and willing to purchase the property. Hence, the suit filed for directing the defendants to execute the sale deed as per the agreement and for permanent injunction claiming that they are the owners of the third schedule property and also permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the property.
4. The subsequent purchaser, namely the third defendant in O.S.No.453 of 2006 and the second defendant in O.S.Nos.454 and 458 of 5/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 2006 filed a written statement, which was adopted by the other defendants. It is the contention that the second defendant in O.S.No.453 of 2006 and the first defendants in O.S.Nos.454 and 458 of 2006 have entered into an agreement to sell the property on 13.03.2006, and received a sum of Rs.1 lakh as an advance towards the sale consideration. It is the contention of the subsequent purchaser that as per the oral agreement, dated 13.03.2006, sale shall be completed within a period of one month from the date of agreement. However, the plaintiff had not completed the sale within the said stipulated time and the plaintiff has sought further time. Accordingly, on 25.06.2006, the plaintiff has paid Rs.1 lakh as further advance to the first defendant in O.S.No.458 of 2006 and agreed to complete the sale before 30.08.2006. Further, the plaintiff has not paid the remaining sale consideration within the agreed time i.e., on 30.08.2006 and requested the advance amount to be paid back. As the plaintiff has not come forward to complete the sale, the subsequent purchaser has purchased the property and he is possession of the property since the date of purchase. Hence, prayed for dismissal of the suit.
5. Though three suits were filed in O.S.Nos.453, 454 and 458 of 2006, common evidence was recorded and three suits were disposed in a common judgment. The trial Court recorded common evidence in all three suits. On the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.aA1 6/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 to A24 were marked and on the side of the defendants D.Ws.1 and 2 were examined Exs.B1 to B9 were marked.
6. Based on the evidence and materials, the trial Court has framed the following issues:-
(1) Whether the plaintiff is entitled to get the relief as mentioned in the plaint?
(2) Whether the plaintiff is entitled to permanent injunction as prayed for?
(3) Whether the plaintiff was willing to execute the sale deed as per the oral agreement?
(4) To what other reliefs?
7. The trial Court recorded the finding to the effect that the plaintiff had proved her readiness and willingness and original documents were also handed over to her. Hence, the trial Court decreed the suit for specific performance. The First Appellate Court also recorded that the oral agreement is proved under the sale receipts in Exs.A8 to A10. The plaintiff has also issued legal notice in time and the plaintiff had also proved her readiness and willingness. Having confirmed the above finding, the First Appellate Court non-suited the plaintiff on the ground that since the plaintiff has also claimed permanent injunction, the documents namely, sale receipts cannot be used to claim protection under Section 53-A of the the Transfer of Property Act, 1882 and set aside the findings of the trial Court granting 7/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 specific performance, in alternate directed return of advance amount paid in all the three suits. Challenging the same, these three appeals have been filed.
8. While admitting these second appeals, the following substantial questions of law have been framed:-
(i) Whether the learned Principal District Judge is correct in reversing the well considered finding of the learned Subordinate Judge?
(ii) Whether the learned Principal District Judge is correct in dismissing the suit for Specific Performance when the Agreement has been admitted and receipt of advance Sale Consideration has also been admitted and the suit is filed within reasonable time?
(iii) Whether the learned Principal District Judge is correct in dismissing the Suit without any proper reasoning and finding in respect of the readiness and willingness of the plaintiff to conclude the contract?
9. Similarly, the subsequent purchaser had also filed cross objections in all the three suits challenging the finding of the Courts below with regard to the readiness and willingness.
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10. The learned Senior Counsel appearing for appellant vehemently contended that the oral sale agreement is admitted and receipt of advance amount is also admitted and the Courts below have clearly found that the plaintiff was ready and willing to perform her part of contract. The First Appellate Court holding that the plaintiff was always ready and willing to perform her part of contract, non-suited the appellant only on the ground that since the same has not been proved and the documents cannot be admitted to claim protection under Section 53-A of the Act and negatived the relief of specific performance. Such approach of the First Appellate Court is against law and hence, it is the contention that the subsequent purchaser is not a bona fide purchaser. There is no whisper whatsoever in the written statement to the effect that he has purchased the property without any knowledge about the earlier contract and for valuable consideration. The entire written statement was filed by the subsequent purchaser indicating his awareness about the oral contract. Hence, his purchase in no stretch of imagination can be held as bona fide.
11. It is the further contention that the plaintiff has also demonstrated her capacity to mobilise funds under Exs.A21 and A22, Bank Account, which clearly indicate that the plaintiff had capacity to mobilise funds. Already, substantial payment of the sale consideration has been paid. 9/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 Only the remaining sale consideration of Rs.4 lakhs alone has to be paid. Therefore, the readiness and willingness of the plaintiff, as rightly held by the trial Court, has been proved in this case. Therefore, it is the contention that Section 53-A of the Act cannot be pressed into service and the agreement can be enforced and it is admissible in evidence under Section 49 of the Indian Registration Act. Her further contention is that the subsequent purchaser purchased the property on 20.11.2006 and Rs.2,34,000/- has been shown as total consideration in the document for the entire extent of 7.83 acres. That itself clearly shows that his purchase is not bona fide and it is only to defeat the rights of the plaintiff. Hence, prayed for allowing these appeals.
12. Whereas the learned counsel appearing on behalf of the respondents would contend that the Courts below have chosen to rely on Exs.A21 and A22 and has come to the conclusion that the plaintiff has proved her readiness and willingness. Exs.A21 and A22 when carefully perused, the plaintiff has no sufficient funds to pay the remaining sale consideration. Without referring to the contents of the documents, the Courts below have simply believed the documents without any appreciation of the documents. Hence, it is the contention that the finding recorded by the Courts below with regard to the readiness and willingness is without any evidence. Therefore, when the plaintiff failed to prove the readiness 10/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 and willingness from the beginning, the relief of specific performance cannot be granted.
13. It is the further contention that except Exs.A8 to A10, sale receipts, nowhere it is mentioned that the possession was handed over to the plaintiff on the date of agreement, namely on 13.03.2006 and 20.03.2006. Whereas the plaintiff came to the Court contending that she was put in possession in part performance of the agreement. The contention of the plaintiff that she is possession itself indicates that she has not come to the Court with clean hands. Further contention is that to claim injunction on the basis of the part performance, the documents ought to have been registered under Section 17 of the Indian Registration Act. Even to invoke the doctrine of part performance, registration of the said document is necessary. Therefore, without registering the document merely on the basis of the sale receipts, the plaintiff cannot claim possession. The First Appellate Court has rightly considered this aspect and dismissed the suit.
14. In respect of her submissions, she also relied upon following judgments:-
(1) Palaniammal and others vs. K.R.C.Anbalagan and others [2013-1-L.W.998] 11/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 (2) Minor Ravi Bharathi vs. P.Balasubramani [2014 (3) MWN (Civil) 578] (3) S.Kaladevi vs. V.R.Somasundaram and others [(2010) 5 SCC 401] (4) G.Veeramani vs. N.Soundaramoorthy and others [C.R.P.(PD)(MD)No.1414 of 2012]
15. In the light of the above submissions, apart from the substantial questions of law that are framed while admitting these second appeals, the following substantial question of law has also to be answered:-
Whether in a suit for specific performance filed on the basis of unregistered documents mere consequential relief of injunction is sought, will invalidate the very contract itself from enforcing such contract?
16. The suit has been laid for specific performance to enforce the oral contract, which culminated into sale receipts dated 20.03.2003 and 13.03.2006 marked as Exs.A8 to A10. It is the main contention of the plaintiff that the second defendant in O.S.No.453 of 2006 and first defendants in O.S.No.454 and 458 of 2006 have agreed to convey an extent of 7.83 in Survey No.360 at the rate of Rs.1.10 lakhs per cent and received a sum of Rs.3 lakhs as an advance as part of sale consideration and 12/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 executed sale receipts under Ex.A8, A9 and A10, dated 13.03.2006 and 20.03.2006. In pursuant to the above agreement, further advance of Rs.1 lakh was also paid on 25.06.2006 as per Ex.A11 endorsement. As the first defendant in O.S.No.453 of 2006 also handed over the title deed to the plaintiff, the plaintiff had made necessary arrangement for payment of necessary consideration. However, the contesting defendants failed to execute the agreement, thereby the plaintiff has issued a legal notice on 22.11.2006. The land owner received a legal notice and sent a reply stating that the property has been sold in favour of the third defendant in O.S.No. 453 of 2006 and second defendant in O.S.Nos.454 and 456 of 2006, subsequent purchaser. Hence, it is the contention of the plaintiff that she is always ready and willing to perform her part of the contract.
17. The subsequent purchaser filed a written statement admitting the agreement for sale of the property in favour of the plaintiff and receipt of sale consideration of Rs.4 lakhs and took a stand that time limit for completion of sale was one month. Though the plaintiff has not come forward to pay remaining sale consideration as per the request, time was extended till 30.08.2006. However, the plaintiff had failed to pay the remaining sale consideration before 30.08.2006, thereby the subsequent purchaser defendant has purchased the property. 13/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014
18. It is not in dispute that the original owner in all the suits have agreed to convey the suit properties to the plaintiff at the rate of Rs.1.10 lakhs per acre and received a sum of Rs.3 lakhs as advance vide sale receipts under Exs.A8 to A10 dated 13.03.2006 and 20.03.2006. Since the properties stand in the names of the contesting defendants in all the suits, each agreed to convey the property at the rate of Rs.1.10 lakhs per acre and received advance amount on 13.03.2006, 20.03.2006 respectively and further advance on 25.06.2006 as per the endorsement in Ex.A11, and the same is not in dispute. The written statement has not been filed by the original owner and only the subsequent purchaser has filed the written statement, which was adopted by the original owner. Entire written statement also shows admission of the oral agreement and receipt of advance.
19. On perusal of Exs.A8, A9 and A10, it is made clear that there is no time limit fixed for completion of the sale. Though it is contended by the subsequent purchaser in the written statement that the property was agreed to be purchased by the plaintiff within one month from the date of agreement, whereas in the sale receipts there is no whisper about the same. Further payment received on 25.06.2006 under Ex.A11 indicates that time was not intended as an essence of the contract between the parties. 14/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014
20. D.W.1 in his evidence has categorically admitted that orally the defendants have agreed to sell the property and executed receipts after receiving part of the sale consideration. From Exs.A8 to A11, it can be seen that the plaintiff has paid substantial consideration of Rs.3 lakhs on 13.03.2006 and Rs.1 lakh on 25.06.2006 and immediately, under Ex.B12 issued legal notice on 22.11.2006 expressing her readiness and willingness to purchase the properties. Ex.A18, reply given by the defendants was issued on 27.11.2006, wherein the defendants have also admitted the oral agreement to sell the properties at the rate of Rs.1.10 lakhs per cent. The only contention of the contesting defendants is that they are always ready and willing to perform their part of the contract and only the plaintiff had not come forward to purchase the property within one month and therefore, they sold the property in favour of the third party for urgent necessities. Except contending that the plaintiff was not ready and willing to purchase the property within one month, the defendants never took any other defence as reply.
21. Evidence of D.W.1, when carefully seen, makes it very clear that he has admitted that the plaintiff had in fact demanded original title deeds immediately after Ex.A11 and his evidence also indicates that he has never seen the plaintiff personally and only his wife and his sisters have a direct contact with the plaintiff. His evidence also clearly indicates that he 15/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 has also informed about the agreement with the plaintiff to the subsequent purchaser/ the third defendant in O.S.No.453 of 2006 and O.S.Nos.454 and 456 of 2006 before the sale. This evidence clearly shows that subsequent purchaser had a knowldege of the earlier agreement with the plaintiff.
22. Evidence of D.W.2 clearly indicates the fact that at the time of his purchase he has not received any original documents in respect of the properties. It is also pertinent to note that in the entire written statement no plea whatsoever has been made with regard to his bona fidenesss. There was no pleading in his entire written statement that he has purchased the property without the knowledge of the earlier agreement and for valuable consideration. Ex.B1, so called sale deed, shows as if all the original documents have been handed over at the time of registration namely Ex.B1, whereas evidence of D.W.2 clearly indicates that he has never received any original documents at the time of his purchase. He does not even know whether any reference has been made with regard to those documents under Ex.B1. These facts coupled with evidence D.W.1 clearly indicates that he is not a bona fide purchaser without the notice of the earlier purchaser.
23. Though it is the contention of the defendants that as the plaintiff has failed to perform her part of the contract within one month, due to urgent necessity, they have sold the property to the subsequent 16/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 purchaser, it is to be noted that the defendants have agreed to sell the property for an extent of 7.83 at the rate of Rs.1.10 lakhs per acre, therefore, the sale consideration would be around Rs.8 lakhs and they received a sum of Rs.4 lakhs as advance and if really the defendants have intended to sell the property for urgent necessity, the sale consideration would not have been for such lower price. Ex.B1, indicates that the entire extent of 7.83 acres was sold only for a sum of Rs.2,54,000/-. This itself clearly indicates that the document was registered without even perusing the originals, which were already given to the plaintiff. Further no plea whatsoever was taken in the written statement as to the bona fideness of the subsequent purchaser. Hence, this Court has to necessarily hold that the third defendant in O.S.No.453 of 2006 and second defendant in O.S.No. 454 and 458 of 2006 is not a bona fide purchaser for valuable consideration.
24. As discussed above, the evidence of D.W.1 itself clearly shows that the subsequent purchaser was aware of the earlier contract. Therefore, in the absence of any pleading to prove his bona fide in his written statement and the evidence adduced on the record, he cannot be held to be a bona fide purchaser for valuable consideration without notice and his sale deeds appear to be a sham and nominal only to nonsuit the plaintiff. The plaintiff certainly is entitled to enforce the oral agreement, which culminated in the form of sale receipts under Exs.A8 to A10 and 17/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 subsequent receipt under Ex.A11. None of the original owners, who had entered into oral agreement with the plaintiff, has come before this Court. Even the written statement was filed by the so called subsequent purchaser, which was adopted by the other defendants. D.W.1 is also not a party to the contract. He was also not aware of the transaction between the plaintiff and the defendants. The documents under Exs.A8 to A10 clearly show that the parties never intended any time as an essence of the contract. This fact was further proved by the further payment after three months under Ex.A11. Therefore, the time was never essence of the contract between the parties. The legal notice was also issued in time by the plaintiff under Ex.A13 on 22.11.2006, after sale of the property to the subsequent purchaser under Ex.B1 on 20.11.2006. Both the Courts below have clearly considered the entire evidence and found that the plaintiff was always ready and willing to purchase the properties and she had the capacity to mobilise funds.
25. Cross objections were filed challenging the finding of the Courts below with regard to the readiness and willingness of the plaintiff to perform her part of contract on the basis of Exs.A21, A22 an AA24, documents to show that the plaintiff had the capacity to mobilise funds. The Cross objectors' main contention is that the Courts below have not considered the contentions of the Exs.A21 and A22, if the same are properly 18/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 analyzed, the same will prove that the plaintiff has no sufficient money to pay the remaining sale consideration. Therefore, such finding of the Courts below is not on proper appreciation of evidence.
26. I have perused the entire evidence, particularly, Exs.A21 and A22, bank account entries, which shows that there were several transaction made by the plaintiff. Even though there was no amount in the end, there were several transaction and the plaintiff had the capacity to mobilise fund. In the year 2008, she had only Rs.13,659/-. It is to be noted that there were huge transaction by the plaintiff by depositing and withdrawal. Therefore, merely because of the balance at the end of the account in the year 2008, it cannot be stated that the plaintiff has no capacity to raise funds. The bank account details under Exs.B21 and B22 makes it very clear that the plaintiff in fact had capacity to raise funds at the relevant point of time. She had several amount transaction in the bank in the year 2006 and 2007. The readiness is only having capacity to mobilise funds. One need not have a ready cash in hand. The Bank account details clearly indicate that several amounts have been dealt with by the plaintiff. Hence, this Court has to necessarily hold that the plaintiff has capacity to mobilise funds to pay the remaining sale consideration as Rs.4 lakhs have already been paid as advance.
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27. The plaintiff was always ready and willing to perform her part of contract. She infact got the original documents from the defendants after her last payment under Ex.A11 as per the evidence of D.W.1. She also issued a legal notice under Ex.A13 and filed a suit in time. Therefore, it cannot be stated that the plaintiff was never ready and willing to perform the contract. Therefore, the finding of the Courts below with regard to readiness and willingness is well balanced.
28. The first appellate Court having held that the plaintiff has proved her readiness and willingness and there was oral agreement between the parties and there is no written sale agreement, non-suited the plaintiff only on the ground that the plaintiff has also claimed the relief of permanent injunction along with the relief of specific performance. the documents, on the basis of which possession sought to be protected, are not the registered documents and the same is not admissible in evidence under section 17 (A) of the Registration Act.
29. The learned counsel appearing for the Cross Objectors contended that in a suit for specific performance the plaintiff claimed benefit under Section 53 (A) of the Transfer of Property Act and sought the relief of permanent injunction on the basis of the possession and enjoyment of the property, which he got under Exs.A8 to A10 and the said document is 20/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 hit by Section 17(1-A) of the Registration Act and the said documents cannot be looked into for any other purpose. It is their contention that when possession is sought to be protected on the basis of the unregistered agreement, the same cannot be looked into for any other purpose even for specific performance.
30. In support of her contention she has also relied upon the following judgments:-
(1) Palaniammal and others vs. M.Ravi Shankar and another [2013-1-L.W.998] (2) S.Kaladevi vs. V.R.Somasundaram and others [(2010) 5 SCC 401]
31. In the case of Palaniamml and others vs. M.Ravi Shankar and another [2013-1-L.W.998], this Court has held as follows:-
"24. In the case on hand, the first plaintiff claimed benefit under Section 53-A of the Transfer of Property Act. The plaintiffs have sought for the relief of permanent injunction restraining the defendants from interfering with the first plaintiff's peaceful possession and enjoyment of the properties which he got under Exs.A1 and A3 documents. When the first plaintiff sought for protection claiming benefits under Section 53-A of the Transfer of Property Act, under Section 17(1-A) of the Indian Registration Act, Exs.A1 and A3 documents must 21/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 have been registered. Since both the documents viz., Exs.A1 and A3 were not registered, the plaintiffs cannot rely upon these documents. If the plaintiffs had not claimed benefits under Section 53-A of the Transfer of Property Act seeking for protection with regard to possession which they got under Exs.A1 and A3 documents, in that case, the registration is not mandatory. But in the case on hand, since the first plaintiff had sought for a prayer for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property based on Exs.A1 and A3 documents. Therefore, the documents must have been registered under Section 17(1-A) of the Registration Act. Since Ex.A1 was not registered, the plaintiffs cannot rely upon the said document. Similarly, in the case of Ex.A3 assignment deed, it was alleged that possession was handed over to the 1st plaintiff by the second plaintiff under the said document. As already staed, since the first plaintiff, had sought for the relief of permanent injunction, in respect of his possession based on Ex.A3 assignment deed, the document must have been registered under Section 17(1-A) of the Registration Act. Since the document was not registered, the first plaintiff cannot rely upon the said document and file the suit for specific performance based on the said document. Therefore, even if Exs.A2 and A3 are true and genuine documents, the said documents cannot be relied upon by the plaintiffs for the reason that they were not registered under Section 17(1-A) of the Indian Registration Act. Therefore, the provision of Section 48 of the Registration Act are not applicable to the present case."22/33
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32. The learned counsel appearing for the appellant has submitted that Section 17(1-A) of the Registration Act cannot be applied to the facts of the present case since the document under Exs.A8 to A10 is not an agreement and it is only receipt for sale purpose. They admitted oral agreement between the parties, which culminated into receipts. Even the said receipts do not show any handing over of possession in pursuant to the contract. Therefore, bar under Section 17(1-A) of the Registration Act will come into operation only for the purpose of Section 53(A) of the Transfer of Property Act.
33. It is relevant to refer Section 17(1-A) of the Registration Act, which reads as under:-
"1A.The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A 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 53A."
34. A careful perusal of the above Section makes it very clear that an unregistered document sought to be relied upon to protect possession taken in pursuant to the contract ought to have been registered, otherwise 23/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 it cannot be used for the purpose of Section 53(A) of the Transfer of Property Act. Entire Section does not speak about the non enforceability of the contract of an unregistered document. This amendment has been made in tune with the amendment Act 48 of 2001 Registration and other related Laws.
35. To seek to protect his possession on the basis of the contract as a part performance, registration of the document is compulsory for that purpose alone. Therefore, it cannot be stated that such amendment will take away the very unregistered document enforceability under Section 49 of the Registration Act.
36. Section 52(A) of the Transfer of Property Act reads as under:-
"53A. Part performance: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, 24/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
37. To invoke part performance, the essential condition is, written contract singed by parties entering into a contract, whereas Exs.A8 to A10 only respect of oral agreement for sale, which culminated to receipts. These documents are also silent about the possession as part performance of the contract. Therefore, merely because in the plaint it has been stated that they have taken possession as part performance of the contract, it cannot be stated that these documents are inadmissible in evidence and hit by Section 17(1)(A) of the Registration Act. It is only a oral agreement between the parties, which has been admitted by both sides, which culminated into advance receipts. Therefore, it cannot be stated that these documents will fall within the ambit of Section 53(A) of the Transfer of Property Act to claim protection. Section 49 of the Registration Act makes it very clear that an unregistered document affecting immovable property 25/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 and required by the Registration Act or the Transfer of Property Act to be registered may be received as evidence of contract in a suit for specific performance.
38. The Hon'ble Apex Court in the case of AS.Kaladevi vs. C.R.Somasundaram and others [(2010) 5 SCC 401]. in Para 9 to 12, has held as follows:-
"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.
11. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 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 instrument"
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of 26/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 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."
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. 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 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."
39. The Hon'ble Apex Court in the case of Ameer Minhaj vs. Dierdre Ezlizabeth (Wright) Issar and others [(2018) 7 SCC 639]. in Para 9 to 12, has held as follows:-
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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 53A 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 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi Vs. V.R. Somasundaram and Ors.,1 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. Section 49 of the 1908 Act reads thus:
“49. Effect of nonregistration 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 (2010) 5 SCC 401
(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 28/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 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. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited Vs. Development Consultant Limited,2 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 that the sale agreement dated 9th July, 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 (2008) 8 SCC 564 1908 Act and shall not have any effect for the purposes of Section 53A 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. "29/33
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40. The above judgment makes it very clear that an unregistered document can be admitted in evidence as contract in a suit for specific performance. Admittedly, in this case, document never refers about the possession and handing over of original documents as part performance of the agreement. Though the Single Bench referred above (2013-1-L.W.-998) has held that document cannot be admitted, in the above case the very possession itself was in pursuant to the agreement under Exs.A1 and A3. The above judgment can factually be distinguishable from this case. Admittedly, there is no written contract signed by the parties and it is only a oral agreement. Therefore, the above judgment cannot be applied to the present case. Even otherwise, this Court is of the view that what is barred under Section 17(1)(A) the Registration Act is to enforce right under Section 53(A) of the Transfer of Property Act by the person, who is using the possession as shield, whereas proviso to Section 49 makes it very clear that unregistered document can be used as an evidence for enforcing the contract. Therefore, this Court is of the view that mere permanent injunction is sought in the pleadings as a consequential relief to the main relief of specific performance, the same itself cannot be a ground to invalidate the very oral contract admitted by the parties. Accordingly, the substantial questions of law are answered.
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41. It is also stated by the learned counsel for the defendants that the defendants also deposited some amount in pursuant to the order of this Court while granting anticipatory bail in respect of the case registered against him under Section 420 IPC and the same may be returned.
42. The plaintiff shall pay the remaining sale consideration, if not already deposited in Court, within a period of two months from the date of receipt of a copy of this order, thereafter, the defendant shall execute the sale in favour of the plaintiff within one month therefrom. In the event of failure to execute the sale deed, the plaintiff is at liberty to get the sale deed through the Court of law.
43. Accordingly, these Second Appeals are allowed and finding of the First Appellate Court negativing the relief only on the ground of Section 17(1)(A) of the Registration Act is set aside and the judgment of the trial Court is restored and the Cross Objections are dismissed. No costs.
01.02.2021
Index : Yes/No
Internet : Yes/No
ta
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S.A.(MD)Nos.343 to 345 of 2014
To
1.The Principal District Judge, Tiruchirappalli.
2.The Principal Subordinate Judge, Tiruchirapalli
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
32/33 http://www.judis.nic.in S.A.(MD)Nos.343 to 345 of 2014 N.SATHISH KUMAR, J.
ta Judgment made in S.A.(MD)Nos.343 to 345 of 2014 and CROSS OBJ.(MD)Nos.10 to 12 of 2014 01.02.2021 33/33 http://www.judis.nic.in