Allahabad High Court
Asgar And Another vs Vimla And Another on 1 December, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 10208 of 2022 Petitioner :- Asgar And Another Respondent :- Vimla And Another Counsel for Petitioner :- Syed Wajid Ali,Anuj Kumar Sharma Hon'ble Ajit Kumar,J.
Heard Sri Syed Wajid Ali, learned counsel for the petitioner.
By means of this misc. petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 20.09.2012, whereby, his application to call for a handwriting expert to prove signature of the plaintiff-landlord upon unregistered agreement for sale executed on 06.09.2012 which admittedly plaintiff has questioned as a forged document, has been rejected.
In support of his argument learned counsel for the petitioner submits that once an agreement for sale has come to be executed between the landlord and tenant, the tenant acquires the status of co-owner of the property and therefore, can resist possession and a suit for ejectment therefore, would not lie.
In support of his argument learned counsel for the petitioner has relied upon a judgment of Supreme Court in Imambi v. Azeeza Bee, 2001 (1) ARC 146 and has placed before this Court paragraph no. 5 of the judgment which runs as under:
"5. Thus, only question which arises for our consideration is, whether status of a tenant would continue to be so even after an agreement of sale is executed by such tenant with the landlord in respect of the same tenanted premises. Having heard learned Counsel for the parties, we find the matter is covered by the decision of this Court. The status of such tenant, after execution of the said agreement of sale ceases to be such which is changed to that of a purchaser and when a sale deed is executed, as in this case of the half share of the said property such tenant becomes co-owner with the landlord. This Court held to the similar effect in Abdul Alim v. Sheikh Jamal Uddin Ansari and ors."
Having heard learned counsel for the petitioner and having perused the judgment and pleadings raised, I find it to be an admitted position of fact in the present case that the alleged agreement for sale was executed only on 06.09.2012. The provisions of law as contained under Transfer of Property Act regarding conveyance of an immovable property worth more than Rs. 100/- with the relevant provisions of Indian Registration Act clearly provides that even an agreement for sale in respect of an immovable property is to be registered one.
The question is as to whether any right could flow from an unregistered agreement for sale and the simple answer will be 'No'. This legal position has already been held in the case of Suresh & Anr v. Ram Bharose Lal Gupta and Ors, 2014 (11) ADJ 327 the court vide paragraph no. 17 held thus:
"17. The transfer of immoveable property is governed by Act, 1882 and provides the way in which an immoveable property can be transferred. Section 54 says that transfer of immoveable can be made either by registered instrument or by delivery of property of a value less than Rs.100/-. No other mode is prescribed in the section. It is not stated therein that if a document is written so as to transfer immoveable property worth below Rs.100/-, it shall not require registration. On the contrary, if it is worth less than Rs.100/- and transfer is not proposed by an instrument reduced in writing, by mere delivery of property such transfer is permissible but where it is reduced in writing, it must be a registered instrument. Moreover, there is no exclusion with regard to requirement of registration of aforesaid document under Section 17 of Act, 1908. The documents, which are excluded from the requirement of registration, does not include transfer of immoveable property by sale irrespective of amount of consideration. Even otherwise, Section 17 of Act, 1908 nowhere provides, if a registration of a document is provided under any statute, that would not be necessary by virtue of Section 17 of Act, 1908. Section 17 of Registration Act nowhere has overriding effect as such over Section 54 therefore, both these provisions have to be read together. That being so, I am clearly fortified from the view taken by this Court in Budhi Ram (supra) that sale of property, if made through an instrument in writing then it shall not result in transfer of property, even if worth of property is less than Rs.100/-, since registration of document is necessary by virtue of Section 54 of Act, 1882. In such a case, I do not find any provision which may come to help a party who is staking his claim on the basis of an unregistered instrument. I am, therefore, clearly in agreement with the view taken by Court below that sale deed dated 22.12.1976, being an unregistered document, was a nullity and did not result in conferring any rights upon defendant-tenants i.e. petitioners with regard to suit property."
It has been held repeatedly by this Court and by the Supreme Court that no right flows from an unregistered agreement for sale.
As far as paragraph no. 5 of the judgment of Supreme Court in Imambi (supra) is concerned, I find that the court held that the status of a tenant would change in the event of an execution of an agreement of sale, an execution of an agreement of sale is required to be registered one in law to derive any title upon such instrument. The court relied in that case upon earlier judgment of Abdul Alim v. Sheikh Jamal Uddin Ansari & Others, (1998) 1 SCC 683 wherein half share of the demised shop was purchased by tenant under the registered sale deed and it is in that circumstances, the court had held that the status of tenant would change to a status of co sharer in the property. There is no such case of the petitioner in the case in hand except that he is banking upon the rights under an unregistered agreement of sale.
An unregistered agreement for sale has only evidentiary value for collateral purposes, where a right to possession can be resisted against a third party, but no such right can accrue against the landlord who has filed the suit for ejectment to set up a plea that he has executed an agreement for sale of the property in question. What can not have an evidentiary value, need not be proved being worth paper.
In such above view of the matter, therefore, I do not find the order passed by the trial judge is a flawed one which may warrant any interference in my supervisory jurisdiction under Article 227 of the Constitution.
Petition fails and is accordingly dismissed.
Order Date :- 1.12.2022 IrfanUddin