Rajasthan High Court - Jaipur
Dwarka Prasad vs Ciivil Judge (S D ) And Anr on 8 January, 2013
In The High Court Of Judicature For Rajasthan Bench At Jaipur SB Civil Writ Petition No.6429 of 2012 Dwarka Prasad v. The Civil Judge & another Date of judgment 8.1.2013 Hon'ble Dr. Meena V. Gomber, J. Mr. S.K. Singodiya, for petitioner Mr. S.N. Shah, for respondents
By way of this writ petition filed under Articles 226 & 227 of the Constitution of India, the petitioner has assailed the order dated 11.4.2012 passed by Civil Judge (Senior Division), Jhunjhunu, in civil Suit No.17/2010, whereby his application filed on 14.3.2012, was dismissed.
Briefly stated facts of the case, so far as they are relevant for the purpose of disposal of this petition, are that the respondent had filed a suit for specific performance of contract on the basis of an agreement to sell executed between the parties on 11.6.2002 with a prayer that the defendant be directed to get the sale deed of the property (subject matter of the agreement) executed and registered.The defendant contested the suit by filing his written statement and the learned trial court, on the basis of material before it, framed following issues:
1. "??? ????????? ????? ?????? ???? ?? ????? ????????? ?? ???? ?? ??? ???? ?
2. "??? ???? ????????? ?? ????????? ????? ?? ????? ?????? ?? ?????? ?????? ???? ??????????? ????? ?????? ?? ??????? ??? ?
3. "??? ???? ????????? ?? ????? ????? ????????? ???? ?? ????? ??? ?
4. "??? ??? ???? ????? ???? ???? ?? ????? ????? ??? ?
5. "??? ??? ???? ????? ???? ?? ?????? ?????????? ?? ???? ???? ?? ????? ????? ??? ?
During the examination of respondent (plaintiff) when document in question was to be marked exhibit, the defendant (petitioner) moved the application in question stating that since the document executed on 11.6.2002 on a stamp of Rs.100/- was not only unregistered but was insufficiently stamped, therefore, it was inadmissible in evidence.
This application was vehemently opposed by the respondent-plaintiff stating that the document in question was an 'agreement to sell' and not 'sale' or otherwise, which was executed in the year 2002 i.e. before the amendment in Stamp Act, 2004 and that as per Schedule I clause 5(c), it being an agreement not covered in clause 5(a) and 5(b) fell in the category of other agreements and was only required to be on a stamp of Rs.100/- and therefore the objection of defendant in this regard was not sustainable. As regards the objection with regard to it being unregistered, it was argued that the document was only an agreement to sell and not a sale deed and this is clear from the fact that the respondent had filed suit for specific performance with a prayer to direct the defendant to execute the sale deed.
Learned trial court, after hearing the parties and relying on the judgment of Hon'ble Apx Court in S.Kaladevi Vs. V.R.Somasundaram, 2010(2) RRT 819 (SC), passed the impugned order which has been assailed here.
I have heard learned counsel for the parties at length, examined their rival claims and contentions and also the findings recorded by the learned trial court.
During the course of arguments, it was braught to the notice of this court by the learned counsel for the respondent that after the order dated 11.4.2012 one more application was filed by the defendant-petitioner on the same grounds which was also dismissed on 25.4.2012 and thereafter the document in question had been exhibited and plaintiff's witness had been completely cross examined by the defendant. Therefore, it was submitted by him that once a document had been exhibited, it could not be questioned even by the Appellate or Revisional Court, what to talk of the same court. Further that the defendant petitioner has cross examined the witness in detail and, therefore, he is estopped from raising said objection.
In order to appreciate the rival submissions it appears necessary to go through the recital of the agreement to sell, which reads as under:
'' ?????? ?? ?????????'' ??? ??????? ?????? ????? ???? ????????? ????-54 ???? ????-????, ??????- ????? ??.4, ??? ?????? ???????? ?? ??? ?????? ????? ??????? ????- ??????? (???.) ?? ???? ???? ??? ??? ????? ???? ??? ?? :-
1.?? ?? ????? ?????? ?? ????? ??????-11 ?????? ????? ??????? ??? ???? ????? ?? ?????? ???? ????? ?? ??? ?? ??? ???? ????? ????? ??? ??? ?? ?????? ???? ?? ???? ???? ??? ?? ?????? ???? ?? ???? ????? ?????? ??????? ???
2.?? ?? ????? ???? ?????? ???? ?? ????? ????? ?????? ???? ???? ?? ??? ?? ??? ???? ???? ??? ?? ?? ?????? (?????) ????? ?????? 54 ??? ??? ?????? 54 ??? ?? ??? ????? ?? ??? ????????? 2916 ???? ??? ?? 324 ???? ?? ?? ??? ????? ?? ????? ???- ???? ????? ?? ????, ?????? ???- 14 ??? ????? ?????? , ????? ???- 12 ??? ????? ?????? ??? ??????- ???? ????? ??? ???? ?? ???? ????? ???
3.?? ?? ????? ???? ????? ?????? ????????? ?? ?? ??????-2 ?? ?????? ???? ?? ?? ?????? ???? ???? ?? ???????? ???? 40,000/-????? ???? ?? ????? ???? ????? ???? ??????? ??? ????? ???? ??????? ????????? ???? ???? ?????? ????? ??.4 ????? ?? ??? ?????? ????? ??????? ???? ???????(???.) ?? ?????? ???? ???? ???? ????? ?????? ????????? ?? ?? ??????-2 ?? ???? ???? ?? ???? ?????? ?? ?????? ???? ??????? ?? ??? ????? ???? ????? ?? ?????? ?? ???? ???? ???? ?? ???? ?????? ?? ??? ?? ???? ?? ?? ?????? ?? ????? ?? ?????? ????? ?? ????? ??? ??? ??????? ?? ?? ?? ?????? ?? ?? ???? ????? ?? ???? ??? ??????? ???? ??? ???? ??? ???
4.?? ?? ?? ?????? ?? ?????? ???? ?? ?? ???? ????? ?????? ????????? ?? ?? ??????-2 ?? ???? ?????? ?? ?????? ???? ????? ? ????? ??? ???? ??? ????????? ????? ??? ???? ??? ?? ???? ????? ???? ???? ??????????? ?? ???????? ???? ??? ????? ????????? ?? ????? ??? ?????? ?? ?? ?????? ??? ???? ????? ?? ????????? ?????? ?? ????? ?? ?????? ?? ?? ??? ????? ??????
??: ????? ?? ?????? ?? ????????? ???? ????? ??? ???? , ???? ???? ??? ??? ?? ? ???? ???? ?? ???? ?? ?????? ??? ??? ???? ???????? ?? ?? ?????? 11.06.2002 ?? 50X2=100/- ????? ?? ??? ?????????? ??????? ???? ?? ???? ???? ???? ?? ??? ????? ? ??? ????? ?????? ?? ????? ????????? ?? ???? ??? ?? ?????? ??? ? ???? ????? ??? ????
????????? ???????? '' From the recitals of said document it is very clear that the petitioner had covenanted to sell the plot as mentioned in the agreement to sell, of which the full sale consideration of Rs.40,000/- being the highest price of the land in question had been paid by the plaintiff-respondent, which was duly acknowledged to have been received by the defendant in the document itself. The possession of the plot in question, as mentioned in the said document, has also been handed over to the respondent-plaintiff. The defendant had stated in unequivocal terms in the agreement itself that he will have no objection to any use of that land by the plaintiff in any manner as he would like and he further agreed that as and when the plaintiff-respondent desires the registered sale-deed will be executed in his favour.
In the suit for specific performance of contract the main prayer of respondent (plaintiff) was that the defendant-petitioner be directed to have sale-deed executed and registered in his favour. It is clear that the document in question cannot be said to be a sale-deed but was an agreement to sell. If the document in question was a sale-deed, there would have been no necessity on the part of the respondent to have filed a suit for specific performance of the agreement in question. Since the intention of the parties was to execute an agreement and thereafter have the sale-deed executed and registered, the trial court, in my considered opinion, has not committed any irregularity or illegality in having arrived at the conclusion that the document in question was an agreement to sell and not a sale-deed and was not compulsorily registrable.
Moreover the document tendered in evidence by the plaintiff-respondent, is not to be adjudicated on merits. It is only at the time of final decision of the case after the parties had been called upon to adduce evidence, that the order could be passed on merits. A reference may be made in this regard to the relevant provisions of Section 17 of Registration Act, 1908 as amended by Indian Registration (Amendment) Act (No.III) of 1927; the explanation to which is in the following term:-
Explanation.- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase-money.
Sub-section (2) of Section 17 provides, thus:-
17(2) Nothing in clauses (b) and (c ) of sub-section (I) applies to-
(i) .....
(ii) .....
(iii) ......
(iv) .....
(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.
In view of above, I am of the considered opinion that the Registration Act as well as the Transfer of Property Act strikes only at document and not at transactions. Its provisions impose a strict construction and unless a document is clearly brought within its purview its non-registration is no bar to its admissibility in evidence. In the instant case, the document in question being an agreement to sell of a piece of land, against which the plaintiff-respondent had paid the sale consideration at the time of execution of the document itself and the parties have covenanted to get the sale document registered at a later date, this by itself would not confer any legal right to the plaintiff i.e. the passing of the title, which in fact, would operate consequent upon the registration of the sale-deed which admittedly is not alleged to have been done in the instant case.
Therefore, the learned trial court has rightly rejected the application filed by the defendant-petitioner and has taken the said document on record by way of reception in evidence and thereafter duly exhibiting the same on record since the relief sought for in the suit was for specific performance of the agreement.
Section 54 of the Transfer of Property Act, 1882, defines sale as a transfer of ownership in exchange for a price paid or promised or part-paid and part promised, the rights and obligations of the parties are consequent upon the contract before and after the execution of the deed as per Section 55 of the Transfer of Property Act which deals with the rights and liabilities of the buyers and sellers.
In the matter of Durgadan v. Devidan, 1974 RLW 296, similar question arose for consideration of this Court. The plaintiff had sought specific performance in respect of a document pertaining to an agreement to sell which was not registered. It was held by this Court that it did not amount to sale but only to a contract for sale and so the plaintiff could pray for specific performance of the agreement. One of the issues which was framed by the trial court in the proceedings which culminated in Civil Second Appeal before this court was that whether the agreement which was not registered, could be said to be inadmissible in evidence? This court, while deciding the second appeal, observed in the following manner:-
A sale of immovable property of the value of Rs.100/- and upwards, could be made only by a registered instrument. Therefore, the sale document found to have been executed by the defendant in favour of the plaintiff purported to be a sale alright in every way, but according to its tenor, in law it could not be a sale, without the sale document being registered, legal title in the property would not be transferred to the vendee. Right to get possession by the vendee arises only when the title is conveyed with the registration of the sale document. It is only for the sake of convenience and for avoiding multiplicity of suits that even in a suit for specific performance of a contract for sale with respect to immovable property, a prayer for possession is made but it is far from saying that without such a prayer the suit for specific performance of the contract will not be maintainable. Therefore, the second contention has no force.
The learned Judge while deciding the aforesaid appeal, had placed reliance upon the Division Bench judgment of this Court in the matter of Sampat Raj v. Poker, RLW 1995 (VI) p.232, wherein the reference was made to Section 17(2)(v) of the Registration Act which exempts registration of a document which does not itself create an interest in an immovable property but merely creates a right to obtain another document which will do so.
In the matter of M/s Khedut Sahakari Ginning and Pressing Society Ltd. v. The State of Gujarat, 1971 (III) SCC 480 para 5, the Apex Court observed as under:-
Whether a particular agreement is an agency agreement or an agreement of sale depends upon the terms of the agreement. For deciding that question, the terms of the agreement have got to be examined. The true nature of a transaction evidenced by a written agreement, has to be ascertained from the covenants and not merely from what the parties choose to call it. The terms of the agreement must be carefully scrutinised in the light of the surrounding circumstances see the decision of this Court in Rohtas Industries Ltd. v. State of Bihar, 12 STC 615,...
Thus from the filing of the suit for specific performance with a prayer for direction to the defendant to get the sale-deed executed, clearly shows that the title had not passed and the document in question was only intended to be an agreement to sell. Therefore the first argument of learned counsel for the petitioner is not sustainable.
Second argument advanced by learned counsel for the petitioner was that the document tantamounts to a bond and cannot be admitted in evidence because of being unstamped.
I have looked into the definition of bond given in Section 2(vi) of the Rajasthan Stamp Act, 1998 which reads as under :-
bond includes,-
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
(b) any instrument attested and not payable to order or bearer, whereby a person obliges himself to pay money to another, and
(c) any instrument attested, whereby a person obliges himself to deliver grains or other agricultural produce to another;
Explanation.- For the purpose of this clause attested means attested by one or more witnesses each of whom has seen the esecutant sign or affix his mark to the instrument or has been some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of such signature or mark or of the signature of such other person, and in which each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
It is clear from above that the document in question can, by no stretch of imagination, tantamount to a bond as per the definition of Section 2(vi) of the Rajasthan Stamp Act, 1998.
As per Schedule I Clause 5(c), proper stamp duty for an agreement or memorandum of an agreement not falling within the category of Clauses 5(a) and 5(b) shall be as per Clause 5(c) being only Rs.100/-. So far as the amendments to the said Act by way of insertion of Clauses 5(bb), (bbb) and (bbbb) is concerned, these have been inserted by Ordinance 5 of 2004 whereas the document in question has been executed in the year 2002 i.e. before the amendment Ordinance 5 of 2004.
For the foregoing reasons, especially explanation to Sec.17 as also 17(2)(v) of the Registration Act, 1908 and Schedule (I) 5(c) of Raj. Stamp Act, this Court is of the considered view that the learned trial court has not committed any jurisdictional error or any illegality while rejecting the application filed by the defendant-petitioner. The petition has no merit and is hereby dismissed with no order as to costs.
(Dr. Meena V. Gomber) J.
db/sandeep [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS