Karnataka High Court
Smt Rudramma vs Sathyanarayana Raikar on 22 August, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION No.34467 OF 2017 (GM-CPC)
BETWEEN:
1. SMT.RUDRAMMA,
W/O.LATE D.G.M.KOTRAIAH,
AGE: 77 YEARS,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002.
2. SMT.CHANDRAMMA,
W/O.PARAMESHWARAIAH,
AGE: 57 YEARS,
R/O.OPP: SAVANTH SERVICE STATION,
P.J.EXTENSION,
DAVANAGERE-577002.
3. GIRIJAMMA,
W/O.VIRUPAKSHAIAH,
AGE:55 YEARS,
R/O.KADRANAYAKANAHALLI VILLAGE,
HARIHAR TALUK,
DAVANAGERE DISTRICT-577001.
4. SMT.BHARATHI,
W/O.SURESH MARALIMATH,
AGE:45 YEARS,
BEHIND K.E.B, P.B.ROAD,
DAVANAGERE-577001.
5. G.M.VEERAIAH,
S/O.DGM KOTRAIAH,
AGE: 64 YEARS,
BUSINESSMAN,
R/O.1030, 2ND MAIN, 4TH CROSS,
VINOBANAGAR,
DAVANAGERE-577001.
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6. G.M.RAJASHEKARAIAH,
DGM KOTRAIAH, AGE:54 YEARS,
BUSINESSMAN,
R/AT C/O.MAGANAHALLI
VISHWANATHAPPA,
NO.919/2, K.B.EXTENSION,
DAVANAGERE-577002.
PRESENTLY RESIDING AT NO.442/1,
K.B.EXTENSION, KUVEMPU ROAD,
DAVANAGERE.
7. SRI.G.M.KUMAR,
S/O.DGM KOTRAIAH,
AGE.52 YEARS,
BUSINESSMAN,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD, DAVANAGERE-577002.
8. SRI.G.M.GURUBASAIAH,
S/O.DGM KOTRAIAH,
AGE:48 YEARS,
BUSINESSMAN,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002.
9. SRI.G.M.MALLIKARJUNAIAH,
S/O.DGM KOTRAIAH,
SINCE DEAD BY LRS
9(A) PANKAJA.T.R,
W/O.LATE.G.M.MALLIKARJUNAIAH,
AGED ABOUT 40 YEARS,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002.
9(B) G.M.DIVYA,
D/O.G.M.MALLIKARJUNAIAH,
AGED ABOUT 16 YEARS,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002.
REP.BY HER MOTHER PETITIONER NO.9(A)
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10. SRI.G.M.MAHANTHAIAH,
S/O.DGM KOTRAIAH,
AGE: 43 YEARS,
BUSINESSMAN,
R/O.NO.442/1, K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002. ... PETITIONERS
(BY SRI.H.C.SHIVARAMU, ADVOCATE)
AND:
SATHYANARAYANA RAIKAR,
S/O.LATE RAMRAO RAIKAR,
AGE: 56 YEARS,
JEWELER, R/O.NO.417/1B,
K.B.EXTENSION,
KUVEMPU ROAD,
DAVANAGERE-577002. ... RESPONDENT
(BY SRI.VIGHNESHWAR.S.SHASTRI, ADVOCATE)
*******
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 9.6.2017 PASSED IN O.S.112/2010 ON THE FILE
OF THE LEARNED PRL. SR. CIVIL JUDGE DAVANAGERE AT
ANNEX-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER
The petitioners are defendants in O.S.No.112/2010, which is pending on the file of Civil Judge (Sr.Dn.) Davanagere.
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2. For the sake of convenience, parties are referred to as per their ranking before the trial Court.
3. The suit has been filed by the plaintiff seeking the relief of specific performance of contract dated 27.11.2006 and alternatively for refund of the advance amount. During the pendency of the suit, at the time of recording of evidence plaintiff intended to produce the agreement dated 27.11.2006 and a two - fold objection was raised to the marking of said document. Firstly, objection was raised with regard to the said document being insufficiently stamped. Secondly, it was contended that it was an unregistered instrument and therefore, could not be admitted in evidence. The trial Court passed an order directing the plaintiff to pay deficit stamp duty as per the order of the District Registrar. The same was paid by the plaintiff. Even then objection with regard to the admissibility of the agreement remained vis-à-vis the same being an unregistered agreement. -5-
4. The contention of defendants is that possession under the said agreement was handed over to the plaintiff, therefore, the agreement had to be registered and the same not being registered, no right under the said instrument was conveyed to the plaintiff. In the circumstances, he could not seek specific performance of the agreement of sale of the suit schedule property. The trial Court by the impugned order dated 9.06.2017 has over ruled the said objection by observing that the plaintiff was not seeking any right under Section 53A of the Transfer of Property Act, 1882, nor was he seeking to let in evidence with regard to possession being handed over to him under the said agreement. That the plaintiff only wanted to prove the existence of the contract between himself and defendants in respect of which specific performance was sought. Being aggrieved by the trial Court permitting the agreement to be marked -6- in evidence, the defendants have preferred this writ petition.
5. I have heard the learned counsel for the petitioners and learned counsel for the respondent - caveator and perused the material on record.
6. Petitioners' counsel contended that the trial Court was not right in permitting the respondent - plaintiff to mark the agreement dated 27.11.2006 as an exhibit in the suit, so as to claim specific performance on the basis of the said document. He submitted that on the date when the agreement was entered into between the parties, possession is said to have been handed over to the plaintiff and the plaintiff claims that he is in possession of the property under the said agreement and, if that is so, then the agreement had to be registered. In the absence of registration, no right could be claimed by the plaintiff on the said agreement and hence the trial Court ought -7- not to have held that the agreement could be marked in evidence.
7. Per contra, learned counsel for the plaintiff drew my attention to Section 49 of the Registration Act, 1908, and two decisions of the Hon'ble Supreme Court to contend that the trial Court has rightly observed that the plaintiff was not seeking to enforce his rights by way of part performance under Section 53A of the Transfer of Property Act, 1882, in which event, registration of the agreement was a mandatory requirement, but having regard to proviso to Section 49 of Indian Registration Act, 1908, an unregistered agreement to sale can be marked in evidence, even though such an agreement requires registration and the right to get the said agreement enforced would vest in the plaintiff. He submitted that there is no merit in the writ petition.
8. Having heard learned counsel for the parties and on perusal of the material on record it is -8- noted that the instant case is with regard to marking of the agreement of sale dated 27.11.2006. Petitioners' contention is that such a document could not be marked in evidence as it is an unregistered instrument. In this regard, Section 49 of the Registration Act, 1908, which deals with the effect of non-registration of the document required to be registered, ought to be considered and the same reads as under :-
"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 :
Provided that an unregistered document
affecting immovable property and required by this Act or the Transfer of Property Act, 1882 -9- (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 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."
9. The proviso to Section 49 is relevant for the purpose of this case. While interpreting the said proviso, the Hon'ble Supreme Court in HAMDA AMMAL Vs. AVADIAPPA PATHAR AND 3 OTHERS reported in (1991) 1 SCC 715, has stated that Section 49 expressly states that "an unregistered document affecting immovable property and required by this Act or by the Transfer of Property Act, 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, or as an evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
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Thus even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act."
10. Of course the aforesaid judgment was rendered prior to the amendment made to Section 53- A of the Transfer of Property Act, 1882, and the insertion of Section 17 (1-A) to the Registration Act, 1908. Under Section 17(1-A) of the Registration Act, 1908 it is stated that "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 Law (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 of Transfer of Property Act, 1882." Section 53A of the Transfer of Property Act, 1882 has
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also been amended by Section 10 of Act 48 w.e.f. 24.9.2001 in which the words "the contract, though required to be registered, has not been registered or"
have been omitted.
11. Thus registration of a contract for the purpose of claiming a right under Section 53A of the Transfer of Property Act, 1882 is compulsory. While making the aforesaid amendments to the aforesaid two Acts, Parliament has thought it fit to amend Section 49 of the Registration Act, 1908. In fact the proviso to Section 49 was added by Section 10 of Act 21, 1929 and it is the only amendment made to Section 49 to the above. There has been amendment to the proviso of Section 49 of the Registration Act, 1908, in that the words "... or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882 ..." have been omitted by Section 6 of Act 48, 2001, which has come into effect from 24.09.2001.
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12. Therefore, by the amendment made to Section 53A of the Transfer of Property Act, 1882; inclusion of Section 17(1-A) and amendment made to proviso to Section 49 of the Registration Act, 1908, the effect is that if a person is claiming any right through an instrument which ought to have been registered but is unregistered, then the said document cannot be admitted in evidence. But for the purpose of seeking specific performance or as evidence of any collateral transaction, which is not required to be registered, such a document could be relied upon.
13. In fact subsequent to the amendment made to the aforesaid two Sections, the same have been considered by the Hon'ble Supreme Court in the case of S. KALADEVI Vs. V.R. SOMASUNDARAM AND OTHERS reported in (2010) 5 SCC 401 wherein their Lordships after noting the aforesaid amendments and particularly, having regard to Section 49 of the Registration Act, 1908 and by
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placing reliance on the decision in K.B. SAHA AND SONS PRIVATE LIMITED Vs. DEVELOPMENT CONSULTANT LIMITED reported in (2008) 8 SCC 564 have culled out the following from the aforesaid case :-
"(VI) Since, admittedly, the lease agreement was not registered, which document under Section 49 of the Registration Act was required to be registered, the said agreement was not admissible in evidence."
14. Therefore, the Hon'ble Supreme Court has reiterated that despite amendment made to proviso to Section 49 of the Registration Act, 1908, a document required to be registered if un-registered can be admitted in evidence of a contract in a suit for specific performance. Hence, it implies that if the plaintiff is seeking to enforce his rights under Section 53A of the Transfer of Property Act, 1882 based on an unregistered instrument then the same being an infraction of the provisions of the Registration Act, 1908, cannot be relied upon or permitted to be
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marked in evidence. But in the instant case that is not the position. The respondent-plaintiff herein wants to rely upon the agreement to prove the contract or agreement to sell the suit schedule property and not for any other purpose. Therefore, the trial Court was justified in observing that since the plaintiff was not relying upon the said document for the purpose of Section 53A of the Transfer of Property Act, 1882, by virtue of the proviso to Section 49 of the Registration Act, 1908, he could be permitted to rely upon the said document and also that the said document could be marked in evidence.
15. In the circumstances, I do not find any merit in the writ petition. Writ petition is hence dismissed.
Parties to bear their respective costs.
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JUDGE NG* Ct-RG