Karnataka High Court
Dr. Prashanth S Urs vs Sri. V Girish on 29 August, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/14
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 29TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos. 53004 & 55077 OF 2017 (GM-CPC)
BETWEEN:
DR. PRASHANTH. S. URS
S/O LATE M.S. SOMARAJA URS
AGED ABOUT 46 YEARS
RESIDING AT NO.885
22ND CROSS, 7TH SECTOR
HSR LAYOUT
BENGALURU-560 102.
... PETITIONER
(BY SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI. R. SUBRAMANYA, ADV.)
AND:
SRI. V. GIRISH
S/O SRI. M. VENKATARAMAN
AGED ABOUT 33 YEARS
RESIDING AT NO.34
2ND CROSS, RK LAYOUT
PADMANABHANAGAR
BANASHANKARI 2ND STAGE
BENGALURU-560 017.
... RESPONDENT
(BY SRI. MOHANA. J.S, ADV. FOR C/R)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER ON I.A.NO.17 AND 18 IN O.S.NO.458/2006
DTD:26.10.2017 ON THE FILE OF THE PRINCIPAL SMALL
Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017
Dr. Prashanth. S. Urs Vs. Sri. V. Girish
2/14
CAUSES AND SENIOR CIVIL JUDGE AT MYSORE [PRODUCED
AS ANNEXURE-A] AND ETC.
THESE PETITIONS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. Ashok Haranahalli Sr. Counsel for Mr.R.Subramanya, Adv. for Petitioner Mr. Mohana J.S., Adv. for Caveator/Respondent
1. The Defendant - Dr. Prashanth S. Urs has filed these writ petitions under Article 227 of the Constitution of India aggrieved by the order at Annexure-A dated 26.10.2017 passed in O.S.No.458/2016 - Sri V. Girish vs. Dr.Prashanth S. Urs. The said suit was filed by the plaintiff - Sri V.Girish for specific performance of the Agreement to Sell dated 17.12.2004.
2. By the impugned order, the learned Trial Court has held that unregistered agreement dated 17.12.2004 can be marked as an Exhibit and can be received in evidence.
Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 3/14
3. The reasons given by the Trial Court in paragraphs 14 and 15 of the impugned order are quoted below for ready reference:
"14. It is worth to note that, admittedly, the plaintiff Sri. V. Girish has filed the above numbered suit against the defendant Dr. Prashanth Urs basing on agreement of sale dated 17/12/2004 for the relief of specific performance of contract in respect of the schedule property covered under the said agreement. It is not in dispute that though the plaintiff has paid necessary duty and penalty on the suit document, but the said agreement is unregistered one.
15. In this connection the proviso to Section 49 of the Registration Act abundantly makes it clear that an unregistered document affecting immovable property and requited by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in suit for specific performance under chapter 2 of the Specific Relief Act, 1877 or as Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 4/14 evidence of any collateral transaction not required to be effected by registered instrument. So though the plaintiff was put in possession of the schedule property subsequent to the agreement, but the plaintiff has not sought for protection claiming benefit U/s 53-A of T.P. Act. So, in view of the present legal position I do not find any merit in the contention of the learned counsel for the defendant that the said agreement of sale requires registration U/s 17(1A) of the Registration Act."
4. Learned counsel for the petitioner -
defendant has relied upon the following judgments in support of his contention that the document in question namely, Agreement to Sell could not be received in evidence and a cross suit has been filed by the defendant for seeking recovery of possession namely, O.S.No.610/2008 - Sri Prashanth S.Urs Vs. Sri V.Girish and another.
Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 5/14
5. In the written statement filed by Mr. V.Girish, he has sought to enforce the same contract to protect his possession under Section 53A of the Transfer of Property Act and therefore, on the basis of these judgments, the document in question, even if allowed to be marked, it can be marked with endorsement for limited purpose for taking it as evidence and not for any other purposes.
6. On the other hand, learned counsel for the respondent has supported the impugned order.
7. Section 49 of the Registration Act, 1908 is quoted below for ready reference:
"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 Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 6/14
(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.]"
8. Proviso to the said section was brought on statute book by Act No.21 of 1929 makes it clear that unregistered document can be received as evidence in a suit for specific performance even without registration.
The Proviso to the said Section 49 permits such evidence for any collateral transactions but that is not the subject matter of the present suit for specific performance.
Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 7/14
9. The judgments relied upon by the learned counsel for the petitioner-Defendant dealing with the cases arising under Section 53A of the Transfer of Property Act are of little help to the petitioner -
Defendant. The relevant extracts of these judgments as relied upon by the learned counsel for the petitioner are also quoted below for ready reference:-
1. In Ameer Minhaj Vs. Dierdre Elizaveth (Wright) Issar reported in (2018) SCC Online SC 665:
"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 Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 8/14 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 v. V.R Somasundaram, this Court has re-stated 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:
XXXX
11. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, and has added one more principle thereto that a document is required to be registered, Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 9/14 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 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 Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 10/14 Court after the parties adduce oral and documentary evidence."
2. In K.B.Saha and Sons Private Limited Vs. Development Consultant Limited reported in (2008) 8 SCC 564:
"35. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises were let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a clause, namely, Clause 9 of the lease agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 11/14 because of violation of Clause 9 of the lease agreement. That being the position, we are unable to hold that Clause 9 of the lease agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same."
3. In Smt.Rudramma and others Vs. Sathyanarayana Raikar (W.P.No.34467/2017 decided by the learned Single of this Court on 22.08.2017:
"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 Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 12/14 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.
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 infracting of the provisions of the Registration Act, 1908, cannot be relied upon or permitted to be marked in evidence. But in the instant case that is not the position. The respondent-plaintiff herein wants to rely Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 13/14 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.
10. From the conjoint reading of the provisions of Section 49 of the said Act particularly, proviso thereof, it is clear that in a suit for specific performance with which the Trial Court in the present case as well as this Court in the present writ petitions are concerned, the unregistered document, namely, Agreement to Sell in question can be admitted in evidence even though not registered and this exception is clearly carved out in Date of Order 29-08-2018 in W.P.Nos.53004 & 55077/2017 Dr. Prashanth. S. Urs Vs. Sri. V. Girish 14/14 Section 49 of the said Act. The respondent - plaintiff in the present O.S.No.458/2006 has filed the suit only for specific performance and has not claimed any protection of his possession with reference to Section 53A of the TP Act in this suit and therefore, any such restriction for relying upon the contents of the unregistered document as discussed in the aforesaid judgments are naturally not applicable to the present case.
11. In view of the aforesaid clear legal position, the impugned order of the Trial Court is found to be unassailable and the present writ petitions filed by the Defendant are without any merit and they are liable to be dismissed. The same are dismissed. No costs.
Sd/-
JUDGE SA Sl.No.10