Calcutta High Court (Appellete Side)
Smt. Kamala Rani Kundu vs Sri Dinesh Biswas on 3 November, 2017
Form No.J(2) IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Present : The Hon'ble Mr Justice Mir Dara Sheko C.O.No.1931 of 2016 Smt. Kamala Rani Kundu
-vs-
Sri Dinesh Biswas
None ....for the petitioner
None ...for the opposite party
Heard on : November 3, 2017
Judgment on : November 3, 2017
None appears. However, considering the nature of the proceeding and materials on record being noticed as sufficient, the same is taken up for consideration and disposal on merits.
2. The application under Article 227 of the Constitution of India has been directed against Order Nos. 14, 15, 16, 17 and 18 dated November 25, 2013, March 14, 2014, July 28, 2014, January 9, 2015 and October 8, 2010 respectively passed by learned Civil Judge (Sr. Division) at Barasat, North 24- Parganas in Title Suit No.234 of 2010.
3. It reveals that by an order dated November 27, 2012 the suit was posted for hearing ex parte, presumably, for non-taking of steps by the plaintiff-opposite party. However, learned court below by recording Order No.14 dated November 25, 2013 vacated said order of ex parte hearing with costs of `300; and pursuing the said order up to October 8, 2015, directed the impugned agreement dated July 28, 2008, on the basis of which the plaintiff was wanting to establish his case to be impounded and the Collector of the district was directed accordingly to assess the deficit stamp duty.
4. However, from the text of the application it appears that the suit was filed by the opposite party-plaintiff for specific performance of contract for which the impugned agreement might have been executed on the basis of which the suit was proposed to be adjudicated.
5. So far as registration of documents is concerned, sections 17 and 18 of the Registration Act, 1908 may be referred to in the case where there are some documents registration of which are compulsory and in other cases are optional.
Section 17(1)(a) to (1-A), 2(i) to (xii) and explanation and section 18 thereafter are set out hereunder as ready reference:-
"17. Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force namely,-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 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 53-A. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such company; or
(v) any document other than the documents specified in sub-section (1-A) 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; or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding; or
(vii) any grant of immovable property by the Government; or
(viii) any instrument of partition made by a Revenue Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists' Loans Act, 1884 or instrument for securing the repayment of a loan made under that Act; or (x-a) any order made under the Charitable Endowment Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.
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.
18. Documents of which registration is optional.-Any of the following documents may be registered under this Act, namely,-
(a) instruments (other than instruments of gifts and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt of payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interests, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered."
6. It is needless to mention that an agreement if is registered, then the adequate stamp duty is to be paid for the purpose of registration; but the instrument if is not liable to be registered compulsorily, then the order penalising the holder of such instrument by impounding the document is perverse. Learned trial court committed illegality in impounding the agreement by interpreting the impugned agreement for sale perhaps within sub-section (1A) of Section 17 of the Registration Act, 1908 ignoring the "Explanation" appended at the end of said section 17, as quoted above. The impugned document contained alleged payment of earnest money with recital for paying the balance later, and the alleged contract for sale of the subject property would have been the basis of the suit. Therefore, when such a document of contract for the sale as per above exception "shall not ......ever to have required registration" due to having recitals of payment of earnest money or of the whole or part of the purchase money", learned trial court committed illegality in impounding the said contract for sale. At best, since by such a document there was alleged acknowledgement of the amount out of alleged agreed consideration money on account of creation of right, title and interest to the subject property, registration of such an instrument could be optional under section 18(b) of the Registration Act, 1908 at the option of the parties.
7. Therefore, in any case, the impugned nature of instrument being not liable to be registered compulsorily under section 17 of the Act, rather the instant nature of document having exemption from compulsory registration, and even registration of such document is kept optional under section 18(b) of the Act at the option of the parties, the orders impugned under reference are set aside with direction to learned trial court to proceed with the suit for its expeditious disposal from the stage, if it is stopped anywhere as a consequence of filing of this CO by recalling the copy of order, if it was sent to the collector for compliance.
8. The CO is, accordingly, allowed on merits.
9. No order as to costs.
10. The department is directed to communicate a copy of this order to learned trial court dealing with the title suit for information.
[Mir Dara Sheko, J] Subrata