REPORTED IN / PUBLISHED IN http://judis.nic.in/judis_andhra/filename=8369
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.6109 OF 2010
30-08-2011
M.Manjula and others.
Gajam Chandriah (Died) and others.
ORDER:
The defendants in O.S.No.65 of 2007 on the file of the learned Senior Civil
Judge at Siddipet filed this Civil Revision Petition aggrieved by the order
dated 15.12.2010 passed by the said Court holding the documents sought to be
marked by them in evidence inadmissible.
Parties shall be referred to as arrayed before the Court below.
The suit, O.S.No.65 of 2007, was filed by the plaintiffs seeking declaration of
title and perpetual injunction in respect of the suit schedule property. The
defendants wanted to mark in evidence the unregistered sale deeds dated
25.02.1996 and 28.08.1996, said to have been executed by Gajam Chandraiah, the
deceased first plaintiff. The Court below disallowed the same by the order under
revision, holding that the said documents compulsorily required registration
under Section 17 of the Registration Act, 1908 (for brevity, 'Act of 1908') and
as they were not so registered, they were inadmissible in evidence.
Surprisingly the Court below, having referred to Section 49 of the Act of 1908,
failed to understand the import of the proviso appended thereto. Section 49
reads as under:
"49. Effect of non-registration of documents required to be registered:- No
document required by Section 17 or by any provisions of the Transfer of Property
Act, 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 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 [x x x] or as evidence of any collateral transaction not required to be effected by registered instrument."
Relevant to note, the words 'or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882' which earlier found mention in the bracketed portion '[x x x]' in the proviso were omitted by the Registration and other related Laws (Amendment) Act, 2001 (Act 48
of 2001) with effect from 24.09.2001. A similar amendment was effected thereunder to Section 53-A of the Transfer of Property Act, 1882 (for brevity,'the Act of 1882'):
"53-A. Part performance:- Where any person contracts to transfer for
consideration any immovable property by writing signed by him or on his behalf
from which the terms necessary to constitute the transfer can be ascertained
with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession,
of the property or any part thereof, or the transferee, being already in
possession, continues in possession in part performance of the contract and has
done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the
contract,
then, notwithstanding that [x x x] where there is an instrument of transfer,
that the transfer has not been completed in the manner prescribed therefor by
the law for the time being in force, the transferor or any person claiming under
him shall be debarred from enforcing against the transferee and persons claiming
under him any right in respect of the property of which the transferee has taken
or continued in possession, other than a right expressly provided by the terms
of the contract:
Provided that nothing in this section shall affect the rights of a transferee
for consideration who has no notice of the contract or of the part performance
thereof."
The words in the bracketed portion '[x x x]' which were omitted under Act 48 of
2001 read as under:
'the contract, though required to be registered, has not been registered, or,'.
Thus, as matters stand, under the proviso to Section 49 of the Act of 1908, an
unregistered document affecting immovable property requiring registration can
still be received as evidence of the contract in a specific performance suit and
as evidence of any collateral transaction not required to be effected by a
registered instrument.
As regards receiving such a document in evidence of part performance under
Section 53-A of the Act of 1882, the statutory amendments of 2001 make the
position clear in so far as documents executed thereafter are concerned. The
question however arises as to whether the same would be the situation vis-a-vis
documents executed prior to the 2001 amendments.
The answer to this conundrum
lies in Section 17(1A) of the Act of 1908, inserted in the statute by Act 48 of
2001, which reads as under:
"17. Documents of which registration is compulsory:-(1)
.........
"(1-A) 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 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 53A."
(2) ........"
The provision speaks only of compulsory registration of documents of conveyance for consideration executed after the commencement of Act 48 of 2001 for the purpose of Section 53-A of the Act of 1882.
By necessary implication, such
documents, if executed prior to such commencement even if unregistered, would
still be covered by Section 53-A of the Act of 1882 as it stood prior to the
amendment effected under Act of 48 of 2001.
Therefore, the subject documents,
being unregistered sale deeds of the year 1996, would fall within the ambit of
the protection afforded by the aforestated Section and they would continue to be
governed by the unamended Section 53-A of the Act of 1882.
It would thus be open
to the defendants in the suit to claim part performance of the unregistered sale
deeds under Section 53-A of the Act of 1882 as a defence.
In consequence, the defendants would be entitled to mark in evidence these two
unregistered sale deeds of the year 1996 for the purpose of proving any
collateral transaction not required to be effected by a registered document and
as evidence of part performance of the contract under Section 53-A of the Act of
1882.
The order of the Court below, holding to the contrary, is erroneous in law being
against the statutory provisions and is accordingly set aside.
The Civil Revision Petition is allowed to the extent indicated above. The Court
below shall permit the defendants to mark the two unregistered sale deeds dated
25.02.1996 and 28.08.1996 for the purposes aforestated. There shall be no order
as to costs.
----------------------------
SANJAY KUMAR, J.
30TH AUGUST, 2011.
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.6109 OF 2010
30-08-2011
M.Manjula and others.
Gajam Chandriah (Died) and others.
ORDER:
The defendants in O.S.No.65 of 2007 on the file of the learned Senior Civil
Judge at Siddipet filed this Civil Revision Petition aggrieved by the order
dated 15.12.2010 passed by the said Court holding the documents sought to be
marked by them in evidence inadmissible.
Parties shall be referred to as arrayed before the Court below.
The suit, O.S.No.65 of 2007, was filed by the plaintiffs seeking declaration of
title and perpetual injunction in respect of the suit schedule property. The
defendants wanted to mark in evidence the unregistered sale deeds dated
25.02.1996 and 28.08.1996, said to have been executed by Gajam Chandraiah, the
deceased first plaintiff. The Court below disallowed the same by the order under
revision, holding that the said documents compulsorily required registration
under Section 17 of the Registration Act, 1908 (for brevity, 'Act of 1908') and
as they were not so registered, they were inadmissible in evidence.
Surprisingly the Court below, having referred to Section 49 of the Act of 1908,
failed to understand the import of the proviso appended thereto. Section 49
reads as under:
"49. Effect of non-registration of documents required to be registered:- No
document required by Section 17 or by any provisions of the Transfer of Property
Act, 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 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 [x x x] or as evidence of any collateral transaction not required to be effected by registered instrument."
Relevant to note, the words 'or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882' which earlier found mention in the bracketed portion '[x x x]' in the proviso were omitted by the Registration and other related Laws (Amendment) Act, 2001 (Act 48
of 2001) with effect from 24.09.2001. A similar amendment was effected thereunder to Section 53-A of the Transfer of Property Act, 1882 (for brevity,'the Act of 1882'):
"53-A. Part performance:- Where any person contracts to transfer for
consideration any immovable property by writing signed by him or on his behalf
from which the terms necessary to constitute the transfer can be ascertained
with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession,
of the property or any part thereof, or the transferee, being already in
possession, continues in possession in part performance of the contract and has
done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the
contract,
then, notwithstanding that [x x x] where there is an instrument of transfer,
that the transfer has not been completed in the manner prescribed therefor by
the law for the time being in force, the transferor or any person claiming under
him shall be debarred from enforcing against the transferee and persons claiming
under him any right in respect of the property of which the transferee has taken
or continued in possession, other than a right expressly provided by the terms
of the contract:
Provided that nothing in this section shall affect the rights of a transferee
for consideration who has no notice of the contract or of the part performance
thereof."
The words in the bracketed portion '[x x x]' which were omitted under Act 48 of
2001 read as under:
'the contract, though required to be registered, has not been registered, or,'.
Thus, as matters stand, under the proviso to Section 49 of the Act of 1908, an
unregistered document affecting immovable property requiring registration can
still be received as evidence of the contract in a specific performance suit and
as evidence of any collateral transaction not required to be effected by a
registered instrument.
As regards receiving such a document in evidence of part performance under
Section 53-A of the Act of 1882, the statutory amendments of 2001 make the
position clear in so far as documents executed thereafter are concerned. The
question however arises as to whether the same would be the situation vis-a-vis
documents executed prior to the 2001 amendments.
The answer to this conundrum
lies in Section 17(1A) of the Act of 1908, inserted in the statute by Act 48 of
2001, which reads as under:
"17. Documents of which registration is compulsory:-(1)
.........
"(1-A) 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 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 53A."
(2) ........"
The provision speaks only of compulsory registration of documents of conveyance for consideration executed after the commencement of Act 48 of 2001 for the purpose of Section 53-A of the Act of 1882.
By necessary implication, such
documents, if executed prior to such commencement even if unregistered, would
still be covered by Section 53-A of the Act of 1882 as it stood prior to the
amendment effected under Act of 48 of 2001.
Therefore, the subject documents,
being unregistered sale deeds of the year 1996, would fall within the ambit of
the protection afforded by the aforestated Section and they would continue to be
governed by the unamended Section 53-A of the Act of 1882.
It would thus be open
to the defendants in the suit to claim part performance of the unregistered sale
deeds under Section 53-A of the Act of 1882 as a defence.
In consequence, the defendants would be entitled to mark in evidence these two
unregistered sale deeds of the year 1996 for the purpose of proving any
collateral transaction not required to be effected by a registered document and
as evidence of part performance of the contract under Section 53-A of the Act of
1882.
The order of the Court below, holding to the contrary, is erroneous in law being
against the statutory provisions and is accordingly set aside.
The Civil Revision Petition is allowed to the extent indicated above. The Court
below shall permit the defendants to mark the two unregistered sale deeds dated
25.02.1996 and 28.08.1996 for the purposes aforestated. There shall be no order
as to costs.
----------------------------
SANJAY KUMAR, J.
30TH AUGUST, 2011.
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