Registration Act, 1908 – s. 17(1A) – Transfer of Property Act, 1882 – s. 53A – Document of which registration compulsory – On facts, unregistered agreement to sell, on the basis of which relief of specific performance claimed, registered power of attorney and general power of attorney – Admissibility in evidence – Trial court held that all the three documents could be marked and received as evidence – However, the High Court set aside the same – Held: Document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance – In view thereof, the document though exhibited, could be received as evidence of a contract in a suit for specific performance and nothing more – As regards, the General Power of Attorney, being a registered document, the trial court justified in holding that there is a legal, rebuttable presumption that the same has been duly stamped – Furthermore, the agreement to sell was executed prior to coming into force of s. 17(1A) – Hence, the same was not required to be compulsorily registered at the time of its execution – Even if it was required to be registered, the same could be received as evidence for a limited purpose – Thus, the order of the trial court is restored – Genuineness, validity and binding nature of the document or whether it was hit by the provisions of the 1882 Act or 1899 Act, to be adjudicated at the appropriate stage – Stamp Act, 1899.
Allowing the appeal, the Court
HELD: 1.1 On a plain reading of s. 17(1A) of the Registration Act, 1908 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 Transfer of Property Act, 1882 to protect its possession over the stated property. If it is not a registered document, the only consequence 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. [Para 10][180-F-G]
1.2 A document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view thereof, the conclusion recorded by the High Court in the impugned judgment that the sale agreement 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.[Para 11][181F-G]
1.3 Reverting to the registered General Power of Attorney, the same has been executed by the original defendant No.1 predecessor in title of respondent Nos.1 & 2 (defendant Nos.3 & 4), in favour of respondent No.3 (defendant No.2). Being a registered document, the trial court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the trial court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The High Court, therefore, should have stopped at that instead of analysing the said instrument by invoking the principle of incorporation by reference to the agreement to sell dated 12th November, 1995. For, the appellant (plaintiff) is not a party to the said document. Indeed, the executor of the document – original defendant No.1 and the defendant No.2 in whose favour the same has been executed, are parties to the present suit. The principal document, namely, the agreement to sell dated 12th November, 1995, as rightly noticed by the Courts below, was executed prior to coming into force of Section 17(1A) of the 1908 Act. That provision has been made applicable prospectively. Hence, the same was not required to be compulsorily registered at the time of its execution. Even if it was required to be registered, keeping in view the purport of Section 49 read with Section 17(1A) of the 1908 Act, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of the 1882 Act. [Para 12][182-B-F]
1.4 As a result, the trial court was right in overturning the objection regarding marking and exhibiting these documents as urged by respondent Nos.1 & 2 (defendant Nos.3 & 4), while making it clear that the question regarding the genuineness, validity and binding nature of the documents, including as to whether it is hit by the provisions of 1882 Act or the 1899 Act, as the case may be, would be decided at the appropriate stage after the parties adduce oral and documentary evidence. The order of the trial court is restored. [Paras 13, 15][182-F-G; 183-A]
S. Kaladevi v. V.R. Somasundaram and Ors. (2010) 5 SCC 401 : [2010] 4 SCR 515; K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564 : [2008] 8 SCR 290; Avinash Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 532 : [2008] 17 SCR 944 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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