Harilal & Ors. v. Rajendra & Ors.

Respondents No.2 & 3 by Shri Bhuwan Deshmuch,G.A. -------------------------------------- J U D G M E N T (Delivered on 15 th March day of, 2012) Being aggrieved by the order dated 20.12.2010 passed by VI Civil Judge, Class-II, Ujjain in Civil Suit No.15-A/2009 whereby objection raised by the respondent No.1 about admissibility of the agreement in evidence was turn down, present petition has been filed.

02. Short facts of the case are that respondent No.1 filed a suit for specific performance against the petitioner alleging that petitioner entered into an agreement to sale the suit property. since petitioner is not executing the sale deed, therefore, decree of specific performance be passed. Suit was contested. At the stage of evidence respondent No.1, tendered the agreement dated 31.03.1973, in evidence admissibility of which was challenged by the petitioner, which was rejected against which present petition has been filed. 2

03. Shri M.K.Jain learned Counsel for the petitioner argued at length and submits that the impugned order passed by learned Court below is illegal, incorrect and deserves to be set aside. Learned Counsel submits that as per agreement, at the time of execution of agreement dated 31.03.1973 full consideration was paid by respondent No.1 to the petitioner and also handed over the possession to respondent No.1. It is submitted that there is further recital in the document about passing of the title. It is submitted that in the facts and circumstances of the case for all the practical purpose the agreement dated 31.03.1973 is the sale deed, hence the document was inadmissible in evidence because document was not properly stamped and was not registered.

04. Learned counsel placed reliance on a decision in the matter of Jaganath Vs. Bapu reported in 1996 RN 275 wherein this Court has held that unregistered sale deed of Rs.225/- is admissible in evidence. Reliance is also placed on a decision in the matter of Gandabai Vs. Mulariyabai reported in 2000 (2) Vidhi Bhasvar 19 wherein this Court has held that in a case of family arrangement where the terms reduced into writing such a document is compulsorily registrable else not admissible in evidence. Reliance is also placed on a decision in the matter of Rukayya Bai Vs. Munni Bai reported in 2004(2)M.P.L.J,92 wherein in a document relating to memorandum of family settlement, part of recital in memorandum speaks of relinquishment of all rights in favour of one heir by the other hairs of deceased in respect of the house in question, it was held that it cannot be termed to be a memorandum, It is 3 a deed of relinquishing right title, therefore, require compulsorily registration. It is submitted that petition filed by the petitioner be allowed and the impugned order passed by learned Court below be set aside.

5.05. Shri S.K.Shastri, learned Counsel for the respondent No.1 submits that no illegality has been committed by learned Court below in passing the impugned order. Learned counsel submits that in the document itself, it is mentioned that the sale deed shall be executed as and when required. It is submitted that no time was fixed for execution of sale deed. Learned counsel submits that in this regard necessary observation has been made in the order. It is submitted that in view of this petition has no merits, hence the same be dismissed.

6.06. In the matter of Bondar Singh Vs. Nihal Singh, AIR 2003 SC 1905 wherein the plaintiff claimed title over the suit land by adverse possession alleging that they were in possession of suit land by virtue of unregistered unstamped sale deed executed in favour of their predecessors in interest, the only defence set up against said document is that it is unstamped and unregistered, Hon'ble Apex Court held that therefore, it cannot convey title to the land in favour of plaintiffs and under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence can be looked into for collateral purpose i.e. possession of plaintiffs over the suit land.

7.07. In the matter of Avinash Kumar Chauhan Vs. Vijay Krishan Mishra, AIR 2009 SC 1489 again the Hon'ble Apex Court had an occasion to consider the 4 impact of document not duly stamped and unregistered. In this case the agreement was for sale of the property and a sum of Rs.2,70,000/- was paid by way of consideration towards transaction and ultimately the suit was filed only for recovery of Rs.2,70,000/- and the Hon'ble Apex Court observed that : ?he Parliament has, in S.35 advisedly used the words ?or any purpose whatsoever. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court therefore, was empowered to pass an order in terms of S.35. The plea that the document was admissible for collateral purpose would not be tenable. Thus, order directing impounding of said document was not liable to be interfere with. S.35 of the Act rules out applicability of provision under S.49 of Registration Act, 1908 as it is categorically provided therein that a document of this nature viz., unregistered sale deed shall not be admitted for any purpose whatsoever, if all purposes for which the document is sought to be brought in evidence are excluded the document would not be admissible for collateral purposes.: In the aforesaid case Hon'ble Apex Court had also taken into consideration the law laid down by the Hon'ble Apex Court earlier in the matter of Bondar Singh (supra).

8.08. After hearing the parties at length and keeping in view the fact that by the alleged agreement both the parties agreed to execute a document which required registration, this Court is of the view that no 5 illegality was committed by the learned Court below in passing the impugned order. In view of this petition filed by the petitioner has no merits an the same stands dismissed. Jyoti/B (N.K.MODY) JUDGE