PRADIP PAUL v. ILA SAHA and ORS

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3. As the rival assertions are integrated in the pleading, a brief reference thereto is indispensible. The plaintiff instituted suit No. 35 of 2014 under Section 34 of the Specific Relief Act, 1963 against the respondents seeking declaration that the sale deed bearing No. 1- 3049, dated 04.04.2014 is invalid, nonest, illegal and not binding upon the plaintiff and a suit for Specific Performance of Contract and also for perpetual injunction. He claimed that he had been possessing the suit land as a tenant under the original landlord, Paresh Chandra Saha, who had expired on 03.10.2008 leaving behind his wife and two sons who were impleaded as defendants No. 1,2 and 3 in the original suit. During continuation of the present appeal, the defendant no.1 had expired. The defendants No. 1,2 and 3 being the legal heirs of late Paresh Chandra Saha proposed the plaintiff to purchase the suit land as they were in urgent need of money. Having agreed to that proposal, the plaintiff entered into a written agreement for sale dated 29.08.2013. It was agreed upon between the plaintiff and the defendants No. 1,2 and 3 that the defendants no. 1,2 and 3 would transfer the suit property to the plaintiff at a consideration of Rs. 6,50,000/- (rupees six lakh fifty thousand) only. The plaintiff had paid a sum of Rs. 1,40,000/- (rupees one lakh forty thousand) only as advance out of the total consideration money and it was agreed upon between the plaintiff/transferee and the defendants No. 1,2 and 3 being the vendor that the plaintiff would pay the balance consideration money within next 6(six) months and on receipt, the vendor would execute the registered Sale Deed in favour of the plaintiff-transferee. By a written letter dated 12.11.2013, the plaintiff offered the balance consideration money of Rs. 5,10,000/- to the defendants nos. 1, 2 and 3 and requested them to execute the sale deed for the suit property transferring the same absolutely to the plaintiff. The defendants no. 1,2 and 3 refused to transfer the suit property by executing the sale deed on the pretext that it was entered into by some misrepresentation of facts. On 11.04.2014, the plaintiff received an information that the defendants no. 1,2 and 3 were trying to sell the suit property to another person suppressing the subsistence of the agreement for sale between him and the said defendants. However, the defendants no. 1,2 and 3 had fraudulently and illegally had sold the suit property to one Smt. Dipti Saha, defendant-respondent no.4 herein.

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4. Initially, the plaintiff instituted the suit for Specific Performance of Contract and for perpetual injunction and having received the information that the suit property was sold by the defendants No. 1,2 and 3 in favour of defendant No. 4, he has also prayed for declaration that the Sale Deed no. 1-3049 dated 04.04.2014 executed between the defendants No. 1,2 and 3 and defendant No. 4 was nul and void by way of bringing an amendment of the plaint. It is the specific pleaded case of the plaintiff that the plaintiff had/has always been ready and willing to perform the essential terms of the agreement, within the stipulated period as mentioned in the agreement, but, the defendants No. 1,2 and 3 willfully violated the terms of the agreement and failed to perform their part as per the agreement.

5. The defendants No. 1,2 and 3 as well as defendant No. 4 contested the suit by way of filing their respective written statements.

6. In course of proceeding, the learned Civil Judge had framed the following issues:

"(i) Is the suit maintainable in its present form and nature?

(ii) Has the plaintiff any cause of action to institute the instant suit?

(iii) Had the plaintiff entered into an agreement for sale with the defendant Nos. 1 to 3 to purchase the suit land?

(iv) Are the averments in respect of readiness and willingness to perform the contract according to its true construction sufficient to enforce Specific Performance?

(v) Is the sale deed bearing No. 1-3049 dated 04.04.2014 void against the plaintiff? If so, is the sale deed liable to be declared invalid?

(vi) Is the plaintiff entitled to an order of perpetual injunction, as prayed for?

(vii) Is the plaintiff also entitled to a decree in this suit?

(viii) What other relief/reliefs the plaintiff is entitled to?"

7. Relevant documents were introduced. Based on the aforesaid issues, evidences were recorded and having heard the learned counsel for the parties to the lis, the learned Civil Judge dismissed the suit holding inter alia that the plaintiff was in continuous possession of the suit property and in that case, the agreement for sale dated 29.08.2013 being an unregistered document is hit by Section 53-A of the Transfer of Properties Act, 1882 and Section 17(1A) of the Registration Act, 1908. Being aggrieved, this appeal before this court.

8. Mr. A. Sengupta, learned counsel appearing for the plaintiff has assiduously urged that the finding returned by the learned Civil Judge is erroneous since Section 53-A of the Transfer of Property Act, 1882 and Section 17(1A) of the Registration Act, 1908 have no application in the facts of the present suit.

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9. Mr. SM Chakraborty, learned Senior Counsel assisted by Mr. S. Bhattacharjee, learned counsel in repudiation defending the judgment of the learned Civil Judge had argued that the present suit attracts Section 53-A of the Transfer of Property Act, 1882 and Section 17(1A) of the Registration Act, 1908 and being the plaintiff was in possession of the suit property and continued his possession in part performance of the unregistered Deed of Agreement for sale has to fulfill the essential requirements, as Section 17(1A) of the Registration Act,

1908.

10. From the deliberation of learned counsel appearing for the parties to the lis, the undisputed facts are that the plaintiff and the defendants no. 1,2 and 3 had entered into any agreement for sale of the suit property on 29.08.2013; the plaintiff was ready and willing to perform his part of performance in terms of the said agreement dated 29.08.2013, but, the defendants No. 1,2 and 3 denied to perform their obligations under the said agreement and the defendants No. 1,2 and 3 had sold out the suit property to the defendant no.4 during subsistence of the agreement for sale dated 29.08.2013, which was entered upon between the plaintiff and defendants No. 1,2 and 3.

11. The question that I am called upon to answer is as to whether the agreement for sale dated 29.08.2013 being an unregistered document is hit by Section 53-A of the Transfer of Property Act,1882 and Section 17 (1A) of the Registration Act, 1908. The relevant provisions are as under :

"53A. Part performance.—Where any person contracts to transfer for consideration any immoveable 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 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." Section 17 of the Registration Act, 1908, reads as follows:

"17. Documents of which registration is compulsory- (l) 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 No. XVI of 1864, or the Indian

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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 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 interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the²⁵ [State Government] may, by order published in the²⁶ [Official Gazette], exempt from the operation of this sub-section any lease 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". Section 17 (1A) of the Registration Act, 1908, reads as follows:

"17. (1A). 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."

12. In view of the aforesaid provisions of law, the learned Civil Judge while dismissing the suit of the plaintiff has held thus:

"Admittedly, the plaintiff being tenant was already in possession of the suit land and the agreement for sale (Exbt-1) is a unregistered document. It is further apparent that said Amendment Act of 2001 came into force on 24.09.2001. As such the agreement so allegedly concluded in between the plaintiff and defendant Nos. 1 to 3 ought to have been registered in view of section 17(1A) of Registration Act. The agreement for sale having not registered in terms of the provision as referred to above it cannot be said that there was a valid agreement concluded in between the parties. In absence of any valid agreement for sale there is hardly any reason for the plaintiff to have the specific performance of contract as proposed. I am further of the opinion that the plaintiff is not entitled to any decree or relief as prayed for".

Accordingly, all the issues framed by the learned Civil Judge were answered in negative.

13. From a careful reading of Section 53-A of the Transfer of Property Act, 1882, one thing is clear that such a transferee who in part performance of the contract has taken possession of the property or any part thereof, or the transferee being already in possession, he continues in possession in part performance of the contract, is protected under Section 53-A of the Transfer of Property Act, 1882 but, to take advantage of such protection, the document of contract has to be registered in view of Section 17(1A) of the Registration Act, 1908.

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14. In the instant case, the plaintiff under the agreement for sale dated 29.08.2014 is no doubt a transferee. But it is not as simple as it is said. Intricacy lies there as to whether he has taken the possession of the suit property in part performance of the said Deed of Agreement for sale. In my opinion, the answer would be in negative.

15. True it is, the plaintiff in the case in hand, had been in possession of the land prior to execution of the deed of agreement for sale dated 29.08.2013. Now, the deciding factor is that whether the plaintiff had/has been continuing in possession in part performance of the contract. Admittedly, the plaintiff was/is a tenant under the defendants No. 1,2 and 3 as his landlord. He continued his possession even after 29.08.2013, however, that continuation of possession, in my opinion, was not in part performance of contract, but, by virtue of his status as tenant, and here lies the thin line of distinction which the Court is to trace out about the nature and character of continuation of possession of the plaintiff.

16. I have meticulously perused the recitals of the Agreement for Sale (Exhibit-

1) entered into between the plaintiff and the defendants No. 1,2 and 3. Nowhere it has been stipulated that with the execution of the agreement the landlords and tenant relationship between the plaintiff and the defendants No. 1,2 and 3 was concluded/ended, and, the plaintiff would continue to be in possession in part performance of the Agreement for Sale dated 29.08.2014 and his nature and character of possession since the date would be treated as a possessor in part performance of the contract, but, not as a tenant.

17. A landlord inducts a tenant under an agreement of lease for a certain tenure on rent. It may be oral or in writing. Prior to enactment of the Rent Control Legislation in our country, the relationship of landlord and tenant was governed by our common law viz. the Transfer of Property Act (Section 107 to 111). Gradually, as a piece of social reform in order to protect the terms and conditions are settled as agreed upon by both the landlord and tenant. The lease period may be extended time to time on their mutual consent. Landlord hands over the possession of his premise(s) to the said tenant under the said Lease Agreement. By dint of such lease/tenancy agreement, the tenant accrues right to possess the rented premise and to continue his possession in the said premise as long as the landlord permits him

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to possess the same as tenant. Such possession of the premise by the tenant under the agreement cannot in any way be said to be in denial of the possession of the landlord. In other words, landlord possesses the rented premise through the tenant. Only exception is that he cannot dispossess or evict or disturb the peaceful possession of tenant under the agreement without following the process laid down under various Rent Control laws as applicable at the place where the rented premises is situated.

18. Further, there is no averment in the written statement that the defendants No. 1,2 and 3 at any point of time before entering into the Agreement for Sale dated 29.08.2013 had disturbed the possession of the plaintiff and that the plaintiff was allowed to continue his possession over the suit property in part performance of the Agreement for Sale dated 29.08.2013. In furtherance thereof, the plaintiff in the plaint and in course of his deposition before the trial court has categorically stated that he paid Rs. 1,40,000/- only to the defendants No. 1,2 and 3 being the earnest money.

19. In view of the aforesaid discussion, in my considered view, the findings returned by the learned Civil Judge (Sr. Division), that the plaintiff cannot maintain a suit for specific performance of contract against the defendants No. 1,2 and 3 since he cannot seek protection under Section 53-A of the Transfer of Property Act for non observance of section 17(1-A) of the Registration Act are bereft of any merit. As a corollary, I hold that the plaintiff has been in continuation of possession of the suit property as a mere tenant and not in part performance of the Deed of Agreement for Sale dated 29.03.2013.

20. Again, taking into account the controversy cropped up, I have taken note of the 'explanation' as provided under Section 17 of the Registration Act, 1908, which reads as under:

"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".

21. A bare reading of this 'explanation' it is apparent that in view of this 'explanation' the legislature had expressed their intendment to exempt a document to be registered which purports or operates to effect a contract for sale of

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immovable property by raising the plea that such document contains recital of payment of earnest money or in a whole or in part of the purchased money. In the instant case, after perusal of the Agreement for Sale (Exhibit-1), it reveals that the Deed (Exhibit-1) is titled as-

"Deed of Agreement of Advance Payment"

Next recital is that:-

"Deed of Agreement for Advance Payment of Rs. 1,40,000/- (rupees one lakh forty thousand) only out of Rs. 6,50,000/- (rupees six lakh fifty thousand) only for the land measuring 1 ganda 3 karas situated within Mouja- Agartala sheet No. 17, P.S. East Agartala".

In the body of the Deed, it is recited:-

"Presently, the 2^nd party being in urgent need of hard cash proposed to sell out the bastu class of land measuring 1 ganda 3 karas, you endeavoured to purchase it at a consideration of Rs. 6,50,000/- (rupees six lakh fifty thousand only) and today, the 2^nd party, on receiving the advance payment amounting to Rs. 1,40,000/- (one lakh forty thousand only) from the 1^st party, has decided to sell out the bastu (nal) class of land measuring one ganda three kara. The 1^st party also has decided to purchase the said scheduled land by way of making advance payment."

Again, it recites that :-

"Presently, to get the sale deed registered, there should be a mutated khatian in the name of the 2^nd party and therefore, the 2^nd party is bound with the 1^st party by this condition that at the earliest the 2^nd party shall get the land, which is proposed for sale, mutated in the name of 2^nd party and apprise the 1^st party about it and if, within 6(six) months of being apprised of it, the 1^st party gives the 2^nd party the amount of Rs. 5,10,000/- (rupees fie lakh ten thousand) which is exclusive of the advance payment, the 2^nd party having received the entire amount shall remain bound to execute the out- and-out sale deed in favour of the 1^st party and get it registered."

22. Another striking feature, what transpires in the Deed itself is that, it is written that for the purpose of registration of the Sale Deed, the names of the defendants No. 1,2 and 3 would have to be mutated or in other words, to be recorded in the khatian i.e. Record of Right (ROR, for short) for the land which is proposed to be sold and for the said reason, I find recital in the concluding part of the Deed that:-

"Be it also mentioned that if the mutation process of the land in the name of the 2^nd party takes more time, then after 6 (six) months the 2^nd party shall remain bound to hand over the possession of the land to the 1^st party."

Here, the 1^stparty is the plaintiff and the 2^ndparty means defendants No. 1,2 and 3. The said recital has a clear manifestation of the fact that the possession of the land i.e. the suit property described in the schedule of the plaint, was never handed over to the plaintiff in part performance in pursuance of Agreement for

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Sale dated 29.08.2013. Moreso, in my opinion, this recital carries enough significance because ROR has a presumptive value to establish the possession of a person or persons over a certain land. The instant Deed of Agreement for sale in no uncertain term stipulates that the ROR would be created in the name of the 1^st party-plaintiff herein, which could be indicative of possession of the suit property in favour of the plaintiff in part performance of contract.

23. In the backdrop of the aforesaid analysis, on legal and factual aspects, I am of the view that the Deed of Agreement for Sale dated 29.08.2013 is a mere Deed to pay the earnest money or make advance payment as a part of the total consideration money fixed between the plaintiff and the defendants No. 1,2 and 3 to effectuate the Sale Deed which binds the defendants No. 1,2 and 3 to execute a registered Sale Deed and in consequence, deliver the possession of the suit property in favour of the plaintiff.

24. Before I part with the discussion on the legal issues, in my opinion, more legal issues are involved to settle once for all similar nature of dispute that may arise in future litigation of this nature, as raised in this appeal.

25. The questions that require to be dealt with are whether unregistered agreement to sell, accompanied by delivery of possession or executed in favour of a person in possession, i.e. an agreement that envisages part performance, of an agreement to sell as envisaged by Section 53-A of the Transfer of Property Act, can be received in evidence as proof of the agreement and as a natural corollary whether a suit for specific performance would lie on the basis of such an unregistered agreement to sell. Apart from the proposition that I have made here-in-above, to answer the question posed, would necessarily require an appraisal of Section 17(1A) of the Registration Act, 1908.

26. Section 17(1A) the Registration Act, 1908 declares in no uncertain terms that a contract executed in part performance of an agreement if unregistered, it shall have no effect for the purpose of Section 53-A of the Transfer of Property Act, 1882. Section 17(1A) of the said Act does not refer to much less prohibit the filing of a suit for specific performance or leading of such contract into evidence. Section 17(1A) of the said Act merely declares that such unregistered contract

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shall not be pressed into service for the purpose of Section 53-A of the Transfer of Property Act, 1882. Section 17(1A) of the Registration Act, does not, whether any specific terms or by necessary intents prohibits the filing of a suit for specific performance based upon an unregistered agreement for sale, that records delivery of possession or is executed in favour of a person to whom possession is delivered.

[Emphasis supplied]

27. To fortify my above said view, I have taken note of provision of Section 49 of the Registration Act, 1908, which under the Amendment Act of 2001 introduced a proviso, to clarify the effect of non-registration of a Deed of Contract executed in terms of Section 53A of the Transfer of Property Act. Section 49 of the Registration Act, 1908 reads as under:

"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

(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.

28. A joint appraisal of Section 53A of the Transfer of Property Act, 1882; Section 17 (1A) and Section 49 of the Registration Act, 1908, particularly, the proviso to Section 49 of the Registration Act, in my considered view, leaves no doubt or ambiguity that, though, a contract accompanied by delivery of possession or execution in favour of a person in possession, is compulsory registerable under Section 17 (1A) of the Registration Act, 1908, but, the failure to register such a contract would only deprive a person in possession of any benefit conferred by Section 53A of the Transfer of Property Act, 1882. The proviso to Section 49 of the Registration Act clearly postulates that non- registration of such a contract would not prohibit the filing of a suit for specific performance on the basis of such agreement or the leading of such an unregistered agreement into evidence. A suit for specific performance of contract based upon an unregistered agreement to sale accompanied by delivery of

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possession or execute in favour of a person who is already in possession, cannot, therefore be said to be barred by section 17 (1A) of the Registration Act, 1908. Under Section 49 of the Registration Act, the Deed of Agreement for sale, to transfer the immovable property could be specifically enforced under the provision of the Specific Relief Act.

[Emphasis supplied]

29. The effect of unregistered documents which are required to be registered under Section 17 of the Registration Act, 1908 came up before Supreme Court in

K.B. Saha and Sons Private Limited Vs. Development Consulting limited reported in (2008) 8 SCC 564. While taking up the case, the Court had taken note of its decision in Rana Vidya Bhushan Singh V. Ratiram, (1969) I UJ 86 (SC), wherein, it was laid down as follows:-

" A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affect in immovable property but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, delaring assigning, limiting or extinguishing a right to immovable property. As stated in Mulla in his Indian Registration Act, 7^th Edn., at p.189......................"

30. Thereafter, in K.B. Saha (supra) the Supreme Court having taken into account various principles, as laid down in the various decisions of the Supreme Court and High Court, laid down the following principles [SCC pp. 577 para 34]:

" 1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided int he proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is , a transaction creating, etc. Any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a documents is inadmissible in evidence for want of registration none of this terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. "

31. Similar controversy again arose in S. Kaladevi Vs. V.R. Somasundaram and ors., reported in (2010) 5 SCC 401 wherein the Supreme Court has delineated the law in the following manner [SCC. Pp. 404/405 para 10, 11, 12, 13,

14,15]

"10. Section 17 of 1908 Act is a disabling section. The documents defined in clauses (a) to

(e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs. 100/- and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non- registration. 11.Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus:

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"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

(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 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."

12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. 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 in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.

13. Recently in the case of K.B. Saha and Sons (P) Limited v. Development Consultant Limited , this Court noticed the following statement of Mulla in his Indian Registration Act (7th Edition, at page 189):-

"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it"

This Court then culled out the following principles(K.B. Saha case, SCC P. 577, para- 34:-

"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.

14. In Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy ., the question presented before this Court was (1999) 7 SCC 114 whether a decree to enforce the registration of sale deed could be granted. That was a case where respondent therein filed a suit for specific performance seeking a direction to register the sale deed. The contention of the appellant, however, was that decree for specific performance based on unregistered sale deed could not be granted. This Court noticed the provisions contained in Part XII of 1908 Act, particularly Section 77, and difference of opinion between the various High Courts on the aspect and observed(SCC p.p. 118-19, para 10):-

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"10. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document.

On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy."

15. This Court then held that the first appellate court rightly took the view that under Section 49 of the 1908 Act, unregistered sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. It was held(Kalavakurti Venkata case, SCC P.119, para-11):

"11. The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that under Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property".

32. Now, what is transpired, the principles of law as expounded by the apex court in K.B. Saha (supra) and being followed with further amplification, if culled out, the law would stand thus:

(i) A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

(ii) Such unregistered document can however be used as an evidence of collateral purpose as provided int he proviso to Section 49 of the Registration Act.

(iii) A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

(iv) A collateral transaction must be a transaction not itself required to be effected by a registered document, that is , a transaction creating, etc. Any right, title or interest in immovable property of the value of one hundred rupees and upwards.

(v) If a documents is inadmissible in evidence for want of registration none of this terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

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(vi) That a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for Specific Performance.

[Emphasis supplied]

33. Having gone through the principles laid down by the Supreme Court, as stated here-in-above, it is now crystal clear that even a document which is required to be registered under Section 17 of the Registration Act, if is unregistered, then, the said document cannot be thrown away on the sole ground that it is not admissible in evidence, but , in that event also, the document has to be taken into evidence for collateral purpose to prove the transactions between the parties and the terms and conditions therein. Section 17(1)(A) of the Registration Act, 1908 does not prohibit such an unregistered document to be introduced in evidence for collateral purpose/transaction in a suit for Specific Performance of Contract. Under the proviso of Section 49 of the Registration Act (as amended in 2001) an unregistered deed of Agreement for Sale can be taken into evidence as evidence of a contract in a suit for Specific Performance of Contract.

[Emphasis supplied]

34. In view of the aforesaid settled legal proposition of law, there should be no dispute that in the instant case, the deed of Agreement for Sale which was unregistered could be admitted as evidence of contract in a suit for Specific Performance of Contract instituted by the plaintiff/transferee obligating/binding the defendants vendor/landlord to execute the terms and conditions of the said deed (Exbt-1), or, in other words, to perform his part of contract.

35. For the reasons stated above, the learned Civil Judge has committed patent error while dismissing the suit of the plaintiff as the said Deed falls within the scope and ambit of the aforestated 'explanation' as provided under Section 17 of the Registration Act, 1908 apart from proviso of section 49 of the Registration Act. In other words, the Deed (Exhibit-1) cannot in any way be treated or termed as a Deed falling within the purview of Section 17(1A) of the Registration Act, 1908 and requires registration.

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36. Having held so, in the instant case, the provision of Section 53-A of the Transfer of Property Act, 1882 and Section 17(1A) of the Registration Act, 1908, shall not have any application. It is noticed that in view of the findings of Section 53-A of the Transfer of Property Act, and Section 17(1A) of the Registration Act, the learned court below has negated all the issues while dismissing the suit. I have taken into consideration that the instant suit was instituted in the year 2014 and standing in the year 2020, I am not inclined to remit the matter back to the court of learned Civil Judge, Senior Division, West Tripura, Agartala because in exercise of jurisdiction under Section 96 of the Code of Civil Procedure, this court will discuss and re-appreciate the evidence on record on all issues as framed by the trial court, in detail.

37. I have perused the evidence and materials relied upon by the parties in the suit. The plaintiff has adduced 5 witnesses including him. The Deed of Agreement for Sale has been proved by the witnesses. All the witnesses have stated that Rs. 1,40,000/- was paid to the defendants No. 1,2 and 3 as earnest money vide Exhibit-

1. The plaintiff was always ready and willing to pay the balance amount of consideration money within the stipulated period of six months but, during the subsistence of the said Deed (Exhibit-1), the defendants No. 1,2 and 3 had sold out the property in favour of the defendant No. 4 most illegally and fraudulently. It further transpires that the witnesses who were present at the time of entering into the said Deed (Exhibit-1) and put their signatures thereof have identified the contents of the Deed as well as their respective signatures, which were accordingly marked as Exhibits and, the signatures of the plaintiff on the Deed as Exhibit 1/1 series on identification.

38. From the cross examination on behalf of defendants No. 2 and 3, it appears that they have tried to project their case that the plaintiff managed to obtain their signatures on the said Deed of Agreement for Sale (Exhibit-1). A part of the cross- examination may be reproduced here-in-below for convenience:

„It is not a fact that the defendants No. 1,2 and 3 never entered into an agreement for sale with me, or that I forcibly managed to obtain their signatures on the Agreement for Sale'

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39. The plaintiff also has adduced that the defendants No. 1,2 and 3 on receipt of Rs. 7,50,000/- from defendant no. 4 had executed the Sale Deed in her favour depriving the plaintiff.

39.1. PW-2, Sri Prasenjit Choudhury, has also supported the version of the plaintiff. PW-2 has also stated that he was present when the plaintiff and the defendants have put their signatures on the said Deed.

39.2. PW-3, Sri Mukundalal Podder supporting the version of the plaintiff have identified their signatures on the said Deed that both the plaintiff and the defendants No. 1,2 and 3 have voluntarily entered into the said Deed of Agreement for Sale (Exhibit-1) and after perusal of the contents of the same, being explained to them loudly have put their respective signatures on the said Deed of Agreement. The witness PW-3, have supported the version of the plaintiff. He was one of the attesting witnesses to the agreement. He has identified his signature as Exhibit 1/2. He also has identified the signature of the defendants which are marked as Exhibit 1/ 3 series. Nothing material have been elicited from the cross-examination.

39.3. PW-4, Sri Pathik Pal has also supported the version of the plaintiff and also supporting the genuinity of the Deed have identified his signature on the Deed which he put as attesting witness to the said Agreement and his signature was marked as Exhibit 1/4. In cross-examination, PW-4 has denied the suggestion that the plaintiff had obtained the signature of the defendants No. 1,2 and 3 forcibly.

39.4. PW-5, Sri Pranab kumar Pal has also supported the Deed of Agreement for Sale (Exhibit-1) entered into between the plaintiff and the defendants No. 1,2 and 3. He has stated that during subsistence of the said Agreement, defendants No. 1,2 and 3 sold out the suit property on receipt of Rs. 7,50,000/-. He has also stated that the plaintiff had offered the balance consideration of money of Rs. 5,10,000/- to the defendants No. 1,2 and 3 to execute the registered Sale Deed in his favour. PW-5 has identified his signature on the Deed as Exhibit 1/5. He also has confirmed the respective signatures of defendants No. 1,2 and 3 on the Deed marked as Exhibit 1/3 series.

39.5. PW-6, Sri Tapan Aich has reported the facts which PW-1, PW-2, PW-3, PW-4 and PW-5 have adduced in their evidence.

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39.6. PW-7, Sri Narayan Pal is the Deed writer by profession appearing before the learned court in response to summon issued by the court. He has deposed that being a Deed writer, he has drafted one Agreement for Sale on 29.08.2013 which has been executed between Sri Pradip Pal, the plaintiff herein and Smt. Ila Saha and two others. He has further stated that he has typed it in his computer and then has drafted it. PW-7 has further deposed that he has read over and explained the contents of the Agreement for Sale to all the parties to the Deed wherein the plaintiff and the defendants No. 1,2 and 3 have admitted the contents to have been read correctly and, thereafter they put their respective signatures therein in his presence. He has identified the Deed (Exhibit-1). PW-7 has also identified his signature at the bottom of the 4^thpage of the Deed which has marked as Exhibit 1/6. Nothing material has been elicited from his cross-examination.

40. The defendants No. 1,2 and 3 had adduced one witness, Krishnapada Saha

as DW-1, on their behalf, by way of filing examination-in-chief under Order XVIII Rule 4 of the code of Civil Procedure, who had denied that the defendants no. 1,2 and 3 had been trying to sell the suit property to another person suppressing the Agreement for Sale executed between the plaintiff and the defendants No. 1,2 and 3 and, there was no such Sale Agreement between the plaintiff and the defendants and, as such, the claim of the plaintiff was absolutely vogus and uncalled for. He has further stated in paragraph 6 of his examination-in-chief that "It is also not correct to say that we have suppressed the agreement for sale as there was no execution of agreement for sale between the plaintiff and us and as such the statement made by the plaintiff is not at all correct". This witness has admitted at paragraph 7 of his examination-in-chief that the suit property was sold out to the defendant no.4 and at para 7 he has stated that:

"7.That, I say that the defendant No. 4 purchased the suit property by registered sale deed bearing no. 1-3049 dated 04.04.2014 and the defendant No. 4 after purchase became the absolute owner thereof ".

Being confronted with the cross-examination, he has admitted that none of the defendants had lodged any case of forgery against the plaintiff. He has further stated in his cross-examination that he did not produce any document to show that he was authorized by defendant No.3 to depose in this suit on his behalf.

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41. The defendant No. 4, Smt. Dipti Saha (DW-2), by way of filing examination-in-chief has stated that she is the bonafide purchaser of the suit property and by dint of registered Sale Deed No. 1-3049 dated 04.04.2014 she has become the landlord and the plaintiff has become her tenant. She has denied that the Sale Deed was executed collusively fraudulently and illegally. At paragraph 14 of her examination-in-chief, this witness has stated that:-

"14. That, I am stating that the possession of a tenant is a possession of the landlord and a tenant remains a tenant despite the change of title in the property in which he is a tenant. I am also stating that I am a bonafide purchaser from the true owner".

42. The plaintiff in his examination-in-chief has been able to prove the relevant correspondences, he made with the defendants no. 1,2 and 3 wherein he expressed his readiness and willingness to pay the balance consideration money of Rs. 5,10,000/- including the amount of advance payment. Those correspondences were made on different dates i.e. firstly on 12.11.2013 and secondly on 18.11.2013.

43. Noticeably, the defendant no.3, Sri Santanu Saha has made a correspondence vide his letter dated 20.11.2013, wherein he has acknowledged the receipt of the letter of the plaintiff dated 12.11.2013 wherein he has stated that:

"To, Shri Pradip Pal Sub: Acknowledgment of the receipt of letter Sir,

I have received your letter dated 12.11.2013 A.D. As per the statement of the letter I am willing to get the said land registered in your favour at due time. But due to my family"s non- cooperation I am unable to get it registered within stipulated time as per the agreement. Therefore, you are requested to wait for six months as per terms and conditions of the agreement. Therefore, if (the land) is not registered in your favour, you may take legal steps. Date: 20.11.2013 A.D. Submitted by

Sd/ Shri Santanu Saha

Town Pratapgarh Road No.1, Agartala"

44. The defendant No. 2, Sri Krishnapada Saha also has responded to the communication made by the plaintiff and vide his letter dated 28.11.2013 has stated thus:

"To, Shri Pradip Pal S/O late Pramod Ranjan Pal, Town Pratapgarh, road No.1, Agartala, West Tripura-799001 Sub: Reply to your letter dated 12.11.13 A.D. Sir,

In your letter dated 12.11.2013 A.D. you wrote that on 29.08.2013 A.D. I had executed the deed of advance payment for the sale of land measuring 1 ganda 3 kara lying at the back of my dwelling house to you.

Having read the letter, I got bewildered because I did not execute any deed of advance payment in your favour. My mother has been ill since August last. From 14.08.2013 AD upto 26.08.2013, she remained admitted in ILS hospital and on 27.08.2013 AD she was

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taken back home. A pacemaker was installed through an operation of her heart. Taking advantage of my mother"s illness and by way of luring my younger brother namely Santanu Saha, you set a collusion with him and at the dead of night you entered the room of my mother and thereby, got my signature and that of my mother on blank papers by force by way of intimidating me and my mother of death. Thereafter, I requested you many days for returning the papers but you did not pay any heed to my requests. I informed the eminent persons of the locality in this regard. This is for your information that we don"t have any desire and necessity for selling any part of our dwelling house. You are a tenant in our house. I and my mother had verbally asked you many times to vacate our house. Day after day you sought time from us. Now, I ask you to vacate our rented room within ten days of receiving the letter.

Date: 28.11.2013 A.D. Submitted by

Sd/ Shri Krishnapada Saha

S/O late Paresh Chandra Saha

Town Pratapgarh Road No.1, Agartala"

45. The defendant No. 1, Smt. Ila Saha also has responded to the communication made by the plaintiff on 12.11.2013 and she has repeated the contentions that her son, Krishnapada Saha, defendant no.2, has raised in his letter dated 28.11.2013.

46. The plaintiff after receipt of the communication on behalf of Smt. Ila Saha and Sri Krishnapada Saha in his reply dated 02.12.2013, has stated thus:

"To,

1. Smt. Ila Saha

2. Sri Krishnapada Saha C/O late Paresh Chandra Saha, Town Pratapgarh, road No.1, Agartala, West Tripura-799001 Sir/Madam,

Having received your reply dated 28.11.2013 A.D. which is full of concocted and false stories, I have been very astonished.

I agreed to purchase the land as per your proposal. Accordingly you made an agreement with me. There is no question of intimidation or threats. The copy of the deed of agreement of advance payment has been given to you. The original deed of agreement is lying with the bank. You have no way of denial. On 29.08.2013 A.D. at 3 P.M. you signed on the deed of agreement in the presence of 3 persons. That you are cheating me is as clear as daylight. Although I am your tenant, you have taken Rs. 1,40,000/- (rupees one lakh forty thousand) from me as advance payment. Therefore, I am the vendee of that part of your house. If you annoy me in any way, I will take recourse to the administration and law.

Therefore, I do humbly request you to complete the task of implementation of the contract.

Date: 02.12.2013 A.D. Submitted by

Sd/ Shri Pradip Pal

S/O late Pramod Ranjan Saha

Town Pratapgarh Road No.1, Agartala"

47. All the correspondences which were exchanged between the plaintiff and the defendants No. 1,2 and 3 have been brought on record on proof and marked as Exhibit 6 series. In course of adducing evidence, none of the parties to the suit have disputed the said correspondences under Exhibit 6 series.

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48. I have considered the evidences, as adduced by the respective parties as well as the materials brought on record on proof in course of proceeding before the learned court of Civil Judge, Senior Division, West Tripura, Agartala. The court has noticed that none of the learned counsel appearing for the parties to the lis had advanced any deliberation disputing the facts, as are revealed from the evidence as well as the proven documents.

49. It manifest that the defendants no. 1,2 and 3 had executed the Sale Deed bearing no. 1-3049 dated 04.04.2014 in favour of the defendant no.4 during subsistence of the Deed of Agreement (Exhibit-1) dated 29.08.2013. Moreover, the plaintiff has been able to establish the essential elements to get success in the suit for Specific Performance of Contract that the element of 'readiness and willingness' in a suit for Specific Performance of Contract in the context of the present suit, the plaintiff had offered to pay the balance consideration money of Rs. 5,10,000/- before expiry of the statutory period of six months in terms of the Agreement. The said fact is also admitted by the defendant No.3 through his communication dated 20.11.2013 which was further indirectly admitted by the defendants No. 1 and 3.

50. After careful consideration, according to me, the plaintiff has been able to prove his case that, on being proposed by the defendants no. 1,2 and 3 expressing their desire to sale the property, he has agreed to purchase it and he paid Rs. 1,40,000/- as earnest money / advance amount to enter into the Deed of Agreement for Sale on 29.08.2013. The plaintiff has produced seven witnesses including himself and all the witnesses have stated that the defendants No. 1,2 and 3 have voluntarily entered into the Agreement for Sale (Exhibit-1). Their signatures on the said Deed also have been proved. The attesting witnesses of the Deed have categorically adduced in their respective deposition that the Deed has been written as per their version and the contents are read over and explained to them and being satisfied, all the parties to the Deed of Agreement have put their respective signature admitting the contents of the same. PW-7, the Deed writer has categorically stated that he has drafted the Deed as per version of the plaintiff and defendants No. 1,2 and 3 and he has read over and explained the contents what he has written in the Deed and on being satisfied, the plaintiff as well as the

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defendants No. 1,2 and 3 have put their respective signatures on the body of the Deed. The Deed is also witnessed by many persons who were present at the time of execution of the Deed. The attesting witnesses have put their signatures accordingly on the said Deed admitting the contents of the Deed as correct. PW-7 in his cross-examination has categorically denied that the plaintiff had forcibly obtained the signature of defendants No. 1,2 and 3 on the said Deed.

51. Furthermore, most interestingly, one of the defendants i.e. defendant no.3 has supported the version of the plaintiff that there is existence of a Deed entered into between the plaintiff and the defendants no. 1,2 and 3. He has admitted that he was willing to get the said land registered in favour of the plaintiff within the stipulated time as per the agreement but, he was unable to execute the Deed for his family's non-cooperation. The defendant No. 3 has also advised the plaintiff to take legal steps if the land is not registered in favour of the plaintiff.

52. In view of the overwhelming evidence supporting the case of the plaintiff, I find that the stand taken by the defendants No. 1, 2 and 3 is mere denial of the case of the plaintiff. Moreso, the defendants no. 1,2 and 3 have miserably failed to establish their plea that they never entered into an Agreement for Sale of the suit property with the plaintiff or that the plaintiff had forcibly taken the signatures of defendants no. 1 and 3, though this plea of the defendant No. 2 is not found in the examination-in-chief, they have submitted before the learned court under Order XVIII Rule 4 of the CPC.

53. In view of the aforesaid discussion of evidence and materials on record, I am of the considered view that all the aforesaid issues, as framed in the suit have been established and proved in favour of the plaintiff, namely, Sri Pradip Pal. The judgment and decree dated 17.08.2017 passed by the trial court in case No. T.S. 35 of 2014 with the findings that the plaintiff cannot institute suit for Specific Performance against the defendants is set aside and quashed.

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No. 2 and 3 to execute such registered Sale Deed in favour of the plaintiff, the plaintiff is entitled to get the Conveyance Deed to be executed and registered by the learned Court for and on behalf of the defendants No. 2 and 3 in accordance with law conferring the title of the suit property upon the plaintiff. The plaintiff is further entitled to get a decree for perpetual injunction restraining the defendants from disturbing the peaceful possession of the plaintiff. The plaintiff is entitled to get further declaration that the Sale Deed bearing no. 1-3049 dated 04.04.2014 executed between the defendants No. 1,2 and 3 and defendant no. 4 is illegal, void, ab anitio, nonest and is not binding upon the plaintiff. Accordingly, I declare the Sale Deed bearing no. 1-3049 dated 04.04.2014 as illegal, void ab initio.

55. In the result, the instant appeal is allowed. Consequently, The defendants No. 1,2 and 3 are directed to execute the registered Sale Deed in favour of the plaintiff within a period of 30 (thirty) days from the date of receipt of the copy of this judgment and decree. It is revealed from the record that the defendant no. 1, Smt. Ila Saha has already expired and the defendants No. 2 and 3 being her legal heirs are liable to execute the registered Sale Deed in favour of the plaintiff in accordance with law. If the defendant No. 2, namely, Sri Krishnapada Saha and defendant No. 3, namely, Sri Santanu Saha fail to execute the registered Sale Deed in favour of the plaintiff within the period specified by this court here-in-above, the plaintiff may approach the learned trial court to get the registered sale deed to be executed by the court, in accordance with law.

56. Draw the decree accordingly. Send down the LCRs forthwith for necessary compliance.

JUDGE

Saikat