Babu Rao vs Sonaji and others

Naik, C.J.—In this second appeal, the appellant has filed a suit for the specific performance of a contract on the ground that the defendants executed an agreement for sale on Bahman 18,1317 Fasli: December 21, 1937 which they refuse to perform. Both the lower Courts have concurred in dismissing the claim. The original Court has held that because the document though proved was not registered, it was inadmissible and the suit should fail. The first appellate Court, however, has held that the agreement is not register able; but the plaintiff has not proved his case and hence the appeal should be dismissed.

It is contended on behalf of the appellant that in a suit for the specific performance of an unregistered contract for the sale of immovable property, the document is admissible: The learned Advocate for the appellant relies on the specific amendment of S. 43 of the Hyderabad Registration Act, No. HI of 1346 Fasli. Because of this amendment, the authority relied on by the original Court being of an earlier date is no longer relevant for the decision of this case and a later decision in ''40 Dec. L.R. 391''is in support of the view that because of the amended Section, no registration, is necessary. The contention of the Advocate for the appellant is, therefore, correct and we hold] that no registration is necessary and the document is admissible.

Then it was urged before us that as the respondents are agriculturists and the sanction by the Taluqdar is necessary for the sale of the property, the suit should not be decreed without such a sanction. It has, however, been held by a Division Bench in the case of ''Chinna Malla Reddy v. Pedda Ishwaramma'', 10 Nazair-e-Osmania 804 that the absence of such a sanction is no bar to a suit for specific performance being allowed. In the case, the Privy Council authority of ''Motilal v. Nanhelal'', 57 Ind App. 333 was followed wherein it was laid down that there was an implied term in such a contract that the vendors would apply for sanction, and the contract could be enforced under the Specific Relief Act and O. XXI, R. 31 (5) by a decree ordering the vendors to apply for the sanction and to execute a transfer on receiving it. This ground also for dismissing the appellant''s suit, therefore, fails.

The last question to be decided in the appeal is "how far the finding of the lower appellate Court about the appellant''s failure to prove his case is correct?" Exhibit 1 is the agreement which says that the consideration of Rs. 651/- for the sale of the sixth share of the vendors in the property has been received, the share conveyed and the executants promised to execute a registered sale-deed within one month. It bears four thumb impressions of the executants as well as the signatures of the scribe and the two attesting witnesses. Layman is the scribe who has appeared as appellant''s witness No. 4 and swears to having written the document at the direction of the executants and explained the document to them. Then Bhim Raj is one of the attesting witnesses who as appellant''s witness No. 1 proves the execution as well as his and the other witnesses having attested it. Then appellant''s witness No. 2 proves his joint possession of the property. This evidence in our opinion fully establishes the case set out in the plaint about the respondents after writing the document having put the claimant in joint possession of the property. This share of the executants not being separate is no bar to its being sold. In these circumstances, the appeal is allowed with costs, the decrees of the lower Courts set aside and the respondents shall apply within two months to the Revenue Officer for the sanction to transfer to the appellant the share in the property mentioned in Ex. 1 and further within one month of the receipt of the sanction convey to the appellant the said share. The suit is decreed as directed.

M.A. Ansari, J.

I agree.