Kailash Chandra And Another vs Ram Babu And Others

Sharad Kumar Sharma, J

The instant Second Appeal has been preferred by the defendant/appellant being aggrieved against the judgment dated 29.11.2018 as passed by IInd Additional District Judge, Kashipur District Udham Singh Nagar in Civil Appeal No.05 of 2015, which arises from the proceedings in the Suit No. 12 of 2006, Banarsi Dass Vs. Kailash Chandra and others, by virtue of the suit in question, the plaintiff has sought a decree in the nature of permanent mandatory injunction seeking a decree in the nature mandatory injunction commanding the defendant/appellant herein to be evicted from the property lying on the first floor and had also prayed for the payment of damages for the user of the property @ Rs.300/- per month w.e.f. 12.01.2006, till the time of eviction.

In the suit thus filed on 08.01.2006, in a nutshell, the plaintiff's case was that the property in dispute which constitute to be on the first floor has got two rooms, a latrine, a kitchen and a bathroom situated at Mohalla Pakkakote which has bounded by description as given in the body of the Plaint.

"[14] यह कि वादी न्यायालय से निम्नलिखित प्रार्थना करता हैः-

{1} यह कि डिक्री वेदखली बावत प्रथमतल जिसका की अधिक विवरण वाद पत्र के अन्त में दिया जाता है, वा हकवादी खिलाफ प्रतिवाद पारित करने की कृपा करें, और कब्जा प्रथमतल माननीय न्यायालय श्रीमानजी के माध्यम से वादी मय को दिलाया जाये।

{2} यह कि मुआवजा वेजा इस्तेमाल दिनांक 12.01.2006 तायोम बेदखली मुवलिग 300 रूपये प्रतिमाह इजराय साइड में मुनसिब कोर्ट फीस अदाकर वादी के पक्ष में डिक्री पारित करने की कृपा की जाये।

{3} यह कि खर्चा मुकदमा वादी को प्रतिवादी से दिलाया जाये।

{4} यह कि अन्य दादरसी जो मुफीद वादी हो, बा मुकाबले प्रतिवादी वादी को दिलाया जाये।

विवरण मकानियत

एककिता मकान दुमंजिला स्थित मौहल्ला पक्काकोट का प्रथमतल, जिसमें दो कमरे, लैट्रिन, रसोई, बाथरूम निर्मित है, स्थित मौहल्ला पक्काकोट, जिसके पूरब में सडक, पश्चिम में मकान मोहन सिंह, उत्तर आराजी राजासाहब,व दक्षिण में मकान हरीसिंह काम्बोज ।"

The plaintiff's case was that late Mr. Banarsi Dass (i.e. Principal Plaintiff) out of his own income had constructed a house which was a two storied building, situated at the aforesaid address given in the plaint. However, during the pendency of the suit, the principal plaintiff died and plaintiff Nos. 1/1,1/2 & 1/3, namely Ram Babu, Anil Kumar and Sanjeev Kumar i.e. the present respondent Nos.1 to 3 were substituted as the party on the basis of the WILL executed by Late Banarsi Dass in their favour on 01.04.2006. It was the case of the plaintiff that land on which the construction was raised was purchased by Late Banarsi Dass (i.e. the Plantiff) through a registered sale deed executed in his favour in the year 1980, from his predecessor owner and on which he got residential accommodation constructed upto the first floor as per law. His case was that his younger daughter Rama Devi i.e. defendant No.6 was married in the year 1996, with one of the defendant No.1 namely Kailash Chandra S/o Mt. Choukhe Lal. Since after the marriage and as a consequent thereto he became the family member, an offer was extended by the son-in-law who is defendant No.I, herein seeking the permission from the plaintiff to permit him to reside on the first floor of the accommodation-in-question and consequently, the plaintiff- i.e. late Mr. Banarsi Dass who was father-in-law, considering the delicacy of relationship Defendant No.I of being son-in-law, had granted permission to his younger daughter and the son-in-law i.e. Kailash Chandra i.e. Defendant No.I to reside on the first floor of the disputed accommodation.

It was the case of the plaintiff in the plaint that it was assured by the defendant at the time of taking permission to reside, that he would vacate the premises as soon as the plaintiff requests them i.e. Defendant No.I and VI for handing over the possession. Since Late Banarsi Dass had a big family, his rest of family members of the substituted heirs, continued to reside on the ground floor of the premises alongwith the family of the sons of Late Banarsi Dass. When despite of various requests made by Late Mr. Banarsi Dass to the defendants to vacate the premises when the same was not vacated. Late Mr. Banarsi Dass had issued a notice to the defendants on 23.12.2005 which was served on defendants on 27.12.2005 and had terminated the license/permission granted to defendant Nos.1 and 6. It is the case of the plaintiff pleaded in the plaint that even prior to the termination of the license the defendants was induced by them to execute a WILL in their favour for the first floor on 06.02.2002, though, for a certain reasons, the said WILL was later revoked on 05.04.2005 by Late Banarsi Dass and had issued notice to them on 05.01.2006 to vacate the part of accommodation which formed part of revoked WILL dated 06.02.2002. Subsequently, a fresh will was executed on 01.04.2006, in favour of plaintiff Nos. 1/2 and 1/3 by Late Barasi Dass .

When despite of notices the defendants did not vacate the premises, there arose a cause of action for the plaintiff to institute the suit-in-question seeking eviction of the defendant Nos. 1 and 6 from the property-in-question by filing the same before the court of Civil Judge (Jr. Div.), Kashipur, District Udham Singh Nagar on 18.01.2006. Hence, it was a case of the plaintiff that since the license of the defendants stood terminated by the notice dated 23.12.2005, but granted him time to vacate the premises by 12.01.2006, when the same was not vacated by the defendants then another notice was issued to the dependents to vacate the disputed premises lying on the first floor.

During the pendency of suit, Mr. Banarsi Dass met with sad demise and according to said WILL dated 01.04.2016 the plaintiffs/respondents were substituted by the order dated 20.07.2007 and defendant No.2 to 6 had been substituted based on the succession.

Refuting the contention of the plaintiff, the defendants had filed a written statement (Paper No.17-Ka) on 20.02.2006 and defendant No.6 filed a written statement (Paper No.42-Ka) and in the written statement, they had developed the case that they were not in the permissive possession over the property-in-question, but rather they are in the possession of the property in pursuance to an agreement dated 23.02.2000 for sale which was claimed by defendant to have been executed by Late Mr. Banarsi Dass in their favour and which was binding on his heirs, wherein an area of plot of 20 x 50 feet lying on the ground floor in the housing society was sought to be agreed to be sold by Late Banarsi Dass in favour of defendant Nos.1 and 6, on which there stood two constructed rooms.

The pleading of the defendant in the written statement was that the said agreement per sale was executed by Late Banarsi Dass in his favour subject to the condition that the outstanding loan, which was standing as against Late plaintiff to the sum of Rs.1,20,000/-, which was to be paid in installments to the housing society, would be paid by the defendants. After the aforesaid agreement for sale, it was agreed that outstanding loan to be paid by the defendant No.1 and defendant No.6 and in continuation to the said agreement to pay the aforesaid loan, Late plaintiff Banarsi Dass had agreed to sell the property and in part performance of the agreement for sale he had handed over the possession of the property-in-question. The defendant's contention besides that was that the property of 20 x 50 feet lying on the first floor, there was a plot also of 10 x 20 feet on which there existed two rooms on the ground floor, the defendant No.1 was handed over the possession of the same by late Mr. Banarsi Dass.

Admittedly according to the appellant the said agreement for sale was conditional subject to condition that the defendant and was upon the remittance of the loan which was alleged due to be paid to the Housing Society by Late Mr. Banarsi Dass the sale deed would be executed. As per the written statement, it is also admitted by the defendant-appellant that as soon as the said alleged installments payable towards the loan out standing against Late Mr. Banarsi Dass, as soon as it is paid, he would execute the sale deed in faovur of defendant No.1 and thereafter the defendant would acquire the right to raise construction over the property allegedly agreed to be sold by the agreement for sale dated 23.02.2000; meaning thereby, in fact as per the un-registered agreement for sale dated 23.02.2000, it would come into effect only after the payment of the last installment and it would be in that eventuality only where the defendant-appellant would if at all acquire the right to utilize the property-in-dispute. It was pleaded by the defendant that as far as the first floor in their possession is concerned, he is exclusively utilizing the same and had got a separate water and electric connection installed in it with the consent of the plantiffs. Both the connections are standing in his name. In the additional plea he has reiterated the pleading pertaining to the WILL dated 05.02.2002 and denied the plea of the plaintiff that late Banarsi Dass was allured to execute the WILL, yet once again he has reiterated the plea of agreement for sale dated 23.02.2000, alleging to be voluntary act of the plaintiff Late Banarsi Dass which was witnessed by two independent witnesses though he admits the fact that the agreement for sale was an unregistered document. Thus, defendant denied the plaint averments of plaintiff/respondent. After the exchange of the pleadings, the learned trial court framed the following issues:-

"पक्षकारों के विरोधावासी अभिवचनों तथा वाद में न्यायपूर्ण निस्तारण के लियें निम्नलिखित विवाद्यक बिन्दु विरचित किये गये :-

क्या वादी विवादित सम्पत्ति का स्वामी है,

क्या दिनांक 23.02.2000 के इकरारनामें के बाद मृतक बनारसीदास द्वारा अपने पुत्रो वादीगण 1/1 से 1/3 की सहमति से प्रतिवादी नं01 के रिहायशी हिस्से मकान बावत दिनांक 05.02.02 को एक पंजीकृत वसीयत निष्पादित करायी?

क्या वादीगण को विरूद्व प्रतिवादीगण कोई वाद का कारण पैदा हुआ?

क्या प्रतिवादी नं0 1 द्वारा प्रश्नगत मकानियत के प्रथम तल पर निर्मित मकानियत अपने खर्चे से बनायी है?

क्या बनारसीदास हाल मृतक द्वारा प्रतिवादी संख्या-1 कैलाश चन्द्र के हक में एक इकरारनामा दिनांकित 23.02.2000 तहरीर किया था?

क्या कथित वसीयत दिनांकित 01.04.06 एक बनावटी व गैर कानूनी व शून्य दस्तावेज है?

वादीगण किस अनुतोष को पाने के अधिकारी है?"

The plaintiff in support of his contention had produced certified copy of a WILL as paper No. 7Ga/1 to 7Ga/4, a notice as paper No.9-Ga, a copy of registered receipt as paper No.10-Ga and reply to the notice given by the defendant as paper No.11-Ga. He had also filed a copy of the registered sale deed by which the plaintiff has acquired the property dated 18.05.1981 as paper No.12-Ga/1 to 12Ga/4. Besides this the other documents were also filed by the plaintiffs to establish their rights over the property viz the receipts of house tax paper 14Ga, Receipts issued by Cooperative Housing Society paper 15 Ga, and also the last WILL of late Banarsi Dass as paper 50Ga etc.

On the other hands, the defendant had placed reliance on the electricity bill, water bills (paper No.18-Ga), Annexure No.7 to Annexure No.10 which were receipts pertaining to the House Tax, Ceiling certificate as paper No.13 and the receipts of the installments and so called loan which was claimed by the defendant to have been remitted as Annexure Nos. 14 to 22 and also the original unregistered agreement for sale dated 23.02.2000 as paper No. 21-Ga. Defendant also produced other documents to substantiate their right by placing other documents on record, as detailed in the trial courts judgment.

The learned trial court after considering the issues and in particular for the present purpose the relevance would be to the findings on recorded by the Courts issue No.1 and 5 which related to the title and the propriety of the agreement for sale dated 23.02.2000. The learned trial court exclusively considered issue No.1 and after considering the evidences and documents adduced by the parties both the courts had come to the conclusion that the plaintiffs were the exclusively owner of the property and the holders title of the property and as far as defendant based on the documents produced by them, was not proved as was claimed to be based on an unregistered agreement for sale dated 23.02.2000. Another issue which was relevant as already referred above was on issue No.5, which was dealt with along with issue No.2 as they were inter-related to one another as regards to the propriety of the unregistered agreement for sale dated 23.02.2000 which has revised by defendant/appellant to establish their rights over the property in dispute.

The argument which was extended by the defendant/appellant in support of the agreement for sale was from the view point that since the agreement for sale though admittedly being unregistered, since it was witnessed by the sons of deceased Banarsi Dass and hence it would amount to that it was executed with their consent and they cannot resile from the same. The learned trial court after considering the evidence on the same had recorded the findings that although oral witnesses which were six in numbers produced by the defendant which included the sons of the deceased. Plaintiff had not specifically denied its execution. But he as DW1 in his examination-in-chief produced by way of an affidavit paper No. 69-Ka, in fact had submitted in his cross-examination, that the plaintiff had offered the defendants to reside on the ground floor is wrong as Banarsi Dass declined to grant them any possession on the ground floor and inducted them as a licensee owing to the relationship which defendant/appellant catered with the plaintiff as his son-in-law, the permission to reside on the first floor which was the license was terminated by notice dated 23.12.2005.

The defendant to prove the execution of agreement for sale had produced DW2 Mr. Satish Kumar Sharma who reiterated the pleadings and the statement of DW1, he submitted that he was a person who used to prepare the rubber stamp. He was informed by the defendant No.1 that late Banarsi Dass has executed a WILL which was later on cancelled by him and then thereafter he had executed an agreement for sale on 23.02.2000, meaning thereby, if the statement of PW2 is taken into consideration along with the statement of DW2, it was not the original testimony of DW2 rather it was a narration of a fact which was tutored to him by defendant No.1. Hence much reliance cannot be placed on the same.

The learned trial court ultimately concluded that if the agreement for sale dated 23.02.2000 i.e. paper No.21-Ka, is scrutinized in the light of the law contained under the Transfer of Property Act, it does not satisfy the test of law. Firstly since the same was not registered as mandatorily required as per Section 17 of the Registration Act, which was mandatorily required registration as per law to be read in evidence. Consequently, the learned trial court proceeded to decide the issue with regards to the execution of agreement for sale in favour of the plaintiff holding thereof that the defendant had failed to prove that the agreement for sale was validly and legally executed.

Besides this mere execution of an agreement for sale will not create any right in favour of the defendant/appellant, until and unless in continuation to it the executor of the agreement for sale, executes the deed of transfer, admittedly in the present case, it has not been dependent/appellant case at any stage of the proceedings of suit or the before first appellate that even the sale deed was executed by the principle plaintiff or his successors thereafter. This court is a considered view, and also as settled by the Courts of Law that mere an unregistered agreement for sale will not create any right in relation to the immovable property, which the defendant/appellant alleges was agreed to be sold to them. Apart from it trial court on considering the sale deed executed in favour of late Banarsi Dass, and the receipts of house tax paper No.14 Ga, it showed it was consistently remitted by the plaintiffs, also because the trial court considering the oral testimony of PW1 Umesh Kumar and PW2 Sanjeev Kumar held that plaintiff was the owner of the property. Not only that even the defendant/appellant too who had appeared in the witness box as DW1admits the factum of purchase made by Late Banarsi Dass, of the property from its predecessor owner in title, and it was also admitted by DW1 that it was late Banarsi Dass in fact who got the construction raised over the property. He further admitted the fact of remittance of House Tax by the plaintiffs. The trial court while recording the finding has held that the plaintiffs after death of Late Banarsi Dass are recorded as his successor in the municipal records.

Ultimately the trial court decreed the suit in pursuance to the judgment dated 08.01.2012, which was challenged by the defendant-appellant in an appeal preferred before the first appellate court, below which was registered as Appeal No. 05 of 2012, which too was dismissed by the Appellate Court vide its judgment dated 29.11.2018.

At this stage it would be pertinent to mention here that the Appellate Court to while considering the findings recorded on the seven issues which were framed by the trial court had also exercise its power under Order 41 Rule 31 of the Code of Civil Procedure by framing the points of determination though they were identical as these the issues of trial court, in relation to the issues which were already framed and had concurrently concluded that the theory of execution of an agreement for sale cannot be accepted since being unregistered and contrary to law. Besides this since the substitute plaintiffs became owner of the property on the basis of registered WILL dated 05.02.2002 executed in their favour.

The learned counsel for the defendant/ appellant at the stage of admission for the Second Appeal has only argued that the Second Appeal from the view point that the agreement for sale was not required to be registered in view of the provisions contained under Section 17(1)(A) of the Registration Act, which was to be read in accordance with Section 53-A of the Transfer of Property Act.

After having heard Mr. J.P. Joshi, learned Senior Advocate, assisted by Mr. Dinesh Gahatori, Advocate at length, this Court is not satisfied with the arguments as extended by the defendant/appellant that the provisions of Section 17(1)(A) would be attracted for the reasons given hereunder; the learned counsel for the appellant admits the fact that the agreement for sale dated 23.02.2000 is not registered as required under Section 17 of the Registration Act for the purposes of seeking an exemption from the mandatory registration clause contemplated under section 17 of the Act, he has placed reliance on the provisions contained under Section 17(1)(A) of the Registration Act, which was inserted for the first time under the statute by virtue of an Act No. 48 of 2001, to the following effect, Section 17A of the Registration Act reads as under :-

Documents of which registration is compulsory.-(1) 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 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 the 2 [State Government] may, by order published in the 3 [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.

[(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 (48 of 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) Nothing in clauses (b) and (c) of sub-section

(1) applies to-

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by 3 [Government]; or

(viii) any instrument of partition made by a Revenue-Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

[(x-a) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.

[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.]

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.

What he intends to submit that an agreement for sale in which it refers to or intends to achieve an object provided under Section 53(A) of the Transfer of Property Act, 1882 i.e. part performance of handing over of possession an if it is required to be registered it would be only after the enforcement of that amendment made by virtue of insertion of Section 17(1)(A) of the Act. This Court on the scrutiny of Section 17(1)(A) of the Act is required to consider its impact in precession, Section 17(1)(A) of the Registration Act, it provides an exemption from the registration only when a document or a contract of transfer is executed for, "consideration", the legislature in its wisdom has used a punctuation of 'comma' after the word 'consideration' that means of in order to attract the benefit of Section 17(1)(A) on the part performance, the pre condition for execution of an agreement for sale and to get an exemption from its registration would mean it has to be a payment of a "prior consideration". Section 17(1)(A) of the Act does not deal with the effect of deferred payment of consideration. In the case at hand, the agreement for sale on which the reliance has been placed by the learned counsel for the appellant which is placed on record, it reads as under:-

"मैं कि बनारसी दास पुत्र श्री नाथूराम निवासी मोह0 पक्का ततहसील काशीपुर जिला उद्यमसिंहनगर का हॅू । जो कि मेरी किता आराजी 20 x 50 वाके मोह0 पक्का कोट स्थित है। जिसमें सं 10 x 20 का एक शाट जिसमें एक कमरा 10 x 20 आगे बना है तथा एक कमरा 10 x 10 का उसी के पीछे बना है जिसके पूरब में सडक पश्चिम में मोहन सिंह का घर उत्तर में नाली सरकारी दक्षिण में हरिशंकर यादव जी का मकान वाके मोह0 - पक्का रोडा तह0 काशीपुर जिला उद्यमसिंहनगर है। मेरे उपरोक्त प्लांट 20 x 50 पर 1,20,000/- एक लाख बीस हजार रूपये का त्रृण विषयों के आधार पर है। उपरोक्त प्लांट में से एक प्लांट 10 x 20 का जिसमें उपरोक्त दो कमरे बने है को मैने खूब सोच व समझकर बिना किसी धोंस व दबाब के अपनी अपनी आशाद राय से बिना किसी के बहकाये व सिखाये उपरोक्त प्लांट 10 x 20 मय कमरों को मैनें अपने दामाद श्री कैलाश चन्द पुत्र श्री चौखे सिंह निवासी मोह0 - आवास विकास तहसील काशीपुर जिला उद्यमसिंहनगर को दे दिया है। मेंरे उपर जो़ त्रृण 1,20,000/- एक लाख बीस हजार रूपये है उसको किश्तों के आधार पर मेरे दामाद श्री कैलाश चन्द्र अदा करेंगे। और त्रृण किश्त पूर्ण रूप से अदा होने पर मेरे दामाद श्री कैलाश चन्द उपरोक्त प्लांट 10 x 20 मय मकान का अपने नाम बैनामा करालेगे जिसमें मुझे व मेरे वारिसान को कोई उक्त व एतराज न होगा । मेरे दामाद उपरोक्त मकान के उपर कमरे आदि बना सकते है। जिसमें मुझे व मेरे वारिसानों को कोई आपत्ति नहीं होगी । लिहाजा आज दिनांक 23.02.2000 ई0 को यह इकारारनामा सब सोच व समझकर अपनी आजाद राय से अपने कहे मुताबिक टाइम करा दिया कि सनद रहे। नोट-उपरोक्त प्लांट मय मकान सडक के किनारे आगे का है।"

The term 'consideration' came up for consideration in a judgment rendered by Punjab and Haryana High Court, as reported in AIR-2004 Punjab and Haryana 193 in the case of 'Ajay Kashyap vs. Mohini Nijhawan.

"17. As noticed above, the Administrator of the Union Territory of Chandigarh framed regulations for the allotment, management and sale of tenements by the Chandigarh Housing Board. The relevant Regulations, 2(3), (10), (19) and (21) may be noticed as follows:

"2(3) "Allottee" means a person to whom a property has been allotted by way of sale or hire-purchase or lease or in such manner as prescribed by the Board;

2(10) "Consideration" in relation to a dwelling unit/flat or other built-up property or any other property shall include the price fixed by the Board for allotment of such property by way of sale, hire-purchase or lease or in any other manner premium, hire purchase, lease money and ground rent.

2(19) "Hirer" means a person who has signed the Hire-Purchase Tenancy Agreement;

2(21) "Hire-Purchase Tenancy Agreement" means an agreement between the Board and the hirer in the form prescribed in these regulations for disposal of property under the hirer in the Hire-Purchaser System." Regulations 4, 7, 42, 44 and 45 read as under:

Disposal of Property.- (1) The disposal of a property shall be effected by either hire-purchase or sale on lease-hold basis for 99 years or in such manner as prescribed by the Board.

(2) The disposal of property shall be subject to such terms and conditions as may be decided by the Board from time to time or as may be imposed on the Board by the Chandigarh Administration, from time to time."

Manner of payment of price and Allottee's Obligations.- (1) When a property is disposed of by sale, every applicant shall deposit a sum equal to 25 per centum of the consideration money of the property or such amount as may be specified in the scheme. Such deposit shall be non-interest bearing unless otherwise declared by the Board to be interest bearing.

(2) An applicant to whom the property has been allotted shall have to pay the balance amount of the consideration money (i.e. after adjusting the deposit) as may be specified in the allotment letter either in lump-sum or in such number of installments as may be prescribed therein, (3) If payment of the balance of consideration money is made in instalments, the allottee shall have to pay interest on the balance amount of premium at the rate as may be freed by the Board by prior intimation.

(4) In case any instalment is not paid by the allottee by the due date, a notice shall be served on him calling upon him to pay the instalment within a month together with penalty which may extend upto 25 percent of the amount due. If the payment is not made within the said period or such extended period as may be allowed by the Board but not exceeding three months in all, from the date on which the instalment was originally due, the Board may cancel the allotment and forfeit the whole or part of the consideration money and ground rent already paid in respect of the property and thenceforth the property shall vest in the Board.

(5) In case of an applicant who has not been allotted any property, the deposit made with the application shall be considered as deposit under any scheme which the Board may frame for further allotment of the dwelling unit unless the applicant applies for the refund of the said amount.

(6) The Board shall have the sole and exclusive right over the deposit till it is adjusted or refunded with or without deduction as provided in these regulations and the applicant shall execute all necessary documents as may be directed by the Board from time to time in this behalf to enable the Board to deal with such money.

(7) The allottee shall not sell, alienate, transfer or otherwise part with the possession of the whole or any part of the said property till he becomes the owner or for a period of 10 years from the date of actual possession which ever is later except that:

(i) a lease for a period not exceeding 5 years at a time may be created.

(ii) the right, title and interest of the allottee may be mortgaged in favour of the Government, Life Insurance Corporation or any Scheduled bank or any corporate body such as corporations and boards, in order to raise for the payment of price of built up houses to the Board, subject to first charge on the property for the unpaid portion of purchase price and other dues outstanding towards the allottee remaining in favour of the Board:

Provided further that such mortgage lease, etc. can only be created with the prior permission of the Board and the Board will be competent to impose any condition while granting such permission.

Notwithstanding anything contained in sub-regulation (7) above, the Administrator, may at his discretion and for reasons to be recorded in writing permit the allottee in genuine cases of hardship or on humanitarian grounds as he deems fit to sell, alienate, transfer or otherwise part with possession of the whole or any part of the said property after he has made the full payment of the property to the Board."

Status of hirer.- During he subsistence of hire-purchase period, a hirer shall remain the tenant of the Board and shall have no right except those under tenancy. He may, however, sub-let the premises under intimation to the Board and, in doing so, it shall be the liability of the hirer to ensure that none of the terms and conditions of allotment hire-purchase is violated.

Transfer of ownership to hirer.- The hirer shall cease to be a tenant and shall become the owner of the property only after the last instalment of hire-purchase and all other dues have been paid by him to the Board and the transfer of the property to him has been effected through a conveyance deed/lease deed executed in such form as may be prescribed by the Board and the common portions and common services, if any have also beer, taken care of.

Transfer of ownership to Allotment/Lessee.-When the property is disposed of by way of sale, the allottee/lessee shall become the owner only after the full price and all others dues have been paid by him to the Board and the transfer of the property has been effected through a conveyance/lease deed executed in such form as may be prescribed by the Board and the common portions and common services, if any, have also been taken care of."

In view of the above rationale it's the value of dwelling or flat which is exchanged between the seller and purchaser for a complete transfer of title and right in relation to it by way of sale, it does not advocate a deferred or partial payment. According to Black Dictionary 7th Edition 1999-'consideration', it means something of value, as such as or far clearance of value promised to be paid and paid to the promisor from a promise, yet again it would mean a complete transaction of exchange of value. In the present case the document for agreement for sale, maturing the right for getting sale deed executed would have matured only after payment of the last installment which was agreed to be paid by the defendant/appellant, which in the instant case was much after the date of insertion of Section17(1)(A) of the Act. Hence the document would in eyes of law would become entitled to be forced only on the payment of last installment, hence it was mandatorily required to be registered under Section 17 of the Registration Act, lest failing which it will confer no right to the defendant/appellant prior to that date.

As per the terms of the agreement for sale which admittedly is unregistered. It was agreed that the loan amount standing as against the executor of the document to the tune of 1,20,000/- was agreed to be paid by the appellant. This agreement to pay the loan amount and which in accordance with the document which has been brought on record by the appellant himself before the court below. In fact, it shows that the loan amount completely stood transfer much thereafter the amendment made under Section 17(1)(A) made by Act No.48 of 2001 and according to the date of receipts which has been placed on record as paper No. 69-KA, the one of the installments is shown to be made on 08.10.2002 and 21.04.2004 and so on. The last payment which has been made is shown to have been made somewhat in 2003 or 2004 and on any such other dates after the amendment, this Court is of the view that it would amount to that the consideration as contemplated under Section 17(1)(A), in fact it has not exchanged completely as on the date when the agreement dated 23.02.2000, was executed but rather it was a deferred payment which was to be paid in future. Hence, this Court is of the view that when any deferred payment of the "consideration" in terms of an understanding arrived by the alleged agreement for sale dated 23.02.2000, to pay the loan which had been taken by the defendant/appellant, later it has to be a consideration paid completely in lieu of the agreement for sale dated 23.02.2000, and when it was a deferred payment and was completed at a date later to the date of amendment of Section 17(1)(A) in fact it was not consideration which has completely exchanged hands. In that regard, at this stage itself a reference to Section 53(A) of the Transfer of Property Act, 1882 also become essential to be considered. Because Section 53(A) is quoted hereunder:-

"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 the contract, though required to be registered, has not been registered, or, 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 tranferee 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 53(A) entitles a person of a right over on his movable and immovable property when there is a 'transfer for consideration' of any immovable property, if the rational interpretation is given to the word 'transfer for consideration', it would mean that actual and total consideration which should have exchanged hands at the time when the agreement was mutually executed. This is not a situation which is prevailing in the case hereunder.

Any action taken in pursuance to the agreement for sale on which the arguments of the learned counsel is based upon will have no impact because so far as the precondition of the exchange of consideration is concerned to make a document to avail the benefit of exemption under Section 17(1)(A) was not completed on the date the amendment was brought into effect by insertion w.e.f. 24.09.2001, as the partial amount admittedly is shown to be made at a later date. Thus this Court is of the view that document will mature its execution only on a complete payment of consideration and not a partial payment.

The term consideration has not been defined under the Registration Act, Transfer of Property Act, or under the General Clauses Act. In such a contingency, the literal meaning of consideration has to be derived from the Dictionary and for that purpose, it was consulted from the Oxford English Dictionary where the term 'consideration' has been defined therein, it means, "a payment or a reward" the word payment herein would mean a act performed completely, but not an act deferred to be performed at a later date. Hence, this Court is of the view that the exemption as claimed by the defendant/appellant under Section 17(1)(A) by the learned counsel for the defendant/appellant would not be available to him for the reason that an understanding to pay the installments in future date, which was lastly, as per the own record as shown by the defendant/appellant is shown to have been made in 2004 i.e. much after insertion of Section 17(1)(A) on 24.09.2001, that would amount to that an actual complete payment of consideration agreed was made only in 2004 i.e. much after the amendment was made under Section 17(1)(A), hence the benefits of Section 17(1)(A) is not available to the appellant, regarding the exemption from registration of the deed dated 23.02.2000.

Learned counsel for the appellant has further submitted and placed reliance on Sub-section (2) of Section 17(1)(A) and in particular a reference has been made to sub-clause (1) and sub-clause (5). As far as sub-clause (1) is concerned, it only applies to a composition or structure of a document which intends to sell an immovable property. On its execution, the interpretation to clause (5) as given by the learned counsel for the appellant was an act which flawed as a consequence of execution of a document i.e. either creating, declaring, assigning, limiting or executing a right, clause (5) will not be attracted at this stage and this is being said so became at the risk of repetition that the creation of a right in lieu of execution of an agreement of sale dated 23.02.2000 would have at all stood matured it would have only accrued when there is an actual and a complete payment made for consideration prior to the execution of a document and not the payment which is agreed to be made for the future. Thus, this Court is not in agreement with the arguments as extended by the learned counsel for the appellant for the reasons assigned above, otherwise also, the Second Appeal is concluded on the concurrent findings of the fact, hence the same is dismissed.

However there would be no order as to cost.