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Judgment
Sashikanta Mishra, J
This appeal is against the confirming judgment passed by learned District Judge, Sambalpur on 18th May, 2013 followed by decree in R.F.A. No.45/2012. The Appellant is the Defendant in the original suit i.e. Civil Suit No.14/2005 of the court of learned Civil Judge (Sr. Division), Sambalpur. The suit was filed by the Plaintiff for a decree of specific performance of contract against the Defendant directing her to execute a fresh sale deed in his favour in respect of the suit schedule land, alternatively, for recovery of the consideration money paid by him with pendent lite and future interest. The said suit was decreed vide judgment dated 5th January, 2012 followed by decree on 20th November, 2012. The decree was confirmed in the First Appeal.
For convenience, the parties are referred to as per their respective status in the Court below.
The Second Appeal has been admitted on the following substantial question of law;
“Whether the so called Agreement to sell dated 19.4.2003 with P.W.3 in which the plaintiff claims to have been substituted, could have been specifically enforced in this suit when that transaction came to an end for non-registration on a reason not attributable to the defendant-appellant and the plaintiff’s own case is that he wanted the Defendant to execute a fresh Sale deed which is not backed by any agreement to sell”
The Plaintiff’s case is that the suit schedule land belongs to the Defendant, she having purchased the same from the previous owner vide RSD No.1734 dated 9th July, 1990. She executed an Agreement on 19th April, 2003 with one Rajaram Panda to sell Ac.0.05 dec. (Schedule ‘A’) for Rs.50,000/- to meet the expenses of her daughter’s marriage. She received Rs.40,000/- in cash from said Rajaram Panda towards advance. Being in need of further money she approached Rajaram Panda but he refused to pay. Under such circumstances, the defendant offered to sell the property to the original plaintiff Sachidananda Panigrahi (who having expired during pendency of the suit since has been substituted by his L.Rs) for a consideration amount of Rs.60,000/-. On 25th January, 2003 a sale deed was scribed according to the defendant’s instruction and the original plaintiff paid Rs.60,000/- to her in presence of witnesses, whereupon she executed the sale deed. Out of the said amount she repaid Rs.40,000/- to Rajaram Panda. The sale deed however, could not be registered for various reasons and on being approached, the defendant remained unresponsive despite service of registered notice on her. Hence, the suit.
The defendant took the plea that she wanted to sell the land to the plaintiff and as per their understanding the entire consideration amount was to be paid at the time of registration, but the sale deed was scribed when the plaintiff paid the amount towards stamp to the Stamp Vendor. Thus, the defendant denied the assertion that the plaintiff had paid the consideration amount for which she did not agree for registration of the sale deed. It is her further stand that she being a woman was requested by the plaintiff to put her signature on the sale deed for completion of the procedural formalities, which she did on good faith. Non-registration of the sale deed was not due to her fault and she had no further agreement, either oral or otherwise to execute another sale deed.
Basing on the rival pleadings, the trial Court framed seven issues for determination including the pivotal Issue No.2, which reads as follows;
“2.Whether the defendant entered into an agreement with the plaintiff on 25.4.2003 to sale Schedule A land and the sale deed was scribed in the same day after receipt of Rs.60,000/ towards the consideration amount?”
The trial Court scanned the oral and documentary evidence in detail and found evidence to show that the defendant had received the consideration money of Rs.60,000/- and had executed the sale deed in favour of the plaintiff fully knowing the contents of the documents, but subsequently, the sale deed could not be registered. Thus, holding that the consideration amount was paid, the suit was decreed by directing the defendant to register the sale deed in favour of the plaintiff in respect of Schedule ‘A’ land within two months.
The plaintiff carried the matter in appeal. The First Appellate Court also looked at the oral and documentary evidence on record and held that the finding of the Court below regarding receipt of the consideration amount of Rs.60,000/- by the defendant and execution of the sale deed does not warrant any interference more so, as the receipt of registered notices issued by the plaintiff to the defendant had not been disputed. On such findings, the First Appellate Court dismissed the appeal.
Heard Mr. Ramakanta Mohanty, learned Senior counsel for the Appellant-Defendant being assisted by Mrs. Sumitra Mohanty and Mr.K.A.Guru, learned Counsel appearing for the contesting Respondent-Plaintiff.
Learned Senior counsel Mr. Mohanty submits that once the agreement for sale with Rajaram Panda fell through, there was no subsisting agreement for sale between the plaintiff and the defendant so as to be enforced in the Court of law. The sale deed though executed was not registered and cannot be treated as a contract capable of being enforced more so as it does not contain any recital to suggest a prior agreement for sale between the parties. According to Mr. Mohanty therefore, both the Courts below have completely misdirected themselves to treat the unregistered sale deed as an agreement for sale for the plaintiff to maintain a suit for its specific performance.
Mr. K.A.Guru, learned counsel for the Respondent No.1, on the other hand, would argue that admittedly the defendants offered to sell the land for consideration of Rs.60,000/- to the original plaintiff which was accepted. There was thus a valid contract of sale between them. Further, as per the evidence on record, the plaintiff had paid the total consideration amount thereby performing his part of the contract. The onus is therefore, on the defendant to perform her part of the contract by registering the sale deed.
The basis facts are not disputed and hence, it is not proposed to delve deep into the pleading of the parties. It would suffice to note that as per the defendant’s own stand taken in her written statement, she wanted to sell the suit land to the plaintiff. It is borne out from the evidence on record that an amount of Rs.60,000/- was paid by the plaintiff to the defendants at the time of scribing of the deed. It is also not disputed that the sale deed was executed being signed by the defendant. The question that falls for consideration on such facts is, whether the unregistered sale deed can be treated as an agreement for sale so as to be legally enforced. It goes without saying that only a valid contract can be enforced subject to the provisions of the Specific Relief Act. As regards the effect of an unregistered sale deed, it would be apposite to refer to Section 49 of the Registration Act, 1908, which reads as follows;
“49. Effect of non-registration of documents required to be registered.— No document required by section 17 1[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: 54 [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) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]
Thus while an unregistered sale deed may not be capable of transferring title from vendor to vendee yet, it can be used for collateral purposes as laid down in the proviso quoted hereinabove. It is also well settled that an unregistered sale deed tendered not as evidence of complete sale but as proof of oral agreement for sale can be received in evidence. Reference may be had to the decision of the Apex Court in the case of S.Kaladevi vs V.R.Somasundaram & Ors; (2010) 5 SCC 401. In the said case the earlier decision of the Apex Court in the case of K.V.Saha and Sons (P) Ltd. vs. Development Consultant Ltd.; (2008) 8 SCC 564 was referred to, wherein the following principles were culled out;
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
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.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
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.
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."
It was further observed in para-15 as follows;
“15. This Court then held that the first appellate court rightly took the view that under Section 49 of the 1908 Act, an 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 [(1999) 7 SCC 114] , 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.”
Same principle has been reiterated by the Apex Court in a recent judgment rendered in the case of R. Hemalatha Vs. Kasthuri; 2023 Live Law (SC) 304.
Coming to the facts of the present case, it is not disputed that the unregistered sale deed was admitted into evidence as Ext.2 obviously as evidence of an agreement for sale and not of sale per se. The defendant has admitted the execution of the deed. She also admits to have not responded to the registered notices issued by the plaintiff (Exts.4 and 5) to register the sale deed. In such view of the matter, this Court is of the considered view that both the Courts below have rightly rejected the plea of the defendant and held that the plaintiff is entitled to a decree for Specific Performance of Contract by way of directing the defendant to register the sale deed in favour of the plaintiff in respect of the Schedule A land.
For the foregoing reasons therefore, the appeal is found to be devoid of merit and is therefore, dismissed but in the circumstances, without any cost.
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