Property Law; Ignatious Vs. Dominic [Kerala High Court, 07-07-2017]
Published by Legal India on July 7, 2017
353
SHARES
Transfer of Property Act, 1882 – S. 53A – Specific Relief Act, 1963 – S. 28(3) – Code of Civil Procedure, 1908 – O. XXI R. 32 & S. 151 – Registration Act, 1908 – Ss. 17(1A) & 49 – Documents of which registration is compulsory – Agreement for Sale of Immovable Property – Part Performance – In order to claim the benefit of part performance, the agreement for sale of immovable property should be registered under the provisions of the Registration Act.
Held:- Merely for the reason that Ext.P1 agreement was not registered contrary to Section 17(1A) of Registration Act, it cannot be said that the trial court ceased to have jurisdiction over the subject matter and the decree passed in the suit became a nullity. An unregistered contract for sale could be enforced on the date of suit as no bar was created by Section 17(1A) of Registration Act affecting its enforceability. At the most, the relief of part performance under Section 53A of the TP Act, claimable at the instance of the respondent/plaintiff, could not have been allowed. [Para 10 & 24]
Transfer of Property Act, 1882 – S. 53A – Effect of.
Held:- Judicial pronouncements are aplenty that the Section provides for a shield of protection to the proposed transferee to remain in possession against the registered owner, who has agreed to sell immovable property to the transferee, if the proposed transferee satisfies the conditions in the Section. That protection is available only against the transferor. The proposed vendor would be disentitled from disturbing possession of the proposed transferee, who is put in possession pursuant to such an agreement. However, that has nothing to do with the ownership of the proposed transferor, who remains full owner of the land till it is legally conveyed by a sale deed to the proposed transferee. [Paras 22 & 23]
In order to lay a claim on Section 53A of the TP Act, the following postulates are sine qua non:
There must be a contract to transfer immovable property for consideration.
The contract must be in writing, signed by the transferor or by someone on his behalf.
The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
The transferee must, in part performance of the contract, take possession of the property, or any part thereof.
The transferee must have done some act in furtherance of the contract.
The transferee must have performed or be willing to perform his part of the contract.
After 24th September, 2001, a contract for transfer of immovable property requires registration under Section 17(1A) of the Registration Act for claiming the benefit of the above Section.
Registration Act, 1908 (Amendment Act 31 of 2013) – S. 17 (1) (f) – Amendment came into force on 13.09.2013 – Scope of – Sale of Immovable Property – the instruments, purporting or operating to effect a contract for sale of immovable property of the value of ₹100/- and upwards, are required to be registered. An agreement to assign property as such was not required to be registered before introduction of Section 17(1)(f) in the Registration Act. [Paras 11 & 21]
Transfer of Property Act, 1882 – S. 53A – Registration Act, 1908 – Ss. 17(1A) & 17(1)(f) – Effect of Section 17(1A) of the Registration Act is only that for claiming the benefit under Section 53A of the TP Act, the agreement should have been registered. It does not make an unregistered agreement to assign immovable property unenforceable.
Code of Civil Procedure, 1908 – O. VI R. 2 & 9 – When a relevant document is produced along with the pleadings, it has to be reckoned as part of the pleadings.
Held:- Every document produced along with the pleadings, on which the parties rely on to set up a right, forms part of the pleadings. This proposition is unchallengeable. Rule 2 of Order VI of the Code says that every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. Order VI Rule 9 says that whenever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible. Hence, when a relevant document is produced along with the pleadings, it has to be reckoned as part of the pleadings. [Para 16]
Practice and Procedure – Jurisdiction – Wrong Decision – If the court had jurisdiction over the subject matter and it had jurisdiction over the parties, merely because it made an error in deciding an issue in the suit, it cannot be said that it has acted beyond its jurisdiction.
Held:- It is true, the trial court committed a mistake by granting a decree for prohibitory injunction, ignoring the infirmity attached to Ext.P1 for non-registration. But that will not make the decree ineffective. A court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide the case rightly, may occasionally decide it wrongly as well. Even though it decides wrongly, it would not be doing something which it had no jurisdiction to do. [Para 26]
Words and Phrase – “in evidence” and “as evidence” – The usages “in evidence” and “as evidence” are not synonymous or inter changeable. They are distinct and different. If a document is received “in evidence”, the court has only allowed a party to produce and prove it. Whereas, if a document is received “as evidence” of a transaction, the court would accept that transaction, borne out from it, as a fact established. The expression ‘as evidence” has to be understood in the above context. [Para 15]
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
O.P.(C) No.2320 of 2013
Dated this the 7th day of July, 2017
IA NO.1320/2009 IN OS NO. 413/2007 of PRINCIPAL MUNSIFF’S COURT,ALAPPUZHA
PETITIONER/COUNTER PETITIONER
IGNATIOUS
BY ADV. SRI.K.V.SADANANDA PRABHU
RESPONDENT/PETITIONER
DOMINIC
BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW
JUDGMENT
Respondent herein filed a suit for specific performance of Ext.P1 agreement for sale dated 24.07.2002. Petitioner was the defendant. Ext.P2 is copy of the plaint. Petitioner was set exparte, allegedly on account of the negligence of his advocate. Ext.P3 is copy of the judgment passed exparte in favour of the respondent. Thereafter, by invoking Section 28(3) of the Specific Relief Act, 1963 (in short, “the Act”) read with Order XXI Rule 32 and Section 151 of the Code of Civil Procedure, 1908 (in short, “the Code”) the respondent filed Ext.P4 application for getting a sale deed executed through the court as the petitioner did not obey the decree. It is further prayed by the respondent that the property be delivered to him, despite having a recital in Ext.P1 that possession of the property had been handed over to him. Then the petitioner, for the first time, entered the arena of litigation and questioned the executability of the decree. Ext.P5 is the objection filed by the petitioner. He contended that after introducing Section 17(1A) to the Registration Act, 1908 (in short, “Registration Act”) Ext.P1, an unregistered agreement to assign, cannot confer any right on the respondent to claim the benefit of Section 53A of the Transfer of Property Act, 1882 (in short, “TP Act”). Further, Ext.P1 will not affect his rights in immovable property in view of Section 49 of the Registration Act. It is the grievance of the petitioner that none of these questions were considered by the court below in the correct perspective when Ext.P6 order was passed, permitting the respondent to take symbolic delivery of the property. According to the petitioner, in the given situation, neither actual delivery nor symbolic delivery is possible by virtue of the legal hurdles.
2. Heard the learned counsel appearing for the contestants.
3. Petitioner’s counsel vehementally contended that Ext.P2 suit for specific performance of contract, perpetual injunction and other reliefs should have been held not maintainable in law. Ext.P3 judgment is per se unsustainable. The execution proceedings, therefore, is also illegal. Challenge in this proceedings is against Ext.P6 order passed by the trial court on an application under Section 28 of the Act requesting the court to execute a document in favour of the respondent and also to put him in possession of the property.
4. The recitals in Ext.P1 would show that a strip of land, admeasuring 2.5 cents, was agreed to be purchased by the respondent from the petitioner, for using as way, for a price of ₹15,000/-. The entire amount was paid at the time of execution of Ext.P1. Ext.P1 agreement is admittedly not a registered document.
5. Predominant contentions raised in petitioner’s written statement are that he has not executed Ext.P1 agreement and he does not own or possess the land described in the plaint schedule. The petitioner, albeit filing a written statement, did not contest the case and remained absent. Therefore the suit was decreed exparte against him as per Ext.P3 judgment. The operative portion of the judgment reads thus:
“1. The defendant is directed to execute and register sale deed within two months from this date with respect to the plaint schedule property as per Ext.A1, agreement for sale dated 24.07.2002.
2. If the defendant fails to comply direction (1) above the plaintiff can get the sale deed with respect to the plaint schedule property executed in his favour through court for due process of law.
3. The defendant is restrained by decree of permanent prohibitory injunction from intervening with the plaintiff’s peaceful enjoyment and possession of the plaint schedule property and from creating, executing or registering any document with respect to the plaint schedule property in favour of any strangers.”
6. Since the petitioner did not discharge his obligations under the agreement and in terms of the decree, the respondent approached the court with an interlocutory application by invoking Section 28 of the Act and Order XXI Rule 32 of the Code. In that matter, the petitioner filed Ext.P5 objection contending that Ext.P1, being an unregistered agreement, is in violation of Section 17(1A) of the Registration Act and the decree based thereon is null and void and unenforceable. Repelling all the contentions, Ext.P6 order was passed.
7. Learned counsel for the petitioner vehementally argued that the executing court failed to take into consideration the legal issues raised. As mentioned above, although a written statement was filed with incongruous contentions regarding denial of execution of Ext.P1 agreement and disclaimer of title to the land, the petitioner preferred to remain absent. After passing the decree, wisdom dawn on him at a time when it was sought to be executed.
8. Section 28 of the Act deals with rescission of contracts for sale or lease of immovable property under certain circumstances. It clearly deals with a situation arising after passing the decree for specific performance of a contract. From the wording employed in Section 28 of the Act it is very much clear that even after passing a decree for specific performance, the court retains control over the subject matter and can pass appropriate orders. Further, the expression “in the same suit” occurring in Section 28(3) of the Act has been interpreted to mean that the application should be entertained by the court on the original side and not on the execution side.
9. In this case, the respondent approached the court for effectuating his rights under the decree. At that time, all these issues have been raked up by the petitioner. I shall examine the merit of the contentions.
10. Section 17(1A) of the Registration Act reads thus:
“17. Documents of which registration is compulsory.– xxxxxxxxx
(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.
xxxxxxxxxx”
It was introduced by an amendment, which came into force with effect from 24.09.2001. Ext.P1 agreement came into existence almost ten months after introducing Section 17(1A) to the statute book. The Section mentions about the need of registration of a document for the purpose of claiming benefit under Section 53A of the TP Act. Consequential amendment to Section 53A of the TP Act was also made. It reads thus:
“Part performance.- Where any person contracts to transfer for consideration any immovable 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 therefore 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.”
The words originally existed in fourth paragraph that, “the contract, though required to be registered, has not been registered”, have been omitted by the same amendment which came into force on 24.09.2001. At present, in order to claim the benefit of part performance, the agreement for sale of immovable property should be registered under the provisions of the Registration Act.
11. Incidentally, I may mention the effect of amendment to Section 17 of the Registration Act made by Act 31 of 2013 whereby Section 17(1)(f) has been inserted. The amendment came into force on 13.09.2013. Scope of the amendment is that the instruments, purporting or operating to effect a contract for sale of immovable property of the value of ₹100/- and upwards, are required to be registered. However, this provision has no application to the case on hand, as Ext.P1 came into existence on 24.07.2002.
12. Section 49 of the Registration Act is also relevant for our purpose. Hence it is quoted hereunder:
“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, 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 affected by registered instrument.”
Under the scheme of Section 49 of the Registration Act, even an unregistered agreement for sale could still be made the basis of a claim for specific performance. It is the claim for the relief of part performance that makes the document registerable.
13. Two expressions occurring in Section 49 of the Registration Act are worthy to be explained. Section 49(c) of the Registration Act says that no document, to be required by Section 17 or by any provision in the TP Act to be registered, shall be received as evidence of any transaction affecting such property or conferring such power. The expression ‘as evidence’ should be understood in the context of the provisions in the Indian Evidence Act, 1872 (in short, “the Evidence Act”) and the rules of pleadings set out in the Code.
14. Section 49 of the Registration Act prevents an unregistered document, which ought to have been registered under Section 17, from being received “as evidence” of any transaction, affecting immovable property. In otherwords, such a document could only be admitted in evidence for any purpose other than that of creating, declaring, assigning, limiting or extinguishing any right, title or interest in immovable property. Of course, such a document can be used for any collateral purpose, which I shall explain later.
15. The usages “in evidence” and “as evidence” are not synonymous or inter changeable. They are distinct and different. If a document is received “in evidence”, the court has only allowed a party to produce and prove it. Whereas, if a document is received “as evidence” of a transaction, the court would accept that transaction, borne out from it, as a fact established. The expression ‘as evidence” has to be understood in the above context.
16. Every document produced along with the pleadings, on which the parties rely on to set up a right, forms part of the pleadings. This proposition is unchallengeable. Rule 2 of Order VI of the Code says that every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. Order VI Rule 9 says that whenever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible. Hence, when a relevant document is produced along with the pleadings, it has to be reckoned as part of the pleadings.
17. In the Evidence Act, Chapter V deals with documentary evidence. Section 61 of the Evidence Act says that the contents of documents may be proved either by primary or secondary evidence. Section 62 says that primary evidence means the document itself produced for inspection of the court. The explanations attached to the said Section may not be relevant in this regard. Section 63 says that secondary evidence means and includes certified copies, copies made from the original by mechanical process, copies made from or compared with the original, counter parts of documents, etc.
18. In the backdrop of these legal principles the words “as evidence” clearly signify that no claim can be founded on a document which is in the teeth of Section 49 of the Registration Act. Conversely, unless challenged in a manner known to law, a transaction borne out from a document will stand proved, of course subject to the provisions of the Evidence Act, on receiving it “as evidence” of the transaction. That is what is interdicted by Section 49 of the Registration Act.
19. Another noticeable expression occurring in the proviso to Section 49 of the Registration Act is “collateral transaction”. Going by the scheme of Section 17 of the Registration Act, any instrument of gift of immovable property, other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest of the value of ₹100/- and upwards, to or in immovable property, leases of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent and some other non-testamentary instruments are to be mandatorily registered. It is therefore evident that what is prohibited by Section 49 of the Registration Act is the use of such documents for any substantive or main purpose. Substantive purpose means any purpose for which the document was executed, ie., of creating, declaring, assigning, limiting or extinguishing any right, title or interest in an immovable property. It has been judicially settled that “collateral purpose” is any purpose, other than the substantive purpose. In order that a transaction may be considered a collateral transaction and, therefore, admitted in evidence, it must (a) be independent of or divisible from the transaction intended to be effected, which the law required registration and (b) be a transaction, not itself required to be effected by a registered document; ie., a transaction creating, limiting, extinguishing, etc. any right, title or interest in immovable property of the value of ₹100/- and upwards.
20. Their Lordships of the Privy Council in N. Varada Pillai v. Jeevarathnammal (AIR 1919 P.C. 44) had pronounced law to the effect that it is permitted for a court to ascertain the character of possession by reference to the unregistered document which is inadmissible under Section 49 of the Registration Act as evidence of a transaction. This principle has been followed by various Courts.
21. From the above discussion, it is clear that an agreement to assign property as such was not required to be registered before introduction of Section 17(1)(f) in the Registration Act. Admittedly, in this case, the play of that Sub-section does not arise. Effect of Section 17(1A) of the Registration Act is only that for claiming the benefit under Section 53A of the TP Act, the agreement should have been registered. It does not make an unregistered agreement to assign immovable property unenforceable. I shall examine what is the effect of Section 53A of the TP Act in the given case.
22. Judicial pronouncements are aplenty that the Section provides for a shield of protection to the proposed transferee to remain in possession against the registered owner, who has agreed to sell immovable property to the transferee, if the proposed transferee satisfies the conditions in the Section. That protection is available only against the transferor. The proposed vendor would be disentitled from disturbing possession of the proposed transferee, who is put in possession pursuant to such an agreement. However, that has nothing to do with the ownership of the proposed transferor, who remains full owner of the land till it is legally conveyed by a sale deed to the proposed transferee.
23. In order to lay a claim on Section 53A of the TP Act, the following postulates are sine qua non:
(i) There must be a contract to transfer immovable property for consideration.
(ii) The contract must be in writing, signed by the transferor or by someone on his behalf.
(iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
(iv) The transferee must, in part performance of the contract, take possession of the property, or any part thereof.
(v) The transferee must have done some act in furtherance of the contract.
(vi) The transferee must have performed or be willing to perform his part of the contract.
(vii). After 24th September, 2001, a contract for transfer of immovable property requires registration under Section 17(1A) of the Registration Act for claiming the benefit of the above Section.
In Patel Natwarlal Rupji v. Shri Kondh Group Kheti Vishayak and another (AIR 1996 SC 1088) it has been held that Section 53A of the TP Act can be used as a shield, but not as an independent claim either as plaintiff or as defendant.
24. In the backdrop of the above principles, I shall examine the case of the petitioner. Learned counsel for the petitioner relying on the decision in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 contended that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon; even at the stage of execution and even in collateral proceedings. This proposition is unquestionable. But, the difficulty for the petitioner is that the said principle has no application to the facts of this case. By no stretch of reasoning, it can be seen that the court before which the suit was instituted had no jurisdiction over the subject matter, either on the original side or on the execution side. Stated more precisely, the court in which the suit for specific performance has been instituted was and is having jurisdiction over the subject matter to adjudicate the case. Merely for the reason that Ext.P1 agreement was not registered contrary to Section 17(1A) of Registration Act, it cannot be said that the trial court ceased to have jurisdiction over the subject matter and the decree passed in the suit became a nullity. An unregistered contract for sale could be enforced on the date of suit as no bar was created by Section 17(1A) of Registration Act affecting its enforceability. At the most, the relief of part performance under Section 53A of the TP Act, claimable at the instance of the respondent/plaintiff, could not have been allowed. I have already extracted the decreetal portion of the trial judgment above. It can be seen that a prohibitory injunction decree has been passed as if the respondent/plaintiff was in possession of the property. The petitioner could have challenged correctness of that portion of the decree in an appeal, which he did not choose to do. From the above mentioned legal principles, it will be crystal clear that the contention now raised that the decree is null and void, on account of the inherent lack or competence of the trial court, is unsustainable and is only to be rejected. The principles in Kiran Singh‘s case have no application in this case.
25. Another argument advanced by the learned counsel for the petitioner is that the court below as per Ext.P6 order has granted only a symbolic delivery. It is true that the court below should have considered the reliefs claimed in Ext.P4 petition filed by the respondent/plaintiff under Section 28 of the Act. Notwithstanding granting a decree for prohibitory injunction, on the assumption that the respondent/plaintiff is in possession of the property and he could have claimed the benefit under Section 53A of TP Act, the court below could have granted delivery of possession as it has been specifically claimed by the respondent. It is all the more important to note that such a course would have been proper because the respondent is debarred from claiming the benefit under Section 53A of the TP Act.
26. It is true, the trial court committed a mistake by granting a decree for prohibitory injunction, ignoring the infirmity attached to Ext.P1 for non-registration. But that will not make the decree ineffective. A court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide the case rightly, may occasionally decide it wrongly as well. Even though it decides wrongly, it would not be doing something which it had no jurisdiction to do. If the court had jurisdiction over the subject matter and it had jurisdiction over the parties, merely because it made an error in deciding an issue in the suit, it cannot be said that it has acted beyond its jurisdiction. (see Ittyavira Mathai v. Varkey Varkey – AIR 1964 SC 907).
27. Learned counsel argued that the respondent agreed to purchase the property for the purpose of widening a pathway. According to the learned counsel, all these contentions are raked up in order to cause difficulties to the respondent with an ulterior motive of claiming further payment.
28. From the above discussion, I am clear in my mind that the contention raised by the petitioner is legally unsustainable. The court below should have considered the plea of the respondent/plaintiff for actual delivery of the property and should have granted it for the aforementioned reasons. The respondent/plaintiff is legally entitled to approach the court below again for getting actual delivery, if he so chooses.
29. I find no reason to set aside Ext.P6 order on the basis of the contentions raised by the petitioner. There is no merit in petitioner’s claims.
In the result, the original petition is dismissed.
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