Dhan Singh and Another vs Jagbir Singh and Others

M. Jeyapaul, J.—The appeal is filed by the defendants who suffered a decree for specific performance of the agreement for sale. The

plaintiff in a suit for specific performance of agreement for sale has contended that defendants No. 1 & 2 executed the suit agreement for sale on

8.1.2002, having received the full consideration of sale to the tune of Rs. 2,40,000/-. The defendant also having acknowledged the payment of

entire sale consideration passed on a receipt there for. The possession of the suit land also was delivered by the defendants to the plaintiff on the

execution of the agreement. They also executed a General Power of Attorney in favour of the plaintiff. But during the course of the proceedings of

the suit filed separately by the plaintiff for bare injunction restraining the defendants from alienating the suit land to the third party, the plaintiff came

to know that the defendants not only cancelled the General Power of Attorney executed by them in favour of the plaintiff but they also sold the

properties in favour of defendants No. 4 & 5. Hence the suit for specific performance of the agreement for sale.

Defendants No. 1 & 2 have contended in their written statement that there was no agreement for sale executed by them as contended by the

plaintiff. No sale consideration also was received by them, nor was any delivery of possession by the defendants in favour of the plaintiff. It is

submitted that the plaintiff got financed a tractor in his name, but the said tractor was purchased for the use of defendants No. 1 & 2. At that point

of time, the plaintiff took their signatures and thumb impressions on various blank papers. The blank papers were not returned to them. The

General Power of Attorney created based on the blank documents was cancelled by the defendants. They have contended that with a view to grab

the suit property the plaintiff has concocted the documents and filed the suit.

Defendants No. 4 & 5 in their written statement have contended that they got the properties under two sale deeds executed on 8.6.2004 and

15.2.2005, not only from defendants No. 1 & 2, but also from the other co-owner. Defendants No. 4 & 5 are the absolute owners of the suit

property and are in possession of the same. The plaintiff has filed the suit based on fabricated documents prepared by him. It is denied that

defendants No. 1 & 2 agreed to sell the suit land in favour of the plaintiff.

Both the Courts below having adverted to the evidence of PW1 in the background of the Exhibits P-1 to P6, namely, agreement for sale,

receipt passed by the defendants in favour of the plaintiff, the General Power of Attorney executed by the defendants in favour of the plaintiff, copy

of the deed of cancellation of GPA and copies of the sale deed, respectively and the evidence of DW1 and DW2, arrived at a conclusion that

defendants No. 1 & 2 did execute the agreement for sate in favour of the plaintiff and therefore, the plaintiff is entitled to a decree for specific

performance of the agreement for sale.

Learned counsel appearing for the appellants would contend that the suit itself is barred by limitation. He would submit that the agreement for

sale alleged to have been executed by the defendants in favour of the plaintiff is not admissible in evidence, inasmuch as the same was not

registered. Even otherwise, he would submit that the entire sale consideration was paid on the alleged date of execution of the agreement for sale

and the possession also was allegedly delivered by the defendants in favour of the plaintiff. Therefore, the agreement for sale alleged to have been

executed extinguishes the right and title of the executant and therefore, the same cannot be entertained unless it is registered.

As far as the issue that the suit is barred by limitation, surprisingly, no such plea was raised by any of the defendants before the trial Court and

no issue was framed with respect thereto and as a result both the trial Court as well as the first appellate Court was not called upon to answer such

an issue.

Even assuming that such an issue, as it is a legal issue, can be raised even at the second appellate stage, it is found that the said agreement for

sale was executed by the 1st and 2nd defendants on 8.1.2002. Admittedly, no time frame was fixed therein for execution of the sale deed by

defendants No. 1 & 2 in favour of the plaintiff. Defendants No. 1 & 2 have elected to cancel the General Power of Attorney executed by them in

favour of the plaintiff on 27.12.2003. This can be construed as denial of the very execution of the agreement for sale and the refusal on the part of

defendants No. 1 & 2 to execute the sale deed. Pursuant to the agreement for sale, the suit has been filed on 12.2.2005. Under such

circumstances, I am unable to understand as to how a suit which was filed on 12.2.2005, based on the agreement for sale dated 8.1.2002 on the

basis that there was a denial of entire transaction on 27.12.2003, could be treated as a suit barred by limitation. Therefore, I find that there is no

force in the submission made by learned counsel appearing for the appellants that the suit is barred by limitation.

The agreement for sale contemplates payment of entire sale consideration of Rs. 2,40,000/- on the date when the agreement for sale came into

existence on 8.1.2002. Possession also was delivered by defendants No. 1 & 2 to the plaintiff as per the terms of the said agreement.

The question is whether the payment of entire sale consideration and delivery of possession by the owner of the property to the proposed

purchasers of the property would amount to sale transaction. In my considered view, so long as a document does not contemplate relinquishment

of an absolute right, title or interest in the property, it cannot be construed as a sale deed.

Of course, even if the document contemplates execution of a sale deed despite the fact that there is virtual relinquishment of right, title or

interest therein possessed and owned by the owner of the property, such a document can be construed as a sale deed. In the instant case, I find

that the owners of the property, namely, the 1st and 2nd defendants have retained their absolute right, title and interest in the suit property. The

same was proposed to be transferred by way of a registered sale deed in future. Further, the General Power of Attorney also has been executed

by defendants No. 1 & 2 in favour of the plaintiff on the very same day. If right, title or interest had already been transferred to by defendants No.

1 & 2 in favour of the plaintiff, there was no necessity for the execution of the General Power of Attorney by defendants No. 1 & 2 in favour of the

plaintiff. Therefore, the subject agreement for sale cannot at all be construed as a sale deed which requires registration.

Learned counsel appearing for the appellant has referred to a decision of the Andhra Pradesh High Court in Banguru Ramathulasamma Vs.

Yedem Masthan Reddy and Others, On a careful perusal of the above decision rendered by the Andhra Pradesh High Court, I find that the issue

as to whether the document sought to be introduced in evidence in the guise of agreement for sale is really an agreement for sale or a sale deed had

arisen therein. The High Court of Andhra Pradesh having found that there is a clear averment in the agreement for sale itself that the vendor

extinguished his right, title or interest in the property and the agreement holder got the said right on the date of execution of the said document itself

held that such a document shall be construed as sale deed which requires registration. Such a document is not admissible in evidence as already

pointed out by me. The above decision of the Andhra Pradesh High Court is factually distinguishable. In my considered view, the agreement for

sale executed by defendants No. 1 & 2 in as a document does not contemplate relinquishment of an absolute right, title or interest in the property,

it cannot be construed as a sale deed favour of the plaintiff does not extinguishes the absolute right, title or interest in the subject property and

therefore, agreement for sale exhibited in the suit does not attract registration.

It is contended by learned counsel appearing for the appellants that as per Section 17(1A) of the Registration Act, 1908, the agreement for

sale executed w.e.f. 24.9.2001, is compulsorily registriable. On a careful perusal of Section 17(1A) of the Registration Act, it is found that a

registration of agreement for sale is necessary only in a case where Section 53A of the Transfer of Property Act is pressed in service by a

defendant in the suit as a shield to protect his possession he got under the agreement for sale. The agreement for sale which has not been registered

can very well be projected by the plaintiff in a suit for specific performance of the agreement for sale. Therefore, I hold that the agreement for sale

relied upon by the plaintiff in a suit filed by him for specific performance the agreement for sale need not be registered u/s 17(1A) of the

Registration Act, 1908.

It is lastly submitted by the counsel appearing for the appellants that both the Courts below totally ignored the evidence of DW2 who was the

witness to the agreement for sale. I find that both the Courts have rightly evaluated the materials on record and come to a conclusion that the

plaintiff has established that defendants No. 1 & 2 did execute the agreement for sale. In the opinion of the Courts below, defendants No. 1 & 2

have come out with a false story to wriggle out of their obligation to execute the sale deed in terms of the agreement for sale. In such a context,

both the Courts below have rejected not only the evidence of DW1, but also the evidence of DW2 who was a witness to agreement for sale. Such

a factual finding cannot be interfered with by the second appellate Court. I find that there is no perversity in the findings rendered by the Courts

below. No substantial question of law also has arisen for determination and therefore, the appeal stands dismissed.