Ram Chandra and Others vs Hari Kirtan and Another

Tarun Agarwala, J.—The plaintiff filed a suit for demolition of the construction and for possession. The plaintiff alleged that the land in question originally belonged to one Sri Ganga Ram and upon his death, the properly devolved upon his daughter Shyama Devi. Shyama Devi executed a sale deed dated 11-11-1970 in favour of the plaintiff and since then the plaintiff is in possession as owner of the said land. The defendants had illegally raised construction on a portion of this land, which was wholly illegal, and that the said construction was liable to be demolished and the plaintiff was liable to be put back in possession. The plaintiff also prayed that the defendants be restrained from interfering with the plaintiffs'' possession over the land in dispute.

The defendants denied the plaint allegations and contended that Ganga Ram or Shyama Devi were not the owners of the land in question and that the defendants came into exclusive possession on the basis of a private partition.

The trial Court held Ganga Ram was the original owner of the land in question and that Shyama Devi was the daughter of Ganga Ram and that the plaintiff became the owner of the land in question by virtue of the sale deed dated 11-11-1970. The trial Court further found that the sale deed dated 11-11-1970 was an unregistered document and the same was not a void document inasmuch as the value of the land shown in the sale deed was less than rupees hundred and, therefore, the sale deed was not required to be registered. The trial Court also found that the defendants had recently made the construction and that the defendants had no legal right to make any construction on the property of the plaintiff. The trial Court, on these findings decreed the suit of the plaintiffs and directed the defendants to remove the constructions and give back the possession to the plaintiff within one month failing which the plaintiff could executed the decree. The trial Court further restrained the defendants from interfering in the plaintiffs'' possession of the land in question.

Aggrieved by the decree of the trial Court the defendants filed an appeal, which was also dismissed. The appellate Court also arrived at the same conclusion.

The defendants have now filed the present second appeal and contended that the sale deed dated 11-11-1970 was a void document and was not enforceable since the same was not registered under the Registration Act nor could the ownership be transferred except by a registered instrument as contemplated u/s 54 of the Transfer of Property Act. The learned counsel submitted that u/s 54 of the Transfer of Property Act, the transfer of property could be made either by a registered document or by the delivery of the property. In the present case, it was alleged that the property was transferred by an unregistered document, which could not be done unless it is registered. Since the sale deed was not registered, the sale deed could not be considered in evidence nor could give any right or title to the plaintiff. In support of his submission the learned counsel has relied upon a decision reported in AIR 1929 Ran 259 in which it was held that the sale of Immovable property of the value of less than rupees hundred can be effected by a mere delivery of the property. But if a deed is executed, it must be registered and if it is not registered, no legal title passes under it.

In my view, the judgment cited by the learned counsel is not correct and I disagree with the aforesaid judgment.

Section 54 of the Transfer of Property Act reads as under :

"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised.

Such transfer, in the case of tangible Immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible Immovable property, of a value less than one hundred rupees, such transfer may be made either by registered instrument or by delivery of the property.

Delivery of tangible Immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

A contract for the sale of Immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not. of itself, create any interest in or charge on such property."

From a perusal of the aforesaid provision it is clear that a transfer of a tangible Immovable property of a value less than one hundred rupees can be made either by a registered instrument or by delivery of the property.

Section 17(1)(b) of the Registration Act, 1908 as existed on the date of the execution of the sale deed reads as under :

"17(1) The following documents shall be registered. .......

(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."

From a perusal of Section 17(1)(b) of the Registration Act it is clear that a document which creates, declares, assigns, limits or extinguishes any right, title or interest of the value of hundred rupees and upwards in an Immovable property is required to be compulsorily registered. Therefore, a document transferring Immovable property, which has a value of less than one hundred rupees is not required to be compulsorily registered.

Admittedly, in the present case, the sale deed dated 11-11-1970 was not registered and the value of the property has been shown to be rupees ninety-nine. The sale deed also discloses that the plaintiff was given possession of the property in question. The Courts below have also given a finding that the delivery of property was given to the plaintiff. In Kathari Narasimha Raju v. Bhupati Raju Ragunadha Raju, Indian Cases 1915, a Division Bench of the Madras High Court held that an unregistered document is admissible in evidence to prove the contract and there being evidence of delivery, the sale is proved. The Court further held that the document was not required to be compulsorily registered u/s 17 of the Registration Act.

u/s 54 of the Transfer of Property Act, two things are required to constitute a sale, namely, a contract to transfer the ownership of the land sold in exchange for a price and the transfer of ownership followed by delivery of the property. The existence of an unregistered document is not a bar u/s 91 of the Evidence Act from proving the transfer of sale by actual delivery.

In Daya Ram Vs. Sita Ram and Others , it has been held that where there has been a sale or mortgage with delivery of possession, the effect of the transaction is not destroyed because an unregistered sale deed was executed at the same time. Thus, in my view, it is not necessary that the sale of Immovable property of the value of less than one hundred rupees can be effected either by an unregistered deed or by delivery of possession. The mere fact that an unregistered document of the value of less than one hundred rupees has been executed does not mean that the same has to be registered. If the delivery of possession has been given, in that case the unregistered sale deed can be looked into and can be read in evidence.

Thus, in my view even though a sale deed of a value of less than one hundred rupees is executed and if possession is delivered, such a sale deed would be valid and enforceable.

For the reasons stated above, I do not find any infirmity in the judgments given by the Courts below. In view of the concurrent findings of fact given by the Courts below, no substantial question of law arises for consideration in this appeal.

The second appeal is devoid of any merit and is dismissed. However, there shall be no order as to cost.