Sheetal Prasad vs Ramashankar

Sanjay Yadav, J.—1. This is plaintiff''s second appeal directed against the judgment and decree dated 7.12.2010 passed in Civil Appeal No. 03A/2010 affirming the judgment and decree dated 8.2.2010 dismissing thereby the Civil Suit No. 2 A/2009.

Plaintiff brought a suit for declaration; permanent injunction and specific performance of contract for sale of 1/2 land bearing Khasra No. 3538/1 area 1.31 acre, 3540/1 area 0.11 acre, Khasra No. 3540/4781/2 area 0.12 acre, Khasra No. 3540/4782 area 0.10 acre, situated at village Khakari, Tahsil Hanumana, district Rewa. And for declaration that, sale deed dated 12.2.1999 is void, inter alia, contending that, the defendant No. 1 Ramshankar entered into an agreement for sale of suit land for consideration of Rs. 6000/- with the stipulation that the plaintiff would be at liberty to get the sale deed executed as per his convenience. That, the entire consideration was paid and the plaintiff was placed in possession over suit property. That, the agreement of sale was entered into on 6.2.1996 in the format of "Indutalab", i.e., Promissory Note, stamped and signed in the presence of the witnesses who also appended their signature. That, the plaintiff was always ready and willing to execute the sale deed; however, the defendant No. 1 despite being approached on 30.12.1998 and 2.1.1999 did not show any interest and was not ready and willing to execute the sale deed. That, during pendency of suit, the suit property came to be sold to one Parasnath, defendant No. 4 (respondent No. 5) for consideration of Rs. 40,000/- vide registered sale deed dated 12.2.1999.

Defendants denied the plaint allegation. It was contended that half of Khasra No. 3538 was owned by defendant No. 2 and remaining half was owned by Eksiya, who sold her share to the defendant No. 1 in 1967 and gave him the possession thereof and since then he is in possession. The defendant No. 1 denied of having any share in the suit property. It was further contended that on 9.9.1982 defendant No. 2 sold 0.50 acre of Khasra No. 3538 in favour of her sister Sudamia. The defendant No. 1 further denied the execution of any agreement of sale of suit property. And that the agreement in question dated 6.2.1996 was forged. It was further contended that the defendant No. 1 filed complaint case against two persons who prepared the alleged Promissory Note and the witnesses. Defendant also rose an objection as to maintainability of the suit for non-joinder of necessary party. It was also contended that Eksiya sold out 1/2 of 0.10 acre of Khasra No. 3840/4782 to one Budhiram for Rs. 700/- by sale deed dated 20.7.1967. That, there was a mutual transfer of land between Budhiram and Ramavtar, father of plaintiff whereon 0.5 acre of Khasra No. 3635 was transferred to Ramavtar vide instrument (Palatnama) dated 3.8.1971 which was duly registered. It is further stated that it is in respect of same land that the plaintiff forged the "Indutalab" and during pendency of suit got endorsement of possession entered in the revenue record.

Trial Court framed following issues on the basis of rival contentions:

Taking up issues No. 1, 2 and 3, the trial court on the basis of evidence led by the plaintiff and the documents on record found the plaintiff admitting the fact that, the suit land belonged to Sudamia and Eksiya. In paragraph 8 of its judgment, the Trial Court recorded:

As to the execution of "Indutalab" (Ex. P/10) the endorsement thereon, the trial Court while discarding the evidence led by the plaintiff that, before the execution of Indutalab Rukka there was interaction and the task for sale of suit land. The Trial Court found :

Even as to the contention regarding to plaintiff''s possession over suit property, the trial court negatived the plaintiff''s evidence on the findings recorded in paragraphs 15. The Trial Court found:

The Trial Court further found that even the prohibitory proceedings taken recourse to by the Sub Divisional Magistrate, Hanumana would not lead to the presumption that the plaintiff was in possession over suit property.

Furthermore, the trial court found that the plaintiff failed to prove the execution of an agreement of sale on 6.2.1996 in his favour. The trial Court found:

The findings arrived at by the trial Court has been affirmed by the Appellate Court in their entirety after reappreciating the material evidence on record. This would be evident from the analysis of facts in paragraphs 10 to 19. There being concurrent findings of fact no interference is warranted.

It is lastly contended on behalf of the Appellant that though in the format of Promissory Note (Indutalab Rukka), Ex. P/10, did record an agreement for sale of immovable property, it was not compulsorily registrable under Section 17 of Registration Act of 1918 being exempted vide Explanation as it was in existence prior to its amendment w.e.f 14.1.2010 vide MP Act No. 4 of 2010 appended with sub-section (2) of Section 17. The Explanation is in following terms:

"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."

Close reading of the explanation reveals that it talks about an instrument which purports or operates to effect contract for sale of immovable property and not an instrument which 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 which is compulsorily registrable under sub-section (1) of Section 17 of 1908 Act. Thus even as the plaintiff pleads and wants the Ex. P/10 (Indutalab Rukka) promissory note to be treated as an agreement of sale, the same being not duly stamped is rightly discarded by both the Courts.

Clause (b) of sub-section (1) of Section 17 of the Registration Act, 1908 provides for that 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, is compulsorily registerable. The effect of non-registration is borne out from the provisions of Section 49 of 1908 Act wherein it is envisaged that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.

Similarly, in Section 35 of the Indian Stamp Act, 1899, no instrument chargeable with duty shall be admitted in evidence for purpose by any person having by law or consent of parties authority of receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped.

It has been held in Avinash Kumar Chauhan v. Vijay Krishna Mishra : , (2009) 2 SCC 532 :

"24. In the present case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [See Pandey Oraon v. Ram Chander Sahu, , 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, , (2004) 10 SCC 65]. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under:--

"49. 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 (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) or as evidence of any collateral transaction not required to be effected by registered instrument."

Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.

The view we have taken finds support from the decision of the Privy Council in Ram Rattan v. Parmanand, [, AIR 1946 PC 51] wherein it was held:--"[That] the words ''for any purpose'' in Section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose [and that] an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms.''"

Even otherwise since the primary burden to prove the execution of Ex. P/10 (Indutalab Rukka) was on the plaintiff which he failed to discharge and there being a concurrent finding therefor, no substantial question of law arises for consideration.

Consequently, appeal fails and is dismissed. No costs.