On July 4, 2018, the Hon’ble Supreme Court of India passed a judgment in the matter of Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar (Civil Appeal No. 18377 of 2017: (2018)7 SCC 639: MANU/SC/0685/2018).
Facts:
An agreement to sell was executed in 2003, but not registered. Ameer Minhaj, in a suit for specific performance, produced the document as evidence before the Trial Court.
The Trial Court opined that since the agreement to sell was executed after coming into force of section 17(1A) of the Registration Act, 1908 (“1908 Act”), it was required to be registered. The Trial Court however held that considering the purport of the said provision, the document could still be exhibited and even if exhibited, the prayer in respect of relief of protection of possession in terms of Section 53A of the Transfer of Property Act, 1882 ("1882 Act") could not be granted. The Trial Court, however, made it clear that it was not examining any other contention regarding the genuineness, validity and binding nature of the documents or whether they were hit by the provisions of the Indian Stamp Act, 1899 ("1899 Act") and 1882 Act. The documents were marked and merely exhibited subject to proof and relevancy.
The High Court reversed the decision of the Trial Court. The High Court held that the agreement to sell was inadmissible as evidence for the purpose of part performance of contract in view of the statutory bar in terms of Section 17(1A) read with Section 49 of the 1908 Act.
Issue:
The issue before the Supreme Court was whether the said agreement to sell on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document?
Held:
Referring to section 17(1A) of the 1908 Act, the Supreme Court held:
“On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors. (MANU/SC/0246/2010 : (2010) 5 SCC 401) this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.
…
In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited (MANU/SC/7679/2008 : (2008) 8 SCC 564) and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act. In that, it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882 Act or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.”
Download Pdf
7A, 7th Floor, Tower C, Max House,
Okhla Industrial Area, Phase 3
New Delhi – 110020
The rules of the Bar Council of India do not permit advocates to solicit work or advertise in any manner. This website has been created only for informational purposes and is not intended to constitute solicitation, invitation, advertisement or inducement of any sort whatsoever from us or any of our members to solicit any work in any manner. By clicking on 'Agree' below, you acknowledge and confirm the following:
a) there has been no solicitation, invitation, advertisement or inducement of any sort whatsoever from us or any of our members to solicit any work through this website;
b) you are desirous of obtaining further information about us on your own accord and for your use;
c) no information or material provided on this website is to be construed as a legal opinion and use of this website will not create any lawyer-client relationship;
d) while reasonable care has been taken in ensuring the accuracy of the contents of the website, Argus Partners shall not be responsible for the results of any actions taken on the basis of information provided in this website or for any error or omission in the website; and
e) in cases where the user has any legal issues, the user must seek independent legal advice.