Plaintiff-respondent 1st set filed a suit for permanent injunction in respect of land in dispute on the basis of an unregistered sale deed dated 30.4.1929. The suit was decreed by the court of first instance and the decree has been upheld in appeal also.
The defendant/appellants aggrieved by the decree so passed and the judgment and orders of the courts below have preferred this second appeal.
The sole question of law raised in this appeal is whether a sale deed in respect of an immoveable property of less than Rs.100/- in value is compulsorily required to be registered so as to effect the transfer.
It is an admitted position that the sale deed dated 30.4.1929 involved in the suit is an unregistered sale deed which has been executed for a sum of Rs.80/- only. The courts below relying upon the sale deed decreed the suit holding that since it seeks to transfer property of less than Rs.100/- there is no requirement in law for its registration and that mere delivery of possession which stands proved is sufficient to constitute the sale.
Counsel for the parties agree for the final disposal of appeal at the admission stage as the question involved is purely legal in nature.
Sri Divakar Rai Sharma, learned counsel for the defendant-appellant relying upon a single Judge decision of Lucknow Bench of this Court in the case of Budhi Ram Vs. IInd Additional District Judge, Sultanpur and others 1994(1) ARC 76 contended that where a sale deed in respect of an immoveable property of less than Rs.100/- is executed and is reduced to writing the same cannot confer title upon the vendee/purchaser unless it is registered.
Sri J.J.Munir, learned counsel for the plaintiff-respondent 1st set who has entered caveat contends that the Transfer of Property Act, 1882 is a special enactment and, therefore, its provision would prevail upon the general law regarding registration as laid down in the Indian Registration Act, 1908. Accordingly, there is no legal requirement of getting a sale deed in respect of immoveable property of value of less than Rs.100/- registered. Once such a sale is proved by delivery of possession it is sufficient to effect the transfer of property.
In the present case we are concern with the sale of tangible immoveable property of less than Rs.100/- in value by an unregistered document.
Consideration of the respective submissions of the parties and the answer to the question arising for determination in this appeal is basically dependant upon the provisions of Section 54 of the Transfer of Property Act, which reads as under:
"54. "Sale" defined. - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made. - Such transfer, in the case of tangible immoveable 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 immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. - A contract for the sale of immoveable 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."
'Sale' is one of the modes of transfer of tangible immoveable property under the Transfer of Property Act and has been defined under Section 54 of the Act. The aforesaid provision also provides the manner of making a sale of tangible immoveable property. It provides that sale of tangible immoveable property of value Rs.100/- and above can only be made by registered instrument. The aforesaid requirement of registration is independent of the provisions of the Indian Registration Act. Therefore, in every case where the value of the immoveable property happens to be Rs.100/- and above its sale has to be affected by a registered instrument and not in any other way.
The aforesaid Section 54 of the Transfer of Property Act further provides that in the case of immoveable property of value of less than Rs.100/-, sale can be made in two ways, namely:
(i) by registered instrument; or
(ii) by delivery of the property.
A simple reading of the aforesaid provision reveals that two modes are prescribed for transfer by sale of immoveable property of value of less than Rs.100/-. The first mode is by executing a registered instrument and the second mode is by delivering the property. The use of word 'or' in the aforesaid provision demonstrates that the transfer of such property of less than Rs.100/- in value can either by by registered instrument or by establishing the delivery of the property. In such a situation transfer by sale of immoveable property of the value of less than Rs.100/- would be complete as soon as an instrument of sale is executed and registered or in the alternative if it is established that the property so sought to be transferred has been delivered by the vendor to the vendee irrespective of any sale deed. In the second mode of transfer execution of sale deed is not necessary and, as such, there is no requirement of any registration of the same.
His Lordship of the Madras High Court in the case of Swaminatha Udayar Vs. Mottaya Padayachi and others AIR 1957 Madras 209 clearly ruled that in case of tangible immoveable property of less than Rs.100/- existence of an unregistered instrument does not prevent property from being passed provided the delivery of the property has taken place.
In the case of Shesh Mal and others Vs. Harak Chand and others AIR 1983 Rajasthan 109 the Court dealing with an instrument of sale of immoveable property of the value less than Rs.100/- held that sale of immoveable property of the value of less than Rs.100/- is not required to be affected by a registered sale deed. There can be an oral sale of such property coupled with delivery of possession of the property and where the purchaser is already in possession then by making an overt declaration of delivery of possession.
A Division Bench of the Orissa High Court in AIR 1954 Orissa 31 Parikhit Thapa Vs. Nidhi Thapa and others while considering the provisions of Section 54 of the Transfer of Property Act and dealing with a sale of property of less than Rs.100/- in value laid down that sale can be effected either by registered instrument or by delivery of property itself and that sale would be complete by delivery of possession. An unregistered document of sale in this connection was not necessary but the factum of delivery of possession could be proved by such a document. In other words, it means that in case of sale of a tangible immoveable property of Rs.100/- and less in value the transaction of sale would be complete if delivery of possession of the property is proved and for proving the same the vendee may fall back upon an unregistered instrument which could to be used for a limited purpose of proving delivery of possession.
A similar question came up for consideration before a Division Bench of the Hyderabad High Court in the case Nagayya Baliah and another Vs. Sayanna Baliah AIR 1951 Hyderabad 42. In the said case also the sale was in respect of an immoveable property of Rs.75/- and the contention was that the parties having reduced the contract of sale into writing, the sale deed ought to be registered. The Court held that a sale of property of less than Rs.100/- is complete by delivery of property inspite of an unregistered deed of sale which can be looked into for the limited purpose of formation of opinion about delivery of possession of the property.
His Lordship of the Allahabad High Court much earlier to all the above decisions in the year 1923 in the case of Daya Ram Vs. Sita Ram reported in AIR 1925 Allahabad 206(1) laid down that sale of property worth less than Rs.100/- is complete with the delivery of possession and even if an unregistered sale deed is executed at the relevant time it does not destroy the sale transaction but can be used to prove the nature of possession.
In may be noteworthy that provisions contained in paragraph 2 and 3 of Section 54 of the Transfer of Property Act are to be read as supplemental to the Indian Registration Act. Section 17 of the Indian Registration Act which provides for the documents which are compulsorily required to be registered does not envisages that a sale deed of immoveable property of less than Rs.100/- in value is required to be registered. Therefore, neither of the two Acts mandates for the registration of sale deed transferring immovable property worth Rs.100/- or less.
At the same time, Section 49 of the Indian Registration Act only lays down that a document, namely unregistered sale deed in respect of immovable property cannot be received in evidence except for collateral purposes to prove something not required to be effected by registered instrument. Therefore, there appears to be no specific provision in law requiring a sale deed executed in respect of tangible property of Rs.100/- and less to be registered.
It is important to note that decisions quotable in law are sometimes, in exceptional circumstances, liable to be ignored, specially where such decisions are rendered in ignorance of the earlier obligatory authorities on the point and the decision runs contrary to the settled legal position. In such a situation such decisions may not be treated as binding precedent.
The decision of the Lucknow Bench of this Court in the case of Budhi Ram (supra) relied upon from the side of the defendant/appellants does not take into account any of the decisions enumerated above and, as such is per incuriam and cannot offer a binding precedent.
Thus, following the Division Bench of Hyderabad and Orissa High Court and the view expressed by the single Judges of the Allahabad, Rajasthan and Madras High Court I hold that a sale deed transferring immoveable property of less than Rs.100/- in value is not required to be registered and the sale of such a property would be complete as soon as delivery of possession is proved either on the basis of an unregistered instrument of sale or otherwise and that where delivery of possession is established, the unregistered instrument of sale though executed would not be material.
The substantial question of law as such is answered in favour of the plaintiff-respondent 1st set and since the courts below have found proved the delivery of property, the transfer of title in it was rightly held to be complete.
No error or illegality has been committed by the courts below.
The appeal as such lacks merits and is dismissed.
Order Date :- 21.1.2011 brizesh