IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.9 OF 2019 (GM-CPC) BETWEEN:
Sanjeeva Shetty, S/o Late Annu Shetty, Aged about 74 years, R/at Sagu, Mani Village, P.O. Mani – 574 253, Bantwal Taluk (DK).
(By Sri. M. Sudhakar Pai, Adv.) AND:
1. Sri. B. Chittaranjan Rai, S/o Late Narayan Rai, Aged about 69 years, R/at “Ashraya”, P.O. Padu – 574 160, Mangaluru Taluk (DK).
2. Smt. Harinakshi R. Shetty, W/o Late Rukmayya Shetty, Aged about 74 years, R/at Flat No.403, Anvith Apartment, Kankanady, Mangaluru – 575 002 (DK).
… Petitioner … Respondents This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the order dated 12.12.2018 in O.S.No.20/2014 on the file of Principal Senior Civil Judge and JMFC Bantwal, D.K. (vide annexure-F to the writ petition) and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri. M. Sudhakar Pai, learned counsel for the petitioner.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondents.
2. Heard the learned counsel for the petitioner on the question of admission.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 12.12.2018, passed by the Trial Court, by which the plaintiff has been permitted to tender the unregistered agreement of sale dated 27.11.2006 in evidence in a suit for specific performance of the contract.
4. Learned counsel for the petitioner submitted that the impugned order suffers from the error apparent on the face of the record under Section 17(1-A) of the Registration Act, 1908 (hereinafter referred to as ‘the Act’ for short). In support of the aforesaid submission, reliance has been placed by the learned counsel for the petitioner in the case of Smt. Krishnakumari vs. K. Suresh Kumar (2015 (3) Kar.L.J. 463).
5. I have considered the submission made by the learned counsel for the petitioner and have perused the records and the aforesaid decision.
6. Section 17 was amended and Section (1A) was added to it by Act 48 of 2001, which came into effect on 24.09.2001. It reads as under:
“17(1A) : The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.”
The aforesaid provision has to be read with proviso to Section 49 of the Act, which reads as under:
“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.”
7. Thus, if both the provisions are read conjointly, it is evident that there is no prohibition under proviso to Section 49 of the Registration Act, 1908 for receiving an unregistered document as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. In view of the clear statutory proviso in this regard, the trial Court has rightly admitted the unregistered document in a suit for specific performance of the contract.
8. So far as reliance placed by learned counsel for the petitioner on the decision of this Court in the case of Smt. Krishnakumari (supra) is concerned, suffice it to say that in the aforesaid decision, the suit was filed for permanent injunction restraining the defendant from interfering with the plaintiff’s possession in respect of the suit property on the basis of agreement of sale. In the aforesaid context, the Bench of this Court held that plaintiff claiming possession of the suit property under unregistered sale agreement, which was compulsorily registerable could neither be admitted in evidence nor could be looked into for the purpose of deciding the case. The aforesaid decision has no application as in the instant case, the suit is filed seeking the relief of specific performance of the contract and in view of the proviso to Section 49 of the Registration Act, the aforesaid document is clearly admissible in evidence.
In view of the said decision, I find no merit in the present writ petition and the same is dismissed.
Sd/- JUDGE Mds/-