JUDGMENT Tarun Agarwala, J.
1. The plaintiff filed a suit for specific performance alleging that the defendant Nos. 2 to 12 were the owners of the premises No. 79/7 Lathouche Road, Kanpur Nagar. They had appointed the defendant No. 13, Bharat Property Dealers, as the auctioneer to sell the entire property No. 79/7 in seven different parts. The auctioneer advertised the seven parts of the premises for sale through an auction. Part one of the premises in question was put to auction on 23-6-1977. The plaintiffs bid of Rs. 40,000/- was the highest and was accepted by the auctioneer. A sum of Rupees 1000/- in cash and a sum of Rs. 9,000/- by a cheque was paid by the plaintiff on the spot and a receipt was issued to the plaintiff. A sale certificate dated 23-6-77 was issued by the auctioneer in favour of the plaintiff. It was alleged that the defendant Nos. 2 to 12 were required to obtain the requisite permission from the prescribed authority under the Urban Land (Ceiling and Regulation) Act, 1976 and, only thereafter, the sale deed was to be executed upon the receipt of the balance amount. The plaintiff further alleged that the defendant Nos. 2 to 12 obtained the permission to sell the property from the Prescribed Authority and thereafter, surreptitiously executed a sale deed dated 20-8-77 in favour of defendant No. 1. When the plaintiff came to know about the execution of the sale deed, he served a notice dated 29-8-78 directing the defendants to execute the sale deed in favour of the plaintiff. The defendant No. 13 admitted the rights of the plaintiff, but expressed its inability to get the sale deed executed on the ground that the defendant Nos. 2 to 12 were not prepared to get the sale deed executed in favour of the plaintiff. It was alleged that the defendant No. 1 and his family members were present when the auction was conducted on 23-6-77 and in spite of knowing that the bid of the plaintiff was accepted, purchased the property fraudulently from the defendant Nos. 2 to 12. The plaintiff further stated that his father was already in possession of the property in question and, that the plaintiff was always ready and willing to perform his part of the contract. On the other hand the defendant Nos. 2 to 13 were not willing to perform their part of the contract. Hence, the plaintiff by filing the suit for specific performance prayed that the defendants be directed to execute the sale deed pursuant to the auction sale held on 23-6-77 and deliver possession to the plaintiff.
2. The defendant No. 1 filed his written statement and denied the plaint allegation. The defendant No. 1 denied that any auction was conducted on 23-6-77 and further denied that the bid of the plaintiff was accepted. The defendant further stated that he was not aware of any transaction taking place between the plaintiff and defendant Nos. 2 to 13. The defendant No. 1 contended that he was a bona fide purchaser for value and, had taken all the necessary precaution by inspecting the record of the Sub-Registrar and, after being fully satisfied that there was no impediment, purchased the said property vide a sale deed dated 20-8-77. The defendant No. 1 further contended that before purchasing the property, he had taken the consent from the plaintiffs father, who had assured him that he would vacate the premises as he had no requirement of the building and, that he had shifted his entire transport business to the Transport Nagar. Based on this assurance, the defendant No. 1 purchased the property in question. The defendant No. 1 further alleged that the plaintiff and defendant Nos. 2 to 13 have colluded and brought this suit in order to harass the defendant and to pay a huge premium for getting the premises vacated.
3. The defendant Nos. 6 and 7, in their written statement, admitted that they had appointed the auctioneer to sell the property through an auction. The defendant admitted that the plaintiffs bid of Rs. 40,000/-was the highest and that he had paid a sum of Rs. 1000/- in cash and Rs. 9000/- by a cheque. The defendants further contended that it was agreed between the plaintiff and the defendant Nos. 6 and 7 that they will obtain permission from the ceiling authority. It was alleged, that it was mandatory under the law, that the plaintiff was required to sign the application seeking permission to transfer the land in his favour and, that he was also required to give an affidavit indicating therein that he did not possess any land in excess of the prescribed limit under the Urban Land Ceiling and Regulation Act, 1976. The defendant contended, that the controversy started when the defendant contacted the plaintiff to sign the application form and affidavit, the plaintiff proposed that he was willing to pay Rs. 15,000 in cash as black money and Rs. 25,000 in all before the Sub-Registrar, after adjusting the earnest money. The defendants contended that since they did not accept this proposal, the plaintiff refused to sign the application or give his affidavit. The defendants, therefore, presumed that the plaintiff had no intention to get the sale deed executed and, accordingly, returned the cheque and requested the plaintiff to collect Rs. 1000 from them. The defendant No. 1, thereafter contacted defendant Nos. 2 to 12 and negotiation took place and after going through all the formalities, the sale deed was executed in favour of the defendant No. 1 on a consideration of Rs. 42,000/-. The defendants, further contended, that the plaintiff kept silent for about a year and even after receiving back the cheque, did nothing further and, has now filed the suit with the sole intention to black-mail the defendants. The defendants denied that the plaintiff was ready and willing to perform his part of the contract.
4. The defendant Nos. 6 and 7 further contended that the defendant No. 2 died before the filing of the suit and therefore the suit against a dead person was liable to be dismissed. The defendants further stated that the sale deed executed in favour of defendant No. 1 was a genuine transaction and therefore the plaintiff could not be granted the relief claimed, until and unless, the plaintiff claimed a relief for the cancellation of the sale deed in favour of defendant No. 1. The defendants further alleged that the plaintiff slept over the matter for one year and, therefore, the suit was barred by the principle of estoppel and acquiescence. It was also alleged that the plaintiff had filed a complaint, under Section 420, I.P.C. before the Additional Metropolitan Magistrate, Kanpur, which was still pending. The defendants further submitted, that, the sale certificate issued in favour of the plaintiff required compulsory registration and, in the absence of its registration, the suit was barred.
5. The defendant Nos. 3, 4, 5, 8 to 12 also filed their written statement and contended that they had never authorised the defendant No. 13 to sell the property through an auction. The defendants, however, reiterated the remaining contentions as raised by the defendant Nos. 6 and 7 in their written statement. The defendants, however, contended that the alleged agreement, i.e., the sale certificate, was not enforceable as it was not a registered document and therefore the suit for specific performance was not maintainable.
6. The defendant No. 13 in his written statement contended that defendant Nos. 6 and 7 represented themselves as attorneys of the defendant No. 2 to 5 and 8 to 12, authorising him, to sell the property in question, through an auction sale. The defendant admitted that the plaintiffs bid was the highest and that he had paid Rs. 1000/- in cash and Rs. 9000/- by a cheque to the defendant Nos. 6 and 7. The defendant further stated that the plaintiff approached him repeatedly and expressed his readiness and desire to get the sale deed executed in his favour in accordance with the terms and conditions of the auction and, that the said defendant conveyed this information to the owners of the property in dispute.
7. The trial Court after framing various issues, dismissed the suit of the plaintiff by judgment and order dated 29-5-97. The trial Court, held, that defendant Nos. 2 to 12, had authorized the defendant No. 13 to sell the property by an auction and that the plaintiffs bid was the highest. The trial Court found that the defendant No. 1 was a bona fide purchaser for value. The trial Court held that the sale certificate issued by the trial Court was in fact an agreement to sell, which, required compulsory registration under the Registration Act. The non-registration of the agreement to sell conferred no right on the plaintiff to seek the relief of a specific performance of a contract. The trial Court, therefore, held that the suit for specific performance could not be decreed. The trial Court, however, granted the relief of a permanent injunction restraining the plaintiff from being evicted from the premises in question, except, in accordance with law.
8. Aggrieved by the judgment of the trial Court, the plaintiff filed an appeal, which was also dismissed by judgment dated 7-2-2000. The appellate Court found that the sale certificate issued by defendant No. 13 was required to be compulsorily registered. Since the sale certificate was not registered, the plaintiff was not entitled to enforce the suit for a specific performance of a contract. The appellate Court, further found, that the benefit of Section 53A of the Transfer of Property Act was not available to the plaintiff.
9. The plaintiff/appellant has now filed the present second appeal. At the time of the admission of the appeal, the following substantial questions of law were formulated, namely--
"(a) Whether an auction certificate which entitles the auction purchaser with a right to get auction sale registered by making balance payment of sale proceeds is exempt from registration under Section 17(2)(v) of the Registration Act, 1908?
(b) Whether on the admitted facts and circumstances of the case and on the finding that the appellant was highest bidder and made payment of the required deposit, the relief of specific performance of contract could be refused on the ground that the auction certificate was not a registered document under the Registration Act, 1908?
(c) Whether the offer of the appellant to the advertised auction sale conducted by respondent No. 3 as auctioneer agent of respondent No. 2 to 12, was a concluded contract which did not require registration and, was enforceable under the Specific Relief Act, 1963?"
10. Heard Sri Pramod Kumar Jain, the learned counsel for the appellant assisted by Sri Gaurav Jain, Advocate and Sri Ravi Kant, the learned senior counsel assisted by Sri Manoj Kumar Pandey for the defendant No. 1. No one appeared on behalf of defendant Nos. 2 to 13 inspite of service.
11. The learned counsel for the appellant submitted that the plaintiffs suit was maintainable and that he was entitled to a decree for a specific performance of a contract for sale of an immovable property as per the auction conducted on 23-6-1977. The learned counsel submitted that the plaintiffs bid was the highest and was accepted by the auctioneer and therefore, there was a concluded contract between the parties which could be enforced in a suit for specific performance of a contract of sale. The learned counsel, further submitted, that the sale certificate was not required to be registered under Section 17(l)(b) of the Registration Act and, was exempted from registration either under Section 17(2)(v) or under Section 17(2)(xii) of the Registration Act. Even otherwise, the sale certificate being a concluded contract, did not require registration and was enforceable under the Specific Relief Act, 1963.
12. On the other hand, Sri Ravi Kant, the learned Senior Counsel submitted that the sale certificate was not a concluded contract and was only an offer or at best an agreement to sell. The learned counsel further submitted that in view of the amendment made in Section 54 of the Transfer of Property Act and Section 17 of the Registration Act, by U.P. Act No. 57 of 1976, which was effective from 1-1-1977, all documents, including an agreement to sell, which relates to an immovable property was liable to be registered. Further, in view of the amendment made in Section 49 of the Registration Act, by the same Amendment Act 57 of 1976, an unregistered agreement to sell could not be enforced in a suit for a specific performance of a contract. The learned counsel, further submitted, that in the given circumstances, the suit of the plaintiff was not maintainable. The learned counsel, further submitted that in view of the concurrent findings of fact given by the Courts below, this Court should not interfere in the said findings, which have been arrived at, on the basis of the evidence brought on the record. The learned counsel further submitted that no substantial question of law arises for consideration and the second appeal should be dismissed with costs.
13. In order to adjudicate the rival contentions raised at the bar, and decide the issues involved in this appeal, it would be appropriate to place the admitted facts.
14. Admittedly, the auction was conducted by a private auctioneer on 23-6-1977 and the plaintiffs bid was the highest. He also paid a certain amount by way of earnest money. The sale deed was to be executed after obtaining necessary permission from the ceiling authorities. The provisions of Section 54 of Transfer of Property Act and Section 17 and 49 of Registration Act were amended by Act No. 57 of 1986, which became applicable in the State of U.P. w.e.f. 1-1-1977. The auction was conducted on 23-6-77 and, therefore, the amended provisions in the Transfer of Property Act and Registration Act became applicable. What would be the effect of the amended provisions in the present case will have to be considered. Therefore, in order to adjudge the substantial questions of law, as framed by this Court, it would be appropriate to place and consider the amended provisions of the Transfer of Property Act and the Registration Act, as applicable in the State of U.P., which came into effect from 1-1-1977.
15. The U.P. Civil Laws (Reforms and Amendment) Act, 1976 (U.P. Act No. 57 of 1976) came into force w.e.f. 1-1-1977. This Act amended the Registration Act 1908 as well as the Transfer of Property Act, 1982, besides several other enactments.
16. Section 54 of the Transfer of Property Act, as applicable to the State of U.P., w.e.f. 1-1-1977, reads as under :
"Section 54. "Sale" defined Sale is a transfer of ownership in exchange for a price paid and or promised or part paid and part promised.
Sale how made-- Such transfer, in the case of tangible immovable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Contract of Sale-- 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.
Such contract can be made only by a registered instrument."
17. Section 3 of the Transfer of Property Act defines--
"Instrument" as a non testamentary instrument and "registered" means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents.
18. The Registration Act, 1908 relates to the registration of the documents, Section 17 of the Act provides, that certain documents are required to be compulsorily registered and, other documents are exempted from being registered.
19. Section 17(1)(b) of the Registration Act, as applicable to the State of U.P., reads as under :
"Section 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 to in immovable properly."
20. Section 17(2)(v) of the Act reads as under :
"Section 17(2)-- Nothing in Clause (b) and (c) of Sub-section (1) applies to--
(v) any document other than contract for sale not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or"
21. The words "other than contract for sale" occurring in Section 17(2)(v) of the Registration Act has been inserted by U.P. Act No. 57 of 1976 w.e.f. 1-1-77.
22. Section 4 of the Transfer of Property Act reads as under :
"Section 4, Enactments relating to contracts to be taken as part of Contract Act --The chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (IX of 1872).
(And Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908 (XVI of 1908)."
23. Thus, from a combined reading of Sections 4 and 54 of the Transfer of Property Act and, Section 17 of the Registration Act, as applicable to the State of U.P., and, as amended by U.P. Act 57 of 1976, it is clear that every contract of sale of an immovable property shall be made only by a registered instrument. Even though, a contract for sale of immovable property does not by itself create any interest in or charge on such property and only creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, nonetheless, the said document or contract for sale of an immovable property is required to be registered in the State of U.P. w.e.f. 1-1-1977.
24. Thus, the effect of the aforesaid amendments, is, that every document or a contract for sale in respect of an immovable property in U.P. made on or after 1-1-77 is required to be registered.
25. The next question which arises for consideration is whether a document for sale of an immovable property which is not registered, could still be enforced in a suit for specific performance.
26. Section 49 of the Registration Act as it existed prior to the U.P. Amendment Act No. 57 of 1976, read 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 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, 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, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."
27. With effect from 1-1-1977, Section 49 of the Registration Act as applicable to the State of U.P. was amended 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), or of any other law for the time being in force to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power or create any right or relationship, or
(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship 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 or part performance of a contract for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."
28. By the amendment Act 57 of 1976, as applicable in the State of U. P., in Clause (b) of Section 49, the words "confer any power to adopt or" has been substituted with the words "confer any power or create any right or relationship, or" and in the proviso, the words "as evidence of contract in a suit for specific performance under Chapter II of the Specific Relief Act 1877, or" has been omitted.
29. The result of this amendment is that, prior to 1.1.77, an unregistered document affecting immovable property could be enforced in a suit for specific performance of a contract, but after the amendment of Section 49 of the Registration Act w.e.f. 1.1.77, an unregistered document could not be enforced in a suit for specific performance of a contract.
30. The question, whether an auction sale which is subject to certain specified conditions, has projected a concluded contract of sale, depends upon the intention of the parties which has to be gathered from the terms and conditions under which the auction was held. In the peculiar auction of the kind in this case, one has to gather the intention of the parties and the terms and conditions under which the auction was held. Whether the fall of the hammer, or as in this case, the acceptance of the highest bid would amount to a concluded contract or a conditional contract is a matter which has to be adjudged with reference to the facts of the case and in particular to the terms and conditions under which the auction was held.
31. In the present case, one of the terms and conditions of the auction was that the sale deed would be executed only after obtaining permission from the ceiling authority under U. P. Urban (Land Ceiling and Regulation) Act, 1976. The same condition was also incorporated in the sale certificate. It has also come on record, that, in furtherance of the auction, the appellant was required to submit an application and also give an affidavit indicating therein that he did not possess any surplus land in excess of the ceiling prescribed under the Act of 1976.
32. It has also come on record, that the appellant refused to sign the application that was to be submitted before the ceiling authority and, also did not gtve the afffidavit nor paid or offered the balance amount of consideration. Needless to say, the sale deed could not be executed, unless and until, the permission was obtained from the ceiling authority under the Act of 1976. The sale certificate, only mentions, that the appellant was the highest bidder in the auction. The sale certificate does not state that the plaintiff had been declared the purchaser, w.e.f. the date of the sale certificate. The intention appears that the title would pass only when the permission was granted from the ceiling authority and, when the full price was paid and the sale deed was executed and registered. Thus, non-compliance of the aforesaid conditions, so expressed in the sale certificate, leads to the conclusion, that the contract was not concluded even though the appellant's bid was the highest in the auction.
33. Thus, in the above circumstances, I am unable to hold that the auction conducted by defendant No. 3 amounted to a concluded contract. I further hold, that the auction conducted by a private auctioneer was only an offer and the sale certificate issued was only a contract for sale of and immovable property, which was required to be registered.
34. The judgments cited by the learned counsel for the appellants, namely AIR 1975 Mad 292 : (1974) 2 SCC 169 : (AIR 1974 SC 651) : AIR 1974 SC 1912, has no application to the present facts and circumstances of the case.
35. It has been urged that the sale certificate was not required to be registered under Section 17(2)(xii) of the Registration Act.
36. Section 17(2)(xii) of the Registration Act reads as under :
"any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."
37. In support of this submission, the learned counsel for the appellant has relied upon a decision of the Supreme Court in AIR 1991 SC 1880, Smt. Shavitri Devi v. Tax Recovery Officer. In the said decision, the Supreme Court held that the Tax Recovery Officer is deemed to be a Revenue Officer contemplated under Section 17(2)(xii) of the Registration Act, and therefore, the auction conducted by him was not required to be registered. In the present case, admittedly, an auction was conducted by a private auctioneer, who was merely acting as an agent on behalf of the owners. A private auctioneer could not be treated at par with a Civil or Revenue Officer. Thus, 1 hold, that a private auctioneer, who has conducted a public auction is not a Civil or Revenue Officer as contemplated under Section 17(2)(xii) of the Registration Act. Therefore, the said provision is not applicable.
38. To sum up, the substantial questions of law framed, are answered as under:
ON QUESTION NO. A-- I hold, that in view of the amendment made in Section 17(2)(v) of the Registration Act, and in Section 54 of the Transfer of Property Act, by Amendment Act No. 57 of 1976, as applicable in the State of U. P.. the sale certificate is not exempted from registration under Section 17(2)(v) of the Registration Act and was required to be compulsorily registered.
ON QUESTION NO. B-- I hold, that in view of the amendment made in Section 49 of the Registration Act by Amendment Act 57 of 1976, as applicable in the State of U. P., the sale certificate, being an unregistered document, could not be enforced in a suit for specific performance of a contract for sale of an immovable property.
QUESTION NO. C -- I hold, that the auction sale conducted by a private auctioneer was not a concluded contract and, was only a contract for sale of an immovable property, which required registration without which it could not be enforced under the Specific Relief Act, 1963.
39. In view of the aforesaid, the suit of the appellant was not maintainable. Consequently, the second appeal has no merit and is dismissed with costs.