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2012 (10) TMI 1175 - HC - Indian LawsSuit for specific performance - part performance of the contract - no registration of the contract - Held that - (a) a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession shall not be dismissed for want of registration of the contract/agreement; (b) the proviso to Section 49 of the Registration Act, legitimises such a contract to the extent that, even though unregistered, it can form the basis of a suit for specific performance and be led into evidence as proof of the agreement or part performance of a contract.
Issues:
1. Conflict between two Single Bench judgments regarding the admissibility of unregistered agreement to sell accompanied by delivery of possession. 2. Interpretation of Section 53A of the Transfer of Property Act and Section 17(1A) and 49 of the Registration Act, 1908. 3. Effect of the Registration and Other Related laws (Amendment) Act, 2001 on agreements executed under Section 53-A of the Transfer of Property Act. Analysis: 1. The High Court addressed a conflict between two Single Bench judgments regarding the admissibility of unregistered agreement to sell accompanied by delivery of possession. One judgment held that such agreements are inadmissible if not registered, making a suit for specific performance not maintainable. The other judgment stated that such agreements can form the basis of a suit for specific performance. The Court analyzed Section 53A of the Transfer of Property Act, which prohibits the transferor from enforcing any right in the property subject to the contract if the transferee has taken possession. The Court noted that agreements satisfying Section 53A were not compulsory registrable under the Transfer of Property Act or the Registration Act. 2. The Court discussed the impact of the Registration and Other Related laws (Amendment) Act, 2001 on agreements executed under Section 53-A. The introduction of Section 17(1A) of the Registration Act by the Amendment Act mandated the registration of contracts for consideration of immovable property under Section 53A. Failure to register such contracts rendered them ineffective for the purpose of Section 53A. The Court emphasized that Section 17(1A) did not prohibit the filing of a suit for specific performance based on an unregistered agreement to sell accompanied by delivery of possession. 3. The Court examined the proviso to Section 49 of the Registration Act, which clarified the effect of non-registration of contracts under Section 53-A. It stated that non-registration would not prohibit the filing of a suit for specific performance based on such agreements. The Court held that a suit for specific performance based on an unregistered agreement to sell with delivery of possession is not barred by Section 17(1A) of the Registration Act. The proviso to Section 49 legitimized such contracts for specific performance and as evidence of the agreement or part performance of a contract. In conclusion, the High Court disagreed with the judgment that held unregistered agreements to be inadmissible and affirmed that such agreements can form the basis of a suit for specific performance. The Court clarified the legal position regarding the admissibility and enforceability of unregistered agreements accompanied by delivery of possession, emphasizing the importance of Section 53A of the Transfer of Property Act and the relevant provisions of the Registration Act.
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