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TMI Blog2012 (10) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... performance and be led into evidence as proof of the agreement or part performance of a contract. - R.S.A.No.4946 of 2011 - - - Dated:- 12-10-2012 - Hon'ble Mr. Justice Rajive Bhalla And Hon'ble mr. Justice rakesh kumar jain Mr. V.K.Jindal, Advocate for the appellants. Mr. R.S.Tacoria, Mr. Bhag Singh Advocate for respondents No.1 to 3. ORDER: Rajive Bhalla A reference relating to the apparent conflict between two Single Bench judgments titled as Gurbachan Singh vs. Raghubir Singh, 2010(2) Punjab Law Reporter 511 and Birham Pal and others vs. Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136, has been placed before us. The questions that require to be answered are whether an unregis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict. The judgment in Gurbachan Singh vs. Raghubir Singh (supra), holds that an agreement to sell accompanied by delivery of possession is inadmissible in evidence if it is not registered and, therefore, a suit for specific performance based upon such an unregistered agreement, is not maintainable. The opinion recorded in Birham Pal and others vs. Niranjan Singh and another(supra), is to contrary as it has been held on the basis of the proviso to Section 49 of the Indian Registration Act and such an agreement can form the basis of a suit for specific performance We have heard counsel for the parties. An agreement to sell does not confer any right, title or interest, except to the extent of conferring a right to seek enforcement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. A contract/agreement that satisfies the ingredients of Section 53A of 1882 Act was not compulsory registrable whether under the Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration and Other Related Law (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. Section 17(1A) of the 1908 Act declares in no uncertain terms if a contract executed in part performance of an agreement is unregistered, it shall have no effect for the purpose of Section 53A of the 1882 Act. Section 17(1A) does not refer to much less prohibit the filing of a suit for specific performance or leading of such a contract into evidence. The Amendment Act also introduced a proviso to Section 49 of the Indian Registration Act, to clarify the effect of non-registration of a contract executed in terms of Section 53-A of the Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rive the person in possession of any benefit conferred by Section 53A of the 1882 Act. The proviso to Section 49 of the Indian Registration Act clearly postulates that non-registration of such a contract would not prohibit the filing of a suit for specific performance based upon such an agreement or the leading of such an unregistered agreement into evidence. A suit for specific performance based upon an unregistered agreement to sell accompanied by delivery of possession or executed in favour of a person who is already in possession, cannot, therefore, be said to be barred by Section 17 (1A) of the Registration Act, 1908. Section 17(1A) merely declares that such an unregistered contract shall not be pressed into service for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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