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TMI Blog2018 (7) TMI 2354X X X X Extracts X X X X X X X X Extracts X X X X ..... vi v. V.R. Somasundaram and Ors., [ 2010 (4) TMI 1184 - SUPREME COURT] this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. Reverting to the registered General Power of Attorney, the same has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 2 (Defendant Nos. 3 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, in our opinion, the Trial Court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the Trial Court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The High Court, therefore, should have stopped at that instead of analysing the said instrument by invoking the principle of incorporation by reference to the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second Defendant was put in possession of the property agreed to be sold, in part performance of the agreement of sale and that fact has been recited in the agreement of sale itself. The agreement also authorized the second Defendant, at its discretion, to develop the property by constructing dwelling units thereon for which the predecessor in title of Respondent Nos. 1 2 (namely the original 1st Defendant) was to cooperate and give consent, whenever and wherever necessary, for the unhindered development of the property. It was then asserted by the Appellant (Plaintiff) that to effectuate the stated agreement to sell, a registered Power of Attorney was executed in favour of the second Defendant (Respondent No. 3) by the owner (original first Defendant). That Power of Attorney was registered on 2nd May, 1996 in the office of Sub Registrar, Coonoor. It was then stated that since Respondent No. 3 (Defendant No. 2) was unable to develop the said property due to unavoidable situation, he requested the Appellant (Plaintiff) to execute the project of developing the suit property into building sites for dwelling units and to sell it to prospective purchasers. The Appellant (Plaintiff) ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected by the Trial Court on 20th June, 2011 against which the original Defendant No. 1 and Defendant No. 3 (Respondent No. 1) filed a revision petition before the High Court of Judicature at Madras, being CRP (MD) No. 3422/2011. They were unsuccessful as the High Court dismissed the revision petition on 30th September, 2011 holding that the question of payment of stamp duty or the admissibility of the document could be decided only when the stated documents were sought to be marked through witnesses and not at that stage. Therefore, after the Plaintiff filed an affidavit of evidence and sought to rely on the said three documents, Defendant Nos. 3 4 (Respondent Nos. 1 2) who were brought on record as legal heirs of original Defendant No. 1, filed a joint application, being I.A. No. 26/2013, for deciding the question whether the three documents could be received as evidence. That application was decided by the Trial Court on 1st June, 2016 partly in favour of Defendant Nos. 3 4. The Trial Court essentially answered the question with reference to the mandate of Section 17(1A) of the Registration Act, 1908 (for short, 1908 Act ) which was inserted by Act 48 of 2001 with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said General Power of Attorney refers to the agreement to sell dated 12th November, 1995, the terms and conditions specified in the latter document would get incorporated into the Power of Attorney, meaning thereby it was given for consideration, and therefore, it would attract stamp duty applicable to a deed of conveyance. It could not have been executed on the stamp paper of Rs. 100/-. Hence, the document was inadmissible and could not be received as evidence. As regards the agreement to sell dated 9th July, 2003, the High Court opined that the same was required to be registered compulsorily and the Trial Court was not correct in making an observation that there was no need for registration thereof. The High Court, accordingly, allowed the civil revision petition and was pleased to set aside the order passed by the Trial Court and instead allowed the application filed by Respondent Nos. 1 2 (Defendant Nos. 3 4), by holding that the General Power of Attorney dated 2nd May, 1996 was given for consideration as it was in furtherance of the agreement of sale dated 12th November, 1995. Further, the sale agreement dated 9th July, 2003 was inadmissible as evidence for the purpose of part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., (2010) 5 SCC 401 this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. Section 49 of the 1908 Act reads thus: 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)], to be registered shall- (a) affect any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and documentary evidence. The High Court, in our opinion, therefore, should have stopped at that instead of analysing the said instrument by invoking the principle of incorporation by reference to the agreement to sell dated 12th November, 1995. For, the Appellant (Plaintiff) is not a party to the said document. Indeed, the executor of the document - original Defendant No. 1 and the Defendant No. 2 in whose favour the same has been executed, are parties to the present suit. The principal document, namely, the agreement to sell dated 12th November, 1995, as rightly noticed by the Courts below, was executed prior to coming into force of Section 17(1A) of the 1908 Act. That provision has been made applicable prospectively. Hence, the same was not required to be compulsorily registered at the time of its execution. Even if it was required to be registered, keeping in view the purport of Section 49 read with Section 17(1A) of the 1908 Act, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of 1882 Act. 13. As a result, the Trial Court was right in overturning the objection regarding marking and exhibiting these docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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