Allowed

Siva v. Subha Ramesh

Madras HC11 Mar 2022AS/366/2017

Case brief

AI extract

What is this about?

The High Court allowed the appellants appeal against a decree of specific performance. It held that since the Plaintiff sought protection under Section 53A of the Transfer of Property Act, the sale agreement had to be registered under Section 17(1A) of the Registration Act. As the document was unregistered, the Plaintiff could not rely on it.

What did the court decide?

The appeal suit was allowed; the judgment and decree of the lower court were set aside insofar as they decreed specific performance and injunction.

Siva Vs Subha Ramesh — Specific Performance | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON: 02.11.2021 PRONOUNCED ON: 11.03.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

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AS.No.366 of 2017

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1.Siva

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2.Govindammal ... Appellants/Defendants Vs Subha Ramesh ... Respondent/Plaintiff

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Prayer:- This Appeal Suit has been filed, under order XLI Rule 1 r/w Section 96 of CPC, against the judgement and decree, dated 27.04.2016, made in OS.No.100 of 2014, by the III Additional District Court, Salem.

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For Appellants : Mr.D.Anandraja For Respondent : Mr.G.Suriya Narayanan

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JUDGEMENT

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1.This Appeal Suit has been filed, against the judgement and decree, dated 27.04.2016, passed by the III Additional District Court, Salem, in OS.No.100 of 2014.

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2.The suit was filed for specific performance of the sale agreement, dated 09.11.2012 and for permanent injunction and also for declaration of the gift settlement deed, dated 29.11.2013 executed, by the 1st Defendant in favour of the 2nd Defendant, as null and void and for costs.

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3.The case of the Plaintiff is that the 1st Defendant had entered into a sale agreement, dated 09.11.2012, with the Plaintiff, in respect of suit property, for a total sale consideration of Rs.20,00,000/- and an advance of Rs.17,00,000/- was paid and possession and the documents were handed over to the Plaintiff. It was agreed that the sale should be completed within two years. Since the husband of the Plaintiff died on 19.07.2013, the sale could not be completed immediately. Taking advantage of the same, the 1st Defendant had executed a gift settlement deed, dated 29.11.2013, in favour of the 2nd Defendant. The Plaintiff has been ready and willing to perform her part of the contract. Since the 1st

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Defendant has been evading to complete the sale, a legal notice, dated 02.04.2014 was issued and a reply dated 09.04.2014, with false allegations, was sent. Since on 08.04.2014, the Defendants attempted to interfere with the possession of the Plaintiff, the suit had been filed, seeking the reliefs as stated above.

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4.The case of the Defendants is that the averments regarding the execution of the alleged sale agreement dated, 09.11.2012 and the receipt of advance amount are false. The entire documents relating to the suit properties were handed over to the Auditor Ramesh, who is the husband of the Plaintiff, for filing IT Returns, along with the signed blank stamp papers, which were misused. The suit sale agreement is a forged one. The Defendants, by a reply notice, had asked the Plaintiff to furnish a copy of the sale agreement dated, 09.11.2012 to send a full fledged reply, but the Plaintiff failed to do so. The Plaintiff is not in possession and enjoyment of the suit property. In such circumstances, the suit is liable to be dismissed.

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5.Before the Trial Court, on the side of the Plaintiff, Ex.A1 to Ex.A19 were marked and PW.1 and PW.3 were examined. On the side of the Defendants, Ex.B1 to Ex.B10 were marked and DW.1 was examined. The Trial Court had decreed the suit in part, thereby directing the Defendants to execute the sale deed in favour of the Plaintiff as per the sale agreement, dated 09.11.2012, after receiving the balance sale consideration of Rs.3 lakhs and granting permanent injunction as prayed for and declaring the gift settlement deed dated 29.11.2013, as null and void and dismissing the suit in respect of the relief of refund of advance amount and permanent injunction in respect of the possession. Aggrieved against the same, this Appeal Suit has been filed by the Defendants.

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6.This Court heard the submissions of the learned counsel on either side.

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7.The learned counsel for the Appellants has submitted that the 1st Defendant never executed any sale agreement with the Plaintiff and that the original title deeds in respect of the suit property, along with the signed blank stamp papers, handed over for the purpose of filing IT Returns were misused. He would further contend that no sale consideration was passed on and that the suit sale agreement is an unregistered document and that the Respondent had no sufficient means to pay the advance amount and that the suit property was already divided

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into plots before the date of the sale agreement and in such circumstances, he would pray for dismissal of the suit. He would rely on the decision of the Honourable Supreme Court reported in 1996 SCC 4 526 (His Holiness Acharya Swamiganesh Dassji Vs. Shri Sitam Ram Thapar), the unreported judgement dated 15.07.2011 of this Court, made in AS.No.883 of 2008, the decision of this Court reported in 2013 3 CTC 477 (Palaniammal and others Vs. KRC Anbalagan and others) and the judgement of the Honourable Supreme Court, dated 16.02.2018, made in Civil Appeal No.2244 of 2018.

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8.The learned counsel for the Respondent would submit that the suit sale agreement was executed on 09.11.2012, after receiving the advance amount and that in order to defeat the right of the Plaintiff, the 1st Defendant had executed the suit settlement gift deed in favour of the 2nd Defendant and that the court below, considering all the oral and documentary evidence, came to the correct conclusion and therefore, this first appeal is to be dismissed. He would rely on the decision of the Honourable Supreme Court reported in 2018 7 SCC 63 (Ameer Minhaj Vs. Dierdre Elizabeth).

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9.This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record.

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10.The contention of the Appellants is that the Respondent failed to prove the passing of the consideration and that the Respondent has not proved any means to pay and also he has not come forward to deposit the balance sale consideration. He would further contend that the sale agreement ought to have been registered and they handed over the original title deeds for preparing IT Returns, but the said documents were misused to prepare the suit sale agreement. The Appellants would further contend that the Respondent has no means to pay the balance sale consideration and the suit sale agreement itself is a forged one.

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11.In this case, the main contention of the Appellants is that they handed over the signed blank papers for preparing the Income Tax Returns. So the suit sale agreement is a forged and fabricated one. The main contention of the Appellants is that it has to be registered under Section 17 of the Registration Act.

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12.The Respondent submits that as per Section 49 of the Registration Act, the sale agreement need not be registered for invoking specific performance.

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13.A perusal of Ex.A1 reveals that possession was handed over to the Respondents on the same day.

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14.Section 17(1A) of the Registration Act 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.

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15.Section 53A of the Transfer of Property Act reads as under:-

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“53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument 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:

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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.”

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16.In 2013 3 CTC 477 (Palaniammal and others Vs. KRC Anbalagan and others), it was held as follows:-

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“23. As per section 17(1-A) of the Registration Act, an agreement for sale relating to any immovable property, for

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reaping the benefits of section 53-A of Transfer of Property Act, 1882, shall be registered. An intending purchaser, who enters into an agreement for sale with the owner of the property and got delivery of possession of the property, cannot claim the benefits under section 53A of the Transfer of Property Act unless the deed of agreement for sale which contemplates such delivery of possession is registered. But the said provision shall not affect the right of a transferee for consideration who has no notice of the contract or of the part performance thereof. It is not as if all the agreements for sale referring to instance of delivery of possession shall be compulsorily registered under section 17(1-A) of the Registration Act. Only when the agreement for sale which speaks about delivery of possession is filed to claim benefit of part performance as contemplated under section 53-A of the Transfer of Property Act, court will have to find out whether the document was registered or not. If such document was not registered then the benefit of section 53-A of Transfer of Property Act cannot be claimed by the prospective purchaser of the property.

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In the case on hand, the 1st plaintiff claimed benefit under section 53-A of the Transfer of Property Act. The plaintiffs have sought for the Relief of permanent injunction restraining the defendants from interfering with the 1st plaintiff's peaceful possession and enjoyment of the properties which he got under Exs.A1 and A3 documents. When the 1st plaintiff sought for protection claiming benefits under section 53-A of the Transfer of Property Act, under section 17(1-A) of the Indian Registration Act, Exs.A1 and A3 documents must have been registered. Since both the documents viz., Exs.A1 and A3 were not registered, the plaintiffs cannot rely upon these documents. If the plaintiffs had not claimed benefits under section 53-A of the Transfer of Property Act seeking for protection with regard to possession which they got under Exs.A1 and A3 documents, in that case, the registration is not mandatory. But in the case on hand, since the 1st plaintiff had sought for a prayer for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property based on Exs.A1 and A3 documents. Therefore, the documents must have been registered under section 17(1-A) of the Registration Act. Since Ex.A1 was not registered, the plaintiffs cannot rely upon the said document. Similarly, in the case of Ex.A3 assignment deed, it was

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alleged that possession was handed over to the 1st plaintiff by the 2nd plaintiff under the said document. As already stated, since the 1st plaintiff had sought for the relief of permanent injunction, in respect of his possession based on Ex.A3 assignment deed, the document must have been registered under section 17(1-A) of the Registration Act. Since the document was not registered, the 1st plaintiff cannot rely upon the said document and file the suit for specific performance based on the said document. Therefore, even if Exs.A1 and A3 are true and genuine documents, the said documents cannot be relied upon by the plaintiffs for the reason tat they were not registered under section 17(1-A) of the Indian Registration Act. Therefore, the provision of section 49 of the Registration Act are not applicable to the present case.”

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The above said decision is squarely applicable to the facts of this case.

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17.In this case, PW.1 in her evidence has stated that at the time of execution of the sale agreement, possession was handed over to her. Therefore, the Plaintiff cannot seek any remedy under the unregistered document i.e. Ex.A1. Therefore, the lower court miserably failed to appreciate this aspect. The judgement of the lower court is an erroneous one and liable to be set aside and this Appeal Suit is to be allowed.

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