IMPORTANT POINT
Unregistered document affecting immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance.

JUDGMENT :

M.R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Madras at Madurai passed in Revision Application No.1877 of 2017 dated 01.02.2022 by which the High Court has allowed the said revision application preferred by the respondent herein by quashing and setting aside the order passed by the learned Trial Court passed in I.A. No.159 of 2017 in O.S. No.199 of 2014 by further directing that the document in question shall be received in evidence in the suit for specific performance, the original defendant has preferred the present appeal.

3. The facts leading to the present appeal in nut-shell are as under:

2.1 That the respondent herein is an original plaintiff (hereinafter referred to as “original plaintiff”) instituted civil suit being O.S. No.199 of 2014 for specific performance of the Agreement to Sell dated 10.09.2013. After the chief-examination of the plaintiff as PW-1, on the application filed by the appellant – original defendant, a preliminary issue was framed by the learned Trial Court on the admissibility of the Agreement dated 10.09.2013 in evidence. It was the case on behalf of the defendant that in view of the Tamil Nadu Amendment Act No.29 of 2012 to the Indian Registration Act, under which the instruments of agreement relating to sale of immovable property of the value of Rs.100/- and upwards is compulsorily required to be registered, the said unregistered document shall be inadmissible in evidence. On the other hand, relying upon Section 49(a) and (c) of the Act, it was submitted that an unregistered Agreement to Sell can be admitted as evidence of a contract in a suit for specific performance. The learned Trial Court held the preliminary issue in favour of the defendant and against the plaintiff by observing that the unregistered Agreement dated 10.09.2013 shall not be admissible in evidence.

2.2 Feeling aggrieved and dissatisfied with the order of the learned Trial Court, the plaintiff preferred the present revision application before the High Court. By the impugned judgment and order, the High Court has allowed the revision petition relying upon Section 49 of the Registration Act by setting aside the order passed by the learned Trial Court and directed that the agreement in question be received in evidence considering the fact that the suit in question is a suit for specific performance, which falls within the first exception carved out in the proviso to Section 49.

2.3 The impugned judgment and order passed by the High Court directing to receive the unregistered Agreement to Sell in evidence in a suit for specific performance, the original defendant has preferred the present appeal.

3. Learned counsel appearing on behalf of the appellant herein – original defendant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in directing to receive the unregistered agreement in evidence.

3.1 It is submitted that it is an admitted position that the Agreement to Sell dated 10.09.2013 which is the foundation or basis of the suit is an unregistered Agreement to Sell and therefore cannot be exhibited in evidence for the main purpose in the suit, in view of the Tamil Nadu Amendment to Section 17 of the Registration Act making an Agreement to Sell to be compulsorily registered with effect from 01.12.2012.

3.2 It is submitted that the “explanation” attached to sub-clause (2) of Section 17 which also relates to Agreement to Sell has been omitted. It is submitted that said explanation was inserted by Amendment Act, 1927, to overcome the judgment of the Privy Council in the case of Dayal Singh vs. Indar Singh, (1926) 24 LW 396. It is submitted that in that case, an advance paid under an Agreement to Sell being a charge on the property as per Section 55(6)(v) of the Transfer of Property Act was held to create an interest and hence, unregistered Agreement to Sell cannot be admitt