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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
Ignatious - Petitioner
Versus
Dominic - Respondent
OP(C) No. 2320 of 2013
Decided On : 07-07-2017
Certainly. Based on the provided legal document, the key points are as follows:
The respondent filed a suit for specific performance of an agreement for sale, which was not registered and was executed after the introduction of Section 17(1A) of the Registration Act (!) . The agreement was not contested by the petitioner, who remained absent during the proceedings, resulting in an ex parte decree in favor of the respondent (!) .
The decree directed the petitioner to execute and register a sale deed within a specified period and restrained him from interfering with the respondent’s peaceful enjoyment of the property (!) (!) (!) .
The petitioner challenged the execution proceedings, contending that the agreement was unregistered, thus invalid under Section 17(1A) of the Registration Act, and that the decree based on such an agreement was null and unenforceable (!) .
The court emphasized that while an unregistered agreement for sale cannot be used as evidence of a transaction affecting the property under Section 49 of the Registration Act, it can still form the basis for a claim of specific performance, considering the provisions of the Specific Relief Act (!) (!) .
The legal distinction between "in evidence" and "as evidence" was highlighted, clarifying that an unregistered document may be received "in evidence" but not "as evidence" of a transaction affecting property rights, unless it falls under collateral transactions or exceptions (!) (!) .
The introduction of Section 17(1A) and subsequent amendments clarified that for claiming benefits under Section 53A of the Transfer of Property Act, the agreement must be registered. However, non-registration does not render the agreement unenforceable for specific performance if other conditions are met (!) (!) .
The court noted that the decree's enforcement could have included actual delivery of possession, but the court only granted symbolic delivery. It further observed that even if the decree was wrongly granted, it remains valid as long as the court had jurisdiction (!) (!) .
The court concluded that the petitioner’s contention regarding the invalidity of the agreement due to non-registration was legally unsustainable and that the respondent could pursue actual delivery of possession through appropriate proceedings (!) .
Ultimately, the court dismissed the petition, affirming that the order granting execution and possession was within jurisdiction and that the legal objections raised by the petitioner lacked merit (!) (!) .
1. Respondent herein filed a suit for specific performance of Ext.P1 agreement for sale dated 24.07.2002. Petitioner was the defendant. Ext.P2 is copy of the plaint. Petitioner was set exparte, allegedly on account of the negligence of his advocate. Ext.P3 is copy of the judgment passed exparte in favour of the respondent. Thereafter, by invoking Section 28(3) of the Specific Relief Act, 1963 (in short, “the Act”) read with Order XXI Rule 32 and Section 151 of the Code of Civil Procedure, 1908 (in short, “the Code”) the respondent filed Ext.P4 application for getting a sale deed executed through the court as the petitioner did not obey the decree. It is further prayed by the respondent that the property be delivered to him, despite having a recital in Ext.P1 that possession of the property had been handed over to him. Then the petitioner, for the first time, entered the arena of litigation and questioned the executability of the decree. Ext.P5 is the objection filed by the petitioner. He contended that after introducing Section 17(1A) to the Registration Act, 1908 (in short, “Registration Act”) Ext.P1, an unregistered agreement to assign, cannot confer any right on the respondent to claim the benefit of Section 53A of the Transfer of Property Act, 1882 (in short, “TP Act”). Further, Ext.P1 will not affect his rights in immovable property in view of Section 49 of the Registration Act. It is the grievance of the petitioner that none of these questions were considered by the court below in the correct perspective when Ext.P6 order was passed, permitting the respondent to take symbolic delivery of the property. According to the petitioner, in the given situation, neither actual delivery nor symbolic delivery is possible by virtue of the legal hurdles.
2. Heard the learned counsel appearing for the contestants.
3. Petitioner's counsel vehementally contended that Ext.P2 suit for specific performance of contract, perpetual injunction and other reliefs should have been held not maintainable in law. Ext.P3 judgment is per se unsustainable. The execution proceedings, therefore, is also illegal. Challenge in this proceedings is against Ext.P6 order passed by the trial court on an application under Section 28 of the Act requesting the court to execute a document in favour of the respondent and also to put him in possession of the property.
4. The recitals in Ext.P1 would show that a strip of land, admeasuring 2.5 cents, was agreed to be purchased by the respondent from the petitioner, for using as way, for a price of Rs.15,000/-. The entire amount was paid at the time of execution of Ext.P1. Ext.P1 agreement is admittedly not a registered document.
5. Predominant contentions raised in petitioner's written statement are that he has not executed Ext.P1 agreement and he does not own or possess the land described in the plaint schedule. The petitioner, albeit filing a written statement, did not contest the case and remained absent. Therefore the suit was decreed exparte against him as per Ext.P3 judgment. The operative portion of the judgment reads thus:
“1. The defendant is directed to execute and register sale deed within two months from this date with respect to the plaint schedule property as per Ext.A1, agreement for sale dated 24.07.2002.
2. If the defendant fails to comply direction (1) above the plaintiff can get the sale deed with respect to the plaint schedule property executed in his favour through court for due process of law.
3. The defendant is restrained by decree of permanent prohibitory injunction from intervening with the plaintiff's peaceful enjoyment and possession of the plaint schedule property and from creating, executing or registering any document with respect to the plaint schedule property in favour of any strangers.”
6. Since the petitioner did not discharge his obligations under the agreement and in terms of the decree, the respondent approached the court with an interlocutory application by invoking Section 28
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