Non-registration of a sale agreement does not bar specific performance under the Registration Act if it meets conditions outlined in Section 49.

JUDGMENT :

C. Pratheep Kumar, J.

The plaintiff in OS 60/2004 on the file of the Additional Sub Court, Palakkad, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)

2. The plaintiff filed the above suit for specific performance of Ext.A1 agreement for sale dated 14.10.2003 executed by him along with defendants 1 to 5. According to the plaintiff, as per Ext.A1, the defendants agreed to sell an extent of 10 cents of property covered by settlement deed 1802/1992 of SRO Alathur (Ext.A2), for a consideration of Rs.45,000/- per cent. On the date of agreement itself, a sum of Rs.2,50,000/- was paid as advance and the possession of the scheduled property was handed over to the plaintiff. The period originally fixed for specific performance was upto 14.2.2004 and subsequently, it was extended till 28.2.2004, as per endorsement dated 30.1.2004. According to the plaintiff, though he was always ready and willing to perform his part of the contract, it could not be performed due to the default of the defendants. On 24.2.2004 a lawyers notice was issued to the defendants calling upon them to execute the sale deed after receiving the balance sale consideration. As mentioned in the said notice, he was present in the Alathur Sub Registrar's office on 27.2.2004 with sufficient funds, but the defendants did not turn up. After receiving the notice, the 1^st defendant approached the plaintiff and requested for four days time stating that he had some urgent work in Bangalore. Since the defendants failed to execute the sale deed as promised, he preferred this suit.

3. During the pendency of the suit the 1^st defendant died and additional defendants 6 to 9 were impleaded as his legal representatives. Defendants 2 and 3 remained ex parte. Defendants 4 and 5 filed written statement denying the execution of Ext.A1 agreement and contending that there was only a loan transaction with the plaintiff. According to them, the 1^st defendant borrowed a sum of Rs.1,00,000/- from the plaintiff and at that time, as demanded by the plaintiff, he was forced to execute Ext.A1 agreement as a security. They also contended that at the time of the agreement, the scheduled property was subject to a mortgage with the bank. It is also contended that the actual value of the property was much more. Additional defendants 6 to 9 would contend that they are not aware Ext.A1 agreement. Therefore, they prayed for dismissing the suit.

4. The trial court framed five issues. The evidence in the case consists of the oral testimonies of PWs1 to 3, DWs1 and 2 and Exts.A1 to A4. After evaluating the evidence on record, the trial court dismissed the suit holding that since Ext.A1 was not registered, it cannot be received in evidence, in the light of Sections 17 and 49 of the Registration Act . Aggrieved by the above judgment and decree of the trial court, the plaintiff preferred this appeal raising various grounds.

5. Now the points that arise for consideration are the following :-

i. Whether the non-registration of Ext.A1 agreement dis-entitles the plaintiff from getting a decree for specific performance?

ii. Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal ?

6. Heard Sri.S.V.Balakrishna Iyer, the learned Senior counsel as instructed by Sri.P.B.Subramanyam, for the appellant. At the time of the argument, Sri.John Joseph, the learned counsel for the 3^rd respondent submitted that there is no instruction from the party. There was no representation for other respondents also.

7. The points :- The fact that Ext.A1 sale agreement was executed by defendants 1 to 5 in favour of the plaintiff on 14.10.2003 was not disputed. In the written statement the contention taken by the defendants is that Ext.A1 was executed as security for the repayment of a sum of Rs.1,00,000/- borrowed by the 1^st defendant. The trial court has not gone into the merits o