1982 Supreme(Raj) 65

High Court Of Rajasthan
Judgename : Dwarka Prasad
SHESH MAL - Appellant
Versus
HARAK CHAND - Respondent
Civil Second Appeal 240 Of 1972
Decided On : 04/15/1982

Sale of tangible immovable property of value less than Rs. 100/- can be effected by delivery of property, where the vendee is already in possession of the property sought to be sold, by appropriate declarations or overt acts, as may be necessary, to change the character and nature of possession from that of a mortgagee, lessee, licensee or permissible occupant or otherwise to that of a vendee and that such declarations or overt acts on the part of the vendor may be sufficient to constitute delivery of possession.

Headnote:

Sale of tangible immovable property of value less than Rs. 100/- can be effected by delivery of property, where the vendee is already in possession of the property sought to be sold, by appropriate declarations or overt acts, as may be necessary, to change the character and nature of possession from that of a mortgagee, lessee, licensee or permissible occupant or otherwise to that of a vendee and that such declarations or overt acts on the part of the vendor may be sufficient to constitute delivery of possession.

Fact of the Case:

The plaintiffs filed a suit for possession of the house in dispute, which was dismissed by both the courts below. The defendants, who were related to the plaintiffs as they came from the same stock, unlawfully entered the disputed house and occupied the same without any right. Thereafter, the defendant-respondents also obtained a patta in respect of the disputed house from the Panchayat Devria on March 8, 1959. The plaintiffs claimed ownership rights on the basis of a unregistered sale deed alleged to have been executed by the plaintiff-appellants and the delivery of the original patta of the disputed house.

Finding of the Court:

The court held that there was no sale made within the meaning of Section 54 of the Transfer of Property Act and that the alleged unregistered sale deed could, therefore, be of no assistance to the contesting defendants. It was argued by the learned counsel for the appellants that the unregistered sale deed was admissible in evidence, at least to look into the nature of possession, within the meaning of the proviso to Section 49 of the Registration Act. Learned counsel further submitted that all the necessary facts for raising a plea of part performance were contained in the pleadings and as such the first appellate court was justified in allowing the defendants-respondents to raise the plea of part performance by way of defence, at the appellate stage and that the plead of adverse possession, though raised in the written statement, was given up by the contesting defendants at the trial stage and no evidence was led in support thereof by the defendants.

Issues: 1. Whether the unregistered sale deed was admissible in evidence to look into the nature of possession, within the meaning of the proviso to Section 49 of the Registration Act? 2. Whether the plea of part performance could be raised by the defendants-respondents at the appellate stage?

Ratio Decidendi: 1. The court held that the unregistered sale deed was not admissible in evidence to look into the nature of possession, within the meaning of the proviso to Section 49 of the Registration Act, as the document in question cannot be considered for looking into the nature of possession of the defendants. In Varada Pillai v. Jeevarathnammal AIR 1919 PC 44 it was held that a document which should be registered but was not, was admissible to explain the nature of the possession of the person. However, Varada Pillais case was specifically explained by their Lordships of the Supreme Court in Mst. Kirpal Kaur v. Bachansingh AIR 1958 SC 199 and it was observed that in Varada Pillais case Duraisani had got into possession only after the said unregistered document was executed and claimed to retain possession only under the aforesaid unregistered document and on that basis it was held to be admissible in evidence to show the nature of his possession; but in Mst Kirpal Kaurs case their Lordships of the Supreme Court observed that Harnam Kaur was in possession from before the date of the document and held that to admit the unregistered document in evidence to show the nature of her possession subsequent to the execution thereof would be to admit it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into permissive possession and thus to give effect to the agreement contained in the unregistered document, which could not be done for want of registration. Their Lordships of the Supreme Court, therefore, held that to admit the unregistered document in evidence in such a case would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act. 2. The court held that the plea of part performance could be raised by the defendants-respondents at the appellate stage, as if sufficient and necessary facts have been pleaded, on the basis of which a plea of part performance could be legitimately raised, then it would not be proper to deprive the defendant of the defence available to him under Section 53-A of the Transfer of Property Act on the ground of mere technicality.

Final Decision: The court dismissed the appeal and held that the defendants were in possession of the property as owners thereof and the plaintiffs were not entitled to a decree for possession.