The proviso to section 49 of the Indian Registration Act allows the admission of an unregistered document affecting immovable property as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument.

PRAKASH SHRIVASTAVA, J.

1. This writ petition under Article 227 of the Constitution of India is at the instance of the plaintiffs in the suit challenging the order of the trial Court dated 8-5-2014, whereby the trial Court has allowed the respondent's application and has held that since agreement to sale is not registered therefore, it is not admissible in evidence. In brief, the petitioners have filed suit for specific performance and for possession raising the plea that respondents had agreed to sale the suit property to petitioners and had received the part consideration on 19-1-2011 and on 25-1-2011 sale agreement was executed and further part consideration amount was paid. The respondents had filed an application under section 17 of Indian Registration Act (for short Act) read with section 49 on the ground that since the sale agreement is not registered, therefore, it is not admissible in evidence and the trial Court while allowing the respondent's application has taken the view that sale agreement being unregistered is inadmissible in evidence.

2. Learned counsel for petitioners submits that the sale agreement is admissible in evidence in terms of proviso to section 49 of Indian Registration Act.

3. As against this, counsel for respondents have submitted that since by way of State Amendment section 17(1)(b) has been added requiring registration of the sale agreement and the said provision is repugnant to proviso to section 49 of the Act, therefore, section 17(1)(b) will prevail in terms of Article 254 of Constitution and sale agreement being unregistered cannot be exhibited in evidence.

4. I have heard learned counsel for the parties and perused the record.

5. Undisputedly, the sale agreement dated 25-1-2011 is unregistered. Section 17(f) of the Act has been inserted by The Registration (Madhya Pradesh Amendment) Act, 2009 with assent of the President by way of notification dated 14th January, 2010. The relevant part of amended section 17 of Act reads as under:

"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act, XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:

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17(f) any document which purports or operates to effect any contract for sale of any immovable property."

6. In terms of the above provision an agreement to sale is required to be registered.

7. Section 49 of The Registration Act, which is relevant for the present purpose provides as under:

"49. Effect of non-registration of document required to be registered--

No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument.

8. Under section 49 of the Act a document required to be registered under section 17 of Act or by any provision of Transfer of Property Act, 1882 cannot be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered, but an exception has been carved out by way of proviso in respect of suit for specific performance to the effect that such a document can be received