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PUNJAB AND HARYANA HIGH COURT
Amol Rattan Singh, J.
Krishan Kumar —Appellant
versus
Mahesh Chander and Anr. —Respondents
RSA Nos.4071 and 4190 of 2018 (O&M)
Decided On : 28.05.2019
Counsel for the Parties:
For the Appellant:Mr. Raj Kumar Gupta, Advocate
For the Respondents:Mr. P. K. Mutneja, Advocate
IMPORTANT POINT
A document limiting right already created earlier in property in form of sale deed, requires registration.
Headnote:(A) Registration Act, 1908 – Sections 17 and 49 – Indian Contract Act 1872 – Sections 23 and 24 – Registration of documents – Though agreement is not a document by itself creating a right to immovable property, it is definitely one limiting right already created earlier in property in form of sale deed – It is not simply a document creating right to obtain another document – It would be a document that was required to be registered and cannot be simply taken to be, even in terms of Section 49 of Registration Act, to be an instrument not requiring registration and one being evidence of a collateral transaction – If it was an agreement executed for payment of consideration as was not shown in registered sale deed and was therefore an agreement to avoid stamp duty, it has to be treated to be a void agreement even in terms of Sections 23 and 24 of Indian Contract Act 1872. (Paras 54 and 57)
(B) Transfer of Property Act, 1882 – Section 8 – Part of easement – What is necessary to be taken to be a part of landed property purchased/sold are easements annexed thereto, such as paths, staircases etc., leading to property or providing access to property and not any construction made on top of property, which if it is a part of sale, has to be specifically shown to be so – Section 8 of Transfer of Property Act has no applicability to suit property. (Para 62)
Appeals Partly allowed.
Key Points: - The unregistered agreement dated 11.05.2007, executed after the registered sale deed, limits rights in the sold shop (35 sq. yds.) by imposing payment conditions, interest, rent, and alienation restrictions, requiring registration under Section 17 of the Registration Act (!) [judgement_subject]. - The agreement is not merely evidence of a collateral transaction but affects immovable property, making it inadmissible under Sections 49 Registration Act, 91, and 92 Evidence Act; oral agreements cannot contradict the registered sale deed showing full payment (!) (!) (!) (!) . - Section 8 of Transfer of Property Act does not apply; sale of shop does not automatically include rooms on the first floor (wider dimensions, separate staircase access), as not specified in sale deed or site plan (!) (!) (!) . - Trial and first appellate courts erred in admitting the unregistered agreement for recovery of Rs.3 lakhs balance consideration, as sale completed on registration with full stated payment of Rs.7,52,500/- and possession handed over (!) (!) (!) (!) . - Signatures on agreement proved genuine, but document inadmissible; payments of Rs.2 lakhs post-sale do not validate it as overriding the registered deed (!) (!) . - Suit for injunction by buyers dismissed; they own only ground floor shop, not first floor rooms (!) (!) . - Appeals partly allowed: recovery suit of Mahesh Chander reversed; injunction suit findings on property extent upheld [judgement_subject]. - Courts below wrongly relied on unregistered agreement despite Section 49 proviso not applying, as not for specific performance or collateral (!) (!) . - No fraud or tampering proved; buyers' claim of rooms included rejected based on site plans and sale deed recitals (!) (!) . - Total settled consideration inconsistency (plaint vs. testimony) and lack of scribe/witnesses further weaken agreement (!) (!) .
What is required for registration of a document limiting a right already created in immovable property by a sale deed?
Whether an unregistered agreement for payment of balance sale consideration can be admitted as evidence under Sections 91 and 92 of the Indian Evidence Act?
What does Section 8 of the Transfer of Property Act include as part of immovable property sold?
Amol Rattan Singh, J.—These two second appeals before this Court eventually arise out of two suits filed by the parties to the lis, against each other. The first suit (from whch RSA no.4071 of 2018 arises), was instituted by Krishan Kumar and Mahabir Singh (Krishan Kumar being the appellant in both these two appeals, with Mahabir Singh having been impleaded as a proforma respondent in both of them).
Vide that suit Krishan Kumar and Mahabir Singh sought a decree of permanent injunction restraining Mahesh Chander (respondent in these appeals), from interfering in their possession of the disputed property, further seeking that he be restrained from alienating the property.
2. The 2nd suit, from which RSA no.4190 of 2018 arises, was instituted by Mahesh Chander against the two plaintiffs in the first suit. In his suit, he sought a recovery of Rs.3 lakhs, alongwith interest thereupon, from Krishan Kumar and Mahabir Singh, on the ground that it was part of the sale consideration that had been agreed to be paid for the property, but remain unpaid, in respect of which a separate agreement was drawn up immediately after a sale deed dated 11.05.2007 was executed (with the agreement having been executed on the same date itself).
As Mahesh Chanders’ case, though instituted later, was decided first, and in fact the issue of whether or not any extra consideration still remained unpaid despite the execution of the sale deed, is a question that would affect the decision in the appeal arising from the suit instituted by Krishan Kumar and Mahabir Singh also, the appeal arising from Mahesh Chanders’ suit is being taken up for consideration first, i.e. RSA no.4190 of 2018.
RSA No.4190 of 2018 —3. As per the case of plaintiff Mahesh Chander, KK and Singh purchased a shop from him measuring 35 sq. yds. on 11.05.2007, vide sale deed no.1424, the property being situate at Old Jhajjar Road, Bahadurgarh, with possession also having been delivered by him to the vendees on the same date, but with his contention being that at the time of execution of the sale-deed, Rs.5 lacs were paid less than the amount settled, despite which he, in good faith, got the sale deed registered in their favour. It was further stated that in respect of the shortfall of Rs.5 lacs, a written agreement was also executed on the same date after execution of the sale deed, with both the parties having signed this agreement in the presence of a witness, and they were therefore bound by it.
It was next contended that the said amount was to be paid up to 11.05.2009, i.e. by the end of two years from the date of the sale, and if it was not so paid, interest @ 24% per annum would be paid to Mahesh Chander by KK and Singh.
It was contended to have been further agreed upon, that upon the amount not being paid within those two years, then Rs.1,000/- per month would also be payable as rent by KK and Singh, for the shop sold to them, (with only the ground floor having been purchased by them, and they having no concern or connection with the first floor of the shop, Mahesh Chander remaining the owner thereof).
Further, electricity/water bills, house tax, sewage cess etc. were to be paid by KK and Singh, who would have no right to alienate the shop in any manner to any other party, till Rs.5 lacs were paid to Mahesh Chander.
Next it was stated in the plaint, that after execution of the agreement, only ‘two payments’ were made in favour of Mahesh Chander, the first being of Rs.1 lac on 19.03.2009, with another Rs.1 lac paid on 21.03.2009; the balance still remaining to be paid therefore being Rs.3 lacs.
4. The factum of the civil suit instituted by KK and Singh against Mahesh Chander on 17.04.2010 was also disclosed in the suit filed by Mahesh Chander, as that suit was pending before a different Court within Bahadurgarh.
Thus the plaintiff in the latter suit, i.e. Mahesh Chander, c
