1. First appellate court's judgment set aside; trial court's decree for specific performance restored. (Para 30 )
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2025 Supreme(Online)(MP) 7887
HIGH COURT OF MADHYA PRADESH
G. S. Ahluwalia, J
Dhaniram – Appellant
Versus
Ram Dayal – Respondent
SA 1661/2018
Advocates:
Prashant Sharma,
Prashant Sharma,
An unregistered agreement to sell is admissible in suits for specific performance under the proviso to Section 49 of the Registration Act. Under Section 19(b) of the Specific Relief Act, specific performance can be granted against subsequent transferees without necessitating a prayer for cancellation of subsequent sale deeds.
Headnote:(A) Registration Act - Sections 17 and 49 - Specific Relief Act - Section 19(b) - Code of Civil Procedure - Order VII Rule 11 - Admissibility of unregistered agreement to sell - In a suit for specific performance of contract, the proviso to Section 49 of the Registration Act applies, making an unregistered agreement to sale admissible in evidence. The first appellate court errs in refusing a decree for specific performance solely on the ground that the agreement was not a registered document. (Paras 16, 17)
(B) Specific Relief Act - Section 19(b) - Subsequent sale deeds - It is not mandatory for a plaintiff to pray for the cancellation or setting aside of subsequent sale deeds to obtain a decree of specific performance. Under Section 19(b), specific performance can be enforced against any person claiming under a subsequent title, unless they are a transferee for value who paid money in good faith and without notice of the original contract. The proper form of decree is to direct specific performance and direct the subsequent transferee to join in the conveyance to pass on the title. (Paras 20-24)
(C) Code of Civil Procedure - Order VII Rule 11 - Court fee - A plaint cannot be rejected at the threshold for non-payment or deficit payment of court fees. The court must first provide the plaintiff an opportunity to make good the deficit and only upon failure can the plaint be rejected. (Paras 22, 26)
Facts of the case:
The plaintiff filed a suit for specific performance of a contract regarding land based on a notarized agreement to sell, having paid an advance amount. The defendants subsequently executed sale deeds in favor of a third party. The trial court decreed the suit for specific performance and declared the subsequent sale deeds null and void. However, the first appellate court modified the decree, refusing specific performance because the agreement was unregistered and instead directing a refund of the advance amount with interest.
Findings of Court:
The court found that the execution of the agreement and payment of the advance were proved. It held that the first appellate court wrongly applied the law regarding registration. Further, it found that since the remaining consideration was small and no evidence was led to the contrary, the plaintiff's readiness and willingness were established. The fact that the property was previously mortgaged did not invalidate the agreement to sell.
Issues: Whether the first appellate court erred in refusing specific performance based on the non-registration of the agreement; whether a prayer for cancellation of subsequent sale deeds is a prerequisite for specific performance; and whether deficit court fees justify the rejection of the relief.
Ratio Decidendi: An unregistered agreement to sell is admissible for specific performance under the proviso to Section 49 of the Registration Act. Under Section 19(b) of the Specific Relief Act, a decree for specific performance can be passed against subsequent purchasers without a specific prayer for cancellation of their deeds, provided they are not bona fide purchasers without notice. A plaint for specific performance remains maintainable despite deficit court fees, provided the plaintiff is given an opportunity to rectify the deficit.
Result: Appeal allowed; judgment and decree of first appellate court set aside and judgment and decree of trial court restored.
Legal Category Hierarchy
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property law
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transfer of property
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agreement to sell
- specific performance of contract
- unregistered document
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sale deed
- subsequent sale
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agreement to sell
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transfer of property
-
practice and procedure
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civil procedure
- second appeal
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court fee
- deficit court fee
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evidence
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admissibility of documents
- unregistered agreement
-
admissibility of documents
-
civil procedure
-
registration act, 1908
-
section 49
- proviso
- section 17
-
section 49
Table of Contents
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 27 OF OCTOBER, 2025 SECOND APPEAL No. 1661 of 2018 DHANIRAM Versus RAM DAYAL AND OTHERS Appearance:
Shri Prashant Sharma - Advocate for the appellant.
Shri Akshat Kumar Jain - Advocate for the respondents 1-4.
Shri Sanjay Singh Kushwaha - Government Advocate for the respondent 5/State.
JUDGMENT Heard through video conferencing.
2. This Second Appeal has been filed under Section 100 of CPC against the judgment and decree dated 9/5/2018 passed by Sixth Additional District Judge, Shivpuri, District Shivpuri in Civil Appeal No.34/2015, by which the judgment and decree dated 9/7/2015 passed by Civil Judge, Class-
II, Pohari, District Shivpuri in RCSA No.8A/2014 has been modified.
3. The appellant is the plaintiff, who has suffered modification of decree by the First Appellate Court.
4. The facts necessary for disposal of the present appeal in short are that the plaintiff filed a suit for specific performance of contract in respect of land bearing survey No.205 area 0.99 hectare situated in village Nagar, Signature Not Verified Signed by: ARUN KUMAR Tehsil Pohari, District Shivpuri. It was his case that on 4/1/2012, an agreement to sale was executed in respect of the land in dispute . Later on, the defendant nos.1 to 3 executed a sale deed dated 5/3/2013 in favour of defendant no.4 and another sale deed dated 11/9/2014 was executed by defendant no.2 in favor of defendant no.4. It was also claimed that both the sale deeds may be declared as null and void. The undisputed fact is that out of 0.99 hectares of land situated in village Nagar, Tehsil Pohari, District Shivpuri , the defendants no.1 to 4 had their share to the extent of 0.87 hectare. Subsequent to the agreement to sell Ex. P.1, defendants no.1 to 3 have sold their share to defendant no.4 by registered sale deed dated 5/3/2013 and defendant no.5 has sold her share to defendant no.4 by registered sale deed dated 11/9/2014. It is the case of the plaintiff that he is in possession of 0.99 hectare of land forming part of survey No.205. Although he was in possession from 1/7/2000, but the ownership was of defendants and accordingly, defendants no.1 to 4 entered into an agreement to sale their shares, i.e.7/8 (0.87 hectare) for a consideration amount of Rs.1,10,000/- and demanded RS.55,000/- by way of advance. Accordingly, on 4/1/2012 the defendants no.1 to 4 executed a notarized agreement to sale in respect of their share for a consideration of Rs.1,10,000/-. The sale deed was to be executed within a period of two years from the date of execution of agreement to sale. Although the plaintiff had requested the defendants no.1 to 4 on multiple occasions for execution of the sale deed, but they always avoided to do the same and accordingly, on 20/12/2013 the plaintiff sent a registered notice to the defendants no.1 to 4 for execution of sale deed after Signature Not Verified Signed by: ARUN KUMAR receiving the remaining amount of Rs.55,000/-, but the sale deed was not executed, therefore, in the year 2014 the plaintiff again made a request to defendants no.1 to 4, but on the festival of Shivratri they refused to execute the sale deed and accordingly, with an intention to create further complications the defendants no.1 to 3 alienated their share to defendant no.4 by registered sale deed dated 5/3/2013 and defendant no.5 also executed a sale deed in favour of defendant no.4 on 11/9/2014. It was claimed that since both the sale deeds are subsequent to agreement to sale entered into between the parties, therefore, they are null and void and are not binding on the plaintiff. The plaintiff is ready and willing to get the sale deed executed by making payment of remaining consideration amount of Rs.55,000/-.
5. Defendants no.1 to 4 filed their written statement and claimed that the plaintiff is not in possession of the property in dispute from 1/7/2000 and they also denied execution of agreement to sale
