TaxTMI 
TaxTMI 
2012 (1) TMI 170
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....During pendency of suit, the defendants moved application (Annexure P-3) seeking rejection of the plaint on the ground that the agreement to sell in question contains a recital that the possession of property in dispute has been delivered to the plaintiff. Hence, the same requires registration as per Section 17(1A) of the Registration Act, 1908 (for short "the Act"). 4. As afore-stated, by impugned order (Annexure P- 5), the application has been dismissed. 5. Learned counsel for the petitioner has urged that vide Amendment Act No.48 of 2001, Section 53-A of the Transfer of Property Act, 1882 (for short " the TPA"), Section 17 and Section 49 of the Act have been amended. After the amendment, an agreement to sell which contains a recital regarding possession of the property is required to be compulsorily registered. If the agreement to sell is not registered then the same cannot be received as evidence of any transaction affecting such property. 6. In support of the contention, reliance has been placed on Gurbachan Singh vs. Raghubir Singh 2010(3) CCC 731, wherein a single Bench of this Court held that an unregistered agreement does not give a right to seek decree for specific pe....
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....he receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette] , exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [ (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or aft....
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....the mortgage- money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. [Explanation .a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered. Section 49 of Indian Registration Act, 1908 Effect of non-registration of documents 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 regi....
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....l. A person seeking protection of his possession on the basis of unregistered agreement is a different situation and where a person seeks possession of the property by way of specific performance of the agreement which is unregistered is a different eventuality. In the latter class of cases, the agreement to sell is not required to be registered as it does not fall within the ambit of either Section 53-A of the TPA or Section 17(1A) of the Act and does not require any registration. Such agreement to sell falls under the mischief of Section 17(2)(v) of the Act. It itself does not create, declare, assign, limit or extinguish any right, title or interest in the property. Rather it creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish. Not only that, proviso to Section 49 of the Act makes the things more clear. It envisages that an unregistered document affecting immovable property and required by this Act or the TPA 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. A conjoint reading of Section 17(2)(v) and proviso to section 49 of....