TaxTMI 
TaxTMI 
TaxTMI 
2012 (10) TMI 1175
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....n placed before us. The questions that require to be answered are whether an unregistered agreement to sell, accompanied by delivery of possession or executed in favour of a person in possession, i.e. an agreement that envisages part performance, of an agreement to sell as envisaged by Section 53-A of the Transfer of Property Act, can be received in evidence as proof of the agreement and as a natural corollary whether a suit for specific performance would lie on the basis of such an unregistered agreement to sell. A relevant extract from the reference order reads as follows:- "However, since there is a conflict regarding the legal position as to whether the suit for specific performance can be decreed on the basis of unregistered agreemen....
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....rest, except to the extent of conferring a right to seek enforcement of the agreement, by filing a suit for specific performance, under the Specific Relief Act, 1963. Where, however, an agreement to sell is accompanied by delivery of possession or is executed in favour of a person already in possession and if such person has performed or is willing to perform his part of the contract then whether the contract reaches fruition as a final instrument of transfer or not, Section 53 of the 1882 Act provides that the transferor shall be prohibited from enforcing any right in respect of property, which is subject matter of the contract other than rights expressly provided by the terms of the contract, even if the contract is not registered. Sectio....
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....Act was not compulsory registrable whether under the Transfer of Property Act or the Indian Registration Act, 1908. The Registration and Other Related laws (Amendment) Act, 2001(hereinafter referred to as the 'Amendment Act of 2001') has, however, brought about a paradigm shift in rights flowing from agreements executed under Section 53-A of the Transfer of Property Act. Section 17(1A) of the Indian Registration Act introduced by the Amendment Act of 2001, provides that contracts to transfer for consideration any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Law (Amendment) Act....
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....on of a contract executed in terms of Section 53-A of the Transfer of Property Act. Section 49 of the Registration Act 1908, reads as follows:- "49. 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 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, to be registered may be received as evidence of a contrac....
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....t shall not be pressed into service for the purpose of Section 53(A) of the Transfer of Property Act, 1882. Section 17(1A) of the Registration Act, 1908, does not, whether in specific terms or by necessary intent, prohibit the filing of a suit for specific performance based upon an unregistered agreement to sell, that records delivery of possession or is executed in favour of a person to whom possession is delivered and the proviso to Section 49 of the Indian Registration Act, 1908 put paid to any argument to the contrary. We, therefore, hold that: (a) a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has bee....