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Choyyan Narayani Vs. Ibrahim Kunhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKerala High Court
Decided On
Case NumberS.A. No. 508 of 1976
Judge
Reported inAIR1978Ker147
ActsRegistration Act, 1908 - Sections 49
AppellantChoyyan Narayani
Respondentibrahim Kunhi and ors.
Appellant Advocate C.P. Damodaran Nayar, Adv.
Respondent Advocate R. Venkatakrishnan, Adv.
DispositionAppeal dismissed
Cases ReferredMuruga Mudaliar v. Subba Reddiar
Excerpt:
- - though both of them, have deposed that they have complained about it before the municipality, there is no evidence of any such complaint. 762) the proviso makes it perfectly clear that an unregistered document affecting immovable property may be put in evidence in a suit for specific performance......an area of 2f cents was decreed by the lowercourts and the defendant has come up in appeal. the suit property adjoins a plot of land 12 cents in extent purchased by the respondents' mother kunhalima from the defendant as per ext. a-l sale deed dated 26-5-1962. the lower courts accepting the evidence of p. w. 1, the 3rd plaintiff and p. w. 2, an attestor to ext. a-2 receipt, found that the defendant on 13-4-1969 agreed with kunhalima to sell this strip of land to the latter for rs. 350/-, that kunhalima paid rs. 300/- to the defendant, and that the defendant passed ext. a-2 receipt therefor.2. p. w. 1 swears to these facts and p. w. 2, to the payment of rs. 300/-and the passing of ext. a-2 receipt. the lower courts believed them, and nothing has been brought to my notice which would go.....
Judgment:

1. The suit for specific performance of an agreement for sale of a small strip of land described in the plaint schedule as having an extent of 2 cents but actually having an area of 2f cents was decreed by the lowercourts and the defendant has come up in appeal. The suit property adjoins a plot of land 12 cents in extent purchased by the respondents' mother Kunhalima from the defendant as per Ext. A-l sale deed dated 26-5-1962. The lower courts accepting the evidence of P. W. 1, the 3rd plaintiff and P. W. 2, an attestor to Ext. A-2 receipt, found that the defendant on 13-4-1969 agreed with Kunhalima to sell this strip of land to the latter for Rs. 350/-, that Kunhalima paid Rs. 300/- to the defendant, and that the defendant passed Ext. A-2 receipt therefor.

2. P. W. 1 swears to these facts and P. W. 2, to the payment of Rs. 300/-and the passing of Ext. A-2 receipt. The lower courts believed them, and nothing has been brought to my notice which would go to. show that these witnesses are not worthy of credence. Ext. C-l Commission report and Ext. C-2 plan show that a substantial portion of plaintiffs' latrine abuts into the suit property. According to Ext, C-l report 'it is long since the latrine had been constructed' and the defendant's father 'admitted the plaintiffs' possession and use of the latrine'. This fortifies the plaintiffs' case that pursuant to the agreement their mother (she died before the suit was laid) got possession of the suit property. The defendant as D. W. 1 admits that one half of the latrine stands on the suit property. D. W. 2, her husband also admits this. Though both of them, have deposed that they have complained about it before the municipality, there is no evidence of any such complaint.

3. It is contended on behalf of the appellant that the lower courts were very much influenced by Ext. A-2 receipt, which according to him is a document that requires to be registered and is therefore, inadmissible in evidence. It is pointed out by him that in that document the defendant purports to state that she has sold the 2 cents of land mentioned therein to Kunhalima besides acknowledging receipt of Rs. 300/- out of the price agreed upon and that therefore the same is inadmissible in evidence under Section 49(c) of the Registration Act, 1908.

4. That in view of the proviso to Section 49, even an unregistered sale deed may be received in evidence of the contract sought to be specifically performed in a suit for specific performance cannot be disputed. The said proviso has been introduced to get over the rule enun-elated in J. R. Skinner v. R. H. Skinner (AIR 1929 PC 269) to the effect that an unregistered sale deed cannot be received in evidence in a suit for specific performance to prove the agreement for sale of the property to which it relates. The decisions in Jhaman Mahton v. Amrit Mahton (AIR 1946 Pat 62), Rattan Chand v. Bhagirath Ram (AIR 1963 Punj 182) and Saudan Singh v. Goswami Rasikanand (AIR 1968 All 168) take the view that such an unregistered sale deed itself would be evidence of an antecedent agreement for sale. In the first mentioned case Fazl Ali C. J. said 'that an incomplete sale deed may be regarded as a contract for sale' and in the last mentioned case, the Patna decision was referred to and followed by holding that 'an incomplete deed of sale itself, in a suit for specific performance of a contract to ,sell, can be treated as a contract for sale'. It was pointed out in the Allahabad decision that an agreement to sell is 'inherent in the very fact of the execution' of the sale deed.

5. In Subramanian Chettiar v. Aruna-chalam Chettiar (AIR 1943 Mad 761) (FB) the Madras High Court said: (at p. 762)

'The proviso makes it perfectly clear that an unregistered document affecting immovable property may be put in evidence in a suit for specific performance.'

XX XX XX XX 'In such a suit, the production of the document and its proof will be sufficient to support the plaintiff's case if it embodies the whole agreement between the parties and there are no other factors to be taken into consideration. The proviso in express terms says that it may be received as evidence of a contract in a suit for specific performance.'

This decision was followed in Rama-chandra v. Ramayya, (AIR 1969 Mad 418). The decision in Hutchi Gowder v. Bheema Gowder (AIR I960 Mad 33) also recognises the right of plaintiff in a suit for specific performance to tender in evidence an unregistered sale deed 'with a view to prove the antecedent agreement to sell', though, according to that decision, the words in the Proviso: 'may be received in evidence to prove a contract' do not mean: 'may itself be read as a contract to execute a document in future', and when such an agreement is proved by production of an unregistered document, the question will still arise as to whether the antecedentagreement to sell is enforceable, as in any other case for specific performance of a contract for sale of land). This appears to be so, for the Proviso only removes the inhibition on reception of an unregistered document in evidence for any purpose, thereby restricting and confining the check only to tendering in evidence an unregistered document required to be registered, for the purpose of establishing that it affects the immovable property comprised therein, which, in view of Section 49(a) of the Registration Act, 1908, it does not and cannot affect, for want of registration, and does not define or declare the quantitative sufficiency or the qualitative value of the evidence furnished by such a document --these would depend upon the facts and circumstances of each case and the construction placed on each document, That the effect of the Proviso is to remove the bar on reception in evidence of documents required by law to be registered but not so registered, for all purposes other than for proving any transaction affecting immovable property, is clear from the majority decision in Muruga Mudaliar v. Subba Reddiar (AIR 1951 Mad 12) (FB) where the question arose as to whether in a suit for damages for breach of the agreement contained in an 'agreement' of lease in writing which ought to have been registered since it operated as a lease, but was not, the unregistered document could be received in evidence, and it was held that it can be.

6. Therefore assuming without deciding, that Ext. A-2 document purports to affect the immovable property comprised therein as a sale, that document shall not operate so as to affect that property and it cannot be received in evidence of any transaction affecting that immovable property. The plaintiffs also have no such case nor have they sought reception of the same in evidence to prove any transaction affecting the immovable property mentioned therein. They rely on that document to establish payment of Rs. 300/- and the contract for sale of that property for a price of Rs. 350/-as sworn to by P. Ws. 1 and 2. The document, Ext. A-2, can be received in evidence for that purpose.

There is no merit in the appeal. The same is dismissed with costs.


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