AMEER MINHAJ versus DIERDRE ELIZABETH (WRIGHT) ISSAR AND ORS.

Citation: [2018] 5 S.C.R. 173 · Decided: 04-07-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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AMEER MINHAJ
v.
DIERDRE ELIZABETH (WRIGHT) ISSAR AND ORS.
(Civil Appeal No. 18377 of 2017)
JULY 04, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Registration Act, 1908 – s. 17(1A) – Transfer of Property
Act, 1882 – s. 53A – Document of which registration compulsory –
On facts, unregistered agreement to sell, on the basis of which relief
of specific performance claimed, registered power of attorney and
general power of attorney – Admissibility in evidence – Trial court
held that all the three documents could be marked and received as
evidence – However, the High Court set aside the same – Held:
Document is required to be registered, but if unregistered, can still
be admitted as evidence of a contract in a suit for specific
performance – In view thereof, the document though exhibited, could
be received as evidence of a contract in a suit for specific
performance and nothing more – As regards, the General Power of
Attorney, being a registered document, the trial court justified in
holding that there is a legal, rebuttable presumption that the same
has been duly stamped – Furthermore, the agreement to sell was
executed prior to coming into force of s. 17(1A) – Hence, the same
was not required to be compulsorily registered at the time of its
execution – Even if it was required to be registered, the same could
be received as evidence for a limited purpose – Thus, the order of
the trial court is restored – Genuineness, validity and binding nature
of the document or whether it was hit by the provisions of the 1882
Act or 1899 Act, to be adjudicated at the appropriate stage – Stamp
Act, 1899.
Allowing the appeal, the Court
HELD: 1.1 On a plain reading of s. 17(1A) of the
Registration Act, 1908 it is amply clear that the document
containing contract to transfer the right, title or interest in an
immovable property for consideration is required to be registered,
if the party wants to rely on the same for the purposes of Section
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SUPREME COURT REPORTS
[2018] 5 S.C.R.
53A of the Transfer of Property Act, 1882 to protect its possession
over the stated property. If it is not a registered document, the
only consequence provided in this provision is to declare that
such document shall have no effect for the purposes of the said
Section 53A of the 1882 Act. [Para 10][180-F-G]
1.2 A document is required to be registered, but if
unregistered, can still be admitted as evidence of a contract in a
suit for specific performance. In view thereof, the conclusion
recorded by the High Court in the impugned judgment that the
sale agreement is inadmissible in evidence, will have to be
understood to mean that the document though exhibited, will bear
an endorsement that it is admissible only as evidence of the
agreement to sell under the proviso to Section 49 of the 1908
Act and shall not have any effect for the purposes of Section 53A
of the 1882 Act. In that, it is received as evidence of a contract in
a suit for specific performance and nothing more.[Para 11][181-
F-G]
1.3 Reverting to the registered General Power of Attorney,
the same has been executed by the original defendant No.1 -
predecessor in title of respondent Nos.1 & 2 (defendant Nos.3
& 4), in favour of respondent No.3 (defendant No.2). Being a
registered document, the trial court was justified in observing
that there is a legal, rebuttable presumption that the same has
been duly stamped. As observed by the trial court, the question
as to whether the document is hit by the provisions of the 1882
Act or the 1899 Act can be decided after the parties adduce oral
and documentary evidence. The High Court, therefore, should
have stopped at that instead of analysing the said instrument by
invoking the principle of incorporation by reference to the
agreement to sell dated 12th November, 1995. For, the appellant
(plaintiff) is not a party to the said document. Indeed, the executor
of the document – original defendant No.1 and the defendant No.2
in whose favour the same has been executed, are parties to the
present suit. The principal document, namely, the agreement to
sell dated 12th November, 1995, as rightly noticed by the Courts
below, was executed prior to coming into force of Section 17(1A)
of the 1908 Act. That provision has been made applicable
prospectively. Hence, the same was not required to be
compulsorily registered at the time of its execution. Even if it
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was required to

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