R. HEMALATHA versus KASHTHURI

Citation: [2023] 2 S.C.R. 834 · Decided: 10-04-2023 · Supreme Court of India · Disposal: Dismissed
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
[2023] 2 S.C.R. 834
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R. HEMALATHA
v.
KASHTHURI
Civil Appeal No. 2535 of 2023
APRIL 10, 2023
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Registration Act, 1908 – ss.17(1A), Proviso to s.49 – Specific
Relief Act, 1877 – Chapter-II – Suit for specific performance –
Unregistered Agreement to Sell – Admissibility in evidence – Held:
As per proviso to s.49, an unregistered document affecting immovable
property and required by Registration Act or the Transfer of Property
Act to be registered, may be received as evidence of a contract in a
suit for specific performance under Chapter-II of the 1877 Act, or
as evidence of any collateral transaction not required to be effected
by registered instrument, however, subject to s.17(1A) of the
Registration Act – In the present case, it is not the case on behalf of
either of the parties that Agreement to Sell in question would fall
under the category of document as per s.17(1A), Registration Act –
Therefore, High Court rightly held relying upon proviso to s.49 that
the unregistered Agreement to Sell in question shall be admissible
in evidence in a suit for specific performance and the proviso is
exception to the first part of s.49 – Appeal fails – Registration (Tamil
Nadu Amendment) Act, 2012 – Transfer of Property Act, 1882 –
ss.53, 53A – Specific Relief.
Registration Act, 1908 – s.17(1)(g) – Registration (Tamil
Nadu Amendment) Act, 2012 – Effect of – Discussed.
Dismissing the appeal, the Court
HELD: 1.1 By Tamil Nadu Amendment Act, 2012, Section
17(1)(g) has been inserted and “explanation” to Section 17(2)
has been omitted. Thus, on and after the Tamil Nadu Amendment
Act, 2012, as per Section 17(1)(g), instrument of agreement
relating to sale of immovable property of the value of Rs.100/-
and upwards is required to be registered compulsorily. However,
despite the same and despite the “explanation” to sub-section
(2) of Section 17 has been omitted, there is no corresponding
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amendment made to Section 49 of the Registration Act. Thus, as
per proviso to Section 49, an unregistered document affecting
the immovable property and required by Registration Act 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, or as evidence of any collateral transaction not required to
be effected by registered document. [Paras 8-10][843-F-H; 844-
E-F]
1.2 At this stage, the primary statement of objects and
reasons to the Tamil Nadu Amendment Act, 2012, is also required
to be referred to and considered. The primary statement of
objects and reasons seem to suggest that amendment has been
introduced by the State of Tamil Nadu bearing in mind the loss to
the exchequer as public were executing the documents relating
to sale of immovable property etc. on white paper or on stamp
paper of nominal value. The proviso to Section 49 came to be
inserted vide Act No.21 of 1929 and thereafter, Section 17(1A)
came to be inserted by Act No. 48 of 2001 with effect from
24.09.2001 by which the documents containing contracts to
transfer or consideration any immovable property for the purpose
of Section 53 of the Transfer of Properties Act is made
compulsorily to be registered if they have been executed on or
after 2001 and if such documents are not registered on or after
such commencement, then there shall have no effect for the
purposes of said Section 53A. So, the exception to the proviso to
Section 49 is provided under Section 17(1A) of the Registration
Act. Otherwise, the proviso to Section 49 with respect to the
documents other than referred to in Section 17(1A) shall be
applicable. [Paras 11, 12][844-F-H; 845-A-B]
1.3 Under the circumstances, as per proviso to Section 49
of the Registration Act, an unregistered document affecting
immovable property and required by Registration Act or the
Transfer of Property Act 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, or as evidence of any
collateral transaction not required to be effected by registered
instrument, however, subject to Section 17(1A) of the Registration
Act. It is not the case on behalf of either of the parties that the
R. HEMALATHA v. KASHTHURI
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
document/ Agreement to Sell in question would fall under the
category of document as per Section 17(1A
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