G.Veeramani vs N.
Soundaramoorthy on 25 October, 2019
G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
C.R.P.(MD) N
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2019
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
C.R.P.(PD) (MD) No.1414 of 2012
and M.P.No.2 of 2012
G.Veeramani ... Petitioner/1st Defendan
-vs-
1.N.Soundaramoorthy
2.G.Sundarapandian
3.The Sub Registrar,
Kodavasal
Main Road, Kodavasal
Within the jurisdiction of
District Munsif of Nannilam
4.The District Registrar,
Mayiladudurai
Having office at District Registrar Office,
Mayildudurai
Within the jurisdiction of
District Munsif of Mayildudurai
5.The Government of Tamilnadu
Represented by District Collector,
Thanjavur,
Having Office at
Cutchery Road, Thanjavur,
Within the jurisdiction of
District Munsif of Thanjavur.
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G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
6.V.Balamurugan
7.Shanmugaraj
http://www.judis.nic.in
1/10
C.R.P.
8.Venkatesh ... Responden
/Defendan
Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India against the order dated 12.08.2011 passed in
a memo filed by the first respondent and the plainti
391/2009 on the file of the Ist Additional Di
Kumbakonam.
For Petitioner :Mr.S.Siva Thilakar
For Respondent : Mr.R.Subramanian
ORDER
This Civil Revision Petition has been filed against the fair and final order passed by the Court below
dismissing the application filed by the petitioner/1st defendant seeking to reject the unregistered
agreement of sale, which was sought to be marked by the first respondent/plaintiff.
2. The first respondent/plaintiff filed a suit for specific performance and for a relief of permanent
injunction based on an unregistered agreement of sale dated 07.05.2006. As per the case of the
plaintiff, pursuant to the agreement of sale, the possession of the property was also handed over to
the plaintiff. The pleadings were completed, issues were framed and the case was at the stage of
trial.
http://www.judis.nic.in
3. The plaintiff was in the box and the unregistered agreement of sale was sought to be marked as a
document. This was objected by the petitioner/defendant on the ground that the plaintiff had
specifically pleaded part performance under Section 53(A) of the Transfer of Property Act
(hereinafter referred to as 'the Act') and therefore, the sale agreement must be necessarily registered
and without the same, the same should not be marked as a document. The Court below took into
consideration the fact that the plaintiff had given up the relief of injunction and was only
prosecuting the suit for the relief of specific performance. Therefore, the Court below took into
consideration the judgment of the Hon'ble Supreme Court in S.Kaladevi v. V.R.Somasundaram and
others reported in 2010(2) TLNJ 471 and came to a conclusion that even an unregistered sale
agreement can be marked and it can be looked into for collateral purpose.
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G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
4. The learned counsel appearing on behalf of the petitioner submitted that even though the first
respondent/plaintiff had given up the relief of permanent injunction, the entire pleadings in the
plaint shows that the plaintiff had taken possession of the property pursuant to the sale agreement
and therefore, the case will squarely come under Section 53(A) of the Act. The learned
http://www.judis.nic.in counsel submitted that the agreement cannot be admitted without the same
being registered. The learned counsel, therefore, submitted that the Court below went wrong in
rejecting the objections made by the petitioner.
5. Per contra, the learned counsel appearing on behalf of the first respondent/plaintiff submitted
that the plaintiff has specifically given up the relief of permanent injunction and the suit is
prosecuted only for the relief of specific performance. The learned counsel submitted that the Court
below took into consideration the impact of Section 53(A) of the Act and has given a categorical
finding that the unregistered sale agreement can be marked and can be relied upon for collateral
purposes. Hence, absolutely, there is no ground to interfere with the finding of the Court below and
this Civil Revision Petition is liable to be dismissed.
6. This Court has carefully considered the submissions made on either side and perused the
materials available on record.
7. The first respondent/plaintiff had initially filed a suit claiming for the relief of specific
performance and for permanent injunction. It is true that the first respondent/plaintiff had claimed
http://www.judis.nic.in possession of the property pursuant to the agreement of sale dated
07.05.2006 executed in his favour. The relief of permanent injunction was subsequently given up.
What is now being prosecuted by the first respondent/plaintiff is only the relief of specific
performance.
8. Under such circumstances, it should be seen whether the agreement of sale requires to be
registered in order to be marked before the Court below and relied upon. It is seen that this
unregistered agreement of sale had come into force prior to the amendment of the Registration Act,
1908 by Tamil Nadu Amendment Act, 29 of 2012. Therefore, at that point of time, there was no
requirement for registration of an agreement of sale. The first respondent/plaintiff is not seeking his
right under Section 53(A) of the Act, since he has already given up the right of permanent
injunction.
9. This Court had an occasion to consider the impact of Tamil Nadu Amendment Act, 29 of 2012, in
a case, where, a suit for specific performance was laid based on an unregistered agreement of sale.
This Court in D.Devarajan v. Alphonsa Mary and another reported in 2019 (2) CTC 290 has held as
follows:
http://www.judis.nic.in “7.The learned counsel for the Appellant relied heavily on the
Proviso to contend that an unregistered Agreement affecting immovable property is
no bar to be received as evidence in a Suit for Specific Performance. This is an aspect
that has come before Andhra Pradesh High Court in Suresh Babu case. The setting is
substantially identical, except for a marginal variance where the case came up before
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G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
the Andhra Pradesh High Court against an Order dismissing an Application of the
Defendant to reject the Suit under Order 7 Rule 11, C.P.C. The State of Andhra
Pradesh had brought in an identical amendment to Section 17 of the Registration
with its own Section 17(1)(g). It reads in pari materia with Section 17(1)(g) as
amended by Tamil Nadu and in fact is a forerunner to Tamil Nadu Amendment.
Section 17(1)(g) reads:
“Section 17: Documents of which registration is compulsory – (1)
(a) to (f) ......
(g) instruments of Agreement relating to sale of immovable property of the value of
one hundred rupees and upwards.” The point was whether the Proviso to Section 49
admits an unregistered Agreement as an evidence in a Suit for Specific Performance.
The Andhra Pradesh High Court answered this in the affirmative. This Court is in concurrence with
the view. And, it is obvious.
8.There was some arguments on http://www.judis.nic.in Section 10 of the Indian Contract Act, 1872
and what emerges out of Section 10 can be stated. It reads:
“Section 10. What Agreements are Contracts. - All Agreements are Contracts, if they
are made by the free consent of parties competent to Contract, for a lawful
consideration and with a lawful object, and are not hereby expressly declared to be
void.
Nothing herein contained shall affect any law in force in India and not hereby
expressly repealed, by which any Contract is required to be made in writing or in the
presence of witnesses, or any law relating to the registration of documents.” The
Second Paragraph of Section 10 only insists that where any formalities requires that a
Contract be in writing or must be attested or registered, the same shall be done. In
other words, Section 10 even as it defines in the First Paragraph 'what Agreements
are Contracts' also goes to state in the Second Paragraph that the ingredients
stipulated for the formation of a valid Contract should not be stretched as exempting
any statutory formalities prescribed for the formation of the Contract. Here, the
second paragraph itself requires that the need for registration in terms of the
Registration Act, therefore, needs to be complied with.
9.However, the consequence of non-
registration does not operate as a total bar to http://www.judis.nic.in look into the Contract, as the
Proviso to Section 49 itself carves out two exceptions: Where it can be used for any collateral
purposes and where it can be used as an evidence in a Suit for Specific Performance. When the
statute itself prescribes a legislative route within its Scheme, that cannot be denied to the Appellant
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G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
herein.”
10. From the above judgment, it is clear that even after the amendment, non registration of an
agreement of sale does not operate as a total bar to look into the contract, since proviso to Section
49 has carved out an exception. The proviso specifically provides that an unregistered agreement of
sale can be used for any collateral purpose and it can be used as an evidence in a suit for specific
performance. When such is the position of law, even after the amendment of the Registration Act,
the plaintiff, in the present case, stands on a better footing. Therefore, this Court does not find any
illegality or infirmity in the order passed by the Court below and the Court below has given cogent
reasons for rejecting the objections raised by the defendant and this Court does not find any reasons
to interfere with the same.
11. In the result, this Civil Revision Petition is dismissed and the Court below is directed to complete
the proceedings in http://www.judis.nic.in O.S.No.391/2009 within a period of three months from
the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petition
is closed.
25.10.2019
Index : Yes/No
Internet : Yes
RR
To
The District Munsif Court,
Periyakulam.
http://www.judis.nic.in
N.ANAND VENKATESH, J.
RR
C.R.P.(PD) (MD)No.1414 of 2012
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G.Veeramani vs N.Soundaramoorthy on 25 October, 2019
25.10.2019
http://www.judis.nic.in
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