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2012 (10) TMI 1175

t to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession shall not be dismissed for want of registration of the contract/agreement; - (b) the proviso to Section 49 of the Registration Act, legitimises such a contract to the extent that, even though unregistered, it can form the basis of a suit for specific performance and be led into evidence as proof of the agreement or part performance of a contract. - R.S.A.No.4946 of 2011 - Dated:- 12-10-2012 - Hon'ble Mr. Justice Rajive Bhalla And Hon'ble mr. Justice rakesh kumar jain Mr. V.K.Jindal, Advocate for the appellants. Mr. R.S.Tacoria, Mr. Bhag Singh Advocate for responden .....

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08 (hereinafter referred to as 'the 1908 Act') and Section 53A of the Transfer of Property Act, 1882 (hereinafter referred to as 'the 1882 Act') and the the opinion recorded in Gurbachan Singh vs. Raghubir Singh, 2010(2) Punjab Law Reporter 511 and Birham Pal and others vs. Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136, which are in apparent conflict. The judgment in Gurbachan Singh vs. Raghubir Singh (supra), holds that an agreement to sell accompanied by delivery of possession is inadmissible in evidence if it is not registered and, therefore, a suit for specific performance based upon such an unregistered agreement, is not maintainable. The opinion recorded in Birham Pal and others vs. Niranjan .....

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art thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possessi .....

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the purpose of Section 53A of the 1882 Act. Section 17(1A) reads as follows:- "Section 17(1A) of Indian Registration Act, 1908 The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Law (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A. Section 17(1A) of the 1908 Act declares in no uncertain terms if a contract executed in part performance of an agreement is unregistered, it shall have no effect .....

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908, particularly the proviso to Section 49 of the Indian Registration Act, in our considered opinion, leaves no ambiguity that, though, a contract accompanied by delivery of possession or executed in favour of a person in possession, is compulsorily registrable under Section 17(1A) of the Registration Act, 1908, but the failure to register such a contract would only deprive the person in possession of any benefit conferred by Section 53A of the 1882 Act. The proviso to Section 49 of the Indian Registration Act clearly postulates that non-registration of such a contract would not prohibit the filing of a suit for specific performance based upon such an agreement or the leading of such an unregistered agreement into evidence. A suit for spec .....

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