TMI Blog1990 (11) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional validity of any of the provisions of Chapter XX-C of the Act and also gave up the contention that the requirement of the rule of audi alteram partem should be read into the provisions of section 269UD of the Act because such a contention had the implication of going into the constitutional validity of the said provision. The property in question bearing Nondh No. 478 is situate in Ward No. 1 in Nanpura area of Surat. The case of the petitioner is that this property was purchased by the petitioner from respondent No. 4 by a sale deed dated May 29, 1989, which was lodged for registration in the office of respondent No. 1 on May 30, 1989. According to the petitioner, he had paid an earnest amount of Rs. 2,21,000 on May 9, 1989, towards the total consideration of Rs. 25,00,000 and had also given post-dated cheques for various amounts of the dates June 15, 1989, June 30, 1989, July 15, 1989 and July 30, 1989, for the remaining amount of consideration. Chapter XX-C of the Act was made applicable to the areas declared by the State as "Surat Urban Development Area" in the city of Surat from June 1, 1989, by Notification No. SO 339 (E), dated May 8, 1989, issued under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration. The appropriate authority, by their order dated August 26, 1989, ordered the purchase of the property by the Central Government for the net amount of Rs. 24,07,600 which had the effect of vesting the property in the Central Government free from all encumbrances from the date of the order, in view of the provisions of section 269UE of the Act. The appropriate authority, by letter dated September 6, 1989, which is at annexure 'H' to the petition, called upon the vendors, respondent No. 4, to hand over the possession of the property to the appropriate authority on September 18, 1989. It appears that, in response to that notice, respondent No. 4 had sworn a declaration on September 14, 1989, referring to the purported waiver/novation of the specific condition in the sale deed dated May 30, 1989, that such possession shall be handed over after receipt of full consideration. Though the possession receipt purports to have been executed on May 31, 1989 (xerox copy of annexure 'D'), there is no reference to that document under which the possession was purported to have been handed over even in the said declaration at annexure 'I' which was sworn to by respondent No. 4 on September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made applicable, all that which were within the province of the transferor for the purpose of transferring the ownership of the property to the transferee were already done by executing the sale deed on May 29, 1989 (in the xerox copy produced at annexure 'B' the date 30th is changed to 29th in ink) which was lodged for registration on May 30, 1989. It was submitted that registration was merely a formality which the Registrar was bound to complete since the document was lodged prior to June 1, 1989. Under section 54 of the Transfer of Property Act, sale of immovable property is defined as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Therefore, transfer of ownership is an essential ingredient of sale. It will, therefore, be appropriate to examine the material terms of the document executed on May 29, 1989, a xerox copy whereof is produced at annexure 'B' to the petition. After narrating the relevant particulars in respect of the property, the document records that the transferor was, by this deed, selling the property for a sum of Rs. 25,00,000 which was to be paid by the transferee as promised by him on the various dates mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered, the terms of the deed negative the theory of any transfer of the property having been effected prior to June 1, 1989. As per the terms of the deed, even the possession was not to be transferred before the last payment was received towards the consideration amount. We, therefore, hold that no transfer of property by way of sale had taken place prior to June 1, 1989, so as to make the provisions of Chapter XX-C of the Act inapplicable to the said property as contended by the petitioner. We may now proceed to deal with the next contention canvassed on behalf of the petitioner that, since the word "transfer" as defined in section 269UA(f) of the Act includes allowing the possession of such property to be taken or retained in part performance of a contract as contemplated in section 53A of the Transfer of Property Act and since the possession of the property was handed over to the transferee on May 31, 1989, under the possession receipt dated May 31, 1989, a xerox copy whereof is at annexure 'D', it should be held that a transfer as defined in clause (f) of section 269UA had already taken place prior to June 1, 1989, making the provisions of Chapter XX-C of the Act inapplic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion was to be handed over only after the receipt of the entire amount of consideration. Even in item No. 8 pertaining to the nature of interest and right proposed to be transferred, while mentioning that the ownership was proposed to be transferred, there is no reference to any possession having been transferred. Even against sub-item (iv) of item No. 8 pertaining to the possession taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882, it is mentioned that it was not applicable. In fact, by submitting a copy of the sale deed dated May 30, 1989, the parties had put up their definite case that the possession was not to be transferred until the amount of total consideration was received by the transferor. In our mind, there is no doubt that, if the possession was transferred on May 30, 1989, and the possession receipt was in fact executed on that day, then that fact would have surely found reference in the statement filed on June 14, 1989, before the appropriate authority in Form No. 37-I by the parties. It appears that it was never the case of the parties before the appropriate authority, prior to the pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration was received by the transferor under the post-dated cheques. Therefore, the contention that the provisions of Chapter XX-C of the Act were inapplicable on the ground that possession was transferred under a written document prior to June 1, 1989, has no substance. It will be noticed from the provisions of section 53A of the Transfer of Property Act that the protection given to the transferee who has taken possession of the property in part performance of the contract is against the transferor or any person claiming under him. Such transferor or any person claiming is debarred from enforcing against such transferee any right in respect of the property of which the transferee has taken possession. Section 53A of the Transfer of Property Act does not provide that, under the circumstances stated therein, a good title passes to the transferor. Rights available under the said provision against the transferor cannot defeat the statutory provisions under which the property can be acquired or statutorily purchased. Under section 269UC of the Act, it has been provided that, notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time being in force, no registering officer appointed under the Registration Act, 1908, shall register any document which purports to transfer immovable property exceeding the value prescribed under section 269UC unless a certificate from the appropriate authority that it has no objection to the transfer of such property for an amount equal to the apparent consideration therefor as stated in the agreement for transfer of the immovable property in respect of which it has received a statement under sub-section (3) of section 269UC is furnished, along with such document. In view of this, the Sub-Registrar was justified in not registering the document which was lodged on May 30, 1989, after June 1, 1989. The argument, however, was that since the scheme of Chapter XX-C could not be made applicable in its entirety since the sale deed was already executed prior to June 1, 1989, the Sub-Registrar could not have refused the registration on the footing that the scheme was made applicable from June 1, 1989. There is absolutely no reason to hold that the scheme could not be made applicable in the present case in its entirety. All that the provision of section 269UC envisages is bringing about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot arise until a document is registered. When a document is not registered, the immovable property will not be transferred in view of the provisions of section 54 of the Transfer of Property Act and section 47 of the Registration Act. The Supreme Court, in the case of Ram Saran Lall v. Domini Kuer, AIR 1961 SC 1747, held that section 47 of the Registration Act has nothing to do with the completion of the registration and, therefore, nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed cannot be said to have been completed earlier because by virtue of section 47, the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. The provisions of section 47 would apply to a document only after it has been registered. This decision of the Supreme Court was followed in the case of Hiralal Agrawal v. Rampadarath Singh, AIR 1969 SC 244, in which the Supreme Court negatived the contention that, under section 47 of the Registration Act, once registration is effected, a title under the sale deed relates back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, it appears that, on June 2, 1989, the Income-tax Officer had certified to the Sub-Registrar that no liability was outstanding against the transferor. During the course of the hearing of this petition, a xerox copy of letter dated July 4, 1989, from the Income-tax Officer to the Sub-Registrar was put on record by consent and it appears from that letter that the Income-tax Officer informed the Sub-Registrar that the certificate was wrongly issued on June 2, 1989, and that it may be treated as cancelled. Under section 230A of the Act, it has been, inter alia, provided that notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of clause (a) to clause (e) of sub-section (1) of section 17 of the Indian Registration Act, 1908, purports to transfer, assign, limit, or extinguish the right, title or interest of any person to or in any property valued at more than two lakhs rupees, no registering officer appointed under that Act shall register any such document, unless the Assessing Officer issues the certificate as provided therein. Admittedly, no such certificate was issued prior to June 1, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g regard to the facts of the case, no transfer of property had taken place prior to June 1, 1989, being the date on which Chapter XX-C of the Act applied to the said area in which the property is situated and, therefore, the appropriate authority has passed the order dated August 26, 1989, in accordance with the provisions of law and the order cannot be assailed on the grounds canvassed on behalf of the petitioner. On the order being passed, the property has vested in the Central Government under section 269UE of the Act and the petitioner has already received the amount of consideration under the provisions of Chapter XX-C of the Act. The amount of interest ordered to be paid to respondent No. 2 by an interim order dated October 25, 1989, which was passed in this matter was made non-refundable irrespective of the result of the petition and that interim order was upheld by the Supreme Court by its order dated May 2, 1990, passed in I. A. No. 3 of 199 in Civil Appeal No. 1714 of 1990. Therefore, there is no substance in the contention canvassed on behalf of the petitioner by learned counsel Mr. J. P. Shah that the amount of interest ordered to be paid under the interim order should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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