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TMI Blog2023 (4) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... an original plaintiff (hereinafter referred to as "original plaintiff") instituted civil suit being O.S. No. 199 of 2014 for specific performance of the Agreement to Sell dated 10.09.2013. After the chief examination of the plaintiff as PW1, on the application filed by the appellant - original defendant, a preliminary issue was framed by the learned Trial Court on the admissibility of the Agreement dated 10.09.2013 in evidence. It was the case on behalf of the defendant that in view of the Tamil Nadu Amendment Act No. 29 of 2012 to the Indian Registration Act, under which the instruments of agreement relating to sale of immovable property of the value of Rs. 100/- and upwards is compulsorily required to be registered, the said unregistered document shall be inadmissible in evidence. On the other hand, relying upon Section 49(a) and (c) of the Act, it was submitted that an unregistered Agreement to Sell can be admitted as evidence of a contract in a suit for specific performance. The learned Trial Court held the preliminary issue in favour of the defendant and against the plaintiff by observing that the unregistered Agreement dated 10.09.2013 shall not be admissible in evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) of the Registration Act with reference to Section 1(b) and (c), that an agreement/document simplicitor merely creating a right to obtain another document, was saved from compulsory registration. It is submitted that thus prior to the amendment of 2012 and after the amendment, an Agreement to Sell simplicitor or reciting payment of earnest money was not required to be registered. For these savings, an Agreement to Sell would also have required registration, as it is a document affecting immovable property. It is submitted that now after the 2012 amendment, an Agreement to Sell for Rs. 100/- or upwards is to be compulsorily registered. An agreement recital for payment of advance is also to be compulsorily registered as the "explanation" in Section 17(2) introduced by 1927 amendment after Dayal Singh's case, has been omitted by the present amendment. The advance amount and sale consideration are part and parcel of the transactions between the parties. 3.4 It is submitted that as per Section 49(a) and (c) of the Registration Act, a document requires to be registered, if not registered shall not affect the immovable property comprised therein and shall not be received as evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required by the Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under ChapterII of the Specific Relief Act or as evidence of any collateral transaction not required to be affected by registered instrument. 4.1 It is submitted that as rightly observed and held by the Hon'ble High Court though Section 17(1) of the Registration Act has been amended by the Tamil Nadu Act, 2012 by inserting Section 17(1)(g), making the Agreement to Sell/ Agreement affecting any immovable property compulsorily required to be registered, there is no corresponding amendment to Section 49 more particularly proviso to Section 49 of the Registration Act. 4.2 It is further submitted that even the object and purpose of Tamil Nadu Amendment Act, 2012 more particularly inserting Section 17(1) (g) is required to be considered which has been elaborately dealt with and considered by the Hon'ble High Court in the impugned judgment and order. It is submitted that a perusal of statement of objects and reasons to the Act No. 29 of 2012 would suggest that primarily the amendment has been introduced by the State of Tamil Nadu by reason of the fact that ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) no testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this subsection any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(1A) 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 Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mortgage money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. [Explanation.-A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]" 8. By Tamil Nadu Amendment Act, 2012, Section 17(1)(g) has been inserted and "explanation" to Section 17(2) has been omitted. Section 17(1) (g) as inserted by Tamil Nadu Amendment Act, 2012, reads as under: "17(1)(g) instruments of agreement relating to sale of immovable property of the value of one hundred rupees and upwards." 9. 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 des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement, 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. 13. 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 document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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