Status of Unregistered Agreement in respect of Immovable Property

Whether an unregistered agreement to sell, accompanied by delivery of possession in favour of a person in possession can be received as evidence and as proof of the agreement and whether a suit for specific performance would lie on the basis of an unregistered agreement to sell:

The Section 17(1A) of the Registration Act, 1908 provides that “the documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after commencement of the Registration and Other Related laws( Amendment) Act, 2001 and such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A”. This section of the Registration Act specifically declares that if the agreement to sell is unregistered shall have no effect for the purpose of Section 53A of the Transfer of Property Act, 1882. It means that agreement to sell which is unregistered cannot be admissible as evidence. Section 53A of the Transfer of Property Act, 1882 deals with Part Performance where there must be a contract to transfer for consideration any immovable property between the transferor and transferee and the transferee taken possession of the property or any part thereof or being already in possession, continues in possession in part performance of the contract and the act of transferee has done something in part of the contract or willing to perform his part of the contract then transferor shall be debarred from enforcing against transferee. The main object or intent of this section is to prevent transferor from taking advantages on the account of non-registration of the document.

Under the provision of the section 53A, the transferee is entitled to resist any attempt on the part of the transferor to disturb transferee’s lawful possession under the contract of sale and his position either as a plaintiff or as a defendant should make no difference. The transferee can use the shield only as defendant and not as a plaintiff would defeat the very spirit of section 53A for it will be possible for an over-powering transferor to forcibly dispossess the transferee even against the convenants in the contract and compel him to go to the court as plaintiff.

On the other hand, Section 49 of the Registration Act 1908, deals with the effect of non-registration of documents required to be registered which says “No document required by section 17 [or by any provision of the Transfer of Property Act, 1882], to be registered shall

  • affect any immovable property comprised therein, or
  • confer any power to adopt, or
  • be received as evidence of any transaction affecting such property or

unless it has been registered:

[Provided that an unregistered document affection immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II if the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument”.

Section 49 of the registration Act is new and for the first time gives legislative sanction to the equitable doctrine of Part Performance. This section of Act is widely accepted on its own merits that a suit for specific performance can be lie on the basis of unregistered agreement to sell and can be admissible as evidence. The proviso of Section 49, which was an unregistered document, could be received as evidence of a contract in a suit for specific performance. The Hon’ble Justice Badar Durrez Ahmed and the Hon’ble Justice Siddharth Mridul agreed with the conclusion  for Section 49 of the Registration Act held by the Learned Single Judge where the unregistered agreement to sell could be received as an evidence in the case of Vinod Kumar & Anr. vs Ajit Singh.

The question that require to be answered are whether an unregistered agreement to sell, acquired by delivery of possession or executed in favour of a person in possession, i.e. an agreement that conceive of part performance, of an agreement to sell as conceived by Section 53A of the Transfer of Property Act, 1882, can be received in evidence as proof of the agreement and as whether a suit for specific performance would lie on the basis of such an unregistered agreement to sell. The object of Section 53A of the Transfer of Property Act, 1882 gives a right to the defendant to protect his possession as against transferor. It is equally available against person who claims under him such as heirs, assign and legal representative. This section is ordinally to be used as a defense and not as a weapon of attack.

The Hon’ble Punjab-Haryana High Court dismissed the appeal and expressed respectful disagreement with judgment in Gurbachan Singh V. Raghubir Singh where there is a conflict regarding legal position as  to whether suit for specific performance  can be decreed on the basis of unregistered agreement to sell in view of Section 17(1A) and the section 49 of the Registration Act. The conflicts between two Single Bench judgments came across to the court. In the case of Gurbachan Singh V. Raghubir Singh[6], the Hon’ble court held that agreement to sell, acquired by delivery of possession is inadmissible in evidence if it is not registered but in the matter of Birham Pal & Ors. V. Niranjan Singh & Ors. the Court held that on the basis of section 49 of the Registration Act, such an agreement can be form the basis of a suit for specific performance. These two judgments are contrary to each other and conflicting the legal position of two section of Indian Registration Act.

The Hon’ble Court opined that section 17(1A) merely declares that such an unregistered contract shall not be pressed into service for the purpose of Section 53(A) of the Transfer of Property Act, 1882. Section 17(1A) of the Registration Act, 1908, does not, whether in specific terms or by necessary intent, prohibit the filing of a suit for specific performance based upon an unregistered agreement to sell, that records delivery of possession or is executed in favour of a person to whom possession is delivered and the proviso to Section 49 of the Indian Registration Act, 1908 put paid to any argument to the contrary. The Hon’ble Court held that (a) a suit for specific performance, based upon an unregistered contract/agreement 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, legitimizes 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.

It is concluded that on the basis of above judgments given by Hon’ble Courts, legitimized the unregistered agreement to sell as it could be lie in a suit for specific performance and admissible in evidence regarding with proviso of Section 49 of the Registration Act. The unregistered agreement to sell can form the basis of suit of specific performance and be led into evidence as proof of the agreement or part performance of a contract. The Section 53A is generally to be used as a defense and not as a weapon where a defendant is entitle to enjoy the right to protect his possession against transferor or against his heir or assign or legal representative.

Court Fees under Section 138 of Negotiable Instrument Act, 1881

Court Fees or Stamp Duty that is to be paid whiling filing the case under Section 138 of Negotiable Instruments Act, 1881 and subjected to quantum of amount that is due. Kindly refer the following Court Fees under said Act –

For Cheque Amount                                                               Court Fees

1 INR 0/- to 50,000/-                                                             INR 200/-

2 INR 50,000/- to 2,00,000/-                                             INR 500/-

3 INR 2,00,000/- AND ABOVE                                            INR 1000/-

 

Know Your Rights: Not Every Traffic Police Can Fine You and Its Illegal to Take Out Keys under The Indian Motor Vehicle Act, 1932

If a traffic constable has stopped your vehicle and ordering you to show papers then let me tell you, you may deny doing so. Not only that, you can complaint to his senior authorities as well. According to the traffic law , Traffic officers of and above the rank of assistant sub-inspector are authorised to give away traffic violation challan or notices, which are for spot fines. Officers of the rank of ASI (one-star), sub-inspector (two-star), inspector (three-star) are authorised to collect spot fines. Any officer below the rank of ASI, which comprises constables and head constables, can only note down the nature of violation and vehicle number, and submit the information to the traffic enforcement automation centre.

surprised, rnt you? Today we have compiled a list of shocking traffic rules which you must follow when you witness any kinda wrong doing by a traffic police around you. Lets have a look at them below,

Traffic Fine Rules in India

Traffic constable can not arrest or seize your vehicle

Yes, you read it right. Traffic constable can not arrest or seize your vehicle, he can not even ask for your pollution papers as its RTO’s job. He is not supposed to take out keys from your vehicle too.

The Indian Motor Vehicle Act, 1932

Traffic officers of and above the rank of assistant sub-inspector are authorized to give away traffic violation challans or notices, which are for spot fines. Officers of the rank of ASI (one-star), sub-inspector (two-star), inspector (three-star) are authorized to collect spot fines. Constables can only help them.

Traffic Police can never always seize your license

Traffic Police can seize your license only for jumping red lights, overloading, carrier vehicle carrying passengers, drink and drive, talking over mobile while driving and for high speed driving.

How much money can be fine by traffic police

Only ASI and SI can fine more than 100 rupees, Head constable can fine only upto 100 rupees and not more than that. As we said before constable can not fine you for any offence.

Recognize traffic police rank by their uniform color

In traffic police from constable to ASI wear white color uniform and inspector and people above him wear khaki color uniform. While imposing fine they should be in their uniform.

Original Documents which you need to have

These are the list Original Documents which you need to have while checking:

Driving licence and pollution under control certificate should be original and you may have copy of RC and insurance.

Helmet not required for Sikhs and surgery on ear

We always think that helmet is not required for Sikhs but thats wrong. Helmet is not required for Sikhs and people with surgery on ear which is also called Mestoid surgery.

On spot fine

On spot fine is done when you break any rule mentioned above and if you are not in a condition to pay challan then police will take your license.

Notice Chalan

If someone has broke the rules and ran away from police then police notes down his number and send a chalan to his place.

So these are the rules for traffic police and next time if you see them breaking rules then do complaint to senior officials.

Right to Legal Representation – The Real Estate (Regulation and Development) Act, 2016

 

The most awaited RERA Bill now becomes the separate ACT i.e. The Real Estate (Regulation & Development) Act, 2016.There are total 92 Sections in RERA Act, 2016. The most interesting point is from now Chartered Accountant, Cost & Management Accountant and Company Secretary also have right to present the case before Appellate Tribunal or the Regulatory Authority or the Adjudicating Officer, as the case may be. Any Individual also have right to present his case before the said Tribunal.

Section 56 – Right to Legal Representation – The applicant or appellant may either appear in person or authorise one or more  Chartered Accountants or Company Secretaries or Cost Accountants or Legal Practitioners (Advocate) or any of its officers to present his or its case before the Appellate Tribunal or the Regulatory Authority or the adjudicating officer, as the case may be.

Kindly noted that as per Section 53(4) The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examinations of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or directing it ex parte; and

(g) any other matter which may be prescribed.

Section 53(3) The Appellate Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.

Section 53 (5) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code, and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

 

 

 

 

 

 

 

 

2015 in review

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 11,000 times in 2015. If it were a concert at Sydney Opera House, it would take about 4 sold-out performances for that many people to see it.

Click here to see the complete report.

Real Estate (Regulation & Development) Bill, 2015

The Union Cabinet has approved the Real Estate (Regulation & Development) Bill, 2015. The Bill will now be taken up for consideration and passing by the Parliament. In a statement the government said the Bill will provide uniform regulatory environment to ensure speedy adjudication of disputes and orderly growth of the real estate sector. “It will boost domestic and foreign investment in the real estate sector and help achieve the objective of Government of India to provide ‘Housing for All’ by enhanced private participation.” The Bill, the government says, aims at restoring the confidence of consumers in the sector by institutionalizing transparency and accountability in real estate and housing transactions which will further enable the sector to access capital and financial markets.

The salient features of the Bill are as under:

  1. Applicable both for commercial and residential real estate projects.
  2. Establishment of ‘Real Estate Regulatory Authority’ in States/UTs to regulate real estate transactions.
  3. Registration of Real Estate Projects (projects on at least 500 sq metres of area or with eight flats will have to be registered with the proposed regulatory authority) and real estate agents with the Authority.
  4. Mandatory disclosure of all registered projects, including details of the promoter, project, layout plan, land status, approvals, agreements along with details of real estate agents, contractors, architect, structural engineer etc.
  5. Deposit of specified amount in a separate bank account to cover the construction cost of the project for timely completion of the project. (deposit at least 70% of the sale proceeds, including land cost, in an escrow account to meet construction cost)
  6. Builders will be liable for structural defects for Five years.
  7. Formation of Residents Association is compulsory within 3 months of the allotment of a majority of units in a project.
  8. Establishment of Fast Track Dispute Resolution Mechanisms for settlement of disputes through Adjudicating Officers and Appellate Tribunal.
  9. Civil Courts Jurisdiction Prohibited from taking up matters defined in Bill, however, Consumer Court at District Level allowed to hear Real Estate Matters.
  10. Promoters barred from changing plans and design without consent of consumers.
  11. Provision of Appropriate Government to make rules for the matters specified in the Bill, and the Regulatory Authority to make necessary regulations.

Legal Documents to be checked before buying Flat of Resale

Source: Legal Documents to be checked before buying Flat of Resale