DEVI SINGH KUSHWAH Vs. SURAJBHAN SINGH GURJAR

JUDGEMENT

(1.) This writ petition by defendant under Art. 227 of the Constitution of India is directed against the order dated 28/07/2016 passed in civil suit No.40A/2015 by the trial Court. The application objecting to the admissibility of the agreement to sell dated 16/03/2015 for want of registration in view of section 17(1)(f) of the Registration Act, 1908 (For short, '1908 Act') under the Madhya Pradesh Amendment Act, 2009 (in section 17 of the Act) which reads as under :

(2.) Learned senior counsel for the petitioner while criticizing the impugned order contends that once by way of Madhya Pradesh State amendment, section 17(1)(f) has been incorporated in the 1908 Act with the assent of the President of India, therefore, in the light of Art. 254 of the Constitution of India, the State amendment shall prevail over the existing proviso to section 49 of the 1908 Act. Hence, for want of registration of the agreement to sell, the same cannot be used as a piece of evidence in a suit for specific performance of an agreement to sell. According to him, the proviso to section 49 of the 1908 Act has no relevance or applicable. Learned senior counsel has relied upon the judgment of the Honourable Supreme Court reported in (2011) 7 SCC 616 A. Subhash Babu Vs. State of Andhra Pradesh and another to bolster his submission.

(3.) Per contra, learned counsel for the respondent submits that similar arguments were advanced before coordinate Bench of this Court at Indore reported in 2015(2) MPLJ 645 Manish and another Vs. Anil Kumar s/o Kaluramji Patidar & others and this Court has rejected such contentions holding that there is no direct inconsistency between the provisions as contained under section 17(1)(f) and proviso to section 49 of the 1908 Act, as such, both provision can be harmoniously read. It is submitted that the proviso to section 49 of the 1908 Act only contemplates that unregistered document may be received as evidence of a contract in a suit for specific performance and not beyond that. Therefore, the unregistered agreement to sell can be acted upon for the aforesaid purpose as provided for. As such, there is no illegality or jurisdictional error in the impugned order warranting interference by this Court under Art. 227 of the Constitution of India. Accordingly, it is prayed that writ petition deserves to be dismissed.