GH MOHD Vs. SUBHAN

JUDGEMENT

(1.) WHETHER the agreement to sell requires compulsory registration, is the main point of law to be determined in this case. It is submitted that under section 17 (c) of the Registration Act, an agreement to sell which acknowledges the receipt or payment of any consideration on account of alleged creation, declaration assignment, Imitation or extinction of any right title or interest is required to be compulsorily registered. As in the instant case the whole consideration is admitted to have passed to the executant at the time of the execution of the agreement EXPA, which is admittedly not registered, it is submitted that the same should not have been taken into evidence or relied by the courts below for dismissing the suit of the plaintiff -appellant. Section 17(l)(c) of the Registration Act reads : "The following documents shall be registered namely : a) .............................. b) .............................. c) non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction, of any such right, title or interest."

(2.) TO attract the applicability of the aforesaid provision it has to be shown that the documents in dispute is a non -testamentary instrument acknowledging the receipt of a consideration on account of the creation, declaration, assignment, limitation extinction of any such title or interest. Non -testamentary instrument have not been defined under the Registration Act. An instrument is a writing as the means of giving formal expression to some Act, as a mean of creating, securing, modifying or terminating a right or affording evidence. A document which is operative immediately and is final and irrevocable is a non -testamentary instrument. The word "document" used in Section. 17 are inter -changeable and would not include an order of the court or any proceedings held in a Court. The word "Instrument" has been defined in Byres Law Dictionary (1923 Edition) as under: "As instrument is a writing and generally means a writing of a formal nature, but where there is a power to appoint by "any deed or instrument or by will" any writing, such as a letter, which refers to the power, or which can have the effect only by operating on the fund (such as a cheque or other order for payment) is an instruments. A telegram is an instrument within the meaning of Forgery Act, 1913, Section. 7 (replacing the Forgery Act, 1961 Section 38 and so also in an envelope with a past mark falsified for purposes of abetting fraud, the term is in fact very comprehensive

(3.) SECTION 54 of the Transfer of property Act defines the contract for sale to mean, "a contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties, but no such contract shall be valid, unless it is in writing, and signed by the parties. It does not, of itself create any interest in or change on such property. "The words, "declare, limit, create and extinguish" were interpreted by this court in case titled Ghulm Ahmad Vs. Gh. Qadir and Ors, reported in 1968: KLJ: 33, by holding: "Now what is to be understood by the words, creating declaring, limiting and extinguishing of rights. The words create legal terminology means to bring into being, to invest with a new title, or to produce. Therefore every non -tesumentary instrument which means to, or has the effect of originating some right, title, or interest in immoveable property will be governed by the word create. The word declare has been defined by west J. in 5 Bomb. 232 as under: "The word declare implies a declaration of will not merely a statement of fact and that a deed of partition which causes a change of legal relations to the property divided amongst all the parties to it is a declaration in the intended sense......"In AIR 1932 P. C. 55, their Lordships of the privy Council said that "though the word declare might be given a wider meaning they are satisfied that the view originally taken by west J. is right. The distinction is between a mere recital of a fact and something which in itself created a title." In two other cases 1994 PR No. 95 p 340 and 1895 PR No. 97, p. 461, it was held that the word declare is equivalent to define or authoritatively set forth and that a mere recital of fact, e. g. what the parties had already contracted about or that they had done previous to the compromise is not tentamount to a declaration or assignment etc, of a right to immoveable property." Similarly the word limit connotes restriction of some right or interest in, immoveable property. It has been held an agreement allocating particular days for holding the bazar coupled with the condition that the parties are not to be allowed to hold the bazar or certain other days limits the general right possessed by the owner of the land to hold the market on his lands whenever he wishes to do so and requires registration. (AIR 1931 Oudh 110). The same is the scope of the word extinguish, Extinguish is a countert part of the word create in the parties equally and it is extinguished equally. The rights of the parties are further limited to the extent of half each." In Chunila Panna Lal Vs. Bornanji Mancherji Modi and others, reported in ILR 1883; VoI, VII Bomby Series, Birdwood J. after discussing various judgments of different High Courts held that an agreement to sell was an exception to Section 17 of the Registration Act and being a bargain paper did not require any registration. Similarly in Sreegopal Mullick V Ram Churn Nuskur and anr. reported in ILR: 1882: Vol. VII, Calcutta Series, Wilson J. rejected the argument of the Advocate General submitting that an agreement to sell required compulsory registration under section 17 of the Registration Act.