Section 53A of Transfer of Property Act was amended on 24-09-2001 and thereby a further condition has been imposed that, such agreement to sell should be a registered one. The documents in present case are admittedly on insufficiently stamped paper and the document is not registered. By way of the said amendment with effect from 24-09-2001 words "the contract, though required to be registered, has not been registered, or," have been omitted. The effect of the omission of these words and at the same time making amendment in Section 17 of the Indian Registration Act on the same day regarding compulsory registration of the agreement to sell where it is coupled with possession; the intention of the legislature was that, unless the agreement to sell wherein possession has been handed over is registered then only the protection under Section 53A of the Transfer of Property Act would be available to the person who intends to invoke the same. In this case, both these documents i.e. Exhibits 30 and 31 have come into existence after the said amendment to the Transfer of Property Act Section 53A and Section 17 of the Indian Registration Act had come into force. Therefore, when by the said separate document, on the same day possession is stated to have been handed over to the defendant, it was mandatory to register the said document Ex. 30 and 31. As aforesaid, no explanation has been given by the defendant, as to why it was not registered also and why two separate documents were required to be executed. Therefore, the main condition of the said protection to be available under Section 53A of the Transfer of Property Act, has not been fulfilled by the defendant. Therefore, from any angle if we consider the facts of the case then though there is concurrent finding of both the Courts below, yet it can be said that, the defendant had failed to prove that, his possession over the suit land can be protected under Section 53A of the transfer of Property Act. He cannot be allowed to remain in possession of the suit land without paying balance amount of consideration and without getting sale-deed executed in his favour. No doubt, a person can protect his possession over a land by taking defence under Section 53 A of Transfer of Property Act, even though his suit for specific performance of contract would have been barred by limitation; but in this case one of the main ingredient of seeking such protection i.e. compulsory registration of the document is not fulfilled.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Second Appeal No. 145 of 2016
Decided On: 10.10.2019
Ghanshyam Deoram Gaikwad Vs Samshon John Gaikwad and Ors.
Hon'ble Judges/Coram:
Vibha Kankanwadi, J.
Citation: 2020(2) MHLJ 451
