In C.A. No.930 of 2023-SC- Object of mandate for registration of transfer of immovable property worth more than Rs 100 is to give certainty to title; When execution is challenged, registration by itself is no proof of execution & proof of complying with Sec.67 of Evidence Act is necessary: SC
Justices M.R. Shah & C.T. Ravikumar [04-05-2023]

Read Judgment: Damodhar Narayan Sawale (D) Through LRs Vs. Shri Tejrao Bajirao Mhaske & Ors 

Tulip Kanth

New Delhi, May 5, 2023:  While allowing an appeal pertaining to a property dispute, the Supreme Court has opined that where a sale deed had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon, it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold. 

“…if a relevant material legally brought on record and the question of law arising out of its existence were not considered by the High Court, despite its due consideration by the First Appellate Court, while reversing the judgment founded on such consideration this Court has necessarily to consider the same in invocation of the power under Article 136”, the Division Bench of Justice M.R. Shah & Justice C.T. Ravikumar said.

The facts of this case as presented in the plaint was such that the first two Original Defendants sold the suit field in favour of the plaintiff as per registered sale deed. Soon on its execution the plaintiff was put in possession but the second defendant started disturbing his possession. Suit was then filed in 1979.

In view of the registered sale deed, he obtained absolute title over the suit land and in such circumstances, the second defendant who sold the same for discharging debts and family got no right or reason to disturb his peaceful possession. The total sale consideration of Rs 10,000  was given to defendants for the aforesaid entire extent of over 3 acres as the first defendant obtained title over 2 acres out of the aforesaid total extent from the second defendant as per registered sale deed and the second defendant remained as the owner in possession of the balance one acre.

It was his case that the second defendant had utilised the sale consideration passed on to him for different purposes, including to pay his debts.  Thereafter, for the non-compliance with the order of the Chamber Judge, the SLP stood dismissed qua sixth respondent. 

When the matter reached the Trial Court, the Court came to the conclusion that the plaintiff had not purchased the suit field as claimed and the sale deed was a sham document which was executed only as a security for a money lending transaction and consequently, the original suit was dismissed with costs.

The Regular Civil Appeal, filed by the unsuccessful plaintiff before the First Appellate Court was allowed. It was against this judgment that the Second Appeal was filed by the original second defendant viz., the first respondent herein, which ultimately culminated in the impugned judgment.

Referring to the Fragmentation Act, the Bench opined that it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof.

It was the opinion of the Bench that the decision of the High Court on the validity of the sale transaction covered under the sale deed executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, were absolutely unsustainable. 

“The very object of the mandate for registration of transfer of an immovable property worth more than Rs. 100/- under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary”,the Bench held.

Affirming the fact that there can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor, the Bench added that if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting non-passing of consideration to prove the said asserted fact. 

The Bench also held, “Certainly, parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose.”

As per the Bench, in view of the factum of registration of the sale deed and admission of its execution and the recording of payment of consideration thereon, the second respondent was not justified in raising grievance, initially, even against the sale of the extent of one acre.

Noticing that by virtue of Section 54, of the Transfer of Property Act and Section 17 of the Registration Act and since the immovable property was worth more than Rs 100, the deed was reduced in writing and registered , the Bench added that the intention of the parties were also reflected specifically in the deed and at the same, nothing reflected a contra- intention not to pass the title and ownership even impliedly therein. 

Thus, observing that the High Court had committed a serious error based on perverse appreciation of evidence, in setting aside the decree of the First Appellate Court, the Bench allowed the appeal.