Unregistered agreement v/s unregistered executed sale deed
Querist :
Anonymous
(Querist) 04 October 2011
This query is : Resolved
Dear Sir / Madam, let me preface by admitting that this is not the 1st time that i am posting this query, but i seek views for both the defendant and plaintiff side.It may be routine matter for you but to me it means a lot.
"X"-seller "Y"-buyer
on 01.01.11 X entered into an agreement for sale in respect of a flat to Y, for a consideration of 10000/- with a condition to complete the transaction by 31.03.11. Y issued a cheque for rupees 100/- as advance money.X didnt encash the cheque and returned the same on 03.01.2011 to Y and destroyed the agreement made on 50/-stamp paper.
later on 28.02.11, after fresh verbal negotiation, X executed a deed of sale, which carried no reference of any agreement for sale, in favor of Y at an agreed price of 6500/-, but the same could not be registered that day.Later X refused to co-operate for registration.
Y approached court for injunction for sale of said property and specific performance suit, on 118th day from execution of deed fearing that the document may hit limitation under regn act, produced the duly executed sale deed (as document to be relied upon) pending registration and was granted interim injunction.
X then appeared during hearing for extension of injunction, and filed an objection petition stating that agreed price was rupees 10000/- as per agreement dated 01.01.2011 and not 6500/- as in deed.also stated that the agreement for sale had expired on 31.03.2011 and balance of Rs.3500/- was not paid to him.X has craved leave for filing the said agreement, (original destroyed and cheque mentioned therein as advance money has been returned to Y = simply the agreement was never acted upon).
X has not denied or accepted the execution of sale deed dt.28.02.2011 in his objection petition.
X has no other document other than xerox copy of the agreement for sale dt.01.01.2011.
Y has the original executed deed of sale dated 28.02.2011,which carries no reference of the agreement dated 01.01.2011, duly signed and with finger prints and photographs.
what shall be the strategy for X ?
what shall be the strategy for Y ?
shall Y emphasize that the deed of sale is an independent document bearing no reference or obligation of any agreement dated 01.01.2011?
shall Y admit there was an agreement which was cancelled or given a go by with mutual consent ?
what shall be the specific terminology- cancelled / scrapped / given a go by / destroyed ?
Or deny absolutely ?
CAN x ASK FOR AMOUNT NOT EVEN FAINTLY REFERRED IN THE DEED / MEMO OF CONSIDERATION?
CAN JUDICIARY ACCEPT x'S PLEA ON ANY GROUND?
Sailesh Kumar Shah
(Expert) 05 October 2011
-No Relevancy of first ats.
-No value of xerox of ats. secondary evidence is taken into consideration under certain prescribed conditions only.in this case, it will be hard to prove the original document.
-Regarding admissibility of unregistered sale deed in evidence the supreme court has laid down following principles:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest inimmovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
6. a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
