Vineet Kothari, J. - (1.) HEARD the learned Counsel for the parties.
(2.) THIS petition has been filed by the petitioner under Article 227 of the Constitution of India challenging the impugned order passed by the learned trial Court dt. 27.05.2004 whereby the learned trial Court refused to take into evidence the agreement to sell executed between the parties on stamp paper of Rs. 100/ - on the ground that the same was not properly stamped and registered as per the provisions of Indian Registration Act, 1908. The learned Counsel for the petitioner submits that there is clear exclusion under Proviso to Section 49 of Indian Registration Act with regard to agreement to sell where the suit for specific performance are tried. The said provision is reproduced hereunder for ready reference: 49. Effect of non -registration of documents required to be registered. - - No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall - - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.
(3.) THE learned Counsel for the petitioner further relies upon a judgment of this Court in the case of Nathu Ram and Ors. v. Harbans Singh and Ors. S.B. Civil Revision Petition No. 456/1986 decided on 15.07.1997 in which this Court held as under: ...The contention of the learned Counsel for the petitioners has got force. The second part of Section 49 of the Act reads as follows "Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. I, therefore, feel no difficulty in holding that an unregistered agreement for the sale of immovable property is admissible in evidence in a suit for specific performance.;