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an agreement of sale by paying stamp duty and penalty can be received as a documentary evidence in suit for specific performance under the proviso of sec.49 and sec.35 of stamp act


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A.S.NO. 462 OF 2011


1          This appeal is directed against the Docket Order dated 07.08.2003 passed by the learned Principal Senior Civil Judge, Visakhapatnam rejecting the plaint presented by the appellant on the ground that the agreement of sale dated 14.03.2001, which is a suit document, is not registered as required under section 17 (1) (g) of the Registration Act, 1908 (for short ‘the Act’).

2          The learned counsel for the appellant contended that even though the document i.e. agreement of sale is compulsorily registerable under the proviso to section 49 of the Act, yet the document can be received as evidence of a contract in a suit for specific performance of contract and therefore the impugned order is liable to be set aside.

3            Section 49 of the Act is in the nature of exception to the Section 17 of the Act.  Though the document, which is compulsorily registerable under Section 17 of the Act, affecting immovable property has not been registered, cannot be used for any other purpose except for collateral purpose.  But the proviso to Section 49 of the Act reads:

“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 of contract under Chapter II of the Specific Relief Act, 1877  – – – – – – -.“

4          So from the above proviso, which provides that even an unregistered document affecting immovable property and which is required to be registered can be received as evidence.  Therefore, at the threshold the rejection of plaint is not tenable.  However, the receipt of an unregistered document is not an automatic in view of Section 35 of the Indian Stamp Act, 1899.  Under Section 35 of the Stamp Act, unless stamp duty and penalty are paid, the document cannot be looked into even for collateral purpose also.  However, the same can be paid before marking the document.

5          Hence the apepal is allowed and the impugned order is set aside. The trial court is directed to number the suit.  No costs.





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