Judgment:
S.N. Hussain, J.
1. The instant second appeal has been filed by plaintiff-respondent-appellant against the judgment of reversal passed by the learned court of appeal below.
2. This matter arises out of Title Suit No. 24 of 1981 which was filed by the sole plaintiff for declaration that she was entitled to get a sale deed executed by the defendant in her favour for schedule-I land, after receiving Rs. 1,800.00 as per agreement of reconveyance dated 21.07.1978 on which date plaintiff had executed a sale deed in favour of the original defendant-appellant-respondent, namely, Brahmadeo Mishra, regarding the said Schedule-I land measuring 10 Kathas 05 Dhurs appertaining to S.P. No. 1125, Khata No. 304 of village Suza under the district of Begusarai.
3. The claim of the plaintiff was that there was a registered deed of sale dated 21.07.1978 (Ext. A) executed by the plaintiff in favour of the defendant for Schedule-I land and on the same date i.e. 21.07.1978 there was a deed of agreement for reconveyance (Ext.1) executed by defendant in favour of plaintiff for the said Schedule-I land on certain condition. It was also claimed by the plaintiff that after the execution of the said deed of reconveyance the plaintiff was always ready to pay the amount fixed in the deed but the defendant was never ready and willing to perform his part of the said agreement.
4. On the other hand, the defendant admitted the execution and registration of deed of agreement for reconveyance (Ext.1) and also admitted that he was ready to reconvey the land to the plaintiff on payment of the amount fixed but the plaintiff herself was never ready and willing to pay the said amount and on 05.01.1980 (Ext. F) the plaintiff executed an unregistered Yaddasht clearly stating that she was unable to arrange money and hence, defendant was entitled to utilize Schedule-I land as per his own will. It was thus claimed by the defendant that the agreement dated 21.07.1978 (Ext.1) stood rescinded by the plaintiff vide Yaddasht dated 05.01.1980 (Ext.F).
5. On the basis of the pleadings of the parties, the learned trial court framed the following issues:
Issues
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff, any right and cause of action to sue?
(iii) Is the suit barred by a limitation?
(iv) Is the suit barred under the provision of Specific Relief Act?
(v) Does the contract to reconvey the suit land by the defendant to the plaintiff subsists or stands extinguished by the execution of Yaddasht by the plaintiff?
(vi) Is the plaintiff entitled to a decree as prayed for?
(vii) To what other relief or reliefs is the plaintiff entitled?
6. Thereafter evidences were led on the said issues and the matter was heard and finally vide judgment and decree dated 25.04.1988 the learned Munsif-I, Begusarai decreed the aforesaid Title Suit No. 24 of 1981 on arriving at the following findings:
(i) Yaddasht (Ext. F) was unregistered and hence inadmissible in evidence in view of Section 17(1)(b) of the Registration Act, 1908 as by it, a right accrued by registered document was sought to be taken away,
(ii) Plaintiff offered money to the defendant as per agreement(Ext.1) with request to reconvey.
(iii) Yaddasht (Ext. F) contained the left thumb impression of the plaintiff which was proved,
(iv) Defendant got his name mutated and obtained rent receipts on the basis of Yaddasht (Ext. F) but when the said document is inadmissible for proving relinquishment of the right of the plaintiff, the mutation and rent receipt cannot be relied upon.
(v) So far the issues of Limitation and Specific Relief Act were concerned, they were not pressed by the defendant but in view of the aforesaid findings it was held that the suit framed was maintainable and the plaintiff had cause of action for the suit and was entitled to the relief claimed.
7. Against the aforesaid judgment and decree of the learned trial court the defendant filed Title Appeal No. 11 of 1988 (11 of 1991) which was contested by the plaintiff and after hearing, the said title appeal was allowed, judgment and decree of the trial court was set aside and the claim and suit of the plaintiff was rejected vide judgment and decree dated 22.12.1995 passed by the learned 4th Additional District Judge-Begusarai on the following findings:
(i) In view of recital of Exhibit-F (the Yaddasht) it had clearly cancelled the agreement (Ext.1).
(ii) Contract for sale does not create title or interest in or charge on the property hence, it need not be registered.
(iii) The case law reported in A.I.R. 1971 Patna 385 relied upon by the defendant relates to a case in which executant of document had existing right in the property, but that is not the case in the instant suit.
(iv) Neither the agreement (Ext.1) nor the Yaddasht (Ext.F) required registration as they were not non-testamentary document not becoming operative or final immediately.
(v) The defendant had failed to show any provision of law or case law that if a document not requiring registration has been registered, it can be cancelled only by a registered document.
(vi) Since the agreement (Ext.1) has been cancelled by the plaintiff by Yaddasht (Ext.F), she was not entitled to get any relief on the basis of Ext.1 and thus she is not entitled to any decree as prayed for.
8. Against the aforesaid judgment and decree of the learned court of appeal below, the plaintiff filed the instant second appeal on 22.03.1996, whereafter it was admitted by this Court on 21.01.1998 framing following substantial questions of law:
(a) Whether unregistered document can be taken into consideration in evidence for providing relinquishment?
(b) Whether the unregistered Yadadasta purports forfeit of the claim of the plaintiff which amounts to extinguishment of her right in the suit land is hit by Section 19(1)(B) of the Indian Registration Act?
(c) Whether the unregistered alleged Yadadasta is admissible in evidence for proving relinquishment?
(d) Whether a registered document can be cancelled by an unregistered document?
(e) Whether the appellate court is justified is not taking into consideration the scope of Section 17(i)(B) of the Registration Act while reversing the decree passed by the trial court?
9. The claim of the plaintiff-respondent-appellant before this Court is that the deed of sale (Ext A) and the deed of agreement of reconveyance (Ext.1) were of same date and were part of the same transaction, Ext.1 being counter part of Ext. A and not an independent transaction. In this connection learned Counsel for the appellant relies upon a decision of the Hon'ble Apex Court in case of K. Simrathmull v. Nanjalingiah Gowder reported in : AIR1963SC1182 . It was also averred that offer was admittedly made by plaintiff to the defendant in accordance with the deed of agreement which he refused illegally on the basis of unregistered Yaddasht (Ext. F) as a right accrued to the plaintiff by a registered document cannot be cancelled by an unregistered document relinquishing a right vested in the plaintiff. It was also claimed that Section 17(1)(b) of the Registration Act, 1908 provides for registration of other non-testamentary instruments which category includes Ext.1, the deed of agreement also, hence the right created by a registered document such as Ext.1 could have been taken away only by a registered document which has not been done and hence, the right of the plaintiff as per the registered deed of agreement (Ext.1) remained unaffected. In this regard learned Counsel for the appellant relies upon a decision of this Court in case of Mt. Haliman and Ors. v. Md. Manir and Ors. reported in : AIR1971Pat385 . He also relies upon Section 54 of Transfer of Property Act claiming that such document as Ext.F required registration.
10. On the other hand, learned Counsel for the defendant-appellant-respondent has submitted that the deed of agreement (Ext.1) did not divest the right, title or interest of the defendant which he had acquired through the sale deed (Ext.A). He also claimed that Ext.1 did not create any right in the property in favour of the plaintiff rather it gave only a privilege to him and hence, such a document did not require registration. In this regard he relies upon a decision of the Hon'ble Apex Court in case of Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra(Dead) Through LRs. Reported in 2005(1) PLJR (SC) 70 as well as a decision of the Privi Council in case of (Thakur) Bageshwari Charan Singh v. Thakurain Jagarnath Kuari and Anr. reported in . He also avers that it is quite apparent that the deed of agreement for reconveyance (Ext.1) neither created any right in the property nor required any registration and hence, it could have been cancelled by any unregistered document such as the Yaddasht (Ext. F), which was admittedly executed by the defendant. Hence, he submits that by the said Yaddasht (Ext. F), the agreement (Ext.1) stood rescinded and the plaintiff had no right to raise any claim on the basis of Ext.1 in the instant suit.
11. From the averments made by the parties and the materials on record, it is quite apparent that there are several admitted facts namely:
(a) Originally the plaintiff was the owner of the suit property,
(b) Plaintiff sold the suit land by executing and getting registered a sale deed dated 21.07.1978 (Ext. A) in favour of the sole original defendant for valuable consideration without any condition, whereafter the said defendant came in possession of the suit land as exclusive owner thereof,
(c) On the same day the defendant executed and got registered a deed of agreement for reconveyance dated 21.07.1978 (Ext.1) with a condition that if the plaintiff pays Rs. 1,800.00 the defendant will reconvey the suit land to the plaintiff,
(d) Defendant was ready and willing to reconvey the suit land to plaintiff on payment of Rs. 1,800.00,
(e) Plaintiff executed an unregistered Yaddasht dated 05.01.1980 (Ext. F) stating that she was unable to arrange money and hence she did not require reconveyance and the defendant was entitled to utilize the suit land as per his own will,
(f) Defendant got his name mutated in the Government Records and obtained rent receipts on payment of government rent,
(g) Much after the Yaddasht dated 05.01.1980 (Ext. F) plaintiff orally offered consideration money on 10.09.1980 and sent Pleader notice on 15.09.1980 to the defendant which were not heeded to.
(h) Title Suit No. 24 of 1981 was filed on 31.03.19981 by the plaintiff for the reliefs mentioned in paragraph-2.
12. On the basis of the aforesaid admitted facts it is quite apparent that before the Yaddasht dated 05.01.1980 (Ext. F) the plaintiff never took any step for reconveyance of the land as per the registered deed of agreement for reconveyance dated 21.07.1978 (Ext.1) and made offers for such reconveyance only after the said Yaddasht (Ext. F) was executed on 05.01.1980, which is an admitted document in which the plaintiff herself had admitted that she was unable to arrange money and hence she did not want to reconvey and the original defendant was entitled to utilize the suit property as per his own will. In the said circumstances the main question in issue before this Court is the legality/validity or otherwise of the unregistered Yaddasht dated 05.01.1980 (Ext. F) which was admittedly executed by the plaintiff for rescinding the deed of agreement for reconveyance dated 21.07.1978 (Ext.1).
13. So far Ext.1 is concerned, it is merely a deed of agreement for reconveyance not creating any right or title in the property rather it only gives a concession or privilege to the executantee with regard to reconveyance, this has been clearly held by the Hon'ble Apex Court in K. Simrathmuli (Supra), the said case does not support the case of the plaintiff although it is also with respect to the sale deed and deed of reconveyance of the same dates. Other facts are completely different but the principle laid down with respect to a deed of reconveyance mentioned in paragraph-5 thereof clearly supported the claim of the defendant.
14. So far the decision of Patna High Court in case of Mt. Haliman and Ors. (supra) relied upon by the plaintiff is concerned, the same is not applicable to the facts and circumstances of this case as it is with respect to relinquishment of right in joint family property which created interest in the property and hence such deed of relinquishment had to be registered. Here in the instant case there is no question of any relinquishment of any right in the property rather the deed of agreement for reconveyance (Ext.1) merely conferred concession and privilege upon the plaintiff for reconveyance.
15. So far the reliance of the plaintiff upon Section 54 of the Transfer of Property Act, 1882 is concerned, it is quite apparent from a plain reading thereof that it is merely with respect to sell of property which can be made only by a registered instrument but here the question is not with respect to a deed of sale rather it is with respect to a deed of agreement and accordingly the said provision has been wrongly relied by learned Counsel for the plaintiff-appellant. The Hon'ble Apex Court in case of Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) Through LRs., reported in 2005(1) PLJ.R. 70 (SC) has specifically held that the agreement to sell does not create an interest for the proposed vendee in the suit property, as right and title in an immovable property valued at more than Rs. 100.00 can be conveyed only by executing a registered sale deed as per Section 54 of the Act. Furthermore an agreement for the sale of immovable property is a contract evidencing the fact that the sale of property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. Hence, right and title of the land would not get divested unless there is a sale deed. In the instant case there being no sale deed in favour of the plaintiff, there was no question of any right, title or interest in the property devolving upon the plaintiff.
16. So far the reliance of the plaintiff-appellant on the provision of Section 17(1)(b) of the Registration Act, 1908 is concerned, it is with respect to the documents which compulsorily required registration namely non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest, whether vested or contingent, of the value of hundred rupees and upwards, to or in immovable property. The instant case does not come within the scope or sphere of the aforesaid provision of law as Exhibit-1 (deed of agreement) did not create, declare, assign, limit or extinguish any right, title or interest in any property rather, as held above, it provided only a concession or privilege to the plaintiff-appellant for reconveyance. Hence, the said document namely Ext.1 (deed of agreement) although registered, did not require any registration and hence, the learned court of appeal below was quite justified in not taking into consideration the aforesaid provision of law as it was not applicable to the instant case.
17. The said deed of agreement (Ext.1) is not itself one which declares a right in immovable property in the sense probably intended by Section 17 of the Act. In a decision of Viscount Dunedin along with other legal luminaries such as Lord Blanesburgh, Sir John Wallis, Sir George Lowndes and Sir Dinshah Mulla in case of (Thakur) Bageshwari Charan Singh v. Thakurain Jagarnath Kuari reported in relied upon the findings of West J. in another case which held that in Section 17 of the Act word 'declare' is placed along with 'create' 'limit' or 'extinguish' 'right, title or interest' and these words imply a different change of legal relation to the property by an expression of will embodied in the document referred to and it is equally the case with the word 'declare' which implies a declaration of will, not a mere statement of fact and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense but a letter containing an admission direct or inferential, that a partition once took place, does not declare a right within the meaning of the section. On the basis of the said settled principle of law, definitely the deed of agreement (Ext.1) does not come within the category as provided under Section 17 of the Act.
18. So far Section 19(1)(B) is concerned, there is no such provision in the Registration Act, 1908 whereas Section 19 is with respect to document in language not understood by Registering Officer. In the said circumstances, substantial question at (b) has been wrongly formulated in order dated 21.01.1998. However, the question remains as to whether by unregistered Yaddasht (Ext.f) the claim and right of the plaintiff over the suit land on the basis of registered deed of agreement (Ext.1) can be forfeited and whether a registered document can be cancelled by an unregistered document. With respect to the aforesaid questions it had already been held that the deed of agreement (Ext.1) did not require any registration as per the provision of sections 17 and 18 of the Registration Act. Furthermore, there is no provision in the Registration Act creating any bar for cancelling an agreement which was registered although it did not require registration, by any unregistered document. In the said circumstances, it is not only to be seen as to whether the document which is sought to be cancelled is a registered document rather it has to be seen whether the document which is sought to be cancelled is a document requiring registration under the Registration Act. If such document specially a deed of agreement does not require registration but is registered, there is no bar provided by law that it cannot be cancelled by any unregistered document. Hence, it is held that unregistered Yaddasht dated 05.01.1980 (Ext.F) is a legal and proper document and it forfeited the claim of the plaintiff on the basis of a registered deed of agreement for reconveyance dated 21.07.1978 (Ext.1) which stood cancelled and the plaintiffs right for reconveyance stood relinquished.
19. It is an admitted fact that before execution of the Yaddasht by the plaintiff himself dated 05.01.1980 (Ext.F) the plaintiff never offered any consideration money nor sought any reconveyance in terms of the deed of a reement dated 21.07.1978 (Ext. 1) and started claiming reconveyance much after the execution of the aforesaid Yaddasht dated 05.01.1980 (Ext.F) by which the plaintiff had herself relinquished the concession and privilege given to her by the deed of agreement. Hence the plaintiff was not justified in filing the suit for enforcing the right of reconveyance, which was already extinguished.
20. In the aforesaid facts and circumstances, no substantial question of law is involved in the instant second appeal nor does this Court find any illegality in the impugned judgment and decree of the learned court of appeal below. Accordingly, this second appeal is dismissed.