NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROPERTY LAW

END TERM

A CRITICAL ANALYSIS OF THE CASE OF

AMEER MINHAJ V. DIEDRE ELIZABETH (WRIGHT) ISSAR & ORS.

Submitted by: Submitted to:

Prarthana Gupta Prof. Sanjay Yadav

2019BALLB26
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ACKNOWLEDGMENTS

I take this opportunity to express a deep sense of gratitude to The National Law Institute
University (NLIU) for providing me with this excellent opportunity to make this project. I
sincerely thank everybody who helped with the completion of this project.

On completion of this project it is my present privilege to acknowledge my profound

gratitude and indebtedness towards my teachers for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to:

Prof. (Dr.) Vijay Kumar, Director, National Law Institute University, Bhopal for providing
us with the infrastructure and the means to make this project;

Our Property Law teacher, Prof. Sanjay Yadav, who provided me this wonderful opportunity
and guided me throughout the project work;

I’m also thankful to the library and computer staffs of the University for helping me find and
select books from the University library.

Finally, I’m thankful to my family members and friends for the affection and encouragement
with which doing this project became a pleasure.

Prarthana Gupta
2019 BALLB 26
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TABLE OF CONTENTS

Acknowledgments......................................................................................................................2
Background................................................................................................................................4
Material Facts.............................................................................................................................4
Issues before the Court...............................................................................................................5
Submissions by the Appellant....................................................................................................5
Submissions by the Defendant...................................................................................................5
A Discussion on the laws involved............................................................................................6
Section 17 (1A) Registration Act...........................................................................................6
Essentials Of Section 17.....................................................................................................7
When Is It Necessary To Register A Document?..............................................................7
Section 53A TPA (Doctrine of Part Performance)................................................................8
The Interplay between Sections 17 and 53-A of the 1882 Transfer of Property Act...........10
Findings of the Court...............................................................................................................11
Ratio Decidendi........................................................................................................................12
Analysis and Conclusion..........................................................................................................12
Bibliography.............................................................................................................................14
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Ameer Minhaj V/s Dierdre Elizabeth (Wright) Issar & Ors, 7 SCC 939 2018.

Civil Appeal No. 18377 of 2017

Date of Decision: 04.07.2018,

Bench Strength: Constitutional (3)

Dipak Mishra, A.M. Khanwilkar, D.Y. Chandrachud

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BACKGROUND

The present appeal arose out of a decision of the High Court dated 2 nd December, 2016
allowing the application filed by defendants 3 and 4 vis-à-vis the admissibility of un-
registered documents.

The suit was first filed in the Court of the District Court of Nilgiris at Udhagamandalam.

MATERIAL FACTS

1. The original defendant (Mr. Charles Wright) entered into an agreement with
defendant no. 2 dated 12th November, 1995, agreeing to sell some property to him or
his nominees. In furtherance of the same, the possession of the property was given to
the second defendant to develop according to his discretion. For such developments
however, consent and cooperation of the original defendant was to be taken wherever
necessary.
2. To give effect to the agreement, a General Power of Attorney was executed in favour
of the second defendant.
3. The second defendant was unable to develop the properties himself and thus the
property was to be developed and sold to the appellant (Ameer Minhaj) by the
original defendant via his power of attorney (second defendant) for a consideration of
1 cr. Part payment was made in the form of earnest money.
4. The agreement was executed on 9th July, 2003 but was not registered.
5. The original defendant failed to develop the property as per the agreement and
therefore the present suit has been filed.

ISSUES BEFORE THE COURT

Whether the agreement to sell on the basis of which relief of specific performance has been
claimed, could be received as evidence as it is not a registered document?
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SUBMISSIONS BY THE APPELLANT

1. The agreement dated 12th November, 1995 was executed prior to the enforcement of
Section 17 (1A) and was therefore not required to be registered.
2. A combined reading of Section 49 of the 1908 Act and Section 17 (1A) of the same
makes it clear that even an un-registered document could be used as evidence for
limited purposes without affecting the purposes of Section 53A of the 1882 Act.

SUBMISSIONS BY THE DEFENDANT

1. By virtue of S17 and 49, a document affecting the sale of an immovable property
must be registered for it effect the sale mentioned therein. Since the agreement dated
July 9th, 2003 remained unregistered, the sale becomes invalid.
2. The Power of Attorney executed in favour of the second defendant was cancelled on
2nd January, 2002 therefore the agreement to sell, executed on 9 th July, 2003, was
invalid.
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A DISCUSSION ON THE LAWS INVOLVED

Section 17 (1A) Registration Act

The non-registration of an award issued previous to the implementation of the Registration

Amending Act of 1929 has no bearing on its legality.

(2) It was decided that even while a component of the compromise pertained to property that
was not the subject of the litigation, it was included in the compromise decree and did not
need registration since it was not part of the operative element.1

(3) It was also noted that, despite this, it limited the scope of the exemption provision,
requiring registration if the judgement or order related to property other than that which was
the subject-matter of the action or process.2

(4) Where the registration of an instrument enacting a contract is required, it is critical that
each of the parties to the contract do everything possible to ensure the instrument's
registration.

(5) If the provisions of the document make it mandatory to register under section 17, it cannot
be removed from its scope just because it cannot be accepted to registration because it fails to
describe the property as required by section 21.

6) A document is the same as an instrument in the meaning of section 17 of the Act, and
drawing fine differences between the two only helps to confuse, not to enlighten.

Essentials Of Section 17

Essentials of Section 17 of the Indian Registration Act (Act XVI of 1908) would be invoked
in a case involving a charge sought to be established by a debenture on immoveable property
that existed at the time of the charge's establishment and was in the company's control at the
time.3 As a result, a debenture that purports to create, declare, or restrict any right, title, or

1
Mohammade Yusuf & Ors V. Rajkumar & Ors., CIVIL APPEAL NO.800 OF 2020.
2
Akbarbhai Kesarbhai Sipai vs Mohanbhai Ambabhai Patel, R/SECOND APPEAL NO. 183 of 2014
3
Krishna Deva Bhargava and Ors. v. Official Liquidator U.P. Oil, AIR 1962 All 101.
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interest in relation to immoveable property would be covered by clause (b) of sub-section (1)
of section 17 of the Indian Registration Act 1908.

When Is It Necessary To Register A Document?

Section 17 of the Registration Act of 1908 states that some papers are not required to be
registered. Some of them have a hefty stamp duty, while others do not. Even those that need a
high stamp fee can be corrected later by paying a penalty equal to ten times the initial amount
if they are under stamped. The document is not void or otherwise invalid because the stamp
duty was not paid.

Under stamping has the following implications under the Stamp Act:

(1) It renders the document inadmissible as evidence before any authority capable of
receiving evidence of any public authority.
(2) The document can also be impounded in order to enforce the entire stamp value
payment. If punitive stamp duty of 10 times the original amount is paid, an under
stamped instrument can be accepted as evidence in court.

Finally, always register a document that is required to be registered or for which the stamp
duty is low. Documents with a high stamp duty but no registration requirement do not
become invalid due to a lack of adequate stamp duty. However, in the event of default, all
parties' interests should be safeguarded, therefore seek legal advice. Always give custody of
the papers separately, never in the documents themselves.

Section 53A TPA (Doctrine of Part Performance)

Section 53-A of the Transfer of Property Act, 1882 (hereafter referred to as the "TPA")
contains the doctrine of part performance of contract. Section 53-A of the TPA was enacted
in 1929 and is a modified version of the equity concept of part performance, which was
created in England in the case of Elizabeth Maddison vs. John Alderson4. For a claim to be
based on Section 53-A of the TPA, the following postulates must be met:

1. Any immovable property must be transferred for consideration under the terms of a
contract.5
4
Elizabeth Maddison v. John Alderson, 8 App. Cases 467.
5
C.S. Atwal v. The Commissioner of Income Tax and Ors., (2015)279CTR(P&H)330.
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2. The transferor, or someone acting on his behalf, must sign the contract in writing.
3. The text must be written in such a way that the terminology required to interpret the
transfer may be determined.
4. The transferee must take possession of the property, or any part of it, as part of the
contract's execution.6
5. The transferee has to have done something to fulfil the contract's requirements.
6. The transferee must have fulfilled or be willing to fulfil his contractual obligations.

It is well established that a party that refuses to execute his portion of the contract has no
rights under Section 53-A of the TPA. A transferee must demonstrate that he was honestly
prepared and willing to fulfil his contractual obligations.

In the matter of: WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr. O.P. Kohli & Ors, CS
(OS) No. 2128/20157, High Court of Delhi, Date of Decision: 03.08.2015 (Coram: Valmiki
Mehta, J.), it was held that:

“That by virtue of the amendment brought about to Section 53-A of the TPA with effect from
24.09.2001 by the Act 48 of 2001, an Agreement to Sell in the nature of part performance
cannot create rights unless the agreement is registered and stamped at 90 percent of the duty
as of the sale deed as per Article 23-A of the Schedule I of the Indian Stamp Act, 1899 as
applicable to Delhi which was accordingly amended by the Act 48 of 2001.”

A power of attorney that effectively gives ownership rights to a property by allowing the
attorney to sell the immovable property under Article 48 (f) of the Indian Stamp Act as it
applies to Delhi will have to pay stamp duty as a conveyance deed for the amount of
consideration under Article 23 of the Indian Stamp Act.

The Hon'ble High Court of Delhi, after summarising the legal situation, decided as follows:

“…7. In view of the aforesaid settled position of law, this suit is not maintainable by virtue of
Section 53-A of the Transfer of Property Act read with the amended Article 23-A of the
Indian Stamp Act as applicable to Delhi as the Agreement to Sell is unregistered and
unstamped and the Power of Attorney besides not entailing the plaintiff to indirectly achieve

6
Shamrao Suryavanshi and Ors. v. Pralhad Bhairoba Suryavanshi and Ors., 2002 (1) UJ 515.
7
WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr. O.P. Kohli & Ors, CS (OS) No. 2128/2015.
10

what cannot be directly achieved is also not stamped on the value of the conveyance deed as
required by Article 48 (f) of the Indian Stamp Act as applicable to Delhi…”

Article 48 (f) of the Indian Stamp Act, as it applies to Delhi, states that when a power of
attorney is given for consideration and authorises the attorney to sell any immovable
property, the proper stamp duty to be paid is the stamp duty levied on the conveyance deed
for the amount of consideration.

As a result, if X executes a power of attorney in favour of Y, and X and Y are both relatives,
and the objective of the power of attorney is for X to provide permission to Y to sell property
owned by X, the required corollary is that because the power of attorney is not issued for
consideration, and X and Y are relatives, the terms of Article 48 (f) of the Indian Stamp Act
as it applies to Delhi would not apply. So, according to the Indian Stamp Act as it applies to
Delhi, the power of attorney must be stamped for only Rs. 50/-.

The Interplay between Sections 17 and 53-A of the 1882 Transfer of Property Act

The combined effect of sections 53-A of the Transfer of Property Act 1908 and section 17 of
the Indian Registration Act is that an incomplete deed of transfer, even if not registered or
even attested, is regarded as a contract in writing. However, the transferor or his agent must
have signed the deed.

Unregistered documents affecting immoveable property that are required to be registered by

the Transfer of Property Act 1882 or the Registration Act 1908 may be received as evidence
of a contract in a suit for specific performance or as evidence of part-performance of a
contract for the purposes of section 53-A, or as evidence of any collateral transaction not
required by a registered instrument. The transaction shall be invalid and this section will not
apply if the parties execute an unregistered sale deed without the prior approval of the
competent authorities. It was held that section 53-A of the Transfer of Property Act 1882
would apply in cases where land was transferred in lieu of dower and the bride was put in
possession of it and a kabulnama was executed which was unregistered evidencing the
transfer, and a suit by the father-in-law and a declaration of title and possession would fall.
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The action was rejected in Haji Mokshed Mondal Vs. Del Rouson Bibi.8 because section 53-A
of the Transfer of Property Act 1882 prohibits pursuing any rights in respect of the disputed
property that are inconsistent with or not specified in the agreed contract.

FINDINGS OF THE COURT

8
Haji Mokshed Mondal Vs. Del Rouson Bibi, AIR 1971 Cal. 162.
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1. If the party wants to rely on Section 53-A of the Transfer of Property Act, 1882 to
protect its possession over the stated property, the document containing the contract to
transfer the right, title, or interest in an immovable property for consideration must be
registered, according to Section 17 of the Registration Act, 1908. If the document is
not registered, Section 17 of the Registration Act of 1908 declares that it has no force
for the purposes of Section 53-A of the Transfer of Property Act of 1882.
2. In a suit for specific performance, a document that is needed to be registered under
Section 17 read with Section 49 of the Registration Act, 1908 can nevertheless be
admitted as proof of a contract if it is not registered.
3. Section 17 (1A) of the Registration Act of 1908 became effective on September 24,
2001, and it is prospective in nature. An unregistered agreement to sell cannot be used
as the basis for preferring a suit for part performance of the contract, according to
Section 17 (1A) of the Registration Act, 1908.

RATIO DECIDENDI

In a suit for specific performance, an unregistered agreement to sell can be accepted as proof
of a contract; but, the protection provided by Section 53A of the Transfer of Property Act
1882 would not apply.
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ANALYSIS AND CONCLUSION

In the present case the primary bone of contention was to regarding the admissibility of
unregistered documents affecting sale of immovable property. The Trial Court and High
Court came to different conclusions vis-à-vis the same. The Supreme Court however, upheld
the decision of the Trial Court and allowed the appeal.

After carefully reading the Supreme Court’s verdict and analysing the provisions called into
question, I am inclined to agree with the findings of the Trial Court. The agreement dated 12th
November, 1995 was executed before Section 17 (1A) of the Registration Act came into
force. The requirement of registration cannot be asked for retrospectively 9 and therefore the
decision to admit the said document even though it was not registered is sound in law.10

Furthermore, the Trial Court opined that since the agreement dated 9 th July, 2003 was
executed after the enactment of Section 17 (1A), the latter would be applicable on the former.
However, upon a cursory reading of purports of the section read with Sec 49, it becomes clear
that even though it could be admitted into evidence, the protection of Section 53A of TPA
could not be claimed on the basis of it.11

With regards to the impound of the Power of Attorney, I am inclined to agree with the
findings of the High Court. The High Court was of the opinion that the General Power of
Attorney had been given for consideration in furtherance of the agreement to sell date 12 th
November, 1995. It is clear from the facts that that indeed is the case. The power of attorney
was executed to give effect to the sale agreement and same was explicitly mentioned in the
general power of attorney. As such, the power of attorney can be said to have been given on
consideration and that the sale agreement was part of the transaction. 12 Even though the word
consideration was not mentioned, the fact that it was in pursuance of the sale deed would
attract the application of Art 48 (f) of the Stamp Act.

The applicability of the principle of incorporation by reference is in accordance with the ratio
laid down in the case of Sasidharan v. K Karunakarn13 whereby the court stated that where

9
Rajendra Kumar Khandelwal v. Rajkumari Khandelwal, LQ 2008 HC 18224.
10
Rekha v. Subhadrabai, Writ Petition No.4603 Of 2011.
11
K Sathyabama v. K. Muthukumar, C.R.P.(PD)No. 755 of 2015 & M.P. No. 1 of 2015.
12
Manohar Joshi v. Nitin Bhaurao Patil, AIR 1996 SC 796.
13
Sasidharan v. K Karunakarn, 1989 4 SCC 482.
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the document and the conditions are not written but referred to in the plaint, the terms of the
document get incorporated in the plaint.
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BIBLIOGRAPHY

The following sources were relied upon in the making of this project:

 Mohammade Yusuf & Ors V. Rajkumar & Ors., CIVIL APPEAL NO.800 OF 2020.
 Akbarbhai Kesarbhai Sipai vs Mohanbhai Ambabhai Patel, R/SECOND APPEAL
NO. 183 of 2014
 Krishna Deva Bhargava and Ors. v. Official Liquidator U.P. Oil, AIR 1962 All 101.

 Elizabeth Maddison vs. John Alderson, 8 App. Cases 467.

 C.S. Atwal v. The Commissioner of Income Tax and Ors., (2015)279CTR(P&H)330.
 Shamrao Suryavanshi and Ors. v. Pralhad Bhairoba Suryavanshi and Ors., 2002 (1)
UJ 515.
 WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr. O.P. Kohli & Ors, CS (OS) No.
2128/2015.
 Haji Mokshed Mondal Vs. Del Rouson Bibi, AIR 1971 Cal. 162.
 Rajendra Kumar Khandelwal v. Rajkumari Khandelwal, LQ 2008 HC 18224.
 Rekha v. Subhadrabai, Writ Petition No.4603 Of 2011.

 K Sathyabama v. K. Muthukumar, C.R.P.(PD)No. 755 of 2015 & M.P. No. 1 of 2015.

 Manohar Joshi v. Nitin Bhaurao Patil, AIR 1996 SC 796.
 Sasidharan v. K Karunakarn, 1989 4 SCC 482.