Section 53A Transfer of Property Act - Unregistered Document Can't Be Relied To Protect Possession : Delhi High Court

The Delhi High Court held that to give benefits of Section 53A of the Transfer of Property Act; the document relied upon must be a registered document. Justice Sabronium Prasad noted that.

"Any unregistered document cannot be looked into by the court and cannot be relied upon on or taken into evidence in view of Section 17(1A) read with Section 49 of the Registration Act."

Background

In the petitioner's case, he entered into an agreement to sell with one Ravinder Kumar Chugh to purchase one shop on the ground floor of a building for Rs. 7,20,000/-. It is stated that the possession of the said property was not handed over to him because the family of Ravinder Kumar Chugh had entered into a collaboration agreement with a builder, who did not construct the premises.

In an MoU between the petitioner and Ravinder Kumar Chugh, it has been noted that the vacant possession of the property has been handed over to the petitioner. The petitioner submitted a complaint to the SHO stating that the petitioner's associate visited the property and saw one, Arvinder Singh, on the premises. After an altercation took place, the Police came to the scene of the disturbance and asked the petitioner to show the property's title documents.

The petitioner went to the police station with the title documents, where he alleges that he was threatened and spoken to in a derogatory manner. 

The petitioner approached the Court seeking a writ of mandamus for a direction to the Commissioner of Police to conduct vigilance inquiry under the supervision of a senior officer of not less than the rank of ACP against the police officers on the ground that being in conspiracy with the accused persons, they have not conducted a fair inquiry in the several complaints submitted by him.

Findings of the Court

The Court noted that though the MoU records that the area handed over to the petitioner has been described in the schedule, there is no schedule attached to the MoU. The MoU also does not record the amount of consideration that has been paid. The MoU is as vague as it can be. Apart from the fact that it does not reveal the amount of consideration, the description of the area whose possession was handed over has not been mentioned in the MoU, and there is no schedule attached to the MoU.

Referring to Arun Kumar Tandon v. Akash Telecom Pvt. Ltd & Anr, the Court noted that the benefit of Section 53A could have been given to the respondent if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1) A of the Registration Act.

The Court noted that even if it is assumed that the MoU should be read as an Agreement to Sell and the petitioner has been in possession, for which there is no evidence, reference can be made to Earthtech Enterprises Ltd. v. Kuljit Singh Bautalia. In the said case, it was held that,

"A bare perusal of the aforesaid provision makes it clear that a person can protect his possession under Section 53-A of the Transfer of Property Act on the plea o part performance only if it is armed with a registered document. Even on the basis of a written agreement he cannot protect his possession."

The Court refused to find any fault with the stand of the State that the petitioner has failed to produce any document which can establish possession. Had the petitioner been in lawful possession, he would have filed a suit under Section 6 of the Specific Relief Act within six months of being dispossessed. However, the same has not been done.

Dismissing the petition, the Court noted that the complaints given by the petitioner to the Police for conducting the inquiry with subsequent writ petition are, therefore, completely unfounded. It noted,

"The present petition looks like an attempt by the petitioner to get the possession of the property and to get over the limitation for filing the suit which disables him to file a suit for specific performance for the MoU dated 17.10.2003."

Case Title: Joginder Tuli v. State NCT of Delhi  & Ors.

Citation: 2022 LiveLaw (Del) 132

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