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PETITIONER: MITHILESH KUMAR

       Vs.

RESPONDENT: MANOHAR LAL

DATE OF JUDGMENT:       30/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: O R D E R      This appeal  by special  leave arises from the judgment of the learned single Judge of the Allahabad High Court made on 26.10.1979 in Civil Appeal No.68/71.      The appellant  filed the  suit for perpetual injunction restraining  the  respondent  from  raising  a  construction except the  Chabutra in  the north  after leaving  a 3  feet passage and from opening windows, door ventilators, parnalas towards  the  north,  south  and  east  of  the  plaintiff’s property by  raising any  construction in  the passage.  The appellant relies  upon the  agreement dated  June  26,  1964 executed by  the respondent  as foundation for the aforesaid rights. He  also sought  alternative  relief  on  the  basis thereof that if any construction is made in violation of the said agreement, there shall be given mandatory injunction to demolish the  same at  the instance  of the defendant and to close the  doors, windows, ventilators etc. at his cost. The trial Court dismissed the suit. But on appeal, the appellate Court reversed  the decree  of the District Munsif, Kashipur of his  judgment & decree dated May 10, 1971 and decreed the suit only  in respect  of item  Nos.1 and 2 holding that the agreement did  not require  registration. The  High Court in the second  appeal held  that the items require registration compulsorily under Section 17(1)(b) of the Registration Act. Since the agreement was not registered, the appellant has no right to  claim any  right on  that basis.  Accordingly,  it allowed the  second  appeal,  reversed  the  decree  of  the appellate Court and confirmed that of the trial Court. Thus, this appeal by special leave.      The  admitted  position  is  that  the  respondent  had purchased  the  property  of  an  extent  of  1732.6  sq.ft. situated in  the north-south  by extending 60 ft. 6" towards north-south and  30 feet  towards  north-south  situated  at Mohalla Ganj,  Kashipur, district Nanital from the appellant and got in registered in the Registrar’s Office. On the next day, namely,  26.6.1964, he  had entered  into an  agreement with a condition envisaged as hereunder:      "I have  purchased a  piece of land      only and  not  the  trees  and  the      wall.  The   said  trees  and  wall

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    belong to  Shri Mithlesh Kumar. The      following   are   the   terms   and      conditions in  respect of  the said      trees and the wall:-      1) That  lal  Mithlesh  Kumar  will      uproot the  said trees and demolish      the wall within 6 months hereof.      2) Whatever  construction is raised      by me  in the said piece of land, I      will not open any door or window or      ventilator or  rain-water  pipe  or      other pipe for discharge of day-to-      day water  flow towards  the South,      North   &    East.   I   will   not      construction   any    platform   or      balcony  or   stairs   or   corners      towards 1  ft. wide  passage  which      Sh. Mithlesh  Kumar has left in his      land in front of my piece of land.      3) That  I will  raise my  boundary      wall in  the north  after leaving a      set-back of 3 ft. measured from the      platform.      4) That  if I  violate any terms or      condition,   as   aforesaid,   Lala      Mithlesh Kumar will have a right to      enforce the same through process of      law at my costs and expenses."      The crucial  question in  this case  is:  whether  this agreement is  a compulsorily registrable document? Shri G.L. Sanghi, learned senior counsel for the respondent, sought to contend that  though the  agreement was not supported by any consideration, the  document is  not an agreement in the eye of law  since it  was  not  signed  by  the  appellant  and, therefore, the document will not form the foundation for the right to file the suit. We cannot permit the learned counsel to argue  the contention for the reason that, as regards the agreement dated  June 26,  1964, the appellate Court and the High Court found, as a fact, that it is an agreement entered into by  the respondent with the appellant. Therefore, it is a finding  of fact  based on  consideration of  evidence. We cannot permit  the learned  counsel for  the  respondent  to argue that  it is  not an  agreement.  As  regards  lack  of consideration in  the agreement,  there is not plea. Neither there is  any evidence  nor was any contention raised either in the  appellate Court  or in  the High  Court. Under these circumstances, we cannot permit the learned counsel to raise that plea  for the  first time. Then he sought permission to amend the  plaint. We cannot permit him, at this distance of time, to  raise the  contention by amending the plaint under Order 6 Rule 17 of the CPC.      The only  crucial question is: whether the agreement is a compulsorily  registrable document?  Section 2(10)  of the Indian Stamp Act defines "Conveyance". Conveyance includes a conveyance of  sale and  every instrument by which property, whether movable  or immovable,  is transferred  inter vivose and which  is not  otherwise specifically  provided  for  by Schedule I.  "Instrument" has  been  defined  under  Section 2(14) which  includes every  document by  which any right or liability  is  or  purports  to  be,  created,  transferred, limited, extended,  extinguished or  recorded. The agreement is, therefore,  an instrument  within the meaning of Section 2(14) of the Act.      The appellate Court rested its conclusion on the ground that the  reading of  the agreement  would indicate that the

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appellant sought  to fasten  his easementary  right  on  the respondent. Therefore,  it is not a compulsorily registrable document. The  High  Court  had  concluded  that  since  the document limits  and extinguishes  his right  to  enjoy  the property, it  is a  compulsorily registrable  document under Section 17(1)(b) of the Act. Since it was not registered, it cannot form  foundation for  filing suit  seeking injunction against the  true owner.  As seen,  in  Clause  (2)  of  the agreement, it  is   stated  that  whatever  construction  is raised, he  will not  open any door, window or ventilator or rain-water pipes  and other pipes for discharge of the rain- water flowing  towards south-north and he also undertook not to construct  any platform  or balcony  or stairs or corners towards 16  ft. wide passage which the appellate left in his land in  front of  the land  purchased by the respondent. He also undertook  under the  agreement that he would not raise any boundary wall in the north after leaving a set-back of 3 feet measured from the platform.      This is  seen that the respondent has limited by way of city on  the exercise  of his  right and  enjoyment  of  the property purchased  under the sale deed dated June 25, 1964. In this  behalf, whether  the  document  is  a  compulsorily registrable document  has to be considered from the language used in  Section 17(1)(b) of the Act. The contention of Shri Sanghi, learned counsel for the respondent, is that when the instrument is  in relation  to immovable  property  and  the document seeks  to limit  the  right  in  relation  to  that property, it  is a  compulsorily registrable  document  and, therefore Section  17(1)(b) clearly  applies to the facts in the case. By operation of Section 50 of the Registration Act such  a  document  cannot  be  looked  into.  Section  17(1) envisages that  any document,  if the  property to which the document relates,  is situated  in  a  district  within  the jurisdiction of  the Sub-Registrar  and as has been executed on or  after the Act has come into force and it comes within any of  the enumerated  instruments, it  is  a  compulsorily registrable document.  Clause (b)  provides that  other non- testamentary instruments 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 one hundred rupees and upwards, to  or   in  immovable   property,  it   is  a  compulsorily registrable document.  If it  is unregistered, Section 49 of the Registration Act prohibits acceptance of the document as evidence of  right thereunder.  Section  50  envisages  that every such document of the kinds mentioned in Section 17 (1) or Clause  (a)  and  (b)  of  Section  18,  shall,  if  duly registered take  effect as  regards the  property  comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document.  It is  to be seen that the agreement is not  in the nature of registered document. Admittedly, in the sale  deed the  appellant had conveyed to the respondent absolute right,  title and interest in the property and open land we  sold to the respondent. Subsequently, in respect of that property, the latter had executed an agreement limiting his right  to construct  the house in the manner and subject to the restrictions envisaged in the agreement. The question is: whether  that document  is capable  of valuation?  It is seen that  what is  material for the purpose of compulsorily registration under  Section 17(1)  is that the document must 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 one hundred rupees and upwards, to  or  in  immovable  property  should  these  two

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conditions be satisfied before insisting upon instrument for compulsory registration  under Section  17(1)(b) of the Act. Section 49  or Section  50 prohibit  use of the terms in the document which was not registered for any purpose under law. It is seen that there is restrictive clog on the exercise of the  right  over  his  property  which  the  respondent  had undertaken for  constructing the  house  or  wall  over  the property purchased.  Though argument  is  in relation to the same property,  the subject  matter of  the sale  deed dated June 25, 1964, the undertaking given by the respondent is as to the  exercise of  his right  over  the  property.  It  is incapable of  valuation. Resultantly,  its value  cannot  be construed  to   be  hundred  rupees  or  more.  Under  those circumstances, the  agreement entered into by the respondent with  the   appellant  is  not  a  compulsorily  registrable document under Section 17(1)(b) of the Registration Act.      In  Mohamad   Hussain  vs.  Korwar  Earappa  [AIR  1954 Hyderabad 14],  a Bench  of the  Hyderabad  High  Court,  in analogous  situation,   had  to   consider  this   question. Thereunder, an agreement was to erect the common wall not in existence  at   the  time  of  the  agreement  with  certain conditions attached  to the  agreement. It  was sought to be enforced by  filing a  suit for injunction. It was contended that the  agreement limits  right to enjoy the property and, therefore, the  agreement being  not a  registered  one,  it cannot be enforced. The Division Bench had held that thus:      "The   question   is   whether   an      agreement to  erect a  common  wall      with certain conditions attached to      it and the liberty to the appellant      to  build   a  wall   with  certain      limitations   is    tantamount   to      creation  or   limitation   of   an      interest  in   future  to   or   in      immovable  property,  it  was  held      that it  is not a limitation on the      exercise of  the  right  and  that,      therefore, it  is not  a compulsory      registrable document."      The question  of valuation  in that case did not arise; even  though   we  have   held  that  it  is  conveyance  or restrictive covenant  or clog  on the  right  to  enjoy  the property and  may limit  the enjoyment  of the property; but being not  capable of  valuation of  hundred rupees or more, the prohibition  of Section  17 (10)  (b) is inapplicable to the facts  in this case. Shri Sanghi has relied on Kashinath Bhaskar Datar  vs. Bhaskar  Vishweshwar [AIR  1952 SC  153]. Therein,  after   the  mortgage   deed  was   executed,   on consideration of rendering service, the appellant thereunder had agreed to waive the interest. The question arise whether such a limitation is a compulsorily registrable document. It was held in paragraph 7 that since the right to receive rate of interest  mentioned in  the mortgage  deed is enforceable and subsequent  agreement which  limits or  extinguishes the right to  receive interest  at a  particular  rate  being  a covenant limiting  the right, it is compulsorily registrable document under  Section 17(1)(b)  of the  Act. Therein,  the valuation of  limiting the  interest  is  capable  of  being valued. Therefore,  it was  held that  it is  a compulsorily registrable document.      In Gobardhan  Sahi & Anr. vs. Jadu Nath Rai & Anr. [ILR (35) Allahabad  202], similar  question had  arisen. In that case also,  after the  mortgage was  executed, the agreement was entered  into  to  reduce  the  rate  of  interest.  The Division Bench  had held  that since  the mortgagee agree to

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forego  interest   covered  by   the   mortgage   deed,   it extinguished the right to receive interest. Therefore, it is a compulsorily  registrable document.  It was also held that the document could not be relied upon.      The case  of S. Noordeen vs. V.S. Thiru Venkita Reddiar & Ors. [AIR 1996 SC 1293] has no application to the facts in this case.  Therein, the  compromise decree was entered into under which  the rights  were created under the document not for the  first time  but pre-existing right. Therefore, this Court had  held that  it was  not a compulsorily registrable document.      In the  case of  Lachhaman Dass  vs.  Ram  Lal  &  Anr. [(1989) 2  SCR 250  at 2591,  this Court  had held  that the object of  Section 17(1)(b) is to declare a right in present or in  future in  respect of immovable property of the value of Rs. 100/- or upwards and it is to the benefit of not only of the  purchaser but also notice for everyone. There is not dispute on  the proposition  of the law. In that case, since the award is of value of Rs. 100/- and more it was held that it is  a compulsorily registrable document. The same was the view taken  in the case of Mst. Kirpal Kaur vs. Bachan Singh & ors.  [(1958) SCR  950]. The  case  of  Sardar  Singh  vs. Krishna Devi  (Smt.) &  Anr. [JT  1994 (3) SC 465 = (1994) 4 SCC 18],  also does  not help the appellant. Similarly, this Court in  Bhoop Singh  vs. Ram  Singh Major & Ors. [(1995) 5 SCC 709  at 713] in paragraph 12 had held that though it was an immovable  property, it  was acquired  for the first time under the  compromise decree  and having not been registered under Section  17(1)(b), the  exceptions engrafted  in  sub- section (2)  thereof have  no application  to  the  property though it  relates to  the  enjoyment  of  the  property  in relation thereto.      Thus, we  hold that all the decisions do not render any assistance to  the respondent.  It is then contended by Shri Sanghi that  the appellant  is no  gaining any  advantage by limiting the right to use the property of the respondent and the appellant  may be compensated by adequate consideration. When we put it to the learned counsel for the appellant, Mr. J.P. Goyal,  learned senior  counsel for  the appellant, has stated that  his property  is adjacent  to the  property  in question and  he is fighting the case throughout; therefore, the question  of compensating  the appellant does not arise. Since it is not acceptable to the counsel for the appellant, we cannot  give any  acceptance to  the  contention  of  the learned counsel for the respondent.      Thus, considered,  we are  of the  view that  the  High Court was  clearly in  error in  reversing the decree of the appellate Court  and  the  cross-objections  in  the  second appeal, though for the different reasons.      The appeal  is accordingly  allowed and the judgment of the High  Court stands  set aside  and that of the appellate Court stands confirmed and cross objections in second appeal allowed. In  the result, the suit stands decreed. But in the circumstances, the  parties are  directed to  bear their own costs.