MITHILESH KUMARversusMANOHAR LAL

-
                               MITHILESH KUMAR                                     A
                                          v.
                                 MANOHAR LAL

                                OCTOBER 30,. 1996

                 [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                            B

            Registration Act, 1908 :

          S. J7(1)(b)-Agreement entered into stipulating self-imposed conditions
    for use of land-No consideration-Whether compulsorily registrable--
    Held: Undertaking given as to exercise of right over property-Incapable        C
    of valuation-Value cannot be construed to be hundred rupees or more-
    Hence not a compulsorily registrable document.

          Kashinath Bhaskar Datar v. Bhaskar Vishweshwar, AIR (1952) SC
    153; S. Noorden v. VS. Thiru Venkita Reddiar and Ors., AIR (1996) SC D
    1293; Lachhaman Dass v. Ram Lal and Anr., [1989] 2 SCR 250; Mst.
    Kirpal Kaur v. Bachan Singh and Ors., [1958] SCR 950; Sardar Singh v.
    Krishna Devi (Smt.} and Anr., JT(l994) 3 SC 465 = [1994] 4 SCC 18
    and Bhoop Singh v. Ram Singh Major and Ors., [1995) 5 SCC 709,
    distinguished.
                                                                                   E
         Mohamad Hussain v. Korwar Sarappa, AIR (1954) Hydrabad 14
    and Gobardhan Sahi and Anr. v. Jadu Nath Rai and Anr., ILR (35)
    Allahabad 202, referred to.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2325 of F
    1980.

         From the Judgment and Order dated 26.10.79 of the Allahabad High
    Court in S.A. No. 4 70 of 1972.

            J.P. Goyal, R.P. Goyal and Sushi! K. Jain for the Appellant.           G

         G.L. Sanghi. K.B. Rohtagi and Ms. Aparna Rohtagi for the
    Respondent.

            The following Order of the Court was delivered :                       H
                                         173
    174                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A         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 tiled the suit for perpetual injunction restraining the
                                                                                     -
                                                                                     •
  respondent from raising a construction except the Chabutra in the north
B 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
C 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 and
  decree dated May I 0, 1971 and decreed the suit only in respect of item
  Nos. I and 2 holding that the agreement did not require registration. The
D High Court in the second appeal held that the items require registration
  compulsorily under Section 17( I) (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
E appeal by special leave.
           The admitted position is that the respondent had purchased the
    property of an extent of 1732.6 sq.ft. with 16' wide road on the north side
    and 30' wide road towards Indira Gandhi School on the west side; shops
    constructed be the appellants on the south side and open land on the east
F   side; situated at MohallaGanj, Kashipur, District-Nainital from the appellant
    and got it 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
G                 the wall. The said trees and wall belong to Shri Mithlesh
                  Kumar. The following are the terms and conditions in respect
                  of the said trees and the wall:-

           (I)     That Lala Mithlesh Kumar will uproot the said trees and
H                  demolish the wall within 6 months hereof.
                    MITHILESH KR. v. MANOHAR LAL                          175


      (2)     Whatever construction is raised by me in the said piece of          A
              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 and East. I will not
              construct any platform or balcony or stairs or comers towards
              I 6 ft. wide passage which Sh. Mithlesh Kumar has left in his
              land in front of my piece of land.                                  B

      (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        C
              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           D
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, I 964, the appellate Court
and the High Court found, as a fact, that it is an agreement entered into by      E
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 t~at it is not an agreement. As regards lack of
consideration in the agreement, there is no 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            F
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 l 7 of the CPC.

      The only crucial question is: whether the agreement is a compulsorily       G
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 l. "Instrument" has been defined under Section 2(14)
which includes every document by which any right or liability is or purports      H
    176                      SUPREME COURT REPORTS [1996) SUPP. 8 S.C.R.


A 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 appellant sought to fasten
B   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 I 7(l)(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,
C   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 fi. wide
    passage which the appellate lefi in his land in front of the land purchased
    by the respondent. He also undertook under the agreement that he would
D   not raise any boundary wall in the north afier leaving a set-back of 3 feet
    measured from the platform.

         It is seen that the respondent has limited by way of clog on the
                                                                                      -
  exercise of his right and enjoyment of the property purchased under the
E 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(l)(b) of the Act. The contention ofShri 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,
F Section 17( I )(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
G compulsorily registrable document. Clause (b) provides that other non-
  testarnentary 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
H document. !fit is unregistered, Section 49 of the Registration Act prohibits
                    MITHILESH KR. v. MANOHAR LAL                           177


acceptance of the document as evidence of right thereunder. Section 50             A
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 or not be of the same nature as the
registered document. It is to be seen that the agreement is not in the nature      B
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 was 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?         C
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 extinquish 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 conditions be
satisfied before insisting upon instrument for compulsory registration under       D
Section 17(l)(b) of the Act. Section 49 or Section 50 prohibit use oftl1e
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,           E
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.                                                           F
      ln Mohamad Hussain v. 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         G
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              H
    178                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A                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 limitations 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 registreable document."
B
                 The question of valuation in that case did not arise; even
                 though we have held that it is conveyance or restrictive
                 convenient 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
c                Section 17 (IO)(b) is inapplicable to the facts in this case.
                 Shri Sanghi has relied on Kashinath Bhaskar Datar v.
                 Bhaskar Vishweshwar, AIR (1952) SC 153. Therein, after
                 the mortgage deed was executed, on con£,ideration of
                 rendering service, the appellant thereunder had agreed to
                 waive the interest. The question arise whether such a limitation
D                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 convenient limiting the
                 right, it is compulsorily registrable document under Section
E                 I 7(I)(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 and Anr. v. Jadu Nath Rai and Anr., !LR 35
F 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 mortgage agreed to
    forego interest covered by the mortgage deed, it extinguishe:; the right to
    receive interest. Therefore, it is a compulsorily registrable document. It
    was also held that the document could not be relied upon.
G
          The case of S. Noordee v. V.S. Thiru Venkita Reddiar and 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
H   document.
                       MITHlLESH KR. v. MANOHAR LAL                         179


          In the case of Lachhaman Dass v. Ram Lal and Anr., [1989] 2 SCR           A
>   250 at 259, 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. I 00 or upwards and it is to the benefit of not only of the
    purchaser but also notice for everyone. There is no dispute on the propostion
    of the law. In that case, since the award is of value of Rs. I 00 and more it
    was held that it is a compulsorily registrable document. The same was the       B
    view taken in the case of Mst. Kirpal Kaur v. Bachan Sing and Ors.,
    [1958] SCR 950. The case of Sardar Singh v. Krishna Devi (Smt.) and
    Anr., JT (1994) 3 SC 465=[1994] 4 SCC 18, also does not help the appellant.
    Similarly, this Court in Bhoop Singh v. Ram Singh Major and Ors., [1995]
    5 sec 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     C
    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      D
    the respondent. It is then contended by Shri Sanghi that the appellant is
    not 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 appelJant, Mr.
    J.P. Goyal, learned senior counsel for the appellant, has stated that his       E
    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.
                                                                                    F
          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            G
    Court stands set aside and that of the appellate Court stands confirmed and
    cross objections in second appeal alJowed. In the result, the suit stands
    decreed. But in the circumstances, the parties are directed to bear their
    own costs.

    G.N.                                                       Appeal alJowed.      H