IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Smt. Sheela Tulsyani & Another Vs. Major Hemant Singh Jamwal (S. B. Civil First Appeal No.183/2010) S. B. Civil First Appeal under Section 96 read with Order 41 Rule 1 C.P.C. Against the judgment and decree dated 30-1-2010 passed by Additional District Judge (Fast Track) No.4, Ajmer in Civil Suit No.134/2009 (62/2007), whereby the suit for specific performance of the contract has been decreed. Date of Judgment: September 6th, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. G.P. Sharma, for the appellant. BY THE COURT: Aggrieved by the judgment and decree dated 30-1-2010, passed by Additional District Judge (Fast Track) No.4, Ajmer, whereby the learned Judge has decreed the suit for specific performance in favour of the plaintiff-respondent, the defendant- appellants have challenged the same before this court. 2. The brief facts of the case are that the respondent, Major Hemant Singh Jamwal, instituted a civil suit for specific performance against the appellants with regard to an agreement to sell dated 19-1- 2006. According to respondent, he and appellant No.1, Smt. Sheela Tulsyani, who is the power of attorney holder of appellant No.2, Smt. Gopi, they had entered into an agreement to sell of a plot, for a consideration of Rs.3,28,000/-. At the time of signing of the agreement, the respondent had paid Rs.28,000/- to the appellant No.1. Subsequently, despite the fact that the respondent repeatedly offered to pay the remaining amount of Rs.3 lacs to appellant No.1, she refused to have the sale-deed registered. The disinclination was shown ostensibly on the ground that there was some disagreement within the family about the sale of the plot in question. Since the appellants refused to perform the contract, the respondent filed the suit for specific performance of the contract. 3. The appellants filed written statements. On the basis of pleadings of the parties, the learned trial court framed five issues, including the issue with regard to relief. In order to buttress his case, the respondent examined his power of attorney holder, Mr. Virendra Singh and exhibited eight documents, while the appellant No.1 examined herself as a witness and exhibited eight documents. The appellant No.2 neither examined herself, nor produced any documents. After going through the oral and documentary evidence, vide judgment dated 30-1-2010, the learned trial Judge decreed the suit in favour of the respondent. Hence, the present first appeal before this court. 4. Mr. G.P. Sharma, the learned counsel for the appellants has vehemently contended that the agreement to sell was not duly stamped. Therefore, it could not have been received in evidence. Hence, the learned Judge has erred in marking it as an Exhibit. According to Section 40 of the Rajasthan Stamp Act, 1998, in case a document is not duly stamped, the same cannot be received in evidence. Secondly, although the said document is required to be registered under the Registration Act, the same has not been registered. Therefore, according to Section 49 of the Registration Act, the document could not have been admitted in evidence. Thirdly, once it was pleaded before the learned trial Judge, that there was disagreement within the family for the sale of the plot, the learned trial Judge should have exercised his discretion under Section 20 of the Specific Relief Act,1963 (`the Act' for short). Since the learned trial Judge has not exercised his discretion under Section 20 of the Act, the impugned judgment deserves to be set aside. Lastly, the learned trial Judge should have considered the applicability of Section 14 of the Act and should have concluded that the breach of contract can be compensated monetarily, therefore, the specific performance of the contract is not necessary. 5. Heard learned counsel for the appellants and perused the impugned judgment. 6. The first contention raised by learned counsel is untenable. It is true that Section 39 of the Rajasthan Stamp Act prohibits the admission of a document in evidence, in case the document is not duly stamped unless certain conditions are fulfilled. But, according to Section 40 of the Rajasthan Stamp Act, once a document has been exhibited during a trial, subsequently, the objection about its admissibility cannot be raised. Therefore, in case the appellant had any objection with regard to admissibility of the agreement to sell, he should have raised the said objection during the course of trial itself. Once the document has been marked as an exhibit, it is too late in the day for the appellant, to raise any objection about its admissibility. Now, the appellant is hit by the bar contained in Section 40 of the Rajasthan Stamp Act. 7. Section 49 of the Registration Act, 1908, reads as under:- 49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument. A bare perusal of Section 49, clearly reveals that it contains an exception by way of proviso whereby unregistered document can be received in evidence in a suit for specific performance. It could also be received as evidence for collateral purpose. 8. Dealing with the scope of Section 49 of the Registration Act, recently in case of S.Kaladevi Vs. R. Somasundaram & Ors. (AIR 2010 S.C. 1654), the Hon'ble Apex Court has observed as under:- The main provision in S.49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to S.49. Therefore, the contention raised by learned counsel for the appellant that since the agreement to sell is unregistered document, therefore, it could not be received as evidence, is clearly untenable. 9. A contract is a sacred document, as it records the intention of both the parties, who have mutually agreed to perform certain obligations towards each other. Since a contract is the very foundation for financial transaction, for transfer of property, it has been held to be sacred in its nature. Once both the parties have agreed in the contract to perform the obligations, the learned trial Judge has rightly held that a party cannot be permitted to wriggle out of its liability to perform the contract ostensibly on the ground that his family members have some reservations about the contract. If such an excuse were permitted to be used for abdicating one's liability, it would create a gaping hole in the law of contract. Similarly, if every breach of contract were to be compensated by payment of damages and not by specific performance, again such a position would create chaos in the financial world. In the present case, the appellant had agreed that it had entered into agreement to sale. Therefore, the learned trial Judge was justified in holding the appellant liable to perform the contract. 10. Furthermore, under Section 20 of the Act, a discretion has been bestowed upon the learned trial Judge to exercise or not to exercise its discretion. The learned counsel for the appellant has not been able to make out any case to prove that non-exercise of the discretion under section 20 of the Act was an arbitrary omission on part of the court. Therefore, the contention of the learned counsel that the learned trial Judge should have invoked its discretionary power is unacceptable. 11. In case section 14 of the Act were given liberal interpretation that in every case of breach of contract party should be compensated monetarily, instead of directing the defaulting party to specifically perform the contract, such an interpretation would make the entire Specific Relief Act redundant. Therefore, the learned counsel is not justified in claiming that in the light of Section 14 (a) of the Act, the suit should have been dismissed. 12. A bare perusal of the judgment clearly reveals that learned trial judge has given cogent and legal reasons for decreeing the suit in favour of the respondent. This court does not find any perversity or illegality in the impugned judgment. 13. Hence, this first appeal is devoid of any merit. It is, hereby, dismissed. Decree be prepared accordingly. ( R.S. CHAUHAN ) J. arn