Section 53A TP Act | Unregistered Sale Agreement Is No Defence Against Lawful Owner’s Possession Claim : Bombay High Court

“Even Willingness Can’t Cure Illegality—No Shelter Under Section 53A Without Registration,” Bombay High Court reaffirmed that an unregistered agreement of sale cannot be used to shield possession under Section 53A of the Transfer of Property Act. Justice Rohit W. Joshi, dismissing the Second Appeal filed by the defendant, held that “due to the statutory requirement of registration under Section 17(1-A) of the Registration Act, an unregistered agreement has no effect for the purposes of Section 53A.” The Court upheld the decree of possession in favour of the plaintiff and emphasized that the bar under the Maharashtra Project Affected Persons (Rehabilitation) Act, 1999 (the 1999 Act) does not alter the legal position.

Defendant in Possession under Unregistered Sale Agreement—Sale Deed Not Executed Due to Statutory Bar

The litigation stemmed from a dispute over agricultural land in village Kavthal, District Buldhana, owned by the plaintiff. On April 18, 2006, the plaintiff had entered into an agreement to sell the land for ₹3,50,000, of which ₹3,00,000 was paid by the defendant. The plaintiff placed the defendant in possession the same day.

However, the suit property fell within the benefit zone of the Jeegaon Resettlement Project and was therefore barred from sale under Section 12 of the 1999 Act. Consequently, no sale deed was executed. In 2008, the plaintiff filed a suit for possession after issuing legal notices, asserting his right as the true owner.

The defendant claimed protection under Section 53A of the Transfer of Property Act, arguing that she had always been ready and willing to perform her part of the contract and that she even attempted to execute the sale deed in 2006 when she believed the ban was lifted. She also cited a continuing prohibition to justify the non-execution.

Can Possession Be Protected Under Section 53A When Agreement Is Unregistered?

The core legal question was whether Section 53A of the Transfer of Property Act could protect possession when the agreement was unregistered, especially in light of the statutory requirements imposed by Section 17(1-A) of the Registration Act, 1908.

The trial court, first appellate court, and finally the High Court answered this in the negative. Justice Joshi categorically held:

“It is obvious that the defendant cannot seek to protect her possession over the suit property by placing reliance on Section 53A of the Transfer of Property Act, even if it is held that she was all throughout ready and willing to perform her part of the contract.”

“Substantial Question of Law Must Affect Outcome”—Court Dismisses Second Appeal

While admitting the second appeal, the Court had initially framed three questions of law, relating to the continuing prohibition under the 1999 Act, readiness and willingness of the appellant, and the requirement to execute the sale deed within a stipulated period.

But the Court held that even if all three questions were answered in the appellant’s favour, “the final outcome of the suit will remain the same.”

“A substantial question of law is one which, if answered in favour of the appellant, must overturn the result of the suit. Merely raising a question of law without affecting the merits or decree is insufficient,” the Court emphasized, citing Ramratan Pandurang Sunwani v. Maya Ramratan Sunwani and Chandrabhan v. Saraswati.

Application for Additional Evidence Rejected as Irrelevant to Outcome

The defendant had also filed two applications under Order 41 Rule 27 CPC seeking to introduce:

• A certificate from the Jeegaon Project authority confirming the land fell within the benefit zone;

• A 2006 government resolution allegedly continuing the sale prohibition.

The Court rejected both applications, noting:

“Even if these documents are accepted, they would not change the result of the suit.”

It reasoned that the bar under Section 12 of the 1999 Act may justify the non-execution of the sale deed but does not override the statutory requirement of registration for invoking Section 53A T.P. Act.

“Title Always Prevails in Absence of Valid Defence”—Court Affirms Decree for Possession

The Court reiterated the principle that when a plaintiff proves ownership, a decree for possession should follow unless the defendant proves a valid defence.

“The only defence raised was based on Section 53A. Since the agreement is unregistered, that defence fails. The decree of possession is rightly passed in favour of the plaintiff.”

The judgment thus stands as a clear declaration that Section 53A is a shield only when the agreement is legally enforceable and duly registered.

Separate Suit for Specific Performance to Proceed Independently

Interestingly, the Court was informed that the defendant had filed a separate suit for specific performance of the contract. Justice Joshi clarified: “The said suit shall be decided on its own merits and in accordance with law.”

This preserves the defendant’s potential contractual claim without undermining the title-based decree for possession.

Conclusion: No Substantial Question of Law, No Protection Under Unregistered Agreements—Appeal Dismissed

The High Court dismissed the Second Appeal, holding that no substantial question of law arose, and that “readiness and willingness” cannot revive an unenforceable contract.

As the Court conclusively held: “The questions framed, even if answered in favour of the appellant, would not change the result. The appeal is dismissed with no order as to costs.”

Date of Decision: 23rd May, 2025