- 1 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.29248/2019 (GM-CPC) BETWEEN: RAJANI S. PUJARI D/O LATE SATHISH K. POOJARI AGED ABOUT 47 YEARS R/AT NO.18/B/6, MANISH KAVERI MANISH NAGAR CO-OPERATIVE HOUSING SOCIETY FOUR BUNGALOWS ANDHERI (W), MUMBAI-400053. …PETITIONER (BY MR. B.S. SACHIN, ADV.,) AND: 1. NARAYANA S/O LATE DUGGAPPA POOJARY AGED ABOUT 58 YEARS R/AT. BALEHITTILU HOUSE BAJAL VILLAGE AND POST BAJAL, MANGALORE-575001. 2. MISS. SNEHAL S. PUJARI D/O LATE SATHISH K. POOJARI AGED ABOUT 22 YEARS. 3. MASTER SHASHANK S/O LATE SATHISH K. POOJARI AGED ABOUT 20 YEARS. Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 RESPONDENT NOS.2 AND 3 ARE R/AT NO.18/B/6 MANISH KAVERI, MANISH NAGAR CO-OPERATIVE HOUSING SOCIETY FOUR BUNGALOWS ANDHERI (W), MUMBAI-400053. …RESPONDENTS (BY MS. POOJAPARVATHI U, ADV., FOR MR. G. RAVISHANKAR SHASTRY, ADV., FOR R1) - - - THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER QUASHING THE IMPUGNED ORDER DTD:6.10.2016 PASSED IN O.S.NO.856/2013 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC MANGALORE AS PER ANNEXURE-A AND DIRECT THE TRIAL COURT TO PERMIT THE PETITIONER TO MARK THE UNREGISTERED AGREEMENT OF SALE DTD:5.3.2005 FOR COLLATERAL PURPOSE IN TERMS OF SECTION 49 OF INDIAN REGISTRATION ACT & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 3 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 ORAL ORDER This petition is filed challenging the order dated 06.10.2016 passed in O.S.No.856/2013 by the Principal Civil Judge and JMFC, Mangalore (hereinafter referred to as the 'Trial Court'). 2. Sri.Sachin B.S., learned counsel appearing for the petitioner-plaintiff No.1 submits that the plaintiffs have filed a suit in O.S.No.856/2013 for the relief of specific performance of the agreement of sale dated 05.03.2005. In the said suit, the plaintiffs produced the agreement of sale dated 05.03.2005. However, the respondent No.1- defendant opposed the marking of the said document on the ground that the said document is unregistered and also indicates the delivery of possession. It is submitted that the Trial Court accepted the opposition of the defendant and refused to mark the said document in the evidence. Being aggrieved, the present petition is filed. It is further submitted that the Trial Court has failed to take note of the fact that the plaintiffs have received the - 4 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 possession of the property much prior to the agreement of sale which is evident from the covenant of the agreement. Hence, under the proviso to Section 49 of the Registration Act, 1908 (hereinafter referred to as 'the Act'), the document is required to be marked as evidence in the trial. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of MURUGANANDAM Vs. MUNIYANDI (DIED) THROUGH LRS1. Hence, he seeks to allow the petition. 3. Miss Pooja Parvathi U, learned counsel appearing for Sri.G.Ravishankar Shastry, learned counsel for the respondent No.1 supports the order of the Trial Court and submits that admittedly the agreement of sale is an unregistered instrument. The averment of the plaintiff clearly indicates that the plaintiffs got the possession of the property under the agreement. Hence, without there being any registration of such instrument, the production and marking of the said document during 1 2025 SCC Online 1067 - 5 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 the course of the evidence, does not arise. Hence she seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides. 5. The material on record indicates that the plaintiff has filed O.S.No.856/2013 seeking for enforcement of the agreement of sale dated 05.03.2005 and other reliefs. The defendant contested the said suit, denied the averments made in the plaint and sought for dismissal of the suit. The matter was posted for trial. During the course of evidence, the plaintiffs produced the agreement of sale dated 05.03.2005 and sought for marking of the said document as evidence which was rejected by the Trial Court by the impugned order on the ground that the document cannot be marked as there is - 6 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 delivery of physical possession but the instrument is unregistered. In my considered view, the Trial Court has committed a grave error by ignoring the effect of the proviso to Section 49 of the Act. The Hon'ble Supreme Court, in the aforesaid decision, at paragraphs 9 and 10 has held as under: "9. Having considered the matter in detail, we are of the opinion that the prayer of the appellant in the interlocutory application falls under proviso to Section 49 of the Registration Act which provides that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance. The proviso also enables the said document to be received in evidence of a collateral transaction. Section 49 reads as follows: “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, 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: - 7 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 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 or as evidence of any collateral transaction not required to be effected by registered instrument.” 10. In Kaladevi (supra), this Court has held that an unregistered document may be received as evidence of a contract in a suit seeking specific performance. The relevant portion from the decision is as follows: “12. The main provision in Section 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. The proviso, however, would show that an unregistered document affecting immovable property and required by the 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 the 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 - 8 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 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 Section 49 of 1908 Act.” (emphasis supplied) 6. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court in the aforesaid decision and also taking note of the fact that the covenant in the agreement dated 05.03.2005 makes it clear that the vendor has already delivered the actual possession of the schedule property to the purchaser, I am of the considered view that the Trial Court has committed an error in ignoring the covenant of the agreement of sale dated 05.03.2005 and the effect of proviso to Section 49 of the Act. The contention of the defendant that the plaintiffs have made an assertion in the plaint with regard to the delivery of possession in part performance of the agreement, is required to be rejected for the simple - 9 - HC-KAR NC: 2026:KHC:12701 W.P. No.29248/2019 reason that the very agreement which is produced before the Court at Annexure-F makes it clear that the vendor claims that the delivery of possession is much prior to the agreement in question. 7. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 06.10.2016 passed in O.S.No.856/2013 by the Principal Civil Judge and JMFC, Mangalore, is set aside. (iii) The Trial Court is directed to accept the said agreement of sale dated 05.03.2005 and mark the same as evidence. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 47