Ajitha v. Sub-Registrar, Kuttanelloor Sub-Registrar Office, Thrissur

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **WP(C).No. 41854 of 2018** **PETITIONER/S:** **AJITHA AGED 59 YEARS W/O VAMADEVAN, KOTTUKKAL CHENTHRAPPINNI VILLAGE, KODUNGALLOOR TALUK, P.O. THRISSUR-680 687.** **BY ADV. SRI.RAJIT** **RESPONDENT/S:** **SUB-REGISTRAR KUTTANELLOOR SUB-REGISTRAR OFFICE, P.O. KUTTANELLOOR, THRISSUR-680 014.** ## **OTHER PRESENT:** **SMT.A.C.VIDHYA,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 41854 of 2018 ## ================== Dated this the 3[rd] day of January, 2019 **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“i) To issue a Writ of Mandamus or any other appropriate writ order or direction commanding the respondent to register Exhibit P-1 document._ - _ii) Declare that the refusal of the respondent to register Ext.P-1 document is illegal._ 2. Heard Sri.Rajit, learned counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Govt. Pleader appearing for the respondent Sub Registrar. 3. It is pointed out that the respondent SRO has refused to register Ext.P-1 sale deed presented by the petitioner's vendor on the following grounds: - _i. The name of the account holder from which the amount of Rs. 24,00,000/- is paid has not been specified._ - _ii. The specific mention that the property does not belong to any person, with an unsound mind, autism, cerebral palsy, multiple disability is not validated by the applicable provision of law._ - _iii. That the area mentioned in the prior deed was 4 Ares, whereas the ares mentioned in the thandaper No.5139 is 4.05 Ares. The same is required to be explained._ - _iv. That there is difference in the building number mentioned in the prior deed and the current building agreed to be sold._ - _v. The sale consideration shown in the document is less than what is_ W.P.(C)41854/18 - : 3 :- _declared as the fair value of the land by the government._ 4. As regards point No.i it is seen that the sale consideration of Rs.24 lakhs was duly paid by the petitioner by way of cheque No.728846 dated 19.11.2018 of South Indian Bank, Kuttanallur Branch, Thrissur District, through account No.0535053000001074 of the said bank. Therefore, the objection raised as per point No.i is not sustainable. That apart, there is no provision in the Registration Act or the Registration Rules framed thereunder, which empowers an officer like the respondent Sub Registrar to compel the buyer or seller of the property concerned to disclose as to the source of the money, etc. 5. As regards point No.ii, the objection raised by the respondent is that the recital in the sale deed that the property does not belong to any person with unsound mind, autism, cerebral palsy, multiple disability, etc. is not accompanied by the further averment or recital as to the provision of law under which that recital is made. None of the provisions of the Registration Act or the Rules, empowers the respondent Sub Registrar to insist that the recital in the sale deed should contain also the provision of law on the basis of which the factual recital has been made. That apart, it can be seen that the matters relating to unsoundness of mind, etc. are regulated by the W.P.(C)41854/18 - : 4 :- provisions of the Mental Health Act, 1987 and the matters relating to autism, cerebral palsy, multiple disability, etc. are regulated by the provisions contained in the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999). Hence objection based on point No.ii is only to be overruled. 6. As regards the third point, it is seen that the objection is that the area mentioned in the prior deed was 4 Ares, whereas the area mentioned in thandapper No.1539 in respect of the subject property is 4.05 Ares, etc. The matter in issue is no longer res integra and is fully covered by the dictum laid down by this Court in _**Sumathi & Anr. v. State of Kerala**_ [judgment dated 25.10.2018 in W.P.(C).No. 29171/2018] reported in in ILR 2018 (4) Ker, 956 = 2018 (4) KLT 959, in favour of the petitioner. It will be profitable to refer to para 8 of the abovesaid decision in _**Sumathi's case supra**_ , which reads as follows: _'8. This Court has also held in the judgment in 16.2.2018 in W.P.(C).No.2871/2018, which has been followed in a series of cases that the Sub Registrar is not legally justified to insist that executant should produce prior title deeds to satisfy the title and ownership of the property before he could register the deed concerned and that even possessory right could also be conveyed and there is no bar or legal impediment in transferring the possessory rights from one person to another and whether the possession is based on lease or title are all not matters of enquiry by the Sub Registrar and only those rights which the executor are having alone could be conveyed to the transferee. In other_ W.P.(C)41854/18 - : 5 :- _words, mere execution of the deed by itself will not be conclusive of the title and ownership rights of the person concerned merely on the basis of the description and recitals in the deed concerned. Accordingly, this Court had directed the Sub Registrar concerned to accept the document concerned and register the same in accordance with law which is otherwise in order, etc. In the light of the above said legal principles well settled in the aforecited judgments of this Court, this Court is of the considered view that the petitioners' contentions are sustainable and tenable. In Ext.P-2 thandapader account finalised after re-survey proceedings pertaining to the 1[st] petitioner's property, it is clearly shown that the total extent of land is 4.80 ares and the boundaries are also shown in Ext.P-2 which tallies with the boudaries shown in Ext.P-3 sale deed. It is true that in Ext.P-6 land tax receipt, the extent of land is only 4.05 ares and not 4.80 ares shown in Ext.P-2 thandaper account. This Court had specifically directed the Senior Government pleader to get instructions from the 4[th] respondent-Tahsildar in the matter and the 4[th] respondent-Tahsildar, Ottappalam, has now furnished written instructions dated 20.10.2018 to the learned Senior Government Pleader, a copy of which has been made available for perusal of this Court, wherein it has been inter alia stated that the State Government as per Circular No.40837/E3/15/Rev. dated 12.10.2015 has ordered that the area mentioned in the re-survey record in each survey/sub division cases can be taken into account as basic record for pokkuvaravu (Transfer of Registry). The Government Circular No.40837/E3/Rev. dated 12.10.2015 issued by the government in the Revenue Department reads as follows:_ _"_ ന� _.40837/_ ഇ _3/15/_ റവന�� റവന�� _(_ ഇ _)_ വക�പ� തതര�വനനപ�ര� ത�യതത _: 12 /10 /2015_ ## **സർക�ലർ** വതഷയ� _:_ റവന�� വക�പ� _-_ റ�സർവ� റതക�ർഡതൽ വരഖപപട�തതയതട"ള വതസത�ർണ� അടതസ�ന വരഖയ�യത കണക�കത വപ�ക�വരവ നടത�നത _-_ സ�ബനതച"� സ�ചന _: 1 ._ റവന�� വബ�ർഡതനപറ _(_ സർവ� _)_ യ�പട _18-09-91_ പ1 ബത _1 – 19446/94_ നമർ സർക�1ർ _. 2 ._ സർവ� ഡയറകടറ�പട _10-07-2015_ പ1 ബത _1-15600/15_ നമർ _3._ കത� 1�ൻഡ റവന�� കമ�ഷണറ�പട _. 01-09-2015_ പ1 എൽ _._ ബത _. 3- 39284_ നമർ കത� _._ സ�ചന _(1)_ പപക�രമ�ള സർക�1റതൽ _,_ റ�സർവ� റതക�ർഡതൽ ക�ണതചതരതക�ന വതസത�ർണ� അടതസ�ന വരഖയ�യത കണക�കത മ�പതവമ വപ�ക�വരവ പചയ�ൻ പ�ട�ള" എന� നതർവ;ശതചതട"ണ� _._ എന�ൽ ഈ നതർവ;ശ� പ1 വതവ1?ജ ആഫ�സ�കളത1�� പ�1തച" ക�ണ�നത1?�പയന�� ആയത�പക�ണ� പപ�ത�ജനങൾക� വപ�ക�വരവ നടപടത സ�ബനതച"� ബ�ദതമ�ട"കൾ ഉളവ�ക�ന�പവന�� സർക�രതനപറ പശദയതൽപപടതട"ണ� _._ ആയതതന�ൽ ടത സർക�1ർ പപക�ര� നടപടതകൾ സI�കരതക�വ�ൻ എ1?� ജത1?� കളകടർമ�ർക�� നതർവ;ശ� നൽക�ന� _._ പക _._ എസ _._ ഷ�1 സപപഷ�ൽ പസപകടറത 1�ൻഡ റവന�� കമതഷണർ _,_ തതര�വനനപ�ര� സർവ� ഡയറകടർ _,_ തതര�വനനപ�ര� പരജതസവപടഷൻ ഇൻസപപകടർ ജനറൽ _,_ തതര�വനനപ�ര� W.P.(C)41854/18 - : 6 :- ## എ1?� ജത1?� കളകടർമ�ർക�� ഡയറകടർ _,_ വതവര പപ�ത�ജന സമർക വക�പ� _(_ പപസതദതകരണതതന� _)_ ഇൻഫർവമഷൻ ഓഫ�സർ _,_ പവബ _&_ ന��മ�ഡതയ _, I & PRD_ കര�തൽ ഫയൽ _/_ ഓഫ�സ വക�പത **==> picture [87 x 13] intentionally omitted <==** **==> picture [77 x 10] intentionally omitted <==** _Accordingly, it has been apprised by the 4[th] respondent, Tahsilar, that based on the entries made in the Basic Tax Registrar with respect to the property in re-survey No.3/40 Block No.78 of Kadambazhipuram Village-I, and physical verification report of the Village Officer concerned, an extent of 0.0480 hectares (about 12 cents) of land is admissible to the 1[st] petitioner, Sumathi, in the light of the abovesaid Government Circular dated 12.10.2015. In the light of these aspects, this Court is of the view that there are no legal impediments for admitting the pleas of the petitioners and accordingly it is so ordered. In that view of the matter, it is ordered that the view taken by the 3[rd] respondentSRO, Kadambazhipuram in the impugned Ext.P-5 letter dated 23.8.2018 refusing to register the document on the grounds stated therein is illegal and ultravires and the same will stand quashed. The petitioners may present Ext.P-3 sale deed for registration before the 3[rd] respondentSRO, who will then register the same if it is otherwise in order. However, it is made clear that the 3[rd] respondent cannot refuse to register the said deed on the ground that the total extent of the land shown therein is 4.80 ares and not 4.05 ares. The petitioners may produce a certified copy of this judgment at the time of presentation of Ext.P-3 document for registration. After registration of the deed, it will be open to the petitioners to file the requisite application for mutation of the above property and for acceptance of land tax for an extent of 4.80 ares based on the title deed and the abovesaid Government Circular dated 12.10.2015 before the competent Revenue Officials concerned, who will then consider such request without delay.'_ Hence it is only to be held that the said objection is also not sustainable and will stand overruled. 7. Point No.iv is that there is difference in the building number mentioned the prior deed and the current building number in the subject sale deed, etc. It is the case of the petitioner that the prior title deed contained the building number of old building as based on the then numbering system of the numbering authority concerned and that presently, the building has been renumbered, etc. In view of W.P.(C)41854/18 - : 7 :- the said explanation of the petitioner, objection No.iv will also stand overruled. 8. Point No.v is that the sale consideration shown in the document is less than what is declared as the fair value of the land by the Government. In that regard, it is the case of the petitioner that the subject property is situated in Sy.No.186/17 of Ulloor Village and the property of the petitioner is residential plot with private road access and that it is not a commercially important plot. Further that fair value of the property has been declared by the Government in respect of the abovesaid property, which is a residential plot with private road also, comes only to Rs. 3,67,500/- per are, as per Ext.P-3 notification, etc. 9. Per contra, Smt.A.C.Vidhya, learned Govt. Pleader appearing for the respondent Sub Registrar would submit on the basis of the instructions that Ext.P-3 notification is in respect of residential plot with private access and as a matter of fact, the subject property is one in relation to commercially important plot and that the same is covered by Ext.P-3 notification and that the actual fair value of the subject property is covered by serial No.2 of Ext.P-3 notification in relation to commercially important plot, for which the notified fair value is in Rs. 7,35,000/- per are. Further it is pointed W.P.(C)41854/18 - : 8 :- out by the learned Government Pleader that the subject property involved in the sale deed consists of 4 shop rooms, which are commercial buildings, etc. 10. Prima facie, this Court is not in a position to ascertain as to the factual correctness of the mutual conflicting claims of the petitioner and the respondent SRO. It is brought to the notice of this Court that it is provided in sub section (2) of Sec. 45A of Stamp Act, 1959 that where on such verification, the registering authority is satisfied that the value of the land or the consideration set forth in the instrument is not less than the fair value of the land, he shall duly register the instrument. Further Sec. 45(3) stipulates that where, on verification the registering officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under Sec.28A, he shall, by order, direct payment of proper stamp duty on the fair value of the land fixed under Sec. 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, he shall register such instrument and certify by endorsement on the instrument under his seal and signature that proper stamp duty has been charged and paid. However, sub section (4) of Sec.45A further stipulates that any person aggrieved by an order under sub-section (3) may, within thirty days, W.P.(C)41854/18 - : 9 :- from the date of that order, appeal to the Collector, within whose jurisdiction the land is situated and sub section (5) of Sec.45A further stipulates that the Collector shall hear and dispose of the appeal in such manner as may be prescribed by rules made under the above Act in that behalf and his decision thereon shall be final. 11. Sec. 45A of the Stamp Act, 1959, provides as follows: _**“Sec. 45A: Instrument not bearing stamp of sufficient amount as per fair value of land how to be dealt with.** - (1) Notwithstanding anything contained in this Act, the registering officer shall, while registering an instrument transferring any land, chargeable with duty verify whether the value of land or the consideration set forth in the instrument is the fair value of that land._ _(2) Where on such verification, the registering officer is satisfied that the value of the land or the consideration set forth in the instrument is not less than the fair value of the land, he shall duly register the instrument._ _(3) Where, on verification the registering officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under Section 28A, he shall, by order, direct the payment of proper stamp duty on the fair value of the land fixed under Section 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, he shall duly register such instrument and certify by endorsement on the instrument under his seal and signature that proper stamp duty has been charged and paid._ _(4) Any person aggrieved by an order under sub-section (3) may, within thirty days from the date of that order, appeal to the Collector within whose jurisdiction the land is situated._ _(5) The Collector shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act in that behalf and his decision thereon shall be final.”_ 12. Accordingly, it is ordered that it is for the petitioner's vendor to present the sale deed for registration. On presentation of the sale deed, the respondent SRO will hear him and take an appropriate decision as to whether the actual fair value of the subject W.P.(C)41854/18 - : 10 :- property is governed by serial No.1 of Ext.P-3 or whether it is decided by serial No.2 thereof and then pass an order on that issue and communicate a copy of that order to the petitioner. Thereafter if the petitioner has grievance in that regard, she may avail the appellate remedy as conceived under sub sections (4) and (5) of Sec. 45A before the notified collector as to that issue. 13. It is brought to the notice of this Court that the jurisdictional Revenue Divisional Officer concerned has been conferred with the power of the notified collector to exercise the powers of the appellate authority under Sec. 45A (3) of the Act. In case the petitioner has any grievance on the abovesaid decision that may be rendered by the respondent SRO, it is for her to avail appellate remedy and then proceed with the matter in accordance with law. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C)41854/18 - : 11 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE ORIGINAL DOCUMENT SUBMITTED BEFORE THE RESPONDENT FOR REGISTRATION.** **EXHIBIT P2 TRUE COPY OF THE DESCRIPTION OF THE PROPERTY IN THE THANDAPER REGISTER.** **EXHIBIT P3 TRUE COPY OF THE FAIR VALUE OF LAND AS PUBLISHED BY THE STATE OF KERALA IN RESPECT OF THE PROPERTY OF THE PETITIONER.**