Asma Beevi @ Asumal Beevi v. Inspector General of Registration, Kerala and The Sub Registrar, Pathanapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938 WP(C).No. 17959 of 2016 (T) -------------------------------------------- PETITIONER: ASMA BEEVI @ ASUMAL BEEVI, AGED 84 YEARS, W/O.LATE HASSAN SAHIB, THOPPILMEENA VILASOM HOUSE, MANCHALLOOR MURI, PATHANAPURAM. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: 1. INSPECTOR GENERAL OF REGISTRATION (KERALA), REGISTRATION DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2. THE SUB REGISTRAR, PATHANAPURAM-689 695. BY GOVT. PLEADER SRI.ARUNKUMAR M.K. KARANAVAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2016, THE COURT ON 26-07-2016 DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 17959 of 2016 (T)** PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE JUDGMENT DATED 06.03.1982 PASSED BY THE MUNSIFF COURT, PUNALUR IN OS NO.207/79. EXT. P2 TRUE COPY OF THE JUDGMENT DATED 26.06.1989 PASSED BY THE MUNSIFF COURT, PUNALUR IN OS.NO.81/86. EXT. P3 TRUE COPY OF THE JUDGMENT DATED 11.07.1996 PASSED BY THE SUB COURT, KOTTARAKKARA IN AS.NO.2/90. EXT. P4 TRUE COPY OF THE SETTLEMENT DEED DATED 09.02.2016 PREPARED FOR REGISTRATION. EXT. P5 TRUE COPY OF THE ACKNOWLEDGMENT FOR ONLINE TOKEN REGISTRATION. RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.S. TO JUDGE P.B.Suresh Kumar, J. ------------------------------------------ W.P.(C)No.17959 of 2016 T ------------------------------------------- Dated this the 26[th] day of July, 2016 ## **JUDGMENT** The grievance of the petitioner concerns the refusal of the Registrar under the Registration Act ('the Act' for short) in registering a settlement deed presented by the petitioner for registration. 2. The petitioner has obtained an item of property as per the terms of a settlement deed executed by her father. According to the petitioner, a strip of land measuring twenty cents lying adjoining to the property obtained by the petitioner from her father is also in her possession. The case of the petitioner is that she has executed a settlement deed WPC 17959/16 2 in respect of the said twenty cents of property in favour of her sons and when the settlement deed was presented for registration, the Registrar has refused to register the document. Exhibit P4 is the settlement deed. The petitioner, therefore, seeks directions to the Registrar to register Exhibit P4 settlement deed. 3. The learned Government Pleader, on instructions, submitted that Exhibit P4 settlement deed does not reveal that the petitioner has any right over the property dealt with therein and it is on account of the said reason that registration of the said document was not permitted. 4. Heard the learned counsel for the petitioner as also the learned Government Pleader. 5. The learned counsel for the petitioner pointed out that during 1979, the sister of the petitioner staked a claim over the property referred to above and consequently the WPC 17959/16 3 petitioner filed O.S.No.207/1979 before the Munsiff Court, Punalur and obtained a decree of permanent prohibitory injunction restraining her sister from trespassing into the property. It is also pointed out by the learned counsel for the petitioner that later, the sister of the petitioner filed O.S.No.81/1986 before the said court for recovery of possession of the said property from the petitioner and the said suit was dismissed. According to the learned counsel, the decisions rendered by the civil courts in the said suits would indicate that the petitioner is in possession of the property and that therefore she is entitled to execute a settlement deed in respect of the property in favour of her children. According to the learned counsel, the registration of a document can be refused by the Registrar concerned only in accordance with the provisions of the Act and the Rules made thereunder and there is no prohibition in the WPC 17959/16 4 Act and the Rules in registering a document in the nature of Exhibit P4. Per contra, the learned Government Pleader asserted that when the document presented for registration does not reveal that the petitioner has any right over the property, the Registrar is well within his powers to decline registration. 6. Though the Act does not contain any specific provision dealing with the circumstance under which the Registrar can refuse to register a document, Section 71 of the Act indicates beyond doubt that the Registrar has the power to refuse registration in appropriate cases. Section 71 of the Act reads thus: “71. **Reasons for refusal to register to be recorded:-** (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2., and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. WPC 17959/16 5 (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. (3) No registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self Government institutions unless it is accompanied by a no objection certificate issued by an officer authorised by the State Government in this behalf. _”_ Rule 191 of the Registration Rules (Kerala) ('the Rules' for short) gives indications as to some of the circumstances under which the Registrar can refuse registration. Rule 191 of the Rules reads thus: “ **191** . The reasons for refusal will usually come under one or more of the heads mentioned below; which should invariably be quoted as authority for refusal. ## **Section 19** I. That the document is written in a language which the Registering Officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy. ## **Section 20** II. That it contains unattested interlineations, blanks, erasures, or alterations which in the opinion of the Registering Officer require to be attested. WPC 17959/16 6 ## **Sections 21 (1-3) and Section 22** III. That the description of the property is insufficient to identify it. ## **Section 21(4)** IV. That the document is unaccompanied by a copy or copies of any map or plan which it contains. ## **Rule 42** V. That the date of execution is not stated in the document or that the correct date is not ascertainable. ## **Sections 23, 24, 25, 26, 72, 75 and 77** VI. That it is presented after the prescribed time. ## **Sections 32, 33, 40 and 43** VII. That it is presented by a person who has no right to present it. ## **Section 32A** VIIA. That the document is not affixed with the Passport size photographs and impression/impressions of the left thumb or any of the fingers in the absence of left thumb as prescribed in R.30A(i) and (ii). ## **Section 34** VIII. That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time. Note.- 'Prescribed time', shall mean the time allowed for presentation under Sections 23, 24, 25 and 26 and not the delay of four months in appearance which may be condoned under the proviso to Section 34, unless the presentant or the executing party concerned applies for extension of the period on proper grounds or takes action under Section 36. WPC 17959/16 7 ## **Sections 34 and 43** IX. That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document. ## **Sections 34 and 40** X. That the Registering Officer is not satisfied as to the right of a person appearing as a representative, assign or agent so to appear. ## **Section 35** XI. That execution is denied by any person purporting to be an executing party or by his agent. **Note** .- When a Registering Officer is satisfied that an executant is purposely keeping out of the way with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused, the non - appearance being treated as tantamount to denial of execution. ## **Section 35** XII. That the person purporting to have executed the document is a minor, an idiot or a lunatic. **Note** .- When the executant of a document who is examined under a commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic, registration may be refused, and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification. ## **Section 35** XIII. That execution is denied by the representative or assign of a deceased person by whom the documents purports to have been executed. WPC 17959/16 8 **Note** .- When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being let to apply to the Registrar for an enquiry into the fact of execution. ## **Sections 35 and 41** XIV. That the alleged death of a person by whom the document purports to have been executed has not been proved. ## **Section 41** XV. That the Registering Officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor. ## **Sections 25, 34 and 80** XVI. That the prescribed fee or fine has not been paid. XVII. That the full additions of all persons executing and of all persons claiming under the document are not given. XVIII. A Kanam demise or a renewal thereof shall be refused registrations if it does not contain the following particulars: - (i) The name if any, the description and the extent of each item of holding; - (ii) The Government tax payable on each item; - (iii) The renewal fee if any paid. If no renewal fee is paid the fact should be stated; and - (iv) The settlement pattam, the settlement patta, michavaram, the Jenmivaram and the Jenmikaram in respect of the land or each of the several parcels of land comprised in the holding. WPC 17959/16 9 ## **Rule 67** XIX. That the executing parties do not get the status of married couple as per the document styled as marriage agreement.” In **Noble John v. State of Kerala** (2010(3) KLT 914) this Court held that the grounds mentioned in Rule 191 are not exhaustive and the Registrar can refuse registration in appropriate cases not mentioned therein also. The case dealt with in **Noble John** (supra) is a case where the document presented for registration was a document cancelling a sale deed. In the context of the said case, this Court held that the power conferred on the Registrar to satisfy that the person who presented the document is a person who has the right to present it includes the power to satisfy that the person presenting a document for registration has the authority to execute the document also. It is also held by this Court in the said case that if on a cursory enquiry it is clear that the person purporting to WPC 17959/16 10 ## have executed the document is not entitled to the property referred to therein, the Registrar can refuse registration. The relevant portion of the said judgment reads thus: “On reading of all these provisions together, I am satisfied that a registering authority can refuse registration, if, on a cursory enquiry, it is clear that the person purporting to have executed the cancellation deed is not the person entitled to the property as on the date of execution. This he can easily do by merely (looking at the document and the previous documents registered in respect of the property as per the register available in his office in respect of the property, which would show who is the present owner of the property. S.35 of the Act indicates that such an enquiry is not alien to the powers and duties of the Sub-Registrar. Going by S.34 of the Indian Registration Act and R.67 of the Registration Rules (Kerala), at first blush it may appear that the registering officer cannot enquire into the validity of the document or the right of the executing party to execute the document. But to hold that under no circumstances the registering officer shall enquire into the competency of the person to execute the document and he shall blindly register the document except for the reasons mentioned in R.191, would lead to very disastrous and anomalous results. Take for example a case where a person presents for registration a sale deed executed by him selling the property comprised of the High Court or any Government property for that matter; or an agreement between two persons whereby one agrees to kill a third WPC 17959/16 11 person for consideration. Is the registering officer bound to register the same? If that is the position of law, then a cancellation deed cancelling any document by any person who has no relation to the property also will have to be registered if the reasons mentioned in R.191 are not available. That cannot be the object of the abovesaid provisions. But that does not mean that the SubRegistrar can make a roving enquiry to decide the validity of the document or the right of the executants to execute the document. A reasonable interpretation commensurate with the object of the Act and Rules would be that if by reading the document and looking at the previous documents registered in respect of the property he is satisfied that the document cannot be validly executed by the person purporting to have executed the same, he has to refuse to register the same and act in accordance with S.71 of the Act.” Keeping the aforesaid materials in mind, a specific question was put to the learned counsel for the petitioner at the time of hearing as to the title of the petitioner over the property sought to be conveyed as per Exhibit P4 settlement deed. The answer given by the learned counsel for the petitioner was that it was part of the property originally held by the father of the petitioner and that the petitioner got it by way WPC 17959/16 12 of oral gift. In the light of the said answer, this Court ascertained from the learned counsel for the petitioner as to whether the petitioner can produce any document to show that her father had title to this property or at least her father had paid basic tax in respect of the same. Though time was taken by the learned counsel for the petitioner, it was informed later that it is not possible to produce any document to establish the title of the father of the petitioner over the property dealt with in Exhibit P4 settlement deed. Instead, the learned counsel for the petitioner relied on Exhibit P1 judgment in O.S.No.207/1979 filed by the petitioner against her sister and Exhibit P2 judgment in O.S. No.81/1986 filed by the sister of the petitioner against the petitioner pertaining to this property, to substantiate his contention that the petitioner is in possession of the property. A perusal of the said judgments do not indicate WPC 17959/16 13 that the father of the petitioner was the owner of the property. Merely for the reason that the petitioner had obtained a decree of injunction against another in respect of a property, it cannot be said that she in possession of the property. The materials on record do not indicate that the petitioner has any right over the property dealt with in Exhibit P4 settlement deed. In the said circumstances, according to me, the Registrar is justified in declining registration of the document, as registration of such a document is likely to affect the rights, if any, of the third parties over the property. 7. The learned counsel for the petitioner has relied on the decision of the Madras High Court in **Confederation** **of Real Estate Developers' Association of India (CREDAI** **TAMIL NADU), rep. by its President, Mr.N.Nanadakumar v. State of Tamil Nadu, rep. By the** WPC 17959/16 14 **Secretary to Government, Registration Department, Secretariat, Chennai - 600 009 and Another** (2014 (6) MLJ 306) in support of the proposition that the registering authority has no power to refuse registration of a document on any ground which is not available under the Act. In the light of the decision of this Court in **Noble John** (supra), I am not persuaded by the said decision of the Madras High Court. There is, therefore, no merit in the writ petition and the same is, accordingly, dismissed. P.B.Suresh Kumar, Judge tkv