Eerayi Nani v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** ## **WP(C).No.27913 OF 2020(L)** ## **PETITIONER:** **EERAYI NANI AGED 78 YEARS W/O. KRISHNAN, CHENDAYAD DESOM, PUTHOOR AMSOM, THALASSERY TALUK, KANNUR DISTRICT-670 692.** **BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT REGISTRAR KANNUR, OFFICE OF THE DISTRICT REGISTRAR, KANNUR-670 001.** **3 THE SUB REGISTRAR SUB REGISTRAR'S OFFICE, KALLIKKANDY, KANNUR DISTRICT-670 693.** - **4 THE TAHSILDAR (LAND RECORDS) TALUK OFFICE, THALASSERY, KANNUR DISTRICT-670 101.** ## **SMT CS SHEEJA, SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.27913 OF 2020** **2** ## **JUDGMENT** Being aggrieved by the refusal on the part of the 3rd respondent in registering the partition deed executed by the petitioner and the other cosharers in respect of the property which had devolved upon them, this writ petition is filed under Article 226 of the Constitution of India. 2. The petitioner states that her late husband Sri. Krishnan was the absolute owner in title and possession of property having an extent of 68.27 Ares in Sy. No.32 (Re-Sy. No.28/104, 29/120 and 4/127) of Puthoor Village. He also owned 7 Ares and 45 sq.m. in Re-Sy. No.61/154 of Puthoor Village. Though the extent of property mentioned in the documents was 54.73 Ares, the actual extent of property within the four boundaries on physical measurement and as per the survey plan is 68.27 Ares. During his lifetime, late Krishnan had assigned 12.85 Ares out of the total extent of 68.27 Ares and what remains is 55.32 Ares in Old Sy. No. 32. 3. The petitioner states that after the death of her husband, she along with her children approached the 4th respondent seeking to remit **WP(C).No.27913 OF 2020** **3** the land tax. An enquiry was conducted by the Village Officer, Puthoor with the assistance of the Taluk Surveyor, Thalassery. Objections were called for from the neighbours as well as is evident from Ext.P1 notice. Since no objections were raised by the neighbours, the petitioner and her children were permitted to remit land tax for the property having an extent of 55.32 Ares in Sy. Nos. 28/104, 29/120 and 4/127 of Puthoor Village. This fact is evident from Ext.P2 tax receipt dated 16.6.2020. The petitioner and her children decided to execute a partition deed for the purpose of allotting respective shares to the children and to avoid any disputes in future. Ext.P3 partition deed was presented for registration before the 3rd respondent and as is evident from Ext.P4, online token was also issued after receiving the requisite fees. Stating that there were differences in extent in the document as well as in the descriptions in the draft deed and also minor mistakes in the revenue records, the petitioner was asked to correct the same. The petitioner approached the 4th respondent who in turn issued Ext.P5 order, wherein it is stated that the survey which was carried out has revealed that there is excess land in possession of the petitioner. The Tahsildar has also ordered that the petitioner can be permitted to remit tax in respect of the entire extent in possession and an order was passed under Rule 28 of the Transfer of **WP(C).No.27913 OF 2020** **4** Registry Rules. The petitioner produced the order before the 3rd respondent who refused to register the partition deed by Ext.P6 order. The difference in extent between the original title deed and the partition deed is the reason stated for refusal. 4. According to the petitioner, the property was surveyed by the revenue authorities and it was found that the petitioner is in possession of excess land and it lies within the boundaries of her property. The revenue authorities have also permitted the petitioner to remit tax. If that be the case, there is no justification on the part of the 3rd respondent to register the partition deed. 5. Being aggrieved, the petitioner is before this Court seeking to quash Ext.P6 and also for a further direction to the 3rd respondent to accept the original of Ext.P3 and to register the same in accordance with law. 6. I have heard Sri. C.P.Peethambaran, the learned counsel appearing for the petitioner, and Sri. C.S.Sheeja, the learned Senior Government Pleader. 7. Before delving further it would be appropriate to refer to certain precedents. In **Savarimuthu Nadar Chellayan Nadar[1]** and 1(1957 KLT 825) **WP(C).No.27913 OF 2020** **5** **Krishnamurthi Iyer vs. Janaki Amma[2]** , it was held that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. It was also held that this is not an inflexible rule. That which is more certain and stable and the least likely to have been mistaken must prevail. In **Savithri Ammal vs. Padmavathi Amma[3]** , the Division Bench held that in cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. The usual rule is that when there is a conflict between the area and boundaries, the description of the boundaries should be accepted in preference to the area mentioned. 8. It is apparent from Ext.P2 that the petitioner and her children have been remitting tax in respect of property having an extent of 55.32 Ares in Re Sy. Nos. 28/104, 29/120 and 4/127 of Puthur Village. Ext.P1 and P5 reveals that the Tahsildar has conducted an enquiry and it was revealed that the actual extent within the boundaries is 55.32 Ares. Necessary orders have also been passed under Rule 28 of the Transfer of Registry Rules. In Ext.P3 partition deed, the petitioner has stated the 2 (1957 KLT 886) 3 (1990 (1) KLT 187) **WP(C).No.27913 OF 2020** **6** entire sequence of events and the enquiry conducted by the revenue authorities and detailing the manner in which the petitioner and her children came into possession of the extent shown in Ext.P3. The records also reveal that the Village Officer, as well as the Taluk Surveyor, has conducted an enquiry and they have concluded that the petitioner is in possession of land in excess of what has been mentioned in their title deed and that it lies within their boundaries. No one has raised any objection to the said finding. 9. If reference is made to the provisions of the Registration Act, 1908 and the Rules framed thereunder, it can be seen that Rule 191 provides for the reasons for refusal to register a document. The refusal will usually come under one or more of the heads mentioned in the Rule which would invariably be quoted as authority for refusal. None of the heads mentioned in Rule 67 or 191 provides that discrepancy in extent can be a ground for declining to register the document. Though in **Noble John v. State of Kerala[4]** , it has been held by this Court that the grounds mentioned in Rule 191 of the Rules are not exhaustive and that the Registrar can, for other valid reasons, declined to register a document, such refusal should be for legally tenable reasons and the same should be supported by statutory provisions. > 4 [2010 (3) KLT 941] **WP(C).No.27913 OF 2020** **7** For the aforesaid reasons, I am of the considered opinion that the petitioner is entitled to succeed. Ext.P6 will stand set aside. If there is no other infirmity in Ext.P3 and if the same is in order, the 3rd respondent shall register the document as and when the same is presented before the said authority. This petition is disposed of with the above directions. ## **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** sru **WP(C).No.27913 OF 2020** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LATEST NOTICE DATED 7.3.2019 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPTS DATED 16.6.2020 ISSUED BYT HE VILLAGE OFFICER, PUTHOOR.** **EXHIBIT P3 TRUE COPY OF THE PARTITION DEED DATED 25.9.2020 PRESENTED BY THE PETITIONER FOR REGISTRATION BEFORE THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT DATED 25.9.2020 FOR ONLINE TOKEN REGISTRATION ISSUED BY THE REGISTRATION DEPARTMENT.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 3.11.2020 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.279/2020 DATED 12.11.2020 ISSUED BY THE 3RD RESPONDENT.** - **RESPONDENTS EXHIBITS:NIL** **//TRUE COPY//** **P.A TO JUDGE**