High Court of Kerala at Ernakulam - Writ Petition (Civil) Nos. 5936/2019, 5988/2019 & 5864/2019

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** **WP(C).No. 5936 of 2019** ## **PETITIONER/S:** **NARAYANAN, AGED 67 YEARS S/O.PONNAN, RESIDING AT VELAMPUZHAYIL, ILAVAMPADAM.P.O., KIZHAKKENCHERY AMSOM DESOM, KIZHAKKENCHERY-2 VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678684.** **BY ADVS. SRI.P.R.VENKETESH SMT.ASHA P.KURIAKOSE SRI.G.KEERTHIVAS** **RESPONDENT/S:** **THE SUB REGISTRAR, VADAKKENCHERY, PALAKKAD DISTRICT-678682.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2019, ALONG WITH WP(C).5864/2019, WP(C).5988/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** **WP(C).No. 5864 of 2019** ## **PETITIONER/S:** **UNNIKRISHNAN, AGED 45 YEARS S/O. NARAYANAN NAIR, RESIDING AT PUTHENKURUSSI, NELLIYAMPADATH, PARUVASSERI P.O., AYAKKAD AMSOM AMSOM, PARUVASSERY DESOM, VADAKKENCHERRY -2, VILLAGE, ALATHUR TALUK, PALAKAKD DISTRICT.** **BY ADVS. SRI.P.R.VENKETESH SMT.ASHA P.KURIAKOSE SRI.G.KEERTHIVAS SRI.P.C.CHACKO(PARATHANAM)** ## **RESPONDENT/S:** **THE SUB REGISTRAR VADAKKENCHERY, PALAKKAD DISTRICT 678 682.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2019, ALONG WITH WP(C).5988/2019, WP(C).5936/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).Nos.5936, 5988 & 5864 Of 2019 ::3:: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** **WP(C).No. 5988 of 2019** ## **PETITIONER/S:** **THANKAMANI, AGED 64 YEARS D/O VELAN, RESIDING AT PUTHENKULAMBU, ILAVAMPADAM P.O., KIZHAKKENCHERY AMSOM DESOM, KIZHAKKENCHERY-2 VILLAGE, ALATHUR TALUK.** **BY ADVS. SRI.P.R.VENKETESH SMT.ASHA P.KURIAKOSE SRI.G.KEERTHIVAS SRI.P.C.CHACKO(PARATHANAM)** **RESPONDENT/S:** **THE SUB REGISTRAR, VADAKKENCHERY, PALAKKAD DISTRICT-678682.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2019, ALONG WITH WP(C).5864/2019, WP(C).5936/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::4:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 ## **ALEXANDER THOMAS, J** . ----------------------------- W.P(C).Nos.5936, 5988 & 5864 Of 2019 --------------------------------Dated this the 27[th] day of February, 2019. ## **J U D G M E N T** The prayers in W.P.(C).No.5936/2019 are as follows: - _“a) Issue a writ of mandamus or any appropriate writ, order or direction directing the respondent to receive Exhibit P5 Settlement Deed and register the same in accordance with law within a time frame to be fixed by this Hon'ble Court; and_ - _b) issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case.”_ 2. The prayers in W.P.(C).No.5988/2019 are as follows: - _“a) Issue a writ of mandamus or any appropriate writ, order or direction directing the respondent to receive Exhibit P5 Release Deed and register the same in accordance with law within a time frame to be fixed by this Hon'ble Court; and_ - _b) issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case.”_ ## 3. The prayers in W.P.(C).No.5864/2019 are as follows: - _“a) Issue a writ of mandamus or any appropriate writ, order or direction directing the respondent to receive Exhibit P5 Release Deed and register the same in accordance with law within a time frame to be fixed by this Hon'ble Court; and_ - _b) issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case.”_ The matter in issue is covered by Ext.P-9 judgment dated ## 24.10.2018 in W.P(C).No.34514/2018 and connected case, which ## reads as follows: _'As the issues arise in both these cases are similar, these matters are disposed of on the basis of this common judgment._ ::5:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 _2. According to the petitioner in W.P.(C). No.34552/2018, he had applied for online registration of Ext.P-5 settlement deed and on presentation of the document, the respondent-SRO, Vadakkenchery, was not willing to register the same apparently on the ground that the petitioner has not shown derivation of the title. According to the petitioner, the recitals in Ext.P-5 settlement deed has clearly stated as to how the petitioner has derived the property and that he is yet to get jenmom right in his name. That even otherwise the transferee after registration of the settlement deed could also obtain jenmom right by proper proceedings in that regard. Further the petitioner would state that Ext.P-1 thandaper account would clearly show the details of the property and possession of the property which includes the boundaries which are very accurate and tallies with the description of the property. That recitals in Ext.P-5 settlement deed would clearly show that he has been holding the property on a verum pattom leasehold right and he has been remitting land tax as per Ext.P-2 and he has obtained possession certificate as per Ext.P-3 and also got thandaper account as per Ext.P-1 in respect of the said property. The petitioner would place reliance on the dictum laid down by this Court in the judgments as in Eshaque v. Sub Registrar, reported in 2002 (1) KLT 330 and Ext. P-7 judgment dated 16.2.2018 in W.P.(C). No.2871/2018. It is in the light of these aspects that the petitioner has filed W.P.(C). No.34552/2018 with the following prayer:_ _“Issue a writ of mandamus or any appropriate writ, order or direction directing the respondent to receive Exhibit P5 Settlement Deed and Register the same in accordance with law within a time frame to be fixed by this Hon'ble Court.”_ _3. The facts in W.P.(C).No.34514/2018 are also broadly similar and the main prayer in the said Writ Petition is as follows:_ _“Issue a writ of mandamus or any appropriate writ, order or direction directing the respondent to receive Exhibit P5 Settlement Deed and Register the same in accordance with law within a time frame to be fixed by this Hon'ble court.”_ _4. Heard Sri.P.R.Venkatesh, learned counsel for the petitioners in these cases and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondent in these matters._ _5. It has been held by this Court in the judgment in Eshaque v. Sub Registrar, reported in 2002 (1) KLT 330, that there is no provision in the Registration Act which empowers the Registrar to satisfy himself as to the title of the executant of the document presented for registration as a condition precedent for grant of registration. Accordingly, it was held by this Court therein that insistence by the SRO in that case that the party should necessarily produce possession certificate obtained from the competent authority to establish his possession of the property by the executor, is illegal and ultra vires. It will be profitable to refer to the following aspects in paras 7 & 9 of the abovesaid judgment of this Court in Eshaque's case (supra) which read as follows:_ _“7. As already noted the objection slip issued by the 1st respondent only shows that the 1st respondent has got some doubt with regard to the ownership and possession of the executant of Ext. P7 document over the property. I have already referred to the relevant provisions of the Registration Act regarding registration of documents presented before the 1st respondent. There is nothing in the aforesaid provisions empowering the 1st respondent to satisfy the title, possession or encumbrances in respect of the property with respect to which registration is sought for. The 1st respondent can raise a doubt with regard to the title and possession of the property only if the statute under which he is functioning authorises to do so. In the absence of any such authorisation, the 1st respondent was not justified in directing the parties to obtain a possession certificate from the competent authority to clear the doubt regarding the title and possession of the property and to register the document. Of course, if the registering authority refuses to register the document, the petitioner has got a remedy by way of appeal before the Registrar as provided under S. 72 and a right of suit against the order of the_ ::6:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 _Registrar under S. 77 of the Act. Since the question raised in this case relates to the interpretation of the provisions of the Registration Act as to the requirement of compliance of the objection slip (Ext. P8) and further in view of the circular No. R.R.3.4058, dt. 12.2.2001 issued by the Inspector General of Registration, Thiruvananthapuram requiring such documents, no useful purpose will be served by directing the petitioner to file any appeal before the Registrar under S. 72 of the Act._ ## _xxx_ ## _xxx xxx_ _9. The legal position with regard to the title to the property that is being conveyed by the document under registration is clearly stated by the Division Bench of the Patna High Court in the passage extracted above. It is in those circumstances, the Registration Act did not make any provision authorising the registering authority to satisfy about the title of the executants of the document before registration. The registering authority is bound to register a document presented for registration on being satisfied of the compliance of the provisions of the Registration Act already referred to in this judgment. Regarding the circular issued by the Inspector General of Registration to the registering authorities, S. 69(i) clearly provides that the Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government, and shall have the power from time to time to make rules consistent with this Act. The decision of the Punjab and Haryana High Court mentioned above has also clearly held that the Government or the Inspector General of Registration has no power or authority to issue any direction to the subordinates functioning under the Act restraining or restricting them from registering documents pertaining to the transfer of immovable properties inconsistent with the provisions of the Act. As already noted, there is no provision in the Registration Act enabling the Sub Registrar to satisfy himself as to the title of the executant of the document presented for registration as a condition for grant of registration. The circular which confers such a power on the Sub Registrar is inconsistent with the provisions of the Act which has got the effect of interfering with the power vested in the Sub Registrars to register documents which satisfies the requirements of the Act is issued without jurisdiction and is not binding on the Sub Registrar. In the above circumstances, I am of the opinion that the 1st respondent was not justified in requiring the petitioner to produce a possession certificate obtained from the competent authority with regard to the possession of the property by the executor ie., the 2nd respondent.”_ _6. Further this Court in Ext.P-7 judgment rendered on 16.2.2018 in W.P.(C).No.2871/2016 dealt with a case where the SRO had insisted production of prior title deeds to establish the ownership of the executant therein and that the document cannot be registered without producing the prior title deeds, etc. This Court held that even the possessory rights could be conveyed and there is no legal bar in transferring the possessory rights of a person to another and the possession is based on a lease or under a title, is not a matter of enquiry by the Sub Registrar and that what all the rights the petitioner is having alone could be conveyed to the transferee. Accordingly, this Court had directed the respondent to accept the documents and register the same in accordance with law within 2 weeks, etc. In the light of these aspects, it is only to be held that the impugned stand of the SRO that the petitioner should establish the derivation of his title in respect of the subject property involved in these two cases is illegal and ultravires. Accordingly, it is ordered that it is for the petitioners in these cases to present the settlement deeds in question before the respondent-SRO concerned for registration upon which the said officer shall register the same if it is otherwise in order. It is further made clear that the respondent-SRO cannot refuse to register the documents on the ground that the petitioner should establish the derivation of title in respect of the property concerned. The petitioner may produce a certified copy of this_ ::7:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 _judgment before the SRO at the time of presentation of the deed, which is sought to be registered._ _With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of._ Accordingly, it is ordered that the orders and directions already issued by this Court in Ext.P-9 judgment will regulate these cases as well. Accordingly, it is ordered that it is for the petitioners in these cases to present the settlement deeds in question before the respondent-SRO concerned for registration upon which the said officer shall register the same if it is otherwise in order. It is further made clear that the respondent-SRO cannot refuse to register the documents on the ground that the petitioners should establish the derivation of title in respect of the property concerned. The petitioners may produce a certified copy of this judgment before the SRO concerned at the time of presentation of the deeds, which are sought to be registered. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::8:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 ## **APPENDIX OF WP(C) 5936/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TANDAPER ACCOUNT NO.3955 OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF BASIC TAX RECEIPT DATED 11.2.2019 ISSUED IN FAVOUR OF THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.2.2019.** **EXHIBIT P4 TRUE COPY OF EXTRACT OF BASIC TAX REGISTER IN RELATION TO THE PROPERTY OF THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE SETTLEMENT DEED DATED 15.2.2019 PREPARED BY THE PETITIONER. EXHIBIT P6 TRUE COPY OF PAY IN SLIP FOR ONLINE REGISTRATION. EXHIBIT P7 TRUE COPY OF THE DECISION OF THIS HON'BLE COURT REPORTED IN 2002 (1)KLT 330.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 16.2.2018 IN WPC.NO.2871/2018 OF THIS HON'BLE COURT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 IN WPC.NO.34514/2018 AND WPC.NO.34552/2018.** ::9:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 ## **APPENDIX OF WP(C) 5864/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE TANDAPER ACCOUNT NO. 1558 OF THE PETITIONER AND OTHERS.** **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 29.10.2018.** **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 3.11.2018.** **EXHIBIT P4 TRUE COPY OF EXTRACT OF BASIC TAX REGISTER IN RELATION TO THE PROPERTY OF THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE RELEASE DEED DATED 12.11.2018 PREPARED BY THE PETITIONER AND HIS BROTHER AND SISTERS.** **EXHIBIT P6 TRUE COPY OF THE DECISION OF THIS HONBLE COURT REPORTED IN 202 (1) KLT 330.** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 16.2.2018 IN WPC NO. 2871/2018 OF THIS HONBLE COURT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 IN WPC NO. 34514/2018 AND WPC NO. 34552/2018.** ::10:: W.P(C).Nos.5936, 5988 & 5864 Of 2019 ## **APPENDIX OF WP(C) 5988/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE TANDAPER ACCOUNT NO.3912 OF THE PETITIONER AND OTHERS** **EXHIBIT P2** **TRUE COPY OF THE LAND TAX RECEIPT DATED 22.1.2019** **EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.1.2019** **EXHIBIT P4 TRUE COPY OF EXTRACT OF BASIC TAX REGISTER IN RELATION TO THE PROPERTY OF THE PETITIONER** **EXHIBIT P5 TRUE COPY OF THE RELEASE DEED DATED 25.1.2019 PREPARED BY THE PETITIONER AND HIS BROTHERS AND SISTER** **EXHIBIT P6 TRUE COPY OF THE DECISION OF THIS HON'BLE COURT REPORTED IN 2002(1) KLT 330** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 16.2.2018 IN WPC.2871/2018 OF THIS HON'BLE COURT** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 IN WPC.34514/2018 IN WPC.34552/2018**