Jaison V. Jose v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **WP(C).No. 19107 of 2015** **-----------------------** ## **PETITIONER:** **-----------** **JAISON V. JOSE, AGED 41 YEARS, S/O. V.J JOSEPH, VALLIYANICKAL HOUSE, VANDAMATTAM POST, NEYYASSERY, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685 581.** **BY SRI.GRASHIOUS KURIAKOSE (SENIOR ADVOCATE) ADVS.SRI.GEORGE MATHEWS SRI.T.T.RAKESH** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM, PIN - 695 035.** **3. THE SUB REGISTRAR, PERUMBAVOOR, PERUMBAVOOR P.O, PIN - 683 542.** **4. PAREETH, AGED 69 YEARS, S/O. AHAMMAD, MALIYAN HOUSE, KOOVAPPADY P.O, PIN - 683544.** **5. ASIYA PAREETH, AGED 62 YEARS, W/O. PAREETH, MALIYAN HOUSE, KOOVAPPADY P.O, PIN - 683 544.** **6. NISAR M.P, AGED 43 YEARS, S/O. PAREETH, MALIYAN HOUSE, PERUMBAVOOR P.O, PIN - 683 542. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.S.GOPINATHAN R4 TO R6 BY ADVS. SRI.K.K.JOHN SRI.ASISH K.JOHN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/** **WP(C).No. 19107 of 2015 (K) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** |**EXHIBIT P1 :**|**TRUE COPY OF SALE DEED NO 9581/2006 IN FAVOUR OF THE**| |---|---| ||**PETITIONER.**| |**EXHIBIT P2 :**|**TRUE COPY OF REGISTERED POWER OF ATTORNEY NO 407/2006**| ||**DATED 2-12-2006 EXECUTED BY 4TH AND 5TH RESPONDENT.**| |**EXHIBIT P3 :**|**TRUE COPY OF TAX RECEIPT DATED 15-05-2015.**| |**EXHIBIT P4 :**|**TRUE COPY OF THE PLAINT IN O.S NO 129/2008 OF MUNSIFF'S**| ||**COURT, PERUMBAVOOR.**| |**EXHIBIT P5 :**|**TRUE COPY OF WRITTEN STATEMENT FILED IN O.S NO 129/2008 OF**| ||**MUNSIFF'S COURT, PERUMBAVOOR.**| |**EXHIBIT P6 :**|**TRUE COPY OF THE JUDGMENT DATED 6-1-2010 IN O.S NO 129/2008.**| |**EXHIBIT P7 :**|**TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 15-05-2015.**| |**EXHIBIT P8 :**|**THE TRUE COPY OF SETTLEMENT DEED NO 1960/2015 4-5-2015 OF SRO**| ||**PERUMBAVOOR, EXECUTED BY THE 4TH AND 5TH RESPONDENTS IN FAVOUR**| ||**OF 6TH RESPONDENT.**| |**EXHIBIT P9 :**|**TRUE COPY OF PETITION DATED 1-6-2015 SUBMITTED TO THE**| ||**3RD RESPONDENT.**| |**EXHIBIT P10 :**|**TRUE COPY OF PETITION DATED 2-6-2015 SUBMITTED TO THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P11 :**|**TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE**| ||**OFFICER MARAMPILLY VILLAGE.**| |**EXHIBIT P12 :**|**TRUE COPY OF TAX RECEIPT DATED 18.5.2016 FOR TAX PAID FOR THE**| ||**YEAR 2016-2017.**| |**EXHIBIT P13 :**|**THE NOTARISED COPY OF DOCUMENT NO.38/1988 OF SRO PERUMBAVOOR.**| |**EXHIBIT P14 :**|**THE NOTARISED COPY OF DOCUMENT NO.6479/1981 OF SRO**| ||**PERUMBAVOOR.**| |**EXHIBIT P15 :**|**TRUE COPY OF ORDER NO.RR5-13166/15(GR CELL-2) DATED 22.1.2016.**| **RESPONDENTS' EXHIBITS: NIL ----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **mbr/** ## **A. MUHAMED MUSTAQUE, J.** ......................................... W.P.(C).No.19107 of 2015 .......................................... Dated this the 6[th] day of February, 2018. ## **JUDGMENT** The petitioner purchased a property having an extent of 7.50 Ares in Sy.No.22/3A of Block No.23 of R.Sy No.51/8 of Marampilly village as per sale deed No.9581/2006 dated 13.12.2006. This purchase was from the power of attorney holder of respondents 4 and 5. The document was registered before SRO, Perumbavoor. Respondents 4 and 5 appear to have executed a power of attorney in favour of V.J. Sebastian. According to the petitioner, after the purchase, he is enjoying the property and transfer of property also has been effected in his favour. 2. Respondents 4 and 5 filed a suit as OS.No.129/2008 before Munsiff Court, Perumbavoor seeking a relief of declaration as against the petitioner to the effect that the sale deed is null and void. The suit happened to be dismissed for non prosecution. The application filed for restoration also appears to have been dismissed. 3. Respondents 4 and 5 on 4.5.2015 executed a settlement deed in favour of the 6[th] respondent, who is none other than the son of respondents 4 and 5. The petitioner's present grievance is against registration of the settlement deed by the Sub Registrar of Perumbavoor. The petitioner invoking the power of Section W.P.(C).No.19107 of 2015 2 83(1) of the Registration Act, approached the 2[nd] respondent, Inspector General of Registration. The 2[nd] respondent, after adverting to the scope of Section 83(1), rejected the request for cancellation stating that the request of the petitioner does not come within the ambit of Section 83. Even going by Section 83(1), this Court also concur with the view of the 2[nd] respondent. According to this Court, Section 83 can be applied only in circumstances where an instrument was presented falsely personating another. In this case, the question arises whether a person whose property has been sold already through a power of attorney holder, can present that instrument for registration conveying the same right to another person. Therefore this question has to be decided with respect to the other questions involved. ## 4. In fact, this Court in _**Noble John v. State of Kerala**_ (2010 (3) KLT 941) elaborately considered the scope of exercise of power by the registering authority in registering an instrument in respect of the same immovable property by way of a cancellation of deed. After discussing the various powers of the Sub Registrar, this Court took the view that the Register has to apply his mind while registering an instrument and he cannot merely act on a request made for registration of an instrument presented by a person. Though the issue was considered in the context of W.P.(C).No.19107 of 2015 3 registration of cancellation of document, the dictum will really give a light to the nature of power that can be exercised by the Sub Registrar. It is appropriate to refer paragraphs 14 and 15 of the above judgment, which read as follows: “14. The very object of the Registration Act, as I have already explained, is to establish a method whereby the title to a particular tract or parcel of land will always be ascertainable by reference to the register maintained by the Sub Registrar's office, which should be of conclusive veracity. That object would be defeated if cancellation deeds cancelling sale deeds are allowed to be registered automatically. It would lead to chaos in the matter of ascertaining the title of properties by inspecting the register relating to properties maintained in the Sub-Registrar's office. Intending purchasers of land and Banks, other financial institutions and others who would like to advance money on the security of immovable properties would find it extremely difficult to ascertain title of the seller/mortgagor in respect of the property offered for sale/as security. Registered sale deed duly executed by a party in favour of another and the register in which the same is shown as registered have legal sanctity and the public largely relies on the entries in the register to verify the title of a particular person to a particular property. The Transfer of Property Act and the Registration Act are complementary laws and the provisions of the former should not be allowed to be subverted by resort to loopholes in the latter. If done, that would be a breakdown of the legal W.P.(C).No.19107 of 2015 4 machinery, which should be avoided at all costs, if people are to have faith in the legal system of the country, which should be part of the public policy of India. If a vendor of a property is allowed to register a cancellation deed after validly executing a sale deed, it will be chaos, and chaos only, in the realm of real estate, driving, not only innocent purchasers, but also _bona fide_ creditors who have accepted the property as security for money advanced on the strength of the mortgage of the property, to too expensive and time consuming litigation, which is against all norms of public policy. 15. In that regard there is another aspect of public policy as well. Sale is essentially an executed contract, by which title to immovable property has been transferred to another, which is bilateral. Such a contract cannot be unilaterally cancelled by one of the parties to the contract, unless such a right has been reserved in the contract itself. There is no specific provision in the Transfer of Property Act for cancellation of a sale. Section 4 of the Transfer of Property Act stipulates that the provisions of the said Act which relate to contracts shall be taken as part of the Indian Contract Act. Novation, recession and alteration of a contract are governed by S.62 of the Indian Contract Act. In _City Bank v. Standard Chartered Bank & Ors._ (2004) 1 SCC 12) **,** the Supreme Court has held that “novation, recession or alteration of a contract under S.62 of the Contract Act can only be done with the agreement of both parties to the contract. Both the parties have to agree to set aside the W.P.(C).No.19107 of 2015 5 original contract with a new contract or for recession or alteration.” Therefore, a sale deed which is a contract between two parties for sale of a property, cannot be unilaterally cancelled by one of the parties executing a cancellation deed, which if done would be against S.62 of the Indian Contract Act and therefore illegal. Therefore, once a sale deed is validly executed, the same cannot be annulled, except by a decree of a court of law. By executing the cancellation deed, the vendor is arrogating to himself, the power of the court to annul the sale deed already executed by him. No person can be permitted to assume himself the powers exclusively vested with the courts, which is what a vendor does, by cancelling a sale deed validly executed by him. That would certainly be opposed to public policy. Therefore by registering a cancellation deed of a sale deed, the Sub-Registrar is allowing the vendor to perpetrate an illegality against public policy, which has to be prevented at any cost, if Rule of law is to survive in this country. For this reason also registration of cancellation deed of a sale deed is against public policy and therefore an interpretation of the Registration Act and Rules, which would help to prevent such illegality, has to be necessarily adopted by courts”. ## 5. When this matter was taken on 16.1.2018, this Court passed the following order: “The Sub Registrar, who officiated while registering Ext.P8 settlement deed executed by respondents 4 and 5 in W.P.(C).No.19107 of 2015 6 favour of the 6[th] respondent, shall state before this Court by way of an affidavit whether he had taken note of the execution of the document in favour of the petitioner through the power of attorney holder of respondents 4 and 5, namely V.J. Sebastian.” 6. Thereafter, an affidavit has been filed by the Sub Registrar who was holding the office to register the settlement deed. In paragraph-3 of the affidavit, it is stated as follows: “It is submitted that even though, I examined documents and heard parties, I could not take note of the execution of the document in favour of the petitioner through the Power of Attorney holder.” 7. It is in this background, the question involved in this case has to be decided. As already adverted, registration of an instrument is not a formality. The Registrar being a public official has to sub serve the public interest while exercising his power. His acts cannot be an aid to perpetuate any illegality. Section 71 of the Registration Act confers power on the Registrar to refuse an instrument. He has to state the reasons for such refusal. Section 76 speaks about issuance of order of refusal by the Registrar. Chapter 23 of Registration Rules of Kerala specifically refers to the procedure to be followed by the Registrar for refusal of registration of a document. 8. It is to be noted that Section 32 refers persons who are W.P.(C).No.19107 of 2015 7 competent to present an instrument. Section 33 also refers power of attorney that would be recognized for Section 32. The above provisions read in the light of Rule 191 Clause 7, it can be seen that the Registrar can refuse registration of a document, if the document was presented by a person who has no right to present it. In the light of fact that there is already a conveyance deed executed by respondents 4 and 5, the Registrar can easily verify that respondents 4 and 5 have no right to present it. In that process, the Register is not deciding upon the question of title but only deciding whether he has competence to present it. When public officials are bound to take note of certain vital aspects involved in discharge of their function, the omission itself can be called in question through the proceedings under Article 226 of the Constitution. This Court in fact not deciding upon the validity of documents presented or executed by the parties, but only deciding the question whether the public officials erred in registering a document or not. It is clear that when a sale deed has been executed in favour of the petitioner, the Sub Registrar could not have acted upon the request for registration of settlement deed in respect of the same property which was conveyed in favour of the petitioner. The Sub Registrar has every power to reject it stating that the persons who have presented it have no right to present it. In that view of the matter, this Court is of the view that the W.P.(C).No.19107 of 2015 8 registration granted to the settlement deed presented by respondents 4 and 5 was wholly illegal. Therefore, such registration will have to be cancelled. Thus holding that the Registrar was failed in discharging his power in registering a document, this writ petition is allowed directing the Sub Registrar to cancell registration of Ext.P8 settlement deed and make all necessary entry in the registration record that registration of the settlement deed stands cancelled. However, liberty is given to respondents 4 and 5 to work out their remedy before the civil court. If respondents 4 and 5 are able to obtain any decree from the civil court declaring that the sale deed is null and void, the registering authority can restore the registration. The writ petition is disposed of. No costs. Sd/- **A. MUHAMED MUSTAQUE,** **JUDGE.** cl