Jameela v. District Registrar, Kannur Road, Kozhikode & Sub Registrar, Koduvally, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **WP(C).No.7440 OF 2020(D)** ## **PETITIONER:** **JAMEELA AGED 52 YEARS D/O. AMMOOTTI, PARAPPAYIL HOUSE, NARIKUNI P.O., KOZHIKODE DISTRICT,PIN-673 585** ## **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENTS:** **1 DISTRICT REGISTRAR DISTRICT REGISTRAR OFFICE, KANNUR ROAD, KOZHIKODE-673 001** **2 SUB REGISTRAR, SUB REGISTRAR OFFICE, KODUVALLY P.O., KOZHIKODE-673 572** ## **SRI BIMAL K NATH SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7440 OF 2020** **2** ## **JUDGMENT** The petitioner as well as her former husband were the persons in title and possession of property having an extent of 17.5 cents situated in Resurvey No.263/2 in Nediyanad Amsom, Kozhikode Taluk. The aforesaid property was purchased by them as per the document No.871/1988. Thereafter, disputes arose between the spouses and it led to filing of O.P.No.237/2006 before the Family Court, Kozhikode by the husband of the petitioner seeking partition of his one half share. The petitioner contended that the property was purchased by her father using his funds and the name of her husband was included only as a name sake. The Family Court by judgment dated O.P.No.237/2006 passed a preliminary decree holding that the husband was also entitled to half share over the petition schedule property. 2. The petitioner approached this Court and preferred MAT.Appeal No.723 of 2008 challenging the judgment and decree passed by the Family Court. While the proceedings were pending before this Court, the entire disputes were settled and a compromise deed was executed. The petitioner herein is seen to have paid a sum of Rs.30,000/- to her husband for the purpose of settlement. In terms of the settlement arrived at by the parties, this Court recorded the settlement and passed Exhibit P2 Decree setting aside the decree of partition passed by the Family Court and allowing the appeal in **WP(C).No.7440 OF 2020** **3** terms of the compromise deed. The petitioner was declared as the absolute owner of the petition schedule property and it was further declared that the property was not available for partition. The Joint petition forms part of the decree. 3. The petitioner now wants to alienate a portion of the said property and approached the 2[nd] respondent to get the deed registered. However, the 2[nd] respondent has refused to register the deed and has insisted that Registration cannot be effected unless the decree or order is forwarded to the said respondent. 4. It is in the above backdrop that the petitioner has approached this Court seeking seeking the following reliefs: “ i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to register the sale of the petitioner’s property accepting Exhibits P1 document and ExhibitP2 decree. ii) To direct the 1st respondent to give necessary instructions to the 2nd respondent for registering the sale of the petitioner’s property finding that she is the absolute owner of the property covered by Exhibits P1 and P2.” **WP(C).No.7440 OF 2020** **4** 5. As is evident from the decree, the rights of the petitioner over an item of property has been declared and the rights which her husband had have been extinguished in favor of the petitioner by the terms of the compromise. In that view of the matter, there is ample justification for the registrar in insisting that the decree or order together with a memorandum describing the property has to be forwarded as it is based on Section 89 of the Act as amended in its application in Kerala by Kerala Act 2 of 1959, 7 of 1968, and 21 of 1998. It would be appropriate to refer to section 89 (5) of the Act which reads thus. “Section 89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.-(1)xxx (2) xxxxx xxxxx xxxxx (3) xxxxx xxxxx xxxxx - (4) xxxxx xxxxx xxxxx [(5) Every court passing-- (a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person, or (b) an order for the attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable in the manner required by section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer shall file the copy and **WP(C).No.7440 OF 2020** **5** memorandum in his Book No.1.” 6. In other words, every court passing any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable in the manner required by section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer is required to file the copy and memorandum in his Book No.1. 7. Sri.A.V.M.Salahudeeen, the learned counsel, banking on Section 17 (vi) of the Registration Act, 1908 raised a contention that the compromise decree is not required to be registered. The legal position qua clause (v) of Section has been laid down by the Supreme Court in **Mohammade Yusuf and Others v Rajkumar and Others** [AIR (2020) SC 796], wherein relying on an earlier judgement of the Hon’ble Court in **Bhoop Singh v. Ram Singh Major & Ors** [(1995) 5 SCC 709], it was held as follows: 8. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below: - (1) Compromise decree if bona fide, in the sense that the **WP(C).No.7440 OF 2020** **6** compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100 or upwards in favour of any party to the suit the decree or order would require registration. (3) If the decree were not to attract any of the clauses of subsection (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question. (5) If the property dealt with by the decree be not the “subject-matter of the suit or proceeding”, clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.” 8. The petitioner may therefore take steps to forward the decree in tune with Section 89(5) of the Registration Act, 1908 to the **WP(C).No.7440 OF 2020** **7** respondent who shall proceed with the matter in accordance with law. As to the requirement of registration, the respondent shall take note of the principles laid down in **Mohammede Yusuf** (supra) and act accordingly. This petition is disposed of with the above directions. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP **WP(C).No.7440 OF 2020** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ASSIGNMENT DEED NO.871/1988 DATED 11.04.1988** **EXHIBIT P2 THE TRUE COPY OF DECREE DATED 03.07.2009 IN MAT.APPEAL NO.723/2008 HIGH COURT OF KERALA** ## **RESPONDENTS' EXHIBITS:** NIL