IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939
WP(C).No. 36142 of 2016 (P) ----------------------------
PETITIONER(S): ------------KALATHIL KOOLOTH PATTARATH NALINI D/O KUNHANANDA KURUP, AGED 58 YEARS, PADINHARE VEEDU, PADUVILAI AMSOM, KURIYODE DESOM, P.O. VENGAD, THALASSERI TALUK, PIN:670 012. BY ADVS.SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.P.SAJU SRI.NIAS MOOPAN SRI.E.M.UNNIKRISHNAN (MANJERI)
RESPONDENT(S): --------------
1. THE SECRETARY TO THE GOVERNMENT REGISTRATION DEPARTMENT GOVERNMENT OF KERALA, REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2. REGISTRATION INSPECTOR GENERAL THIRUVANANTHAPURAM P.O., THIRUVANANTHAPURAM. 3. DISTRICT REGISTRAR (GENERAL) KANNUR AT THALASSERI, P.O. THALASSERI. 4. SUB REGISTRAR ANJARAKKANDY P.O., ANJARAKKANDY, PIN:670 612. 5. ASSISTANT EDUCATIONAL OFFICER MATTANNUR, P.O. MATTANNUR.
R3 BY SR.GOVERNMENT PLEADER SRI.ASHRAFF
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 36142 of 2016 (P)
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## APPENDIX
PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE RELEASE DEED DATED 31.8.2016 EXECUTED BY KALATHIL KOOLOTH PATTARATH LEELA AND OTHERS AND PRESENTED FOR REGISTRATION ON 9.9.2016 BEFORE THE 4TH RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE ORDER DATED 9.9.2016 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3: TRUE COPY OF THE TRUE COPY OF THE MEMORANDUM OF APPEAL FILED UNDER SECTION 72 OF THE REGISTRATION ACT BEFORE THE 3RD RESPONDENT.
EXHIBIT P4: TRUE COPLY OF THE ORDER OF THE 3RD RESPONDENT DATED 20.10.2016.
EXHIBIT P5: TRUE COPY OF THE REGISTERED ATTIPER JENMADHARAM NO.2321/54 OF SRO ANJARAKKANDY.
EXHIBIT P5(A): TRUE COPY OF THE LEGIBLE COPY OF EXT.P5. EXHIBIT P6: TRUE COPY OF THE DOCUMENT NO.2615/1998 OF SRO ANJARAKKANDY. EXHIBIT P7: TRUE COPY OF THE DOCUMENT NO.1428/2007 OF SRO ANJARAKKANDY.
EXHIBIT P8: TRUE COPY OF THE CERTIFICATE ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P9: TRUE COPY OF THE CERTIFICATE ISSUED BY SECRETARY VENGAD GRAMA PANCHAYATH.
EXHIBIT P10: TRUE LAND REVENUE RECEIPT DATED 1.8.2016 PAID TO 2ND ITEM IN EXT.P1 BY THE MANAGER OF OORPALLI L.P. SCHOOL.
EXHIBIT P11: TRUE COPY OF THE PARTITION DEED DATED 7.5.1992 EXECUTED BY MADHAVI AMMA
EXHIBIT P12: TRUE COPY OF THE CIRCULAR NO.R R3-16535/2012 DATED 13.9.2012 ISSUED BY THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS
-----------------------:
NIL
/TRUE COPY/
PS TO JUDGE
## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 36142 of 2016 ----------------------------------------------Dated this the 20[th] day of September, 2017**
## **JUDGMENT**
The prayers in this writ petition are as follows:
- _“i. declare the Ext.P12 Circular, to the extent it is violative to the provision of the Registration Act and Rules is void and unenforceable._
- _ii. issue a writ of certiorari or such other writ or order quashing Ext.P2 and P4 as the said orders are illegal and violative to the provision of the Registration Act and Rules.”_
2 _._ Heard learned counsel for the petitioner and the learned Government Pleader appearing for the respondent. It is submitted that the petitioner is the beneficiary of a release deed executed on 31.8.2016, which is produced as Exhibit P1. The 4[th] respondent registering authority returned the document by Exhibit P2 communication dated 9.9.2016. It was stated in Exhibit P2 that the title deeds of the persons who executed release deed have not been mentioned in the deed. It is further stated that no details regarding payment of land tax is shown in Exhibit P1. It is further stated that the prior permission of educational authorities for transfer of property of the school is also not appended. It is also stated that the details of the rights acquired by executants 2 to 12 in item 2 of the property are not
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shown. Though the petitioner had preferred Exhibit P3 appeal under Section 72 of the Registration Act as against Exhibit P2, by Exhibit P4 communication dated 20.10.2016, the District Registrar General rejected the same stating that Exhibit P2 would not amount to refusal to register and had only directed the production of the details sought for. It is also stated that the requirement in Exhibit P2 was in accordance with Circular No.RR3.16535/12 of the Registration Inspector General dated 13.9.2012.
3. Learned counsel for the petitioner would contend that 3 cents of property, on which the school was constructed, had been granted to the predecessor-in-interest of the petitioner and the executants of Exhibit P1 release deed by an oral entrustment. It is stated that the recitals of Exhibits P5 and P5 (a) as well as Exhibit P7 document would indicate the entrustment of the property and Exhibits P8 to P12 would show the fact that the predecessor-in-interest of the petitioner was the Manager of the school and on his death, his wife became the Manager. Exhibit P9 would show that ownership and possession of the school building. It is submitted that the reliance placed by the respondent on Exhibit P12 circular is totally misconceived, since the instant case is in relation to the rights of the ownership of a school which has been accepted by
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the original assignee by recitals in later documents and is an undisputed fact. It is further submitted that since the rights of ownership of a school as an functioning concern are being released in favour of one of the co-owners, the requirement of prior permission under Section 6 of the Kerala Education Act would not apply. It is also stated that sufficient documents to show the title and possession of one cent of property, which was later purchased by the predecessor-in-interest of the petitioner, have also been produced and the reasons stated in Exhibit P2 for the refusal to register the document are therefore not sustainable.
4. A counter affidavit has been filed on behalf of the 3[rd] respondent. It is contended therein that Exhibit P2 did not amount to a refusal to register in terms of Section 71 of the Registration Act and that therefore an appeal under Section 72 would not be maintainable. It is stated that the 4[th] respondent found that the release deed was not supported by necessary documents including the land tax receipt and therefore he had only called upon the petitioner by Exhibit P2 order to produce the details. It is further stated that Exhibit P12 circular was one issued in pursuance of a direction of this Court in a decision reported in _**Noble John v. State of Kerala**_ [2010(3) KLT 941]. It is therefore contended that the contention raised against
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Exhibit P12 are misconceived.
5. A reply affidavit has been filed by the petitioner stating that the 3 cents, on which the school was situated, was orally entrusted to the predecessor-in-interest of the petitioner. There is no document showing such entrustment. But the fact of such entrustment and its acceptance by the successors of the original assignee is evident from Exhibits P5, P5(a) and P6. It is stated that the receipt showing payment of tax in respect of the title deed produced as Exhibit P1 would also show the earlier oral entrustment in favour of the predecessor-in-interest of the petitioner. The receipt showing acceptance of land tax in respect of one set of property is also produced. The fact of entrustment is also a recital in the release deed. It is, therefore, contended that the reasons stated in Exhibit P2 for refusing to register the document are not sustainable.
6. I have considered the contentions advanced. From a reading of Exhibit P2, it is clear that the 4[th] respondent has proceeded on the basis that the details of the documents, by which the petitioner acquired right, are not given in Exhibit P1 release deed. It is further stated that the details regarding payment of basic tax in respect of the one cent of property and the details regarding how the property has devolved on executants 2 to 10 have also not been provided for in the
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document. The further reason stated in Exhibit P2 is to the effect that prior permission of the competent educational authority is not obtained for the transfer, since an aided school is functioning in the property.
7. The 4[th] respondent as well as the District Registrar appears to have relied upon the provisions contained in Exhibit P12 to take the view that without the details as sought for in Exhibit P2, the document cannot be registered. It is stated in Exhibit P12 that necessary particulars regarding the title of the executants of the document are necessary for its registration. From a reading of Exhibit P1, it appears that the available details as to the rights of the predecessor-in-interest of the petitioner and the devolution of the interest on the executants of the release deed have been recited in Exhibit P1. Moreover, the documents produced as Exhibits P5 to P11 would show that the petitioner has all the necessary documents to show title to the properties and the possession thereof by the executants of Exhibit P1. In the above circumstances, it is for the 4[th] respondent to consider the details produced by the petitioner and to take steps for registration of the documents produced as Exhibit P1. On an examination of the documents, I am of the opinion that all necessary documents which have been called for are produced by the petitioner before this Court. In the facts
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and circumstances of the case, it is for the petitioner to produce the original of Exhibit P1 along with Exhibits P5 to P11 before the 4[th] respondent and seek registration of Exhibit P1 document. Since the issues raised in Exhibit P2 appear to be covered by the documents produced by the petitioner as Exhibits P5 to P11 and since the release of the property is in favour of one of the admitted co-owners of the property, I am of the opinion that the 4[th] respondent should register the document produced as Exhibit P1, if it is otherwise in order.
In the above circumstances, the petitioner shall produce a certified copy of this judgment along with copies of the documents produced herein as Exhibits P5 to P11 and seek registration of the original of Exhibit P1 document. In case there is no legal impediment, the document shall be registered without any further delay. In the nature of the order passed in this writ petition, there is no necessity to consider the challenge raised by the petitioner against Exhibit P12 again. The said challenge is repelled.
The writ petition is ordered accordingly.
**ANU SIVARAMAN JUDGE**
_vgs20/9_
