KAVANAL PERIYATTU SREEDHARAN NAMBIAR v. SUB REGISTRAR, MATHAMANGALAM

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023/1ST AGRAHAYANA, 1945 WP(C) NO.7328 OF 2023 ``` ``` PETITIONER: ``` ``` KAVANAL PERIYATTU SREEDHARAN NAMBIAR AGED 62 YEARS, S/O.DERMAN NAMBIAR, PERINTHATTA AMSOM, THAVIDISSERY DESOM, ARAVANCHAL P.O., KANNUR DISTRICT, PIN - 670307 BY ADV .V.N.RAMESAN NAMBISAN ``` ## **`RESPONDENT:`** ``` THE SUB REGISTRAR ``` ``` MATHAMANGALAM, KANNUR DISTRICT, PIN – 670306 ``` ``` BY SMT.DEEPA V., GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.7328 of 2023 2 ## **`JUDGMENT`** ``` The petitioner is the owner in possession of 20 Ares of land comprised in Resurvey No.5/106 of Eramam Village, Payyannur Taluk, Kannur District. In the resurvey, it is found that the extent of the property is 36.57 Ares. He is paying land tax in respect of the said extent of land. The petitioner has executed Ext.P3 Settlement Deed in favour of his son in respect of 16.34 Ares out of the said property and presented the same before the respondent for registration on 24.01.2023. However, the respondent refused to register Ext.P3 on the ground that the petitioner has not produced the prior document in respect of the aforesaid settlement deed. According to the petitioner, the respondent cannot insist on production of basic title deed for registration of the settlement deed. ``` WP(C) No.7328 of 2023 3 ``` 2. When the writ petition came up for consideration on 20.03.2023, the learned Government Pleader submitted that though the petitioner had taken token for registration, the document was not presented for registration. Accordingly, this Court passed an order directing the petitioner to produce the document for registration on 24.03.2023. Pursuant thereto, the petitioner presented the settlement deed for registration on 24.03.2023 and the Sub Registrar, by Ext.P5, refused to register the deed stating that he has not produced prior documents, based on which he has derived title to the property. The petitioner has amended the writ petition to challenge Ext.P5. ``` ``` 3. Heard Sri.V.Ramesan Nambeesan, the learned counsel for the petitioner and Smt.Deepa V., the learned Government Pleader appearing for the ``` WP(C) No.7328 of 2023 4 ``` respondent. ``` ``` 4. The learned counsel for the petitioner refers to the judgment of this Court in Sumathi and Another v. State of Kerala and Others [2018 (5) KHC 586: 2018 (4) KLT 959] and Balachandran v.Sub Registrar [2023 KHC ONLine 9122]and contends that the respondent cannot insist for prior document to register Ext.P3 settlement deed. In Sumathi(supra), this Court has taken the view that in the light of the provisions contained in Section 17 of the Registration Act, the Sub Registrar cannot insist that the executant must produce prior documents. Paragraph 8 of the decision reads as follows:- ``` ``` “8. This Court has also held in the judgment in 16.2.2018 in W.P. (C).No.2871/2018, which has been followed in a series of cases that the Sub Registrar is not legally justified to insist that ``` WP(C) No.7328 of 2023 5 ``` executant should produce prior title deeds to satisfy the title and ownership of the property before he could register the deed concerned and that even possessory right could also be conveyed and there is no bar or legal impediment in transferring the possessory rights from one person to another and whether the possession is based on lease or title are all not matters of enquiry by the Sub Registrar and only those rights which the executor are having alone could be conveyed to the transferee. In other words, mere execution of the deed by itself will not be conclusive of the title and ownership rights of the person concerned merely on the basis of the description and recitals in the deed concerned. Accordingly, this Court had directed the Sub Registrar concerned to accept the document concerned and register the same in accordance with law which is otherwise in order, etc. In the light of the above said legal principles well settled in the aforecited judgments of this ``` WP(C) No.7328 of 2023 6 ``` Court, this Court is of the considered view that the petitioners' contentions are sustainable and tenable. In Ext.P-2 thandapader account finalised after re-survey proceedings pertaining to the 1st petitioner's property, it is clearly shown that the total extent of land is 4.80 ares and the boundaries are also shown in Ext.P-2 which tallies with the boudaries shown in Ext.P-3 sale deed. It is true that in Ext.P-6 land tax receipt, the extent of land is only 4.05 ares and not 4.80 ares shown in Ext.P-2 thandaper account. This Court had specifically directed the Senior Government pleader to get instructions from the 4th respondent-Tahsildar in the matter and the 4th respondent-Tahsildar, Ottappalam, has now furnished written instructions dated 20.10.2018 to the learned Senior Government Pleader, a copy of which has been made available for perusal of this Court, wherein it has been inter alia stated that the State Government as per Circular No.40837/E3/15/Rev. dated 12.10.2015 has ordered ``` WP(C) No.7328 of 2023 7 ``` that the area mentioned in the re-survey record in each survey/sub division cases can be taken into account as basic record for pokkuvaravu (Transfer of Registry). The Government Circular No.40837/E3/Rev. dated 12.10.2015 issued by the government in the Revenue Department reads as follows: xxx xxx xxx Accordingly, it has been apprised by the 4 th respondent, Tahsilar, that based on the entries made in the Basic Tax Registrar with respect to the property in re- survey No.3/40 Block No.78 of Kadambazhipuram Village-I, and physical verification report of the Village Officer concerned, an extent of 0.0480 hectares (about 12 cents) of land is admissible to the 1st petitioner, Sumathi, in the light of the abovesaid Government Circular dated 12.10.2015. In the light of these aspects, this Court is of the view that there are no legal impediments for admitting the pleas of the petitioners and accordingly it is so ordered. In that view of the matter, it is ordered that the ``` WP(C) No.7328 of 2023 8 ``` view taken by the 3rd respondent-SRO, Kadambazhipuram in the impugned Ext.P-5 letter dated 23.8.2018 refusing to register the document on the grounds stated therein is illegal and ultravires and the same will stand quashed. The petitioners may present Ext.P-3 sale deed for registration before the 3 rd respondent-SRO, who will then register the same if it is otherwise in order. However, it is made clear that the 3rd respondent cannot refuse to register the said deed on the ground that the total extent of the land shown therein is 4.80 ares and not 4.05 ares. The petitioners may produce a certified copy of this judgment at the time of presentation of Ext.P-3 document for registration. After registration of the deed, it will be open to the petitioners to file the requisite application for mutation of the above property and for acceptance of land tax for an extent of 4.80 ares based on the title deed and the abovesaid Government Circular dated 12.10.2015 before the competent ``` WP(C) No.7328 of 2023 9 ``` Revenue Officials concerned, who will then consider such request without delay." ``` ``` 5. Sri. Ramesan also relies on Ext. P4 judgment of this Court in W.P(C) No.2871/2018 wherein it was held as follows:- ``` ``` “2. The possessory rights also can be conveyed. There is no bar impediment under law in transferring the possessory right of a person to another person. The possession is based on a lease or under a title, is not a matter of enquiry by the Sub Registrar. What all the rights the petitioner is having, alone can be conveyed to the transferee.” ``` ## **`6. In`** _**`Balachandran`**_ **`(supra), applying the said principles, this Court held as follows:-`** ``` “4...The persons executing the document can only transfer the right that they have and merely because they are purporting to transfer possessory rights and they are not been able to produce any prior documents cannot be a ground ``` WP(C) No.7328 of 2023 10 ``` for the Sub Registrar to refuse registration.” In the light of the said decisions, the stand taken by the respondent in Ext.P5 cannot be sustained. Accordingly, Ext.P5 is set aside. There will be a direction to the respondent to register Ext.P3 settlement deed, as and when presented, without insisting for prior title deed, if the same is otherwise in order. ``` ## **`The writ petition is disposed of.`** ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/23/11/2023 ``` WP(C) No.7328 of 2023 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE RECEIPT NO.KL13050904341/ 2002 DATED 27.06.2022 ISSUED BY THE VILLAGE OFFICER, ERAMAM ``` - **`EXHIBIT P2 TRUE COPY OF ENTRY VIDE RECEIPT NO.2022/ 65586/13 DATED 17.09.2022 ISSUED BY THE VILLAGE OFFICER, ERAMAM SHOWING THE NAME OF THE PETITIONER IN THE THANDAPER REGISTER`** ``` EXHIBIT P3TRUE COPY OF THE GIFT DEED DATED 10.01.2023 EXECUTED BY THE PETITIONER IN FAVOUR OF JITHIN ``` - **`EXHIBIT P3(A) TRUE COPY OF THE RECEIPT NO. KL026570585202223M DATED 22.01.2023 TOWARDS STAMPS AND REGISTRATION FEE REMITTED BY THE PETITIONER TO THE OFFICE OF THE RESPONDENT`** - **`EXHIBIT P3(B) TRUE COPY OF THE ACKNOWLEDGMENT/RECEIPT FOR ONLINE TOKEN NO.T6764612 DATED 24.01.2023`** - **`EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 16.02.2018 IN W.P(C) NO.2871 OF 2018 OF THIS HON'BLE COURT`** ``` EXHIBIT P5TRUE COPY OF THE ORDER DATED 24.03.2023 ISSUED TO THE PETITIONER BY THE RESPONDENT SUB REGISTRAR, MATHAMANGALAM ```