Sumathi and Jovi John v. State of Kerala and Others

**(C.R)** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940** ## **WP(C).No. 29171 of 2018** ## **PETITIONER/S:** **1 SUMATHI AGED 48 YEARS, W/O. RAGHAVAN, SRAMBICKAL HOUSE, DOOR NO.18/82, KATAMPAZHIPURAM GRAMA PANCHAYAT, KATAMPAZHIPURAM-I, VILLAGE, VETTIKKARA P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-678 633 2 JOVI JOHN AGED 34 YEARS, S/O. JOHN, CHIRAMMAL PADINJARETHARA HOUSE, MANALOOR P.O., MANALOOR VILLAGE, THAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 617** **BY ADVS. SRI.S.RANJIT (KOTTAYAM) ABHILASH BHASKAR BINU JOHN MOOLAN SRI.GOKUL DAS V.V.H.** **RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001 2 INSPECTOR GENERAL OF REGISTRATION OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM,PIN-695 035 3 SUB REGISTRAR, SUB REGISTRARS OFFICE, KATAPAZHIPURAM, PALAKKAD DISTRICT,PIN-689 101 4 ADDL.R4 TAHSILDAR OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679101. (ADDL. R4 IMPLEADED VIDE ORDER DATED 19/09/2018 IN IA.NO.02/2018) OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 29171 of 2018** **-2-** ## **(C.R)** ## **ALEXANDER THOMAS, J** . --------------------- W.P(C).No.29171 Of 2018 -----------------------Dated this the 25[th] day of October, 2018. ## **J U D G M E N T** ## **The prayers in this Writ Petition (Civil) are** **as follows:** _**“(i) to issue a writ of certiorari and quash Exhibit P5 as highly illegal and arbitrary.**_ _**(ii) to issue a writ of mandamus directing the 3[rd] respondent herein to register Exhibit P3 sale deed within a time frame to be fixed by this Hon'ble Court.**_ _**(iii)to issue a declaration that the 1[st] petitioner is entitled to execute Exhibit P3 sale deed and sell 4.80 Ares (Equivalent to 11.86 Cents) on the basis of Exhibit P1 and Exhibit P2 since that extent of property is available within the boundaries mentioned therein after resurvey.**_ _**(iv) to pass such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case.”**_ **2. Heard Sri.S.Ranjit (Kottayam), learned** **counsel for the petitioners and Sri.Saigi Jacob** **Palatty, learned Senior Government Pleader appearing for the respondents.** **3. According to the petitioners, they had presented Ext.P-3 sale deed dated 23.8.2018** **WP(C).No. 29171 of 2018** **-3-** ## **executed by the petitioners for registration.** **That inspite of satisfying all statutory formalities as to the stamp duty, registration fee, etc., the 3[rd] respondent-SRO, Kadambazhipuram, Palakkad District, has refused to register the deed and returned it as per Ext.P-5 letter. In Ext.P-5 letter dated 23.8.2018, the 3[rd] respondent -SRO has stated that though Ext.P-3 sale deed is for conveyance of 4.80 ares of property, as per prior title deed of Ext.P-1, the extent of property covered thereunder is only 4.05 ares and no proof of title for the balance 0.75 ares (viz, 4.80 ares – 4.05 ares = 0.75 ares) is produced. The petitioners would point out that execution and registration of Ext.P-1 prior title deed was before the conduct of resurvey for those properties but that when resurvey proceedings were finalised, the 1[st] petitioner's property lying within the boundaries on all four sides was measured by the survey officer and it was found that the actual extent of Ext.P-1 sale deed is** **WP(C).No. 29171 of 2018** **-4-** **4.80 ares. On a comparison of Ext.P-1 deed and P-2 thandaper account, the petitioners would point out that the boundaries of the property shown by those documents are one and the same and the difference crept only due to re-survey. Accordingly, it is urged by the petitioners that the well settled legal principles in the matter of interpretation of deeds is that when there is a conflict between the description of the boundaries and the extent of the land given in the document, the mentioned boundaries will predominate. It is urged that the said legal principles are well settled and it has been followed in decisions as in** _**Ibrahim Koyakutty v. Varghese**_ **, reported in 1951 KLT 117,** _**Krishnamoorthi Iyer v. Janaki Amma**_ **, reported in 1957 KLT 202,** _**Savithri Ammal v. Padmavathy**_ **, reported in 1990 KHC 295, etc. It is further pointed out that the grounds stated in Ext.P-5 letter cannot be countenanced in law as they do not come within the purview of the requirements mentioned in Rule 31 of the** **WP(C).No. 29171 of 2018** **-5-** **Registration Rules (Kerala) framed under the enabling provisions contained in the Registration Act, 1908 or any impediment dealt with in Rules 30 and 36 of the Registration Rules (Kerala). Further, it is pointed out that Rule 23 of the Registration Rules deals with the particulars required for Sec.21 of the Registration Act. Accordingly, it is argued that the cumulative effect of the said statutory provisions required the description of the boundaries should contain all those particulars sufficient to identify the property. Hence it is urged that the 1[st] petitioner is absolutely entitled in law and competent to execute Ext.P-3 sale deed to convey 4.80 ares of properties to the 2[nd] petitioner not only on the basis of his title but also on the basis of his actual possession which has been finalised in the re-survey statutory proceedings. It is also pointed out that Rule 67 of the Registration Rules (Kerala) will not permit the 3[rd] respondent to make any enquiry into the validity of the document** **WP(C).No. 29171 of 2018** **-6-** **sought to be registered. It is in the light of these aspects that the petitioners have filed the above Writ Petition (Civil) with the aforementioned prayers.** **4. It has been held by this Court in the decision in** _**Ibrahim Koyakutty v. Varghese**_ **, reported in 1951 KLT 117, para 3 as follows:** _“3. ...........But in the absence of circumstances indicating that application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error, usually in cases conflict between the area, survey number and the boundaries mentioned in the document the boundaries predominate and the rest is considered only as false or erroneous description. In this case there are no such circumstances and therefore we are clearly of the view that the disputed property is included in the documents mentioned above. .....................”_ **5. It is also relevant to refer to the** **decision of this Court in** _**Krishnamoorthi Iyer v. Janaki Amma**_ **, reported in 1957 KHC 202 = 1957 KLT** ## **886, para 2, which reads as follows:** _**'** 2. ................ The usual rule, no doubt, is that when there is a conflict between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. But, this is not an inflexible or infallible rule, and even in the cases in which this rule has been applied, it has been pointed out that when, from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. ............”_ **WP(C).No. 29171 of 2018** **-7-** # **6. Further it is also profitable to refer to** **the judgment of this Court in S** _**ivaraman Nair v. Shamsuddin**_ **, reported in 1990 KHC 295 = 1990 (1) KLT 187, para 9, which reads as follows(see KLT** ## **Report):** _**'** 9 . In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. None of the decisions on which the appellants rely has held positively that in all cases of such conflict the boundary alone shall prevail. On the other hand, in Krishnamurthy Iyer’s case (1957 KLT 886) Kumara Pillai, J. held that:_ _“The usual rule is that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. This is not an inflexible rule. When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail.”_ _Varadaraja Iyengar, J. in Krishnan v. Mathai (1957 KLT 42) held that:-_ _The evidence supplied by boundaries, extent, survey numbers and lekhoms form the determining factors when the identity of the property is put in issue. If all these factors harmonise, there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error.”_ _The same question came up for consideration before Bhat, J. in E.S.A.10 of 1979. After reference to a number of decisions - Zamindar of Pachipenta v. Maharaja of Jeypore (XXIII MLJ. 97), Subbayya Chakkiliyan v. Manjan Muthia Goundan (AIR 1924 Mad.493), Durga Prasad Singh v. Rajendra Narain Bageni (ILT 37 Cal.293), Kumaran Krishnan v. Ulahannan Mathai (1957 KLT 485), Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai (1951 KLT 825) and Krishnamoorthy Iyer v. Janaki Amma, (1957 KLT 886), he observed that:_ **WP(C).No. 29171 of 2018** **-8-** _“......No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertantly must be preferred if it sufficiently identifies the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character, it is a mere rule of construction which appears to be safe and almost an infallible guide.”_ _The same principle was adopted by P.C.B. Menon, J. in the decision in Parameswara Menon’s case [1984 KLT SN 65-S.A.No.684/80]. It is true that in that case the Court found that the boundaries mentioned in the document should prevail over the inconsistent side measurement. We understand the law to be as laid down in the decisions referred to by Bhat, J. and which we have extracted above. The rule is only one of construction. It is not unalterable, inflexible or invariable.'_ **7. Further this Court has held in the** **judgment in the case in** _**Eshaque v. Sub Registrar**_ **, reported in 2002 (1) KLT 330, that the Registrar is not justified in requiring the executant of the deed to produce possession certificate from the competent authority to establish possession of property and there is no provision which empowers the Sub Registrar to satisfy himself as to the title of the executant of the document for registration as a condition precedent for grant of registration. It will be profitable to refer to paras 9 & 10 of** _**Eshaque's case (supra),**_ **reported in** **WP(C).No. 29171 of 2018** **-9-** ## **2002 (1) KLT 330, which read as follows:** _**“** 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._ _10. Coming to the next requirement in the objection slip (Ext. P8) regarding the power of attorney, S. 33 of the Act dealing with the power of attorney recognisable for the purpose of S. 32 states that if the principal at the time of executing the power of attorney resides in any part of India in which this Act, is for the time being in force, a power of attorney executed before and authenticated by the Registrar or Sub Registrar_ **WP(C).No. 29171 of 2018** ## **-10-** _within whose district or sub district the principal resides will be recognised for the purpose of S. 32 with regard to the presentation of documents for registration by power of attorney. As already stated, the counsel for the petitioner submits that the 2nd respondent is a resident of Tamil Nadu State and that it had executed a power of attorney for presentation of Ext. P7 document before the 1st respondent for registration and the same was registered in the registering office having jurisdiction over the place where the executant is residing and that the petitioner will produce the original of the said document before the 1st respondent. If the petitioner produces the original of power of attorney executed by the 2nd respondent and registered in the Sub Registry Office having jurisdiction over the place where the 2nd respondent is residing in Tamil Nadu, the same will be recognised and accepted as contemplated under S. 33 of the Act. In the above circumstances, I hold that it is not necessary for the petitioner to produce any possession certificate as sought for by the 1st respondent in Ext. P8 objection slip. However, the petitioner has to produce the original of the power of attorney executed by the 2nd respondent and registered in the Sub-Registry Office having jurisdiction over the place where the executant resides authorising the presentation of Ext. P7 document for registration before the 1st respondent. If the petitioner complies with the above and if the other requirements of the Registration Act are satisfied, the 1st respondent will register Ext. P1 document immediately thereafter.”_ **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 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** **WP(C).No. 29171 of 2018** **-11-** **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 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 1[st] petitioner's property, it is clearly shown that the total** **WP(C).No. 29171 of 2018** **-12-** **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 4[th] respondent-Tahsildar in the matter and the 4[th] 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 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** **WP(C).No. 29171 of 2018** **-13-** ## **government in the Revenue Department reads as** ## **follows:** "നന. 40837 /ഇ 3 /15 /റവനന്യൂ റവനന്യൂ (ഇ) വകുപപ തതിരുവനന്തപുരന തതീയതതി : 12 /10 /2015 ## സർക ്കു ലർ വതിഷയന : റവനന്യൂ വകുപപ - റതീസർവവ്വേ റതികക്കാർഡതിൽ വരഖപപടുതതിയതിട്ടുള്ള വതിസതീർണന അടതിസക്കാന വരഖയക്കായതി കണകക് **ക** ാ തി വപക് **ക** ാ വരവപ നടത്തുന്നതപ - സനബനതിചപ സൂചന : 1 . റവനന്യൂ വബക്കാർഡതിപന്റെ (സർവവ്വേ) യുപട 18-09-91 പല ബതി 1 – 19446/94 നമ്പർ സർക്കുലർ. - 2 . സർവവ്വേ ഡയറക്ടറുപട 10-07-2015 പല ബതി 1-15600/15 നമ്പർ കതപ . 3. ലക്കാൻഡപ റവനന്യൂ കമതീഷണറുപട 01-09-2015 പല എൽ .ബതി. 3-39284 നമ്പർ കതപ. സൂചന (1) പ്രകക്കാരമുള്ള സർക്കുലറതിൽ, റതീസർവവ്വേ റതികക്കാർഡതിൽ കക്കാണതിചതിരതിക്കുന്ന വതിസതീർണന അടതിസക്കാന വരഖയക്കായതി കണകക് **ക** ാ തി മക്കാത്രവമ വപക് **ക** ാ വരവപ പചയക്കാൻ പക്കാടുള്ളു എന്നപ നതിർവദ്ദേശതിചതിട്ടുണപ . എന്നക്കാൽ ഈ നതിർവദ്ദേശന പല വതിവല്ലേജപ ആഫതീസുകളതിലന പക്കാലതിച കക്കാണുന്നതില്ലേക്കാപയനന ആയതുപകക്കാണപ പപക്കാതുജനങ്ങൾകപ വപക് **ക** ാ വരവപ നടപടതി സനബനതിചപ ബുദതിമുട്ടുകൾ ഉളവക് **ക** ാ നപവനന സർകക്കാരതിപന്റെ ശ്രദയതിൽപപടതിട്ടുണപ . ആയതതിനക്കാൽ ടതി സർക്കുലർ പ്രകക്കാരന നടപടതികൾ സസതീകരതിക്കുവക്കാൻ എല്ലേക്കാ ജതില്ലേക്കാ കളക്ടർമക്കാർക്കുന നതിർവദ്ദേശന നൽകുന. പക.എസപ. ഷതീല പസ്പെഷഷ്യൽ പസക്രടറതി ലക്കാൻഡപ റവനന്യൂ കമതിഷണർ, തതിരുവനന്തപുരന സർവവ്വേ ഡയറക്ടർ, തതിരുവനന്തപുരന പരജതിവസ്ട്രേഷൻ ഇൻസ പക്ടർ ജനറൽ, തതിരുവനന്തപുരന **പ** എല്ലേക്കാ ജതില്ലേക്കാ കളക്ടർമക്കാർക്കുന ഡയറക്ടർ, വതിവര പപക്കാതുജന സമ്പർക വകുപപ (പ്രസതിദതികരണതതിനു ) ഇൻഫർവമഷൻ ഓഫതീസർ, പവബപ & നന്യൂമതീഡതിയ, I & PRD കരുതൽ ഫയൽ /ഓഫതീസപ വകക്കാപതി ഉതരവതിൻ പ്രകക്കാരന പസക്ഷൻ ഓഫതീസർ" **WP(C).No. 29171 of 2018** **-14-** **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 1[st] 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 view taken by the 3[rd] 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** **WP(C).No. 29171 of 2018** **-15-** **clear that the 3[rd] 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 Revenue Officials concerned, who will then consider such request without delay.** **With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.** **Sd/-** ## **ALEXANDER THOMAS,** **JUDGE.** Bkn/- **WP(C).No. 29171 of 2018** **-16-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED BEARING 1989/2006 OF THE S.R.O.KATTAMPZHIPURAM** **EXHIBIT P2 TRUE COPY OF THE THANDAPER ACCOUNT AFTER RE-SURVEY ISSUED TO THE 1ST PETITIONER BY THE VILLAGE OFFICER, KATTAMPAZHIPURAM VILLAGE** **EXHIBIT P3 TRUE COPY OF THE SALE DEED DATED 23.08.2018 EXECUTED BETWEEN THE PETITIONERS** **EXHIBIT P4 TRUE COPY OF HE ACKNOWLEDGMENT OF ONLINE TOKEN REGISTRATION DATED 23.08.2018 ISSUED BY THE REGISTRATION DEPARTMENT** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 23.08.2018 ISSUED BY THE 3RD RESPNDENT** **EXHIBIT P6 COPY OF THE LAND TAX RECEIPT ISSUED TO THE 1ST PETITIONER**