T. D. Salim v. Sub Registrar, Registration Department, Ernakulam and State of Kerala & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 ## WP(C).No. 32252 of 2009(B) ## PETITIONER(S): T.D.SALIM, GREESHMAM, HOUSE NO.AMRA-157, MAVELIPURAM, KAKKANADU, COCHIN-682 030. BY ADV. SRI.C.S.AJITH PRAKASH SRI.C.S.YESUDAS SRI.PAUL C THOMAS ## RESPONDENT(S): 1. SUB REGISTRAR, REGISTRATION DEPARTMENT, ERNAKULAM. 2. STATE OF KERALA REPRESENTED BY - THE SECRETARY TO GOVERNMENT, REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. K.I.SUBAIR MATHER, MATHER MANSION, CHITTOOR ROAD, ERNAKULAM-682 035. 4. K.I.MAYANKUTTY MATHER, METHER MANSION, CHITTOOR ROAD, ERNAKULAM-682 035. 5. K.I.BABU MATHER, MATHER MANSION, CHITTOOR ROAD, ERNAKULAM-682 035. 6. K.I.NOOR MUHAMMED MATHER MATHER MANSION, CHITTOOR ROAD, ERNAKULAM-682 035. 7. KORATHE MUHAMMED, THROUGH POWER OF ATTORNEY HOLDER, K.I.NOOR MUHAMMED MATHER MATHER MANSION, CHITTOOR ROAD, ERNAKULAM-682 035. 8. M/S.EMPIRE BUILDERS, - REPRESENTED BY ITS MANAGING PARTNER - SHRI.K.I.BABU MATHER, LALAN TOWERS, BANERJI ROAD, COCHIN-682 031. GOVERNMENT PLEADER SRI. M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 32252/2009. ---------------------------------------------------------------------EXT.P1 TRUE COPY OF SALE DEED DT. 24-6-2009. EXT.P2 AGREEMENT DT. 12-1-2005. EXT.P3 COMMUNICATION DT. 6-7-2009. EXT.P4 ORDER DT. 1-9-2008 EXT.P5 CERTIFICATE DT. 12-3-2007. EXT.P6 LETTER DT. 6-11-2008. EXT.P7 LETTER DT. 22-11-2008. EXT.P8 RECEIPT DT. 27-11-2008. EXT.P9 LETTER DT. 16-12-2008. EXT.P10 JUDGMENT IN R.P.NO. 596/09. EXT.P11(a) JUDGMENT IN W.P.C.NO. 461/2009. EXT.P11(b) JUDGMENT IN W.P.C.NO. 4066/09. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= **==> picture [169 x 12] intentionally omitted <==** **==> picture [255 x 24] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** The petitioner is aggrieved by Ext. P3 memo issued by the 1[st] respondent in the writ petition, directing the petitioner to re-present a sale deed presented by the petitioner for registration, including the entire value of the property transferred, including the shop room mentioned in the document. The sale is in respect of undivided share in an immovable property together with the right to construct a room in that property, wherein a multi-storeyed building is to be constructed. It so happens that at the time of execution of the sale deed, copy of which is Ext. P1 produced in the writ petition, the building had already been constructed and the sale deed is only in respect of the undivided interest in the land along with the right to construct a building thereon. It also so happens that the building/room which the petitioner claims to have constructed with his funds is also in the name of the vendors of the undivided share in the land. Therefore, relying on the amended Section 2(3) of the Kerala Stamp Act by Ext. P3, the petitioner was directed to show in the sale deed the value of the room as well. 2. The petitioner challenges Ext. P3 on several grounds. First is that the 1[st] respondent-Sub Registrar has no power to refuse to register a document presented for registration on the ground of under-valuation. According to the petitioner, he has to first register the document and then take appropriate proceedings as contemplated in Section 45B of the Kerala Stamp Act. The second contention is that the amended provisions of the Act are not applicable to the sale in question insofar as the building was constructed prior to the introduction of the amendment. The petitioner raises a third contention that the seller has not transferred any right in the building but he has transferred only the undivided W.P.C. No. 32252/2009. -: 2 :- interest in the property with a right to construct a room there. He raises a further contention that in view of Rule 191 of the Registration Rules, refusal of registration can only be on the specified grounds mentioned therein. 3. The learned Government Pleader would contend that if the petitioner's contention is accepted, then the Sub Registrar would be a mere post office to accept and register all documents presented before him and return the same to the party who presented the same for registration, which is not the intention behind the Kerala Stamp Act and the Indian Registration Act. According to him, the Sub Registrar has a duty to ensue that the document has been executed in compliance with the provisions of the Stamp Act and the Registration Act. Therefore, he submits that there is no merit in the first contention of the petitioner. As far as the contention of the petitioner that since the construction of the building was prior to the amendment, the amendment is not applicable, the learned Government Pleader would point out that the amendment is applicable to the sale and not construction. Therefore, the relevant date is the execution of the sale deed and not the completion of construction, is his contention. In respect of the third contention of the petitioner, the learned Government Pleader points out that as is clear from he documents produced by the petitioner, the building stands in the name of the vendors themselves and therefore it cannot be believed that the same was constructed using funds of the petitioner. He would submit that the whole attempt is to avoid stamp duty in respect of the value of the building which has also been transferred by the vendors to the petitioner along with the undivided interest in the property. As far as the contention based on Rule 191 is concerned, he would point out that the situations mentioned W.P.C. No. 32252/2009. -: 3 :- therein are not exhaustive, but only examples. He would submit that those situations are only some of the reasons for which registration can be refused, as is clear from the wording of the Rule itself and there can be other reasons also. According to him, Section 28 of the Stamp Act requires that the consideration and all other facts and circumstances affecting the chargeability of any instrument with duty or the amount of duty with which it is chargeable shall be fully and duly set forth therein and if Section 28 is not complied with in the document presented for registration, the 1[st] respondent is certainly entitled to refuse to register the document. He also relies on Rule 3 of the Kerala Stamp (Prevention of Under-valuation of Instruments) Rules, 1968, which postulates that when the sale deed involves both land and building, the value of land and building has to be separately shown for the purpose of determining the consideration passed. According to the learned Government Pleader, since the document does not conform to the above said requirement under the provisions of law, the 1[st] respondent is certainly entitled to refuse to register the document and to direct the party to make the document in consonance with the provisions of the Act before re-presenting it for registration. 4. I have considered the rival contentions in detail. 5. I am unable to accept the omnibus contention that the Sub Registrar is bound to register any document whatsoever presented for registration whatever be the defect in the document presented for registration. A classic example would be where an instrument chargeable with duty is presented for registration without paying any stamp duty at all. I am unable to countenance the position of law that even such a document is liable to be registered on presentation by the Sub Registrar, to be followed by proceedings for under-valuation or W.P.C. No. 32252/2009. -: 4 :- recovering of deficit stamp duty. If such a document can be refused to be registered, then it is difficult not to countenance the further position of law that the Sub Registrar is entitled to insist that the document for registration should show the correct consideration as is evident from the document itself. The Learned counsel for the petitioner refers me to the decision of a Division Bench of this Court in **Periyar Real Estates** v. **State of Kerala** , 2002 (1) KLT 806. I am afraid that that decision does not apply to the fact situation presented in this writ petition. In that decision, the question considered was when there is a dispute as to the stamp duty payable on the instrument already subjected to registration, after registration of the instrument the registering authority is entitled to retain possession of the original document under Section 45B of the Kerala Stamp Act. This is a situation where the Sub Registrar retains the document after registration. That does not deal with the question as to whether the Sub Registrar is entitled to refuse to register a document presented for registration on the ground that the correct consideration for the sale has not been set forth in the document. I am of opinion that if non-compliance of statutory provision is evident from the document itself, the Sub Registrar is certainly entitled to refuse to register the document. But, such refusal shall not be arbitrary and whimsical. 6. As far as the second contention of the petitioner is concerned, as rightly pointed out by the learned Government Pleader, what is relevant is the date of execution of the sale deed and not the date of construction of the building. Here the amendment came into force before the execution of the sale deed. Therefore, if, as on the date of execution of the sale deed, sale is in respect of undivided share of any land and refers to any agreement relating to the W.P.C. No. 32252/2009. -: 5 :- construction of any building or part of a building including flat or apartment or room, the value of such building or the part of the building shall also be included in such consideration. Here, admittedly, on the date of execution of the sale deed even the construction of the building was already over and in this case, the building also stands in the name of the vendors themselves as is evident from Exts. P4 and P5. That being so, I have no hesitation to hold that for not including the consideration of the building also in the sale deed, the 1[st] respondent is entitled to refuse registration of the document presented for registration. 7. The third contention of the petitioner is also misplaced. Admittedly, even before the execution of the sale deed, the construction was over. Therefore, there is no point in contending that the sale is of undivided share in the land with a right to construct a room thereon. Although, the petitioner would contend that the construction was using his funds, the building is in the name of the vendors themselves as is evidenced by the exhibits produced by the petitioner himself. If the petitioner constructed the room, the same should have been in his name. As it stands as on the date of execution of the sale deed, the vendors own both the land as well as the building. Therefore, the sale could only have been of both. The recital in the sale deed could only have been a ruse to evade stamp duty. The building also was constructed by the land owner and the undivided share in the land with the room only could have been transferred to the petitioner. Therefore, as contended by the petitioner, the consideration for both should have been shown in the sale deed and stamp duty paid on the total consideration. 8. As far as the contention on the basis of Rule 191 is concerned, I am of the opinion that the situations contemplated W.P.C. No. 32252/2009. -: 6 :- therein are not exhaustive in nature and are only examples, which is clear from the wording used in the Rule. The Rule says that “the reasons for refusal usually given in one or more of the heads mentioned below, which should invariably be quoted as authority for refusal.” That only means that whenever a document is refused to be registered, the authority for refusal should invariably quote in the intimation the reasons for refusing to register the same, examples of which only have been enumerated in the Rule. The Registration Act deals with the procedure for registration and contemplates the requirements of that Act. Thie Stamp Act and Rules also form part of the process of registration compliance with which is also mandatory for getting a document registered under the Registration Act. Therefore, refusal of registration can also be on the ground of noncompliance with the mandatory provisions of the Kerala Stamp Act and Rules. For all the above reasons, I do not find any merit in the writ petition. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/