Unnikrishnan Edakkunni Warriam; Gopinathan Edakkunni Warriam; E. W. Rudradass v. The Sub Registrar, Cherppu and The Village Officer, Edakkunni Village

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 6958 OF 2024`** ## **`PETITIONERS:`** ``` 1DR.UNNIKRISHNAN EDAKKUNNI WARRIAM AGED 78 YEARS APARTMENT NO.4C, DOVER COURT, SREEKANDATH ROAD, M.G.ROAD.P.O.,KOCHI, RAVIPURAM, ERNAKULAM DISTRICT, PIN - 682016 2GOPINATHAN EDAKKUNNI WARRIAM AGED 72 YEARS APARTMENT NO.3C, CENTRE COURT, CHITTOOR ROAD, M.G.ROAD.P.O., KOCHI, ERNAKULAM DISTRICT, PIN - 682016 3E.W.RUDRADAS AGED 78 YEARS APARTMENT NO.3C, CENTRE COURT, CHITTOOR ROAD, M.G.ROAD.P.O., KOCHI, ERNAKULAM DISTRICT, PIN - 682016 ``` ``` BY ADVS. AMMU CHARLES R.S.MANJULA ``` ## **`RESPONDENTS:`** ``` 1THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, CHERPPU CHERPPU P.O. THRISSUR DISTRICT, PIN - 680561 2THE VILLAGE OFFICER EDAKKUNNI VILLAGE THRISSUR DISTRICT, PIN - 680306 ``` ## **`OTHER PRESENT:`** ## **`GP - AJITH VISWANATHAN`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.6958 of 2024 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) No.6958 of 2024 .................................................................** Dated this the 05[th] day of March, 2024 ## **JUDGMENT** Petitioners have approached this Court challenging Ext.P2 memo dated 05.01.2024 issued by the 1[st] respondent. Petitioners 1 and 2 executed Ext.P1 gift deed dated 03.01.2024 in favour of the 3[rd] petitioner in respect of their 2/3 (two by three) undivided share, title, possession over 8.67 Ares of vacant land situated in block no.71, re-survey no. 40/3, old survey no.108/2 and mentioned in thandapper account no.9018 in Edakunni Village together with all rights and improvements therein. When Ext.P1 was presented for registration before the 1[st] respondent, he has rejected it as per Ext.P2 memo stating two reasons, ie. (i) non-production of thandaper account certificate which is RoR issued from the 2[nd] respondent and (ii) non-production of proof of jenmom rights having vested in favour of the petitioners. Petitioners’ mother had obtained mutation in her name as is evident from Ext.P3. Land tax was paid as is evident from Ext.P4 which shows that the petitioners have effected mutation in their WP(C) No.6958 of 2024 3 name after mother’s death and obtained pattayadhar under thandaper account no.9018. The description of obtaining pattayadhar and thandapper account no.9018 is also fully mentioned in Ext.P1 gift deed. Though in Ext.P2, Ext.P6 circular has been relied on, it is the contention of the petitioners that all the conditions therein have been complied with. As regard the first reason stated in Ext.P2 petitioners would contend that the issue is covered in their favour as per the judgment in **Jacob P.C. v. Village Officer, Ernakulam and another, 2020 (4) KHC 167** wherein in paragraph 7 it is held as follows: _“7. It is also to be noted that this Court has already held in the judgment in the case in Synudheen v. State of Kerala, reported in 2013 (1) KLT 221 that so long as the provisions of the Registration Act and the Registration Rules have not been amended so as to compulsorily insist for production of ROR certificate before it could be registered by the registration officials as per the Act, the same cannot be insisted for a compulsorily basis and at best it can only be optional for the party concerned to produce such ROR certificate. This Court has categorically held in the abovesaid decision in Synudheen's case supra that since the provisions of the Registration Act and the Rules have not been amended so as to incorporate such a mandatory condition insisting for production of ROR certificate before the deeds could be registered by the registration officials, the registration officials cannot refuse to register the same on the mere ground that the petitioner has not produced the ROR certificate in respect of the property concerned. But it is certainly optional for the party concerned to seek such certificate for the sake of completion of formalities. But non-production of such certificate cannot be the legal basis for the registration officials to refuse the request for registration. This Court has held that though the preparation of Record of Right certificate in_ WP(C) No.6958 of 2024 4 _respect of every item of land may be a laudable idea, in many cases it may require further verification and a party cannot be told that his property cannot be sold unless steps for preparing ROR is completed and no intending purchaser will wait indefinitely, etc. and that the property owners may have to transfer their property for many urgent purposes such as for purchase of another property, to meet the liability towards loan, for meeting the expenses for education of children, for meeting the marriage expenses of children, etc. Hence it was held therein that so long as stringent condition for production of ROR certificate is not incorporated as a requisite condition by amendment of the Registration Act and the Rules framed thereunder the registration officials of the Government in exercise of the executive powers cannot insist that deeds will not be registered without production of ROR certificate etc. It will be profitable to refer to paragraphs 6, 12 and 13 of the abovesaid decision in Synudheen's case supra, which read as follows:_ _“6. In the counter affidavit filed on behalf of the first respondent, Exts.Rl(a) and Rl(b) Government Orders have been produced. The same governs the e-District Project launched in Kerala under the National egovernance Plan. It is stated that a modified programme, viz., National Land Records Modernisation Programme (NLRNP) has been formulated by the Government of India. The same is being implemented in the State through three departments, viz. Revenue Department, Survey and Land Records Department and Registration Department. The computerisation of Land Records is one of the major components of the scheme. The Department of Land Revenue has developed a software, viz., Revenue Land Information System (RELIS) for online mutation/transfer of registry with the support of National Informatic Centre. Sanction was accorded by the Government as per Ext.R1(c) for implementing the system in Palakkad District on a pilot basis and the Government has_ WP(C) No.6958 of 2024 5 _amended the Transfer of Registry Rules and insisted Form IB along with applications for effecting transfer of registry._ _xxx xxx xxx_ _12. Evidently, the Registration Rules have not been amended to have any such system that before registration of the document Record of Right has to be obtained or produced. Therefore, it can be seen that the parties cannot be subjected to such compulsion to obtain Record of Right as a pre condition for registration. It can only be optional for the party concerned. Otherwise, it will interfere with the right of a property owner to transfer his property in terms of his requirement. Of course, the preparation of Record of Right in respect of every item of land may be a laudable idea. But in many cases it may require further verification also and a party cannot be told that his property cannot be sold unless steps for preparing Record of Right is completed. No intending purchaser will wait indefinitely also. The property owners may have to transfer of their property for many urgent purposes such as for purchase of another property; to meet the liability towards loan, if any taken; for meeting the expenses for education of children; for meeting the marriage expenses of children and the like. Therefore, all those aspects will have to be considered, as rightly pointed out by the learned counsel for the petitioners. The hardship of the parties should be avoided also. If stringent conditions not required under the Registration Act and Rules are imposed and Record of Right is required for a transfer, that too as a pre condition, then the system will not work at all and the matter will get unduly delayed._ _13. Therefore, as far as Ext.P9 is concerned, I am of the view that the petitioners' contentions are well founded. The Tahsildar cannot decide on the validity of a document and the title of a previous owner. In fact, under R.16 of the Transfer of Registry Rules, it is made clear that mutation effected will not_ WP(C) No.6958 of 2024 6 _affect the legal right of any true owner. Therefore, as far as the title of the petitioners and the previous owners are concerned, the Tahsildar cannot sit in appeal over the documents itself. The prior documents have been duly registered and they have not been set aside in any civil proceedings. Therefore, they can be acted upon and no objection can be taken on the basis of the alleged incompetence.”_ As regard the second reason directing the petitioners to produce patta to prove jenmom rights, they would contend that the 1[st] respondent cannot insist for such a document and cannot conduct a roving enquiry into the title of the property as held in **Eshaque v. Sub Registrar, 2002 KHC 74** wherein in paragraphs 8 and 9 this Court has held as follows: _“8. I may also refer to the decisions relied on by the counsel for the petitioner. A Division Bench of the Madras High Court in Nalla Goundar v. Krishnaswami Naicker (AIR (32) 1945 Madras 465) considered the provisions of Clause (b) of S.74 of the Registration Act and held that the requirements of the law for the time being mentioned in Clause 3 of S.74 of the Registration Act must be the Law relating to the registration which entail the Registrar to refuse registration if not complied with and further it does not entitle the Registrar to refuse registration on any other grounds. A learned Single Judge of the Punjab & Haryana High Court in Krishna v. State of Punjab (AIR 1986 Punjab & Haryana 328) considered the power of the Registrar to refuse registration in the context of the provisions of S.69, 74, 21, 23, 25, 28, 32 & 35 of the Registration Act. It was held that the provisions of the Registration Act is a complete code by itself and the power of the Registrars and Sub Registrars are clearly defined and demarcated. It was also held that the Inspector General of Registration under S.69 can only excise general superintendence over all the Registrars under the Act and make rules_ WP(C) No.6958 of 2024 7 _consistent with the provisions of the Act, providing for the matters mentioned therein. It is also stated that S.21, 23. 28, 32, 35 and 74 authorise the Sub Registrar to refuse registration if the documents are not properly executed or presented or the subject matter of the document lay beyond his territorial jurisdiction and that nothing in the Act authorised either the State Government or the Registrar to instruct the Sub Registrars not to register a document, where the State Government and the Registrar in turn, instructed the Sub Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions. The decision further held that the above instructions are ultra vires their powers and the Sub Registrar was directed to register the lease deed in that case. A Division Bench of the Patna High Court in Bihar Deed Writers Association and Others v. State of Bihar and Others (AIR 1989 Patna 144) considered the provisions of S.52 and 68 of Registration Act, where it is held as follows:-_ _"In our view, if a document otherwise complying with the statutory requirements and formalities is presented for registration, the registering authority is bound to register it. It is not for the registering authority to enquire and ascertain the title to its own satisfaction. Under the provisions of the T.P.Act, 1888, if the transferor does not have any title or has an imperfect title to the property, the transferee on transfer will either get no title or he will get an imperfect title. This will be to the prejudice of the transferee and is not of any concern to the registering authority."_ _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_ WP(C) No.6958 of 2024 8 _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 i.e., the 2nd respondent.”_ Petitioners also rely on a recent judgment of this Court in W.P.(C) No.29927 of 2021 wherein in similar circumstances this Court has interfered and directed registration of the document. 2. Learned Government Pleader upon instruction submitted that Ext.P2 has been issued to avoid a rectification deed in future. Inasmuch the issue has been covered in favour of the petitioners as per the judgments cited supra, I am of the view that the stand taken by the WP(C) No.6958 of 2024 9 1[st] respondent in Ext.P2 cannot be accepted. Accordingly Ext.P2 is set aside with a consequential direction to the 1[st] respondent to receive Ext.P1 gift deed for registration when it is presented for registration as provided under the Registration Act, 1908. In view of the above, I am inclined to allow the writ petition directing the 1[st] respondent to register Ext.P1 gift deed, based on Exts.P3 and P4, at the risk and consequences of the petitioners, making it reiteratingly clear that if any claims should be brought on the property in future by any person, the said authority will stand fully indemnified and the petitioners will alone be responsible for all the consequences thereof. Writ petition is allowed as above. **Sd/-** **VIJU ABRAHAM** **JUDGE** cks WP(C) No.6958 of 2024 10 ## **`APPENDIX OF WP(C) 6958/2024`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE FAMILY GIFT DEED EXECUTED ON 03.01.2024 AND WHICH WAS PRESENTED FOR REGISTRATION WITH THE 1ST RESPONDENT ``` ``` Exhibit P2 ``` ``` TRUE COPY OF REJECTION MEMO DATED 05.01.2024 ``` ``` Exhibit P3 ``` ``` TRUE COPY OF BTR FROM THE EDAKKUNNI VILLAGE SHOWING TITLE IN FAVOUR OF THE MOTHER OF PETITIONERS ``` ``` Exhibit P4TRUE COPY OF THE LAND TAX RECEIPT DATED 03.08.2023 ``` ``` Exhibit P5TRUE COPY OF THE LETTER DATED 25.01.2024 ADDRESSED TO THE 1ST RESPONDENT ``` ``` Exhibit P6TRUE COPY OF THE CIRCULAR NO. RR4 27617/2008 DATED 19.11.2008 ISSUED BY THE INSPECTOR GENERAL OF REGISTRATIONS ```