Vijayakumari v. Sub Registrar, Ouruttambalam Neyyattinkara; District Registrar, Thiruvananthapuram; Gerald alias Uthamaraj

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936 WP(C).No. 24086 of 2013 (I) ---------------------------- PETITIONER(S): -------------------------- VIJAYAKUMARI VADAKKUMKARA PUTHENVEEDU, CHATHILAPATTUKONAM PALLICHAL.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SANU.S.PANICKER RESPONDENT(S): ---------------------------- 1. THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, OURUTTAMPALAM NEYYATTINKARA, THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT REGISTRAR OFFICE OF DISTRICT REGISTRAR, THIRUVANANTHAPURAM 695 001. - *3. GERALD ALIAS UTHAMARAJ S/O.ABRAHAM NADAR, BINITHA BHAVAN, VALIYAVILA AMBALATHIN KALA, AMBALATHINKALA POST, KATTAKADA THIRUVANANTHAPURAM -695 572. (ADDL. R3 IS IMPLEADED AS PER ORDER DATED 27/11/2013 IN IA No.15720/2013) BY SR.GOVERNMENT PLEADER SRI.ABDUL SALAM ADDL.R3 BY ADV. SRI.S.SANTHOSH KUMAR (K.K.HOUSE) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24086 of 2013 (I) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------EXT.P1. TRTUE COPY OF THE GIFT DEED NO. 129 OF 1998 EXECUTED BY THE FATHER OF THE PETITIONER IN FAVOUR OF THE PETITIONER. EXT.P2. TRUE COPY OF THE SALE DEED EXECUTED AND PRESENTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3. TRUE COPY OF THE SALE DEED NO. 334 OF 2013 DATED 5-3-2013 OF OURUTTAMBALAM SUB REGISTRAR OFFICE, NEYYATTTINKARA. EXT.P4. TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AGAINST THE ACTION OF THE 1ST RESPONDENT. EXT.P5. TRUE COPY OF THE COMMON JUDGMENT AND THE COMPROMISE TERMS RECORDED BY THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P6. TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE ADDITIONAL MUNSIFF'S-II NEYYATTINKARA IN O.S.NO.423/2007 DATED 29.8.2011 ## RESPONDENT(S)' EXHIBITS --------------------------------------- ANNEXURE R1(a). THE PHOTOCOPY OF THE CANCELLATION DEED. /TRUE COPY/ VPS PA TO JUDGE ## **P.N.RAVINDRAN, J. ----------------------------------------W.P.(C).No.24086 of 2013 ----------------------------------------Dated this the 21[st] day of March, 2014** ## **JUDGMENT** The petitioner is the daughter of the third respondent. The third respondent had way back on 31.3.1998 settled 25 cents of land situate in Sy.No.489/4/19/1 of Maranallur Village, Neyyattinkara Taluk Thiruvananthapuram District on the petitioner as per Ext.P1 settlement deed dated 31.1.1998 registered as document No.129/1988 of SRO, Oouruttambalam. Long thereafter on 18.6.2013, the petitioner executed the original of Ext.P2 sale deed in favour of her brother Biju, transferring her right over the property covered by Ext.P1 settlement deed. It is stated that when the said document was presented for registration before the Sub Registrar, Ooruttambalam he declined to register the sale deed pointing out that in Ext.P1 settlement deed it is stipulated that if the petitioner chooses to transfer her right in the property settled on her thereunder her father should join in the execution of the sale deed and that on the same day the petitioner should purchase another property in her name. The petitioner states that though there are stipulations to the aforesaid effect, no right is reserved with her father and therefore, the Sub Registrar erred in W.P.(C).No.24086 of 2013 2 declining to register the sale deed. She has also stated that on 5.3.2013 she had purchased another item of property as per Ext.P3 sale deed dated 5.3.2013 registered as document No.334/2013 of SRO, Ooruttambalam and therefore the Sub Registrar could not have objected to the registration of Ext.P2 sale deed. In this writ petition the petitioner prays for a writ in the nature of mandamus commanding the first respondent to register the original of Ext.P2 sale deed when presented for registration. Relying on the decision of a learned single Judge of this Court in **Sulabha** v. **Smt.Suseela & Anr.** [1996 (1) KLJ 198], it is contended that the registering officer has no power to enquire into the validity of the document presented for registration and that he can refuse registration only if any of the grounds mentioned in rule 67 (a) to (e) of the Kerala Registration Rules exist. After the writ petition was filed and notice was ordered to the respondents, the petitioner filed I.A.No.15720 of 2013 and produced along with it as Ext.P5, a copy of the compromise decree passed in O.S.No.332 of 1994 and O.S.No.347 of 1994. It is stated that as per the compromise decree her father who was a party to the aforesaid suit had agreed to recognize Ext.P1 gift deed dated 31.1.1998 registered as document No.129/1988 and therefore the Sub Registrar could not have declined W.P.(C).No.24086 of 2013 3 to register the sale deed. 2. A statement dated 19.11.2013 has been filed by the first respondent. Paragraph 2 thereof is extracted below: _“It is stated that the petitioner herein had not presented the Exhibit P2 sale deed executed dated 18.6.2013 before the first respondent for registration. The petitioner approached the first respondent with a photocopy of the settlement deed No.129/1998 and raised some doubt regarding the transfer of her property by way of conveyance. On perusal of the document, the Registrar could notice that certain condition made by the executant - father. The condition that “when the property is alienated it should be done with my consent and also acquire another property in favor of the assignee-petitioner on the day itself”, is the condition included in the settlement deed. On perusing the record, it is seen that the settlement deed No.129 of 1998 has been cencelled by the executant - father in the year, 2000 and it is registered bearing No.806/2000 to that effect. The photocopy of the cancellation deed is produced herewith and marked as Annexure R1(a). The first respondent has informed the petitioner regarding the cancellation. It is fundamental principle of law of property that a person is entitled to transfer his right or interest over immovable property, when a document is presented for registration, the Sub registrar cannot refuse registration as the right granted is assignable and unless it is prohibited by law. But in the present case, the executants himself cancel the deed. The validity of the cancellation ie., title has to be decided by a competent civil court. The proprietary right of the petitioner over the said alleged property is disputed by the cancellation of the settlement deed on 26.5.2000. The Registrar has no power to decide the disputed title of the property questioned in the above case. Therefore the proposition contained in the decision cited in 1996 (1) KLJ 198 is not applicable in the above case”._ 3. Shorn of details the stand taken by the first respondent in the statement is that original of Ext.P2 sale deed was not presented for registration. It is also stated that when the petitioner approached him W.P.(C).No.24086 of 2013 4 for a photostat copy of Ext.P1 settlement deed, he noticed that there are two conditions in the settlement deed; one to the effect that alienation of the property should be done with the consent of the father and that on the same day the donee should acquire another property in her name. He has also stated that when he perused the records he found that Ext.P1 settlement deed was cancelled by her father as per document No.806 of 2000 and on noticing it, he informed the petitioner about the same. A copy of the cancellation deed is produced as Ext.R1(a). The Sub Registrar however proceeds to state that when a document is presented for registration the Sub Registrar cannot refuse registration unless it is prohibited by law; but in the instant case, the executant himself has cancelled the sale deed and therefore the validity of the cancellation deed has to be decided by a competent court. It is also stated that as the right of the petitioner is disputed on account of the cancellation of the settlement deed, the petitioner is not entitled to any relief. 4. I heard Sri.Sanu S.Panikkar, learned counsel appearing for the petitioner and Sri.S.Abdul Salam, learned Senior Government Pleader appearing for respondents 1 and 2. Though the third respondent has been served he has not entered appearance. It is W.P.(C).No.24086 of 2013 5 evident from the stand taken by the first respondent that as the settlement deed in favour of the petitioner has already been cancelled, unless its validity is decided by a competent court, an instrument cannot be registered by the petitioner in respect of the lands settled on her as per Ext.P1 settlement deed. He also relied on the stipulation in the settlement deed to the effect that she should acquire another property in her name if she were to alienate the property settled on her. It is evident from the compromise petition forming part of Ext.P5 judgment in O.S.Nos. 332 & 347 of 1994 on the file of the Family Court, Thiruvananthapuram that the third respondent (the donor) who had settled the property on the petitioner by Ext.P1 settlement deed, had agreed to recognise petitioner's right over the property. The settlement was arrived on 7.10.2006 after the cancellation deed was executed on 26.5.2000. In the light of the fact that the third respondent had agreed before the civil court to recognise the right of the petitioner, I am of the opinion that the Sub Registrar cannot refuse registration on the ground that the settlement deed has been cancelled by the donor himself. As regards the stipulation that the donee should purchase another property, in the light of Ext.P3 sale deed, no objection can be taken on that score. W.P.(C).No.24086 of 2013 6 I accordingly dispose of the writ petition with a direction to the Sub Registrar, Ooruttambalam to register the sale deed, if any presented for registration by the petitioner in respect of the property described in Ext.P1 settlement deed if the document is otherwise in order without insisting on the consent of her father or her father joining in execution of the sale deed. Sd/- **P.N.RAVINDRAN, JUDGE.** rkc