Vipin Raj.R v. State of Kerala represented by its Principal Secretary to Government, Registration Department, Government Secretariat, Thiruvananthapuram; The Sub Registrar, Ottasekharamangalam Sub Registrar Office; SarasU, D/o Thankammal, Narayana Vilasam Bungalow, Nedumpully, Pantha P.O., Vazhichal Village

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** # **WP(C).No.21637 OF 2020(D)** ## **PETITIONER:** **VIPIN RAJ.R AGED 32 YEARS S/O.RAJENDRAN, CHERUPUSHPA VILASM, MUTHIYAVILA, VEERANAKAVU VILLAGE, KATTAKKADA P.O., THIRUVANANTHAPURAM-695 572.** **BY ADVS.** **SRI.D.KISHORE SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE SUB REGISTRAR, OTTASEKHARAMANGALAM SUB REGISTRAR OFFICE, POOZHANADU, MANAKKALA, THIRUVANANTHAPURAM-695 125.** **3 SARASU, D/O.THANKAMMAL, NARAYANA VILASAM BUNGLOW, NEDUMPULLY, PANTHA P.O., VAZHICHAL VILLAGE, THIRUVANANTHAPURAM-695 572.** **R3 BY ADV. SRI.THIRUMALA P.K.MANI** ## **SRI KP HARISH SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21637 OF 2020** **2** ## **JUDGMENT** Being aggrieved by the refusal of the Sub Registrar, Ottasekharamangalam SRO, to register the sale deeds presented before the said authority, the petitioner has approached this Court seeking directions. The specific contention of the petitioner is that mere pendency of a civil suit before the court of law is no reason to deny registration of a document which is validly presented before the Sub Registrar. 2. The petitioner and Smt.Vinitha Raj are the children of late Sri. Rajendran. Late Smt. Thankammal is the mother of Sri. Rajendran. While Rajendran was alive, Thankammal had settled 46 cents of property in Sy. No. 425/1 by a settlement deed in the year 1990 in favour of the petitioner and his sister, who were minors at that time. Mutation was effected and tax was being paid. While so, Rajendran passed away during the lifetime of Thankammal and after his death, Thankammal assumed the status of a trustee and she was managing the properties. When the petitioner and his sister attained majority, they took possession of the property . The petitioner states that owing to various reasons, the relationship between Thankammal and the petitioner became strained. In the year 2010, by document No.957/2010, Thankammal went on to unilaterally execute a cancellation **WP(C).No.21637 OF 2020** **3** deed, thereby cancelling the settlement deed. The petitioner and his sister instituted O.S.No.321/2020 before the Court of the Subordinate Judge, Neyyattinkara seeking to set aside the cancellation deed. Smt. Thankammal, on the other hand, instituted O.S. No. 282/2012 seeking for a decree of permanent injunction restraining the petitioner and his sister from trespassing into the property. The suits were jointly tried and by Ext.P1 judgment dated 23.12.2015, the suit filed by the petitioner and his sister was decreed ex parte declaring that the cancellation deed No.957/2010 executed by Smt. Thankammal as null and void. The title of the plaintiffs in the said suit to the suit property was declared and Thankammal was interdicted from creating any document or interfering with the title of the plaintiffs. The suit filed by Smt. Thankammal was dismissed. Those judgments have become final. 3. According to the petitioner, out of the larger extent, he has assigned property having an extent of 2.19 Ares to a certain Shibu by Sale Deed No. 549/2020. He has now entered into an agreement to assign property having an extent of 9.07 Ares each to a certain Sunitha K and Smt Thankamony. Coming to know of the intention of the petitioner to assign the properties, the 3rd respondent in her capacity as the daughter of the settlor has filed Ext.P2 application before the Civil Court seeking to set aside the ex parte decree. She has also filed an application for condoning the delay of 1705 days in filing the said application. Those applications are pending consideration before the learned Subordinate Judge. However, no orders have **WP(C).No.21637 OF 2020** **4** been passed. The petitioner contends that when he presented Exts.P4 and P4(a) sale deeds before the 2nd respondent for registration, the same was refused on the ground of pendency of the civil suit. According to the petitioner, the civil court has not passed any orders interdicting the same and in that view of the matter, there is no justification on the part of the 2nd respondent in refusing registration. It is in the above backdrop that the petitioner has approached this court seeking for the following reliefs: - “a. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to register Exts.P4 and P4(a) Sale Deeds in accordance with law, at the earliest. - b. To declare that pendency of Exts.P2 and P3 or any other civil cases before a court of law is not a reason to deny the registration of Exts.P4 and P4(a) Sale Deeds pertaining to the property sought to be conveyed unless there is prohibitory order against such alienation passed by a competent court of law.” 4. The 3rd respondent has filed a counter affidavit. It is contended that the writ petition is premature as no orders have been passed by the sub Registrar refusing registration under section 71 of the Registration Act. It is further contended that even if the Sub Registrar refuses registration, the petitioner has an alternate remedy in preferring an appeal under Section 72 of the Act. It is further stated that the subject matter of the suit is hit by the rule of lis pendens as the right to the immovable property is directly and **WP(C).No.21637 OF 2020** **5** specifically in question in the suit pending before the Subordinate Judge. She states that she had approached this Court by filing O.P.(C) No. 1420 of 2020 with a prayer to the learned Subordinate Judge to expedite the consideration of the applications filed by the 3rd respondent and the said petition is still pending. She states that the petitioner has already disposed of 5 cents of property and it was when he attempted to assign the balance extent that she had approached this Court. 5. Sri. D.Kishore, the learned counsel appearing for the petitioner submitted that the 2nd respondent has refused registration on the sole ground that he had received a communication from the 3rd respondent that a suit is pending. According to the learned counsel, Ext.P5 would reveal that the petitioner has presented the document and that the online fees has also been remitted. He would contend that the Sub Registrar had no jurisdiction to refuse registration as this Court as well as the Apex Court has settled the law in no unmistakable terms that cancellation of deed executed unilaterally by the vendor of a property, which had been duly transferred and conveyed earlier, cannot be legally sustained. According to the learned counsel, such documents are void, non-est and “meaningless transactions”. He would also refer to a judgment of a Division Bench of this Court in **Santhosh Antonio S. Netto v. Joshy Thomas and Ors.** [2020 (3) KLT 408], which held that once registration of a deed is effected, in accordance with the law, then the only alternative available to the **WP(C).No.21637 OF 2020** **6** vendor is to get the sale deed cancelled in terms of law seeking adjudication through a Civil Court as provided under Section 31 of the Specific Relief Act. However, no such circumstance has arisen in this case. When the Sub Registrar himself had no jurisdiction to cancel the deed unilaterally as held by this Court, there is no justification in refusing registration is the submission. He would further contend that the registering authority can refuse registration only if the circumstances which have been detailed in Rule 67 or Rule 191 of the Registration Rules strikes their notice. The pendency of a civil suit is not categorised as a circumstance in the Rules to refuse registration. 6. Sri. Thirumala Mani, the learned counsel appearing for the 3rd respondent reiterated the contentions raised in the counter affidavit. According to the learned counsel, the refusal of registration, if the same has been done by the Sub Registrar on justifiable grounds, no interference is warranted. 7. It appears from Ext.P4 and P4(a) that the petitioner has executed two assignment deeds and from Ext.P5 and P5(a), it is evident that the petitioner has remitted the requisite fees as early as on 28.9.2020. He complains that the 2nd respondent has refused to register the deed based on the objections raised by the 3rd respondent **WP(C).No.21637 OF 2020** **7** and that too on the ground of pendency of a suit. 8. Admittedly, the property was settled in the name of the petitioner and his sister by their grandmother by a settlement deed executed in the year 1990. The deed was cancelled by executing a cancellation deed in the year 2010. The cancellation was unilateral at the instance of the grandmother. The Civil court by judgment dated 23.12.2015 has held that the cancellation deed is null and void and the title of the petitioner and his sister was declared. The settlor was the 1st defendant in the suit and the 3rd respondent herein was the 3rd defendant. It was much after the death of the 1st defendant that the 3rd defendant has filed the application for setting aside the ex parte decree along with an application for condoning the delay of 1705 days. There is no dispute with regard to the fact that no orders have been passed therein. There are no interdictory orders passed by the Civil court restricting transfer by the petitioner. Even otherwise a Division Bench of this Court in **Hamsa P. A. v. District Registrar General, Kozhikode and others** (2011 (3) KHC 342) relying on a judgment of the Apex Court in **Thota Ganga Lakshmi and another v. Government of Andhra Pradesh** (2011 (3) KLT 345) has conclusively held that cancellation of deed executed unilaterally by the vendor of a property, which had been duly transferred and conveyed earlier, cannot **WP(C).No.21637 OF 2020** **8** be legally sustained. It was held that such documents are void, non-est and “meaningless transactions”. Recently, another Division Bench of this Court in **Santhosh Antonio S. Netto v. Joshy Thomas and Ors.** [2020 (3) KLT 408], relying on the above judgments had occasion to observe that once registration of a deed is effected, in accordance with the law, then the only alternative available to the vendor is to get the sale deed cancelled in terms of law seeking adjudication through a Civil Court as provided under Section 31 of the Specific Relief Act. Admittedly, no suit has been filed by the settlor when she was alive to get the sale deed cancelled in terms of law. Furthermore, Rule 67 and 191 of the Registration Rules narrates the circumstances under which the Registrar can refuse registration. None of the circumstances narrated therein is attracted in the instant case. 9. If reference is made to the provisions of the Registration Act, 1908 and the Rules framed thereunder, it can be seen that Rule 191 provides for the reasons for refusal to register a document. The refusal will usually come under one or more of the heads mentioned in the Rule which would invariably be quoted as authority for refusal. None of the heads mentioned in Rule 67 or 191 provides that the pendency of an application to set aside an ex parte decree in a civil court can be a ground for declining to register the document. Though in **Noble John v. State of Kerala** [2010 (3) KLT 941], it **WP(C).No.21637 OF 2020** **9** has been held by this Court that the grounds mentioned in Rule 191 of the Rules are not exhaustive and that the Registrar can, for other valid reasons, declined to register a document, such refusal should be for legally tenable reasons and the same should be supported by statutory provisions. 10. For the aforesaid reasons, I am of the considered opinion that the petitioner is entitled to succeed. I direct the 2nd respondent to consider Ext.P4 and P4(a) documents presented before the authority for registration, if the same is otherwise in order, provided no interdictory orders are passed by any Court restraining registration of such documents. This petition is disposed of with the above directions. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.21637 OF 2020** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE COMMON JUDGMNET IN OS 321/2010 AND O.S 282/2012 OF SUB COURT, NEYYATTINKARA.** - **EXHIBIT P2** - **TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE 3RD RESPONDENT AS IA 3/2020 IN OS 321/2010 ON THE FILE OF SUB COURT, NEYYATTINKARA.** - **EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE 3RD RESPONDENT AS IA 2/2020 IN OS 321/2010 ON THE FILE OF SUB COURT, NEYYATTINKARA.** - **EXHIBIT P4 TRUE COPY OF THE UNREGISTERED SALE DEED DATED 28.09.2020 EXECUTED BY THE PETITIONER IN FAVOUR OF SMT.SUNITHA.K.** - **EXHIBIT P4 A** - **TRUE COPY OF THE UNREGISTERED SALE DEED DATED 28.09.2020 EXECUTED BY THE PETITIONER IN FAVOUR OF SRI,JOYDAS AND SMT.THANKAMONY.** - **EXHIBIT P5** - **TRUE COPY OF THE ACKNOWLEDGMENT CUM RECEIPT DATED 28.09.2020 FOR DOCUMENT REGISTRATION ISSUED FROM THE AKSHAYA KENDRA TO SMT.SUNITHA.** - **EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGEMENT CUM RECEIPT DATED 28.09.2020 FOR DOCUMENT REGISTRATION ISSUED FROM THE AKSHAYA KENDRA TO SRI.JOYDAS.** - **RESPONDENTS' EXHIBITS:** NIL