* THE HONOURABLE SRI JUSTIC V.V.S.RAO + WRIT PETITION Nos.6015, 6016, 6019, 6021 and 6064 of 2008 % 03-12-2008 # Jasti Bhujangeswara Rao, S/o.Late Venkata Subbarao, and others. ... Petitioners Vs. $ Sub-Registrar, Repalle, Guntur District and others. ...Respondents ! Counsel for the Petitioners: SRI N.SRIRAM MURTHY ^ Counsel for the Respondents: GP FOR REVENUE <GIST >HEAD NOTE: ? CASES REFERRED: 1. AIR 2003 Rajasthan 233 2. 2004 (4) ALD 322 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.6015, 6016, 6019, 6021 and 6064 of 2008 WRIT PETITION No.6015 of 2008 Between: Jasti Bhujangeswara Rao, S/o.Late Venkata Subbarao. ..... PETITIONER AND 1 Sub-Registrar Repalle Guntur Dist 2 Dist Registrar Tenali Guntur Dist 3 The Commissioner& Inspector General Registration and Stamps Golkonda Cross Roads Hyd 4 Jasti Venkata Subbamma W/o.Late Venkata Subba Rao R/o.Kuchpipudi(V) Amarthapur(M) Guntur Dist presently R/o.at Door No.6-28-6/2 Vasireddyvari Street Gayatrinagar Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction especially in the nature of writ of Mandamus declaring the action of the 1st respondent in refusing the registration of gift deed dt.16-01- 2008 bearing document No.1 of 2008 on the file of the 1st respondent executed by the 4th respondent in favour of the petitioner and the inaction of the respondents 2 and 3 in not directing the 1st respondent to registrar the gift deed as arbitrary illegal unconstitutional and opposed to the principles of natural justice and direct the respondent particularly the 1st respondent to register the said gift deed and if the gift deed is returned to the 4th respondent to summon the same and register it and deliver the same to the petitioner and pass WRIT PETITION NO : 6016 of 2008 Between: Jasti Srinivas, S/o. Late Sivarama Prasad, R/o. Flat No. G-104, Farmer Housing Society, Prathikaran Sector No. 6, Pune, Maharashtra State ..... PETITIONER AND 1 Sub-Registrar, Repalle, Guntur District. 2 District Registrar, Tenali, Guntur District. 3 The Commissioner & Inspector General Registration and Stamps, Golkonda Cross Roads, Hyderabad. 4 Jasti Venkata Subbamma, W/o. late Venkata Subbarao, R/o. Kuchipudi Village, Amrathalurm Mandal, Guntur, presently r/o. at Door No. 6-28-6/2, Vasireddyvari Street, Gayatrinagar, Vijayawada. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction especially in the nature of Writ of Mandamus declaring the action of the 1st respondent in refusing the registration of gift deed dated 16-1- 2008 bearing document No. 2 of 2008 on the file of the 1st respondent executed by the 4th respondent in favour of the petitioner and the inaction of the respondents 2 and 3 in not directing the 1st respondent to register the gift deed as arbitrary, illegal unconstitutional and opposed to the principles of natural justice and direct the respondents particularly the 1st respondent to register the said gift deed and if the gift deed is returned to the 4th respondent to summon the same and register it an deliver the same to the petitioner and pass WRIT PETITION NO : 6019 of 2008 Between: Gogineni Sailaja W/o.Venkata Ramarao Resident of Door No.4-4-77, 1st Lane, Chandramoulinagar, Guntur, Guntur District ..... PETITIONER AND 1 The Sub Registrar, Repalle, Guntur District 2 The District REgistrar, Tenali, Guntur District 3 The Commissioner & Inspector General Registrar and Stamps, Golkonda Cross Roads, Hyderabad 4 Jasti Venkata Subbamma W/o.Late Venkata Subba Rao Resident of Kuchipudi village Amrathalur Mandal, Guntur District, presently residing at Door No.6-28-6/2, Vasireddyvari Street,Gayatrinagar Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction especially in the nature of writ of mandamus declaring the action of the 1st respondent in refusing the registration of gift deed dated 16.1.2008 bearing Document No.5 of 2008 on the file of the 1st respondent executed by the 4th respondent in favour of the petitioner on and the inaction of the respondents 2 and 3 in not directing the 1st respondent to register the gift deed as arbitrary, illegal, unconstitutional and opposed to the principles of natural justice and direct the respondents particularly the 1st respondent to register the said gift deed and if the gift deed is returned to the 4th respondent to summon the same and register it and deliver the same to the petitioner and pass WRIT PETITION NO : 6021 of 2008 Between: Koganti Nagaraja Kumari, W/o. Vishnuvardhana Rao, R/o. Kuchipudi Village, Amruthalur Mandal, Guntur District ..... PETITIONER AND 1 The Sub Registrar, Repalle, Guntur District 2 The District REgistrar, Tenali, Guntur District 3 The Commissioner & Inspector General Registration and Stamps, Golkonda Cross Roads, Hyderabad 4 Jasti Venkata Subbamma W/o.Late Venkata Subba Rao Resident of Kuchipudi village Amrathalur Mandal, Guntur District, presently residing at Door No.6-28-6/2, Vasireddyvari Street,Gayatrinagar Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction especially in the nature of writ of mandamus declaring the action of the 1st respondent in refusing the registration of gift deed dated 16.1.2008 bearing Document No.4 of 2008 on the file of the 1st respondent executed by the 4th respondent in favour of the petitioner on and the inaction of the respondents 2 and 3 in not directing the 1st respondent to register the gift deed as arbitrary, illegal, unconstitutional and opposed to the principles of natural justice and direct the respondents particularly the 1st respondent to register the said gift deed and if the gift deed is returned to the 4th respondent to summon the same and register it and deliver the same to the petitioner and pass WRIT PETITION NO : 6064 of 2008 Between: Jasti Srikanth, S/o. late Sivarama Prasad, R/o. 31/33, 6th Main, Jayaprakashnagar, Bangalore, Karanataka State. ..... PETITIONER AND 1 The Sub Registrar, Repalle, Guntur District 2 The District REgistrar, Tenali, Guntur District 3 The Commissioner & Inspector General Registration and Stamps, Golkonda Cross Roads, Hyderabad 4 Jasti Venkata Subbamma W/o.Late Venkata Subba Rao Resident of Kuchipudi village Amrathalur Mandal, Guntur District, presently residing at Door No.6-28-6/2, Vasireddyvari Street,Gayatrinagar Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction especially in the nature of writ of mandamus declaring the action of the 1st respondent in refusing the registration of gift deed dated 16.1.2008 bearing Document No.3 of 2008 on the file of the 1st respondent executed by the 4th respondent in favour of the petitioner on and the inaction of the respondents 2 and 3 in not directing the 1st respondent to register the gift deed as arbitrary, illegal, unconstitutional and opposed to the principles of natural justice and direct the respondents particularly the 1st respondent to register the said gift deed and if the gift deed is returned to the 4th respondent to summon the same and register it and deliver the same to the petitioner and pass Counsel for the Petitioners: SRI N.SRIRAM MURTHY Counsel for the Respondents: GP FOR REVENUE The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.6015, 6016, 6019, 6021 and 6064 of 2008 COMMON ORDER: These writ petitions are being disposed of by this common order in view of the commonality in the cases and also due to the fact that the order challenged is passed by the Sub-Registrar, Repalle, Guntur District (first respondent in all the writ petitions). Further, the impugned order of refusal of registration is similar. The background of these cases as is given in the next paragraph is also similar. The fourth respondent, Jasti Venkata Subbamma, and her husband Jasti Venkata Subba Rao have three sons and four daughters. The elder son, Siva Rama Prasad, predeceased his father. The husband of fourth respondent died on 16.09.2007 leaving behind him considerable extent of immovable property – houses/house plots and agricultural lands in Tenali Mandal. It is also not disputed that during his lifetime, Venkata Subba Rao effected partition among his children, and after his death, his property was succeeded by the fourth respondent. Late Siva Rama Prasad, Subrahmanyeswara Rao and Bhujangeswara Rao (youngest one) (petitioner in W.P.No.6015 of 2008) are her sons. Nagaraja Kumari (petitioner in W.P.No.6021 of 2008), Damayanthi, Swarna Kumari and Vijaya Laxmi are daughters of fourth respondent. The second son – Subrahmanyeswara Rao, was given in adoption to father of fourth respondent. On 16.01.2008 fourth respondent presented five gift deeds before Sub-Registrar, Repalle. These were executed in favour of her youngest son, her grandson, her granddaughter through first daughter, her eldest daughter and another grandson. First respondent, however, did not register them immediately for the reason that all properties are situated within the jurisdiction of registering authority of Tenali. Documents are kept pending being document Nos.P2 to P6 of 2008. On 22.01.2008 fourth respondent issued a Telegram to the first respondent informing latter that without her knowledge, petitioners brought into existence the gift deeds/settlement deeds, that she is not a native of Repalle Sub- Registrar limits and that her thumb impressions were obtained on the gift deeds under threat. She also lodged a First Information Report on 23.01.2008 with P.S.Amarthalur under Sections 420, 384, 506 read with Section 34 of the Indian Penal Code, 1860. On 29.01.2008, she gave a representation stating that gift deeds were obtained by coercion and without her consent. In response to all these, first respondent gave a notice to fourth respondent on 23.02.2008 and rejected the registration and subsequently on 26.02.2008 first respondent returned the five documents to fourth respondent. It is also brought to the notice of this Court (though no additional affidavit is filed) by the learned Counsel for the petitioners that subsequently the fourth respondent was taken to Vijayawada by Thummala Damayanthi (daughter) and fourth respondent executed gift deeds in favour of others, out of which, two are registered and others were rejected. In these writ petitions petitioners challenge the action of the first respondent refusing registration. They seek a writ of mandamus declaring the refusal as illegal and arbitrary and for a direction to first respondent to register the gift deeds by duly summoning them from the fourth respondent. At the stage of admission itself, counter affidavits have been filed. First respondent filed counter affidavit justifying rejection contending as follows. Admitting the case of the petitioners to the extent of presenting the gift deeds and keeping them pending as document Nos.P2 to P6 of 2008, it is also admitted that after receiving the telegram issued by the fourth respondent on 22.01.2008, and certificate issued by Tahsildar cancelling the residence certificate, as well as representation dated 29.01.2008 sent by the fourth respondent, the documents were kept pending. Fourth respondent appeared before first respondent on 11.02.2008 and deposed that she has no property under the jurisdiction of first respondent and that her thumb impressions were obtained on papers without consent and knowledge. First respondent, therefore, refused registration under Section 35(3)(a) of the Registration Act, 1908 (the Act, for brevity), treating the ‘admission of execution under threat’ as denial of execution. Fourth respondent in her counter affidavit made allegations to the following effect. After death of her husband on 16.09.2007 the petitioner in W.P.No.6015 of 2008 withdrew money from Andhra Bank by obtaining signatures. Thereafter, petitioners obtained gift deeds also in respect of some plots in Tenali. On 16.01.2008 petitioners took fourth respondent from her house in Kuchipudi Village stating that they are taking her to Tenali for medical checkup. She was taken to an unknown place. Her thumb impressions were obtained on several papers, the contents of which, are not known to her. She was forced to affix thumb impressions. On 17.01.2008 when her son, Subrahmanyeswara Rao, who was given in adoption to her father and is residing at Raichur, Karnataka, came to her, she narrated the incidents. Her son made enquiries and informed that she was taken to Repalle and her thumb impressions were obtained on the gift deeds in favour of the petitioners. The Sub-Registrar, Repalle, has no jurisdiction. So as to attract jurisdiction, an extent of 500 square yards in Thotapalem Village of Repalle Mandal was purchased on 16.01.1998, and the same was made into five pieces shown in each of the documents for the purpose of creating jurisdiction. Further, it was shown as if she is resident of Door No.6- 10-58/1, Repalle. A certificate from Tahsildar, Repalle, was obtained by playing fraud, though she never resided in the said place, and from her childhood she is permanent resident of Kuchipudi Village. She gave a complaint to Tahsildar to cancel the certificate after conducting enquiry. On 16.01.2008 Sub-Registrar, Repalle, was not present. Petitioners did everything in planned manner. She, therefore, lodged a complaint with the Police. Authorities conducted enquiry and recorded her statement. Petitioners have not filed reply affidavit denying counter averments of fourth respondent. Learned Counsel for the petitioners placing reliance on Sections 34 and 35 of the Act submits that when once the document is executed in the presence of Registering Officer, the same cannot be kept pending without registration. According to the learned Counsel, even subsequently the person who executed document denies execution, the Registering Officer has no choice, but to register. He placed reliance on Gafur Khan v State of Rajasthan[1]. Opposing the writ petition, learned Assistant Government Pleader for respondent Nos.1 to 3 and learned Counsel for fourth respondent made the following submissions. As per Sections 34 and 35 of the Act and Rules 26 and 58 of the Andhra Pradesh Rules under the Registration Act, 1908 (the Rules, for brevity), mere presentation of the document for registration does not amount to admission of execution. When the document is kept pending without registration for any reason and subsequently the person denies execution on an allegation that signature was obtained by threats without consent, registering authority can always refuse registration. In such an event, according to the learned Counsel, it amounts to denial of execution. The only point that arises for consideration is whether the impugned order of first respondent rejecting registration is justified in law. To appreciate the contention, the provisions of the Act and the Rules need to be noticed. It is also necessary to consider the powers of registering officers in discharge of their duties under the Act, to know whether it is mandatory for the registering officers to accept and admit every document presented in any form for registration or whether it is permissible for the registering officers to refuse registration and is it permissible to cancel the registration. Sections 19, 20, 21 and 22 of the Act describe certain situations in which the registering officer can refuse registration. These are: when the document is in a language not understood by the officer, the documents with blanks, eraser, alteration etc., the documents without description of the property sufficient to identify the same and the documents which are presented for registration beyond four months from the date of execution. Under Section 32 of the Act, when a document is presented by some person other than the person who executed the document, registration can be refused and similarly under Section 35 of the Act, the registering officer should be satisfied that the document presented for registration is in fact executed by the person, who appears before him and admits the execution. But, registration can be refused when the person by whom the document purported to be executed denies execution, or the person, who purportedly executed is dead. When a document is presented for registration, it should contain the photographs and fingerprints affixed as per Section 32A of the Act (if it is a sale deed, the photographs and fingerprints of the buyer and seller must be affixed). After receiving the document, the registering officer has to verify/examine a document with reference to Sections 19 to 22, 32 and 35 of the Act. The registering officer is also required to follow the Rules promulgated by IG under Section 69 of the Act. Chapter VIII of the Rules deals with registration and examination of documents, whereas Chapter XII of the Rules deals with enquiry before registration and examination of executing parties. The Rules elaborately deal with all aspects of registration, including maintenance of registers, rectification of mistakes, fees payable for registration, maintenance and preservation of records, the method and manner of keeping the documents, and of late registration of documents through CARD (Computer-Aided Administration of Registration Department). The Rules also contain as many as ten appendices dealing with different types of registers and entries to be made therein etc. Rule 26 of the Rules gives the nature of examination to be made by the registering officer. The same reads as under. Rule 26 (i) Every document shall, before acceptance for registration, be examined by the registering officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance,- (a) that it has been presented in the proper office (Sections 28, 29 and 30); (b) that the person is entitled to present it (Sections 32 and 40); (c) that if it is a non-testamentary document and relates to immovable property, it contains a description of property sufficient to identify the same and fulfils the requirements of Rules 18 to 20. (d) that if it is written in a language not commonly used in the District and not understood by the registering officer it is accompanied by a true translation into a language commonly used in the District and also by true copy (Section 19); (e) that if it contains a map or plan, it is accompanied by true copies of such map or plan as required by Section 21(4); (f) that if it contains no unattested interlineations, blanks, erasures or alterations, which in his opinion require to be attested as required by Section 20(1); (g) that if the document is one other than a will it has been presented to within the time prescribed by Sections 23 to 26; (h) that it bears the date of its execution and does not bear a date anterior to the date of purchase of stamp papers and the document is written on a date subsequent to the date of representation; (i) that if the date is written in any document other than a will presented for registration after the death of the testator according to both the British and the Indian calendars, these dates tally; and (j) that if the presentant is not personally known to the registering officer, he is accompanied by such identifying witnesses with whose testimony the registering officer may be satisfied. (ii) If there are any informalities in presentation of a nature which can be remedied, for instance, non-compliance of the requirements mentioned in Clauses (a) to (f), (h), (i) and (j) of sub-rule (i) or this rule, the registering officer shall give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form. The action of the registering officer shall be confined to advice and he shall not himself alter the document in any way. Rule 58 of the Rules is also relevant and reads as under. 58. It forms no part of a registering officer’s duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below: (a) that the parties appearing or about to appear before him are not the persons they profess to be; (b) that the document is forged; (c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity; (d) that the existing party is not really dead as alleged by the party applying for registration; or Though Rule 58 of the Rules prohibits registering officers from enquiring into validity of the document, Rule 26 read with Rule 58 of the Rules reveals that it is always permissible for the registering officer to examine the document presented for registration as to whether the person who presented the document is entitled to present, whether such person is known to the officer or has been properly identified by the identifying witnesses, and also examine the document with reference to the various provisions referred to hereinabove. If any objection is raised, the registering officer has to consider whether the parties appearing before him are not the parties they profess to be, whether the document is forged and whether the document is presented without proper authority by representative, and whether the executing party is dead or not. In case, the registering officer is not satisfied, he can refuse registration. Part XII of the Act deals with refusal to register and Chapter XXIV of the Rules (Rules 161 to 164) deal with “refusal register”. Under Section 71 of the Act, the registering officer has to record his reasons for such refusal in book No.2 and endorse the words “registration refused” on the document and when asked for to furnish the reasons to the person executing or claiming the document. The reasons for refusal could be many and many more as seen from Chapter XXIV of the Rules. When the registration is refused, the person aggrieved has to prefer an appeal to the Registrar (Section 72) and if the appeal is also rejected, the remedy to an aggrieved person is to file a suit under Section 77 of the Registration Act for a decree directing the document to be registered by the registering officer. When a document is presented for registration; whether such document is compulsorily registerable or not; the registering officer is bound to examine the document, conduct enquiry and satisfy himself as to the identity of the property, the identity of the person executing the document and as to the compliance with Stamp Act and other provisions of the Registration Act. Unless such an exercise is done, the registering officer cannot certify that the document is registered and only after such certification, the registration becomes valid. Sections 60 and 61 of the Act deal with such situation. These provisions read as under. 60. Certificate of registration:- (1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented fro registration have been complied with, the registering office shall endorse thereon a certificate containing the word ‘registered’, together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. 61. Endorsements and certificate to be copied and document returned:- (1) The endorsement and certificate referred to and mentioned in Section 59 and 60 shall thereupon be copied into the margin of the Register- book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No.1 : Provided that the copying of the items referred to be may be done using electronic devices like scanner.