1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 213 OF 2008 Shri Ranjit Satardekar, major, married, residing in Flat No.D 1/2 Cedmar Apartments, M. G. Road, Panaji, Goa. ... Petitioner versus 1. Shri Joe Mathias, major, married, Civil Contractor, having his office on 3rd floor, Mathias Plaza building, 18th June Road, Panaji, Goa. 2. Smt. Clotildes Fernandes, major, widow, housewife, residing at Aivao of Caranzalem, Tiswadi, Goa(since deceased through heirs):- 2a(i) Shri Albert Gomes, Grand-son of Clotildes Fernandes, major, married, service; 2a(ii) Smt. Nirmala Gomes, wife of Shri Albert Gomes; major, housewife Both r/o House No.312, Aivao of Caranzalem, Tiswadi, Goa; 2 2b(i) Smt. Kshmata Desai, Grand-daughter of Clotildes Fernandes, major, married, housewife; 2b(ii) Shri Vinayak Desai, husband of Kshmata Desai, major, service Both r/o Opposite N.I.O. Guest House, Dona Paula, Tiswadi, Goa; 2c. Smt. Dinamati Andre Gomes, widow of Andre Gomes, major, housewife; 2d. Miss Shilpa Andre Gomes, daughter of Andre Gomes; 2e. Miss Karishma Andre Gomes, daughter of Andre Gomes; 2f. Miss Reshma Andre Gomes, daughter of Andre Gomes; 2g. Shri Navnath Andre Gomes, son of Andre Gomes, All residing in House No.223, Near N.I.O. Colony, Dona Paula, Tiswadi, Goa; 2h(i) Mrs. Sulochana Gomes alias Smt. Sulochana Fatarpekar, daughter of Andre Gomes, major, married, housewife; 2h(ii) Shri Uday Fatarpekar, husband of Sulochana Fatarpekar, major, service, Both r/o House No.312, Aivao of Caranzalem, Tiswadi, Goa; 3 2i. Smt. Sukanti Sebastian Gomes, widow of Sebastian Gomes, major, housewife; 2j. Shri Ashwin Sebastian Gomes, son of Sebastian Gomes; 2k. Shri Sandeep Sebastian Gomes, son of Sebastian Gomes; all r/o House No.312, Aivao of Caranzalem, Tiswadi, Goa. 3. The President of the Administrative Tribunal of Goa having his office on 3rd Floor, Vaidhya Hospital Building, Near Market, Panaji, Goa; 4. The Additional Collector of the North Goa District having his office in the Collectorate Building, Panaji, Goa. ... Respondents Petitioner in person. Shri A. N. S. Nadkarni, Senior Advocate with Shri Y. V. Nadkarni, Advocates for Respondent No.1. Shri V. B. Nadkarni, Senior Advocate with Shri N. Noronha, Advocate for Respondent Nos.2b(i), 2h(i) and 2h(ii). Shri M. Amonkar, Advocate for Respondent No.2(c), 2(d), 2(e), 2(f) and 2(g). Shri R. Rao, Advocate for Respodnent Nos.2a(i) and (ii). 4 Shri E. Dias, Advocate for Respondent No.2(i), 2(j) and 2(k). CORAM : N. A. BRITTO, J. DATE : 15TH SEPTEMBER, 2010. JUDGMENT Rule. By consent heard forthwith. 2. This writ petition is directed against Judgment dated 14-2-2008 of the learned Administrative Tribunal, Panaji, by which the appeal filed by the petitioner against the Order dated 29-8-2007 of the learned Additional Collector has been dismissed. 3. The controversy is regarding non registration of the final Chart of Partition dated 18-8-2006, in Inventory Proceedings bearing No.310/2004/A (new) held upon the death of Smt. Ana Maria Estrocio, wife of Andre Estrocio which are governed by Articles 2064 to 2166 of the Civil Code, 1867 and Articles 1369 to 1447 of the Civil Procedure Code, 1939, (both Portuguese legislations in force in the State of Goa, hereinafter referred to as Civil Code and C.P.C., respectively). The dispute is regarding property described under verba/item No.1, surveyed under No.249/1-A of village Taleigao in which the petitioner and his wife had purchased 6.66% share, Sadiq Sheik and his wife had purchased 3.33% share and the remaining 80% 5 share was held by deceased Respondent No.2 Clotildes Fernandes. In the licitation held in the said inventory on 10-2-2006, the Respondent No.1(Respondent, for short) has purchased the said property for Rs.21 crores and in the provisional Chart of Partition drawn on 27-3-2006 and confirmed on 18-8-2006 the disputed property having survey no.249/1-A has been alloted to the Respondent. The Respondent took possession of the said property by virtue of letter dated 23-8-2006 given by the said Smt. Clotildes Fernandes who was Administrator in the said proceedings and since then is in possession of the same. The Respondent applied for a conversion sanad and the same was granted to him by the Additional Collector by Order dated 29-8-2007. 4. Against the said final Chart of Partition, the petitioner has filed an appeal, being First Appeal No.289 of 2006 and the same is pending before this Court. The contention raised by the petitioner in this Writ Petition was also raised by the petitioner at the time of passing the Order dated 14-2-2008 in C.A. No.294 of 2007 in F.A. No.289 of 2006. The contention was not answered by this Court as can be seen from para 19 of the said Judgment. By the said Order the possession of the Respondent of the suit property was held to be illegal and unauthorised. However, the fact remains that both the parties have filed S.L.Ps before the Hon'ble Supreme Court against the said Order dated 14-2-2008. The S.L.P. filed by the petitioner has been admitted. However the Order dated 14-2-2008 has been stayed. The Respondent 6 therefore continues to be in possession of the disputed property and continues with constructions. 5. The main contention of the petitioner is that the said Chart of Partition has extinguished petitioner's right of 6.66% share to the disputed property and has made the Respondent, the owner of the entire property, and therefore the said Chart of Partition is an instrument which is covered by clause (b) of sub-section(1) of Section 17 of the Indian Registration Act, 1908, (Act, for short) and, therefore had to be compulsorily registered, and in the absence of registration it was invalid and therefore could not have been acted upon by the Additional Collector for granting Conversion Sanad dated 1-10-2007 in view of Section 49(a) of the Act. In answer to the said contention, it is the submission of learned Senior Counsel Shri A. N. S. Nadkarni, on behalf of the Respondent, that the said Chart of Partition is an order of the Court excepted under clause (vi) of sub-section(2) of the Act, and being so, registration was optional. 6. The petitioner in support of his contention has placed reliance on the Judgments of this Court in the case of Fernando Jorge Colaco v. State of Goa(1991(2) Goa L.T. 11) and Shri Victor de Graca Pinto and another v. Smt. Lourdes de Graca Pinto e Nazareth and another(1999(1) Goa L.T. 167). The petitioner also relied on the Judgment of the Apex Court in Bhoop 7 Singh v. Ram Singh Major and others((1995) 5 SCC 709). The first two Judgments of this Court have been distinguished by Shri V. B. Nadkarni, the learned Senior Counsel (appearing on behalf of some of the heirs of deceased Respondent No.2 Clothildes Fernandes) by relying on a Division Bench Judgment of this Court dated 5-8-2010 in M/s. Primella Sanitary Products Pvt. Ltd.(infra) while Shri A. N. S. Nadkarni, learned Senior Counsel on behalf of Respondent has placed reliance on several Judgments of the Apex Court contending that the Apex Court has not followed the said Judgment in Bhoop Singh v. Ram Singh Major and others(supra) in later decisions. 7. The Act was enforced in the State of Goa with effect from 1-11-1965. Prior to that, what was in force was the Decree No.42.565 dated 8-10-1959 with effect from 1-1-1960 which did not have any provision like Section 17(1) of the Act making the document itself inadmissible unless it was registered. The registration was optional, but the registration had its own advantages in that it gave publicity and priority of rights in relation to third persons. Article 8 of the said Decree provided that “the final registration, creates presumption, not only to the effect the right registered does exist but that the same belongs to the person in whose name the entry is found registered, in precise terms of the registration effected”. Article 953 of the Civil Code also provides that “the entry in the registration of a property about a conveyance without condition precedent involves independent of any other 8 formality, the transfer of possession in favour of a person, in whose favour the entry was made”. 8. Be that as it may, it may be stated that Section 17(1) of the Act deals with documents of which registration is compulsory, and Section 18 deals with documents of which registration is optional, and Section 49 deals with the effect of non-registration of documents required to be registered. Section 17(1) provides that the following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- (a) ... (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) ... (d) ... (e) ... (1A) ... 9 Section 17(2) provides that nothing in clauses (b) and (c) of sub- section (1) applies to - (i) ... (ii) ... (iii) ... (iv) ... (v) ... (vi) any decree or order of a Court[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding]. (vii) ... (viii) ... etc. Section 49 provides that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall -- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument. 10 9. Licitation is an act by which the interested parties put a certain asset of inheritance to bid between them, so that it is adjudged to the highest bidder or adjudicated to him in the partition on the condition that he pays the owelty to others when its value exceeds the value of his share in the inheritance. As observed by this Court in Order dated 07/01/2005 those who purchase the undivided rights from the heirs in the properties of the inheritance ought to know that the logical conclusion in case of partition by inventory is that such share would be allotted by way of licitation. The licitation has an advantage in that the original value which is attributed to the asset in a way gets corrected. Another advantage is that the bidder knows with which asset or assets he will have for his share of inheritance. It has a disadvantage in that a co-heir who is financially better off can corner the assets. However, it is not unknown that many a times, the heirs bid for the assets only after keeping a customer ready to buy the same after allotment in their favour is made. Licitation has all the attributes of a judicial sale and like a judicial sale, it transfers the ownership of the property in favour of the highest bidder(in this case, the Respondent) and the Chart of Partition merely declares that right in favour of the highest bidder. At this stage reference could be made to Article 2127 of the Civil Code which provides that “the licitation shall precede the act of partition, all the interested parties being summoned, and it shall occur among them only, as if it were an auction”. It is the auction which has extinguished petitioner's right to the disputed property and 11 conferred exclusive right to the same upon the Respondent. We therefore could proceed on the assumption that petitioner's right to the disputed property got extinguished with the auction/licitation in favour of the Respondent and the Chart of Partition declares that right in favour of the Respondent thereby bringing about a change of ownership of the disputed property; However, there is an exception engrafted to the sweeping provision of Section 17(1) in Section 17(2)(vi) which says that any decree or order of the Court is not liable to be registered. 10. Shri V. B. Nadkarni, learned Senior Counsel placing reliance on an unreported Judgment of this Court dated 5-8-2010 in First Appeal No.179 of 200(M/s Primella Sanitary Products Pvt. Ltd. v. Shri Gurudas Vishwanath Sinai Gaitonde) has made my task easier in distinguishing the said two Judgments of this Court relied upon by the petitioner. 11. The learned Division Bench referring to the case of Fernando Jorge Colaco v. State of Goa and others(supra)(Colaco's case for short) in para 96 observed that “in the last, but one sentence in para 21 it was observed that the final Judgment is required to be registered”. “It was submitted on behalf of the Respondent that the question as to whether such a Judgment required registration never arose before the Division Bench and the observation must, therefore be considered to be obiter dicta, and, therefore not 12 binding on this Court”. The learned Division Bench thereafter referred to the three questions which were framed by this Court in the said Colaco's case and after referring to the said three questions the learned Division Bench observed that “while dealing with these questions the Division Bench (in Colaco's case) considered the provisions of the Indian Stamp Act which were brought into force in the territory of Goa w.e.f. 1-4-1964. The Division Bench(in Colaco's case) analyzed the nature of the inventory proceedings”. In para 14, the Division Bench (in Colaco's case) rejected the submission that when a successful bidder takes the property in a court auction, there is no transfer/conveyance whatsoever in favour of that auction purchaser and all that happens is only a transformation and that such transformation cannot be taxed. The Division Bench (in Colaco's case) considered the nature of an order passed in inventory proceedings and held the same to fall within Article 23(b) of the Indian Stamp Act, and, therefore liable for stamp duty. The Division Bench (in Colaco's case) held that in the case of an auction purchase, there is no partition of the property as such and ultimately the learned Division Bench held that the question of registration was neither raised nor decided and the said observation was thus merely casual. 12. The learned Division Bench then referred to the provisions of Section 17(2)(iv) of the Registration Act and observed that the said provision was not referred to anywhere in the Judgment (in Colaco's case) and “this was 13 for the obvious reason that the question of registration was not raised before the Division Bench. If indeed the Judgment (in Colaco's case) is considered to have dealt with the question of registration, it would for this reason be per incuriam”. The learned Division Bench then referred to the Division Bench Judgment of the Patna High Court in the case of Karu Mian v. Tejo Mian and others(AIR 1918 Patna 139) on which reliance has now been placed by Shri V. B. Nadkarni, learned Senior Counsel and wherein it was observed as follows:- “The object of the Registration Act requiring that a document should be registered is merely for the purpose of ensuring publicity of record in order to facilitate proof of execution and to prevent fraud. These objects are certainly secured where a proceeding between the parties is one that takes place in the publicity of a Judicial Court and given effect to by a decree which it would be impracticable to force or fabricate. It is, I understand, on this principle and no other that a decree which is an order of the Court has been exempted from registration. The question of Court-fee or Stamp does not appear to me to be relevant in the case. If the document requires a stamp, the omission to stamp it does not necessarily defeat the suit. The stamp can be recovered in the course of litigation. No question of Court-fees arises in the present case and this is an indication that the considerations of Court-fees are quite irrelevant in the present connection. The amount of Court-fee 14 payable would not have been greater if the suit had been one for partition”. 13. The learned Division Bench then proceeded to hold that they were in respectful agreement with the said observations of the Division Bench of the Patna High Court in Judgment dated 5-8-2010. 14. Then, the learned Division Bench referred to the case of Shri Victor de Graca Pinto v. Smt. Lourdes de Graca Pinto e Nazareth(supra) decided by the learned Single Judge and noted that the learned Single Judge had observed in para 8, that the Division Bench in Fernando Jorge Colaco v. State of Goa and others(supra) had held that a final order in inventory amounts to an instrument of partition which is chargeable under Article 45 of the Stamp Act because that document is to be registered. Here again, the learned Division Bench noted that the question of registration did not arise and was neither raised nor considered, and ultimately held that the decree of the inventory court therefore did not require registration. I am in respectful agreement with the view held by the Division Bench by Judgment dated 5-8-2010 in the case of Primella Sanitary Products Pvt. Ltd., which is otherwise binding. The Judgments of this Court in Fernando Jorge Colaco v. State of Goa(supra) and Shri Victor de Graca Pinto and another v. Smt. Lourdes de Graca Pinto e Nazareth and 15 another(supra) are therefore of no assistance to the case of the petitioner. The Chart of Partition finalised on 18-8-2006 is an order of the Court which is excepted from registration in view of Section 17(2)(vi) of the Act. 14. Now, coming to the case of Bhoop Singh v. Ram Singh Major and others(supra) the Apex Court held that the exception under clause (vi) of Section 17(2) is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order, and, therefore it would be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. 15. The case of Bhoop Singh v. Ram Singh Major and others(supra) was not referred to in the case of Harendra H. Mehta and 16 others v. Mukesh H. Mehta and others(AIR 1999 SC 2054) but the Apex Court in para 44 held that a decree or order of a Court does not require registration under Clause (b) of sub-section (1) of Section 17 of the Registration Act. This is the effect of Clause (vi) of sub-section (2) of Section 17. Earlier under this Clause (vi) before its amendment in 1929 even an award did not require registration. However, after omission of the words “and any award” an award creating or declaring right or interest in immovable property of the value of Rs.100/- would require registration. But then that award would be an award under the Arbitration Act, 1940 and certainly not a foreign award. In para 45, the Apex Court observed that when a decree is passed by the Court, it does not require registration in view of Clause (vi) of sub-section (2) of Section 17 of the Registration Act. A decree or order of a Court affecting the rights mentioned in Section 17(1)(b) and (c) would not require registration. It would, however, require registration where the decree or order on the basis of compromise affects the immovable property other than that which is the subject-matter of the suit or proceeding. Even a decree passed by the foreign Court execution of which is sought under Section 44-A of the Code of Civil Procedure would not require registration. The Apex Court observed that, that being the position they were of the view that the foreign award under the provisions of the Foreign Awards Act does not require registration under the Registration Act. 17 16. In the case of Som Dev and others v. Rati Ram and another((2006) 10 SCC 788) the Apex Court rejected the argument that the decision in Bhoop Singh's case requires reconsideration and further observed that for the purpose of that case the said contention was not required to be examined and further held that Bhoop Singh's case was distinguishable. Nevertheless, the Apex Court held in para 18 of the Judgment that a decree or order of a Court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted and further held that even a decree on a compromise does not require registration if it does not take in property that is not the subject matter of the suit. The Apex Court further held that going by the plain language of Section 17 of the Registration Act, particularly, in the context of sub-clause(vi) of sub-section(2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration and further observed that on the facts of Bhoop Singh's case it was seen that their Lordships had proceeded on the basis that it was a decree on admission that created the title for the first time, and it was treated as a case coming under Section 17(1)(a) of the Act, though the scope of Section 17(2)(vi) was discussed in detail. The Apex Court further noted that Their Lordships who rendered the Judgment in Bhoop Singh's case themselves distinguished the decision in S. Noordeen v. V. S. Thiru Venkita Reddiar((1996) 3 SCC 289) on the basis that in Bhoop Singh's case there was no pre-existing right to the 18 properties between the parties, but a right was sought to be created for the first time under the compromise. Their Lordships proceeded to hold that in a case where the plaintiff had obtained an attachment before the Judgment on certain properties, the said properties would become subject-matter of the suit and a compromise decree relating to those properties came within the exception in Section 17(2)(vi) of the Act and such a compromise decree did not require registration. 17. In K. Raghunandan and others v. Sali Hussain Sabir and others((2008) 13 SCC 102) the Apex Court held that in Som Dev and others v. Rati Ram and another(supra) the Court did not lay down any law contrary or inconsistent with the law laid down in Bhoop Singh's case but rather Bhoop Singh's case was distinguished. Nevertheless, the Apex Court held that sub-section 2) of Section 17 of the Act, carves out an exception therefrom stating that nothing in clauses (b) and (c) of sub-section(1) of Section 17 would inter alia apply to “any decree or order of a Court” except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of a suit or proceeding. In