IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).No. 34367 of 2009(M) -------------------------- PETITIONER(S): --------------- PAVAKKAL NOBLE JOHN, S/O.ULAHANNAN, AGED 40 YEARS, WORKING IN PRIVATE COMPANY, AYYAMKUNNU AMSOM AND DESOM, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): --------------- 1. KERALA STATE, REP. BY SECRETARY, REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM. 3. SUB REGISTRAR, ULIYIL, P.O.IRITTY, THALASSERI TALUK. 4. THEKKEDATH THOMAS JOSEPH, S/O.JOSEPH, 41 YEARS, HOUSE NO.XIV/100 OF AYYAMKUNNU GRAMA PANCHAYATH, P.O.KILIYANTHARA, PIN-670706, THALASSERI TALUK. ADV. SRI.GRASHIOUS KURIAKOSE FOR R4 GOVERNMENT PLEADER SRI. M.A. ASIF FOR R1-3 ADV. SRI. T.R. RAVI (AMICUS CURIAE) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-8-2010, ALONG WITH WPC NO. 37150 OF 2009 THE COURT ON 03/09/2010 DELIVERED THE FOLLOWING: PETITIONER'E EXHIBITS: W.P.C. NO. 34367/2009. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF REGISTERED ASSIGNMENT DEED. EXT.P2 LATEST LAND REVENUE RECEIPT. EXT.P3 CANCELLATION DEED DT. 1.8.2009. EXT.P4 ENCUMBERANCE CERTIFICATE. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 34367 & 37150 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd day of September, 2010. J U D G M E N T In India, particularly Kerala, land scams are in the increase. Bogus pattas, sale deeds executed by persons other than the actual owners of the property, grabbing of government property etc. have been coming to light frequently during the last few years. It has been proved to be extremely difficult to contain this menace. The imbroglio of Munnar lands, which continues to vex the executive indefinitely, is the classic example on point. Legislatures of many States, including the State of Kerala, have brought in amendments to the Registration Act to counter this menace by insisting on photographs and thumb impressions of both the sellers and purchasers in the sale deeds presented for registration. It is in this backdrop that courts are experiencing another malpractice in the real estate sector, in the form of sellers getting deeds of cancellation of the sales registered on some pretext or other, some of them years after the execution of the sale deeds, creating a serious situation for bona fide purchasers having to inhabit the corridors of civil courts for years to get such illegal cancellation deeds, got registered taking advantage of the loopholes in the Registration Acts and Rules, annulled by due process of law, which prima facie would go to show that even when the registering authority knows that the former vendor has no authority to execute the same, they are compelled to register the same. Going by the cases coming up before the High Court itself, not to mention those before the lower courts, cases of registration of such cancellation deeds and requests for change of mutation of land records on the basis of such illegal cancellation deeds, are on the increase, forcing courts to take a second look at the legal position as to whether registering officers should refuse to register such deeds of cancellation of sale deeds. At W.P.C. Nos34367 & 37150/2009.. -: 2 :- least two High Courts have considered this very question and have come up with differing opinions on this question and in one of them, different judges of the same bench of a High Court considering this vexing question, have come up with differing opinions. The very same question has come up for decision of this court in these two cases. Needless to say, the question is of considerable public importance also, which prompted me to get the assistance of an amicus curiae in resolving the issue posed before me, despite the fact that competent counsel are appearing on both sides, so that I can get an unbiased view as well. 2. Before going into the questions involved, I shall briefly note the facts of the two cases before me as presented in the writ petitions. In W.P.(C). No.34367/09, the 4th respondent, who is none other than the uncle of the petitioner, executed and got registered Ext. P1 sale deed dated 9-1-1996 assigning the properties described in the schedule to the said deed in favour of the petitioner. After more than 13½ years of execution of the sale deed, the 4th respondent executed and got registered Ext. P3 cancellation deed dated 1-8-2009, cancelling Ext. P1 sale deed, on the ground that the petitioner has not paid the balance sale consideration agreed upon, although in Ext P1 sale deed he had acknowledged receipt of the full sale consideration mentioned therein, that too after suffering an injunction order in O.S. No. 84/2009 filed before the Munsiff’s Court, Kuthuparamba, by the petitioner, against interfering with the peaceful enjoyment of the property by the petitioner. The petitioner is challenging the registration of Ext. P1 deed of cancellation of sale deed on the ground that the 3rd respondent-registering officer ought not to have registered the same under law. In W.P.(C).No. 37150/09, the 3rd respondent executed and got registered Ext P1 sale deed on 28-10- W.P.C. Nos34367 & 37150/2009.. -: 3 :- 2008 and got Ext P2 cancellation deed dated 24-11-2009 registered, on the grounds that the petitioner has not paid the sale consideration and the property has not been given possession of, to the petitioner, although in Ext. P1 sale deed it has been specifically admitted by the 3rd respondent to the contrary. The action of the 2nd respondent– registering officer in registering the cancellation deed is assailed on the ground that, by registering Ext.P2 cancellation deed the registering officer is practically reversing or removing Ext.P1 sale deed, for which he has no power, since he has become functus officio on registration of Ext. P1 sale deed. 3. Elaborate arguments have been advanced by counsel on both sides and the amicus curiae. I have considered the same in detail. As I have already indicated, the question to be answered in these writ petitions is as to whether the registering officer, under the Registration Act, 1908, has powers to and is duty bound to refuse to register a deed of cancellation cancelling a sale deed. I shall straight away proceed to consider the issues involved without narrating the arguments of counsel separately. 4. The Registration Act, 1908, does not contain any specific provision laying down the circumstances under which the sub- registrar can refuse to register a document presented for registration before him. But the fact that he has power to refuse to register a document presented for registration before him is clear from Section 71 of the Act, which reads thus: “71. Reasons for refusal to register to be recorded.--- (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall without payment and unnecessary delay, give him a copy of the reasons so recorded. W.P.C. Nos34367 & 37150/2009.. -: 4 :- (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.” But Chapter XXIII, particularly Rule 191 therein, of the Registration Rules (Kerala) framed by the Inspector General of Registration under Section 69(2) of the Registration Act, 1908, and published in the Kerala Gazette on 27-12-1958, does give some indication as to for what reasons the sub-registrar can refuse registration of documents presented for registration, which Rule reads thus: “191. The reasons for refusal will usually come under one or more of the heads mentioned below; which should invariably be quoted as authority for refusal. Section 19 I. That the document is written in a language which the Registering Officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy. Section 20 II. That it contains unattested interlineations, blanks, erasures, or alterations which in the opinion of the Registering Officer require to be attested. Section 21 (1-3) and Section 22 III. That the description of the property is insufficient to identify it. Section 21(4) IV. That the document is unaccompanied by a copy or copies of any map or plan which it contains. Rule 41 V. That the date of execution is not stated in the document or that the correct date is not ascertainable. Sections 23, 24, 25, 26, 72, 75 and 77 W.P.C. Nos34367 & 37150/2009.. -: 5 :- VI. That it is presented after the prescribed time. Sections 32, 33, 40 and 43 VII. That it is presented by a person who has no right to present it. Section 32A VIIA. That the document is not affixed with the Passport size photographs and impression/impressions of the left thumb or any of the fingers in the absence of left thumb as prescribed in Rule 30A(i) and (ii). Section 34 VIII. That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time. Note:- 'Prescribed time', shall mean the time allowed for presentation under Sections 23, 24, 25 and 26 and not the delay of four months in appearance which may be condoned under the proviso to Section 34, unless the presentant or the executing party concerned applies for extension of the period on proper grounds or takes action under Section 36. Sections 34 and 43 IX. That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document. Sections 34 and 40 X. That the Registering Officer is not satisfied as to the right of a person appearing as a representative, assign or agent so to appear. Section 35 XI. That execution is denied by any person purporting to be an executing party or by his agent. Note:- When a Registering Officer is satisfied that an executant is purposely keeping out of the way with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused, the non-appearance being treated as tantamount to denial of execution. W.P.C. Nos34367 & 37150/2009.. -: 6 :- Section 35 XII. That the person purporting to have executed the document is a minor, an idiot or a lunatic. Note:- When the executant of a document who is examined under a commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic, registration may be refused, and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification. Section 35 XIII. That execution is denied by the representative or assign of a deceased person by whom the documents purports to have been executed. Note:- When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being let to apply to the Registrar for an enquiry into the fact of execution. Sections 35 and 41 XIV. That the alleged death of a person by whom the document purports to have been executed has not been proved. Section 41 XV. That the Registering Officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor. Sections 25, 34 and 80 XVI. That the prescribed fee or fine has not been paid. XVII. That the full additions of all persons executing and of all persons claiming under the document are not given. XVIII. A Kanam demise or a renewal thereof shall be refused registrations if it does not contain the following particulars: (i) The name if any, the description and the extent of each item of holding; (ii) The Government tax payable on each item; (iii) The renewal fee if any paid. If no renewal fee is paid W.P.C. Nos34367 & 37150/2009.. -: 7 :- the fact should be stated; and (iv) The settlement pattam, the settlement patta, michavaram, the Jenmivaram and the Jenmikaram in respect of the land or each of the several parcels of land comprised in the holding. Rule 67 XIX. That the executing parties do not get the status of married couple as per the document styled as marriage agreement.” In my opinion the reasons mentioned therein, for which the registering authority can refuse to register a document presented before him for registration, are not exhaustive, since the Rule itself says that the reasons for refusal shall usually come under one or more of the heads mentioned therein, which would indicate that there can be other valid reasons for refusal not enumerated therein as well. But Rule 67 of the Registration Rules (Kerala) provides thus: “67. It forms no part of a Registering Officer's duty to enquire into the validity of a document except documents styled as marriage agreement brought to him for registration or to attend 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 executing party is not really dead, as alleged by the party applying for registration; or (e) That the executing party is minor or an idiot or a lunatic.” 5. Therefore the question to be considered is as to whether the W.P.C. Nos34367 & 37150/2009.. -: 8 :- sub-registrar can refuse registration on the ground that the party who executes the document has no legal right to execute the document and whether the sub-registrar can examine the validity of the document presented for registration. Chapter XIB of the Rules prescribes the enquiry to be conducted by the sub-registrar before registering a document, which would give some indication as to the type of enquiry he can conduct before registering a document, which has been framed under Section 35, which reads thus: “35. Procedure on admission and denial of execution respectively:- (1)(a) If all the persons executing the document appear personally before the Registering Officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or (c) if the person executing the document is dead, and his representative or assign appears before the Registering Officer and admits the execution, the Registering Officer shall register the document as directed in Sections 58 to 61, inclusive. (2) The Registering Officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3)(a) if any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the Registering Officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the Registering Officer shall refuse to register the document as to the person so denying, appearing or dead: W.P.C. Nos34367 & 37150/2009.. -: 9 :- Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: Provided further that the State Government may by notification in the Official Gazette declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.” 6. These provisions would go to show that the registering Officer can enquire as to whether the person executing the document is the person who represents himself to be. In this connection Section 32 of the Act relating to persons who can present a document for registration is also relevant, which reads thus: “32. Persons to present documents for registration:- Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,- (a) By some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or (c) by the agent of such a person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.” Since what we are dealing with is the question of transfer of property, and persons competent to execute documents in respect of immovable property, Section 7 of the Transfer of Property Act, 1882, defining persons competent to transfer property is also very relevant, which reads thus: “7. Persons competent to transfer.-- Every person competent to contract and entitled to transferable property, or authorised to W.P.C. Nos34367 & 37150/2009.. -: 10 :- dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.” Section 8 of the Transfer of Property deals with the question as to when transfer of property takes effect, which reads as follows: “8. Operation of transfer.-- Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the movable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.” 7. I shall now proceed to consider the issue in the light of the above legal provisions applicable. At the outset, I may briefly note the object of the system of registration of documents relating to property. Somewhat recently, the Supreme Court had occasion to consider the same in State of H.P. and Others V Shivalik Agro Poly Products and others, (2004) 8 Supreme Court Cases 556. W.P.C. Nos34367 & 37150/2009.. -: 11 :- In paragraphs 5 to 7 of that decision the Supreme Court has observed thus: “5. By the very nature of things recognition of rights or title over immovable property and transactions therein give rise to manifold problems. Movable property, depending upon its size or dimension, can be kept in absolute control in possession of its owner and a third party may not be in a position even to know where the same has been kept. But this is not so for an immovable property which lies in the open, attached to the earth at a particular place and the owner may be residing at a faraway place. The owner may give the property on lease or licence to some one else who may get physical possession thereof and enjoy the usufruct thereof. In order to get over this difficulty, a system of registration of title to immovable property has been evolved which is followed in many countries. In United States the legal position has been described as under in Corpus juris Secundum, Vol.76, p.525: “Systems looking toward the registration of titles to land, as distinguished from the practice under Recording Acts generally of recording or registering the evidence of such title, are in effect by virtue of statute in several of the United States, and the courts are bound by such provisions rather than by any doctrine of the common law which is in contravention thereof. These systems are quite generally known as 'Torrens Systems' and the statutes providing therefore as “Torrens Acts' from the name of the author of the Australian Act of 1857, the underlying principle of which they follow. These systems are limited in their application to titles to land. The prominent object of such legislation is the establishment of a method whereby the title to a particular tract or parcel of real estate will always be ascertainable by reference to a register of conclusive veracity, maintained by the designated public official. In other words, the purpose of these laws is to simplify the transfer of real estate, and to render titles thereto safe and indefeasible through the registration of such titles, the bringing together in one place of all of the facts relative to the title to each particular tract which is registered, and the use of certificates which shall conclusively show at all times the state of such title and the person in whom it is vested. The Torrens system serves a broader purpose than merely to notify the record owner of instruments affecting the title; it is notice to all the world of the condition of the title.” 6. The position in the United Kingdom has been described in Halsbury's Laws of England, Vol.26, paras 701 and 705 as under: “701. Legislation referable to centrally maintained register.- W.P.C. Nos34367 & 37150/2009.. -: 12 :- The legislation relating to registration of the title is directed to the manner in which the law and practice of conveyancing are to be adapted to the use of a centrally maintained register of title to land. As the use of the register has been extended, so the successive statutes mark the historical development of a system of conveyancing, commonly known as registered conveyancing, which approached maturity as part of the real property legislation of 1925. The result of that legislation, as respects registered land, is to produce on first registration as State-insured record of entitlement to legal estates in land, open to public inspection, which is to be kept up to date in respect of subsequent transactions in accordance with the conveyancing technique for which the legislation provides. Indirect reference to the earlier legislation is found at the commencement of the Land Registration Act, 1925 in the provision that requires the Chief Land Register to continue to keep a register of title to freehold and leasehold land. * * * 705. The Land Registry Act, 1862.- The Land Registry Act, 1862 marked the first attempt to introduce registration of title as distinct from registration of deeds by memorial. Registration was on a voluntary basis and subject to conditions, which included conditions (1) that a marketable title should be shown; (2) that the boundaries of the land should be officially determined and defined as against adjoining owners; and (3) that partial interests should be disclosed and registered. The Act continues to apply to