Allowed

K.Dasan v. Inspector General (Registration)

Kerala HC18 Oct 2013WP(C)/18664/2013

Case brief

AI extract

What is this about?

In this writ petition, the court addressed whether a Sub-Registrar could inquire into the validity of a Will and refuse registration of a sale deed from the evidence being P1. The petitioner, relying on prior civil court decrees, challenged the Respondent's issuance of a refusal letter. The court held the registering authority lacks jurisdiction to decide title validity conclusively. It set aside

What did the court decide?

Ext.P8 set aside; third respondent directed to register the original of Ext.P1 upon tender, subject to the outcome of the pending second appeal.

K.Dasan Vs Inspector General (Registration) — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935

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WP(C).No. 18664 of 2013 (G)

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PETITIONER:

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K.DASAN, AGED 75 YEARS,S/O.PHILIPOSE, BATHENI BUNGLOW, THONAKAD P.O, CHERIYANAD, CHENGANNUR TALUK, ALAPPUZHA DISTRICT, PIN-689 511

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BY ADV. SRI.S.VIDYASAGAR

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RESPONDENTS:

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1. INSPECTOR GENERAL (REGISTRATION), OFFICE OF INSPECTOR GENERAL (REGISTRATION),

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THIRUVANANTHAPURAM, PIN-696 001

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2. DISTRICT REGISTRAR(GENERAL),

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OFFICE OF THE DISTRICT REGISTRAR (GENERAL),

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COLLECTORATE ALAPPUZHA,PIN-688 001

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3. SUB REGISTRAR,

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CHERIYANAD, SUB REGISTER'S OFFICE, CHERIYANAD P.O., PIN-689 511

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*ADDL.R4 IMPLEADED

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*R4. CHINNAMMA GEORGE, AGED 65, KIZHAKKE KOKKAPPILLIL VEEDU, CHERIYANAD.P.O. -689 511.

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*ADDL. R4 IS IMPLEADED AS PER ORDER DATED 02.08.2013 IN IA.NO.10532/2013.

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R1 TO R3 BY GOVERNMENT PLEADER SMT. K.T.LILLY ADDL.R4 BY ADV. SRI.N.ASHOK KUMAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 18664 of 2013 (G)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:TRUE COPY OF THE INSTRUMENT OF CONVEYANCE SOUGHT TO BE EXECUTED BY THE PETITIONER IN FAVOUR OF THE PURCHASER BY NAME PRAKASAN

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P2:TRUE COPY OF THE JUDGMENT IN OS. NO. 366/99 ON THE FILE OF THE MUNSIFF COURT, CHENGANNOOR

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P3:TRUE COPY OF THE JUDGMENT IN AS 24/2009 ON THE FILE OF CHENGANUR SUB COURT

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P4:TRUE COPY OF THE INTIMATION LETTER DTD 21/5/2013 ISSUED TO THE PETITIONER BY I.G REGISTRATION DEPARTMENT

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P5:TRUE COPY OF THE LETTER DTD 29/5/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR ATTENDING THE ADALATH FOR ENQUIRY ON 6/6/2013

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P6:TRUE COPY OF THE STATEMENT TAKEN FROM THE PETITIONER ON 6/6/2013 BY THE 2ND RESPONDENT

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P7:TRUE COPY OF THE ORDER DTD 12/6/2013 , PASSED BY THE 2ND RESPONDENT, DIRECTING THE 3RD RESPONDENT, TO REGISTER EXT P1

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P8:TRUE COPY OF THE REPLY LETTER DTD 10/6/2013 ISSUED BY THE 3RD RESPONDENT DENYING REGISTRATION OF P1 DOCUMENT.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

P.R.RAMACHANDRA MENON, J.

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W.P.(c) No. 18664 OF 2013

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- - - - Dated this the 18^th day of October, 2013

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JUDGMENT

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Whether the third respondent, who is the registering authority to register a document to be executed under the relevant provisions of the Registration Act/Rules, is having any power, jurisdiction or authority to go into the genuineness/correctness as to the title of the parties concerned to have secured the document, is the subject matter of consideration in this writ petition.

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The sequence of events as narrated in the writ petition shows that the petitioner obtained the property concerned herein by virtue of the 'Will' executed by his deceased wife, who had obtained the same by virtue of a sale deed. The petitioner, after obtaining the property as above, intended to sell a portion of the same having an extent of 3 cents, comprised in Sy.No.273/9 of Cheriyanad Village, in favour of a person by name Prakasan. The original of Ext.P1 document executed in this regard was sought to be registered before the third respondent. But the same was refused to be registered, stating that genuineness of the Will has to be

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W.P.(C)No.18664/2013 2

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considered. The petitioner was served with Ext.P8 memo, which according to the petitioner is quite contrary to the actual factual position and also the legal requirements, which in turn is under challenge in this writ petition.

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The learned counsel for the petitioner submits that the course pursued by the third respondent is at the instance of the fourth respondent herein, who happens to be the step-sister of the deceased wife of the petitioner. Pursuant to the demise of the wife of the petitioner, the fourth respondent and some others, wrongly claiming right over the property in question filed O.S.No.366/1999 before the Munsiff's Court, Chengannur. On conclusion of the trial, a specific finding was arrived at, by the Trial Court, holding that the plaintiffs did not have any right over the property and accordingly, the suit was dismissed as per Ext.P2 judgment dated 30/11/2004. Being aggrieved of the said verdict, the fourth respondent and others approached the Sub Court, Chengannur by filing A.S.No.24/2009, wherein interference was declined and the appeal was dismissed as per Ext.P3 judgment dated 30.11.2011. It is stated that the fourth respondent has chosen to approach this Court as well, by filing a Regular Second Appeal, which is still to be admitted and it is with reference to the said case, that the third respondent has issued Ext.P8, which is per se wrong and unsustainable in all respects and hence the challenge, submits the learned

W.P.(C)No.18664/2013

counsel.

It is pointed out that the third respondent does not have any jurisdiction to decide the correctness of the 'Will', with regard to which, a finding has already been rendered by the competent Civil Court and also by the Appellate Court, as borne by Exts.P2 and P3. This is more so, in view of the mandate under Section 34 of the Registration Act, read with Rule 191 of the Registration Rules. Reliance is sought to be placed on the judgment rendered by the Division Bench of this Court in Selvam M. and others v. State of Kerala & Others ( 2010 (1) KLT 508) and also another verdict passed by this Court much earlier as per the the decision in Sulabha v. Suseela and Another ( 2008(4) KHC 997) and also Eshaque v. Sub Registrar (2002(1) KLT 330) .

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The learned Government Pleader appearing for the third respondent submits that Ext.P8 was issued only because of the complaint preferred by the fourth respondent herein, stating that the 'Will' was not a genuine one. On receipt of such complaint, it was necessary for the third respondent to have enquired into the matter, in view of the mandate of Rule 67 of the Registration Rules. This alone led to the issuance of Ext.P8, and it is stated that the averments and allegation raised by the petitioner in the writ petition are not correct.

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W.P.(C)No.18664/2013

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Heard the learned counsel appearing for the fourth respondent as well, who submits that the Regular Second Appeal preferred by the petitioner against Ext.P3 verdict has already been numbered as R.S.A.No.822/2012. It is conceded that the said second appeal has not been admitted so far, but the Lower Court records have been called for.

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After hearing both the sides and taking note of the undisputed factual position, the rights and liberties of the petitioner to enjoy the property, based on the 'Will', stands declared by virtue of Ext.P2 judgment passed by the trial Court and stands affirmed by the Appellate Court vide Ext.P3. This being the position, the petitioner has every right to deal with the property in appropriate manner, unless and until the same is interfered with, by any procedure known to law. If the second appeal preferred by the fourth respondent comes to be allowed, the rights and liberties of the parties concerned, including the petitioner and the prospective purchaser of the property covered by Ext.P1, will be subject to the outcome of the decision to be passed in the second appeal. But for that matter, the registration of the original of Ext.P1 cannot be stalled for ever, that too by virtue of the law declared by this Court as per the decisions cited supra.

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In the above circumstances, Ext.P8 will stand set aside and the

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third respondent is directed to register the original of Ext.P1 document, as

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W.P.(C)No.18664/2013

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and when the same is tendered by the party concerned, also satisfying the requirements in accordance with the Registration Act/Rules. This will not bar on the way of the fourth respondent in pursuing R.S.A.No.822/2012 and it is made clear that the conveyance to be effected by the petitioner vide Ext.P1, will of course be subject to the outcome of the Regular Second Appeal.

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The writ petition is disposed of as above.

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P.R.RAMACHANDRA MENON JUDGE

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sv.

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W.P.(C)No.18664/2013 6

K.Dasan v. Inspector General (Registration)

Case brief

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K.Dasan v. Inspector General (Registration)

Case brief

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