Allowed

Kanikot Abdul Latheef v. the Sub Registrar

Kerala HC16 Jul 2018WP(C)/10072/2018

Case brief

AI extract

What is this about?

The High Court held that the Sub Registrar could not refuse registration of gift deeds solely because the title was derived from an unregistered will. It clarified that establishing ownership is not a pre-condition for registration unless an objection to competency is raised, as wills are not under Section 17 of the Registration Act.

What did the court decide?

Writ Petition dismissed against petitioner, impugned rejection order set aside, and petitioner directed to present gift deeds for registration.

Kanikot Abdul Latheef Vs the Sub Registrar — Property and Title | Kerala HC (2018)

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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 ALEXANDER THOMAS

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MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940

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WP(C).No. 10072 of 2018

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PETITIONER

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KANIKOT ABDUL LATHEEF AGED 62 YEARS, S/O. IBRAHIM, BEEVI MAHAL, POTHUVACHERY, P.O KADACHIRA, KANNUR DISTRICT.

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BY ADVS.SRI.P.K.MOHAMED JAMEEL SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.PRAJIT RATNAKARAN SRI.E.MOHAMMED SHAFI

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RESPONDENTS

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1. THE SUB REGISTRAR SUB REGISTRAR

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2. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM 695 001

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BY GOVERNMENT PLEADER SMT.A.C. VIDHYA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mks

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WP(C).No. 10072 of 2018 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE OF THE ORDER IN IA 1429/1979 IN OS 222/1974 OF THE ADDITIONAL MUNSIFF COURT, THALASSERY DATED 30-01-2981
EXHIBIT P2	TRUE COPY OF THE UNREGISTERED WILL DATED 14-11-1975
EXHIBIT P3	TRUE COPY OF THE THANDAPER ACCOUNT IN THE NAME OF THE PETITIONER
EXHIBIT P5	TRUE COPY OF THE GIFT DEED DATED 16-03-2018 EXECUTED IN FAVOUR OF JASEERA M
EXHIBIT P6	TRUE COPY OF THE GIFT DEED DATED 16-03-2018 EXECUTED IN FAVOUR OF NAJEERA K
EXHIBIT P7	TRUE COPY OF THE REPLY DATED 17-03-2018 OF THE 1ST RESPONDENT
EXHIBIT P8	TRUE COPY OF THE JUDGMENT DATED 12-06-2013 IN WP(C) 11669/2013 OF THIS HON'BLE COURT.
EXHIBIT P9.	TRUE COPY OF THE JUDGMENT IN OS 222/1074 OF THE ADDL.MC, THALASSSERY DATED 20/10/1976.

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RESPONDENTS EXHIBITS

NIL

/TRUE COPY/

P.A. TO JUDGE

mks 31/07/2018

ALEXANDER THOMAS, J.

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W.P.(C) No.10072 of 2018

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Dated this the 16^th day of July, 2018

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J U D G M E N T

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The petitioner herein is aggrieved by the impugned action on the

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part of the 1^st respondent/Sub Registrar, SRO-Kadachira, Kannur, whereby he has refused to register the two gift deeds, viz., Exts.P5 and P6 presented by the petitioner for registration. Ext.P7 is the impugned order dated 17.03.2018 issued by the 2^nd respondent. The main ground stated therein is that the Will, on the basis of which the title is claimed, is an unregistered Will. The petitioner would contend that the 1^st respondent-SRO has no authority to refuse the registration of the gift deed in respect of the property upon which the right has been derived

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on the petitioner through unregistered Will.

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The prayers in this Writ Petition (Civil) are as follows:

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“(i) Issue writ of certiorari or any other order or writ quashing exhibit P7 as illegal.

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(ii) issue a Writ of Mandamus or such other Writ or order directing the 1^st respondent to register the original of Ext.P5 & P6 within such time this Hon'ble Court deed fit to grant.

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(iii) grant such other relief's as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case”.

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Heard Sri.K.R.Avinash (Kunnath), learned counsel

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appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondents.

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This Court in the judgment in Sarojini v. State of Kerala

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W.P.(C).10072/18 - : 2 :-

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reported in 2015 (2) KLT 718 has held that the establishment of the nature of the right or ownership of the property is not a pre-condition for registration under the Registration Act and that the competency to present a document alone can be disputed by the registering authority. The power to question competency cannot be equated with power to demand establishment of the right over the property and if somebody's else right is entered in the records, of course competency can be disputed. In the absence of such objection, Registering Authority cannot insist for production of the documents to establish right and the power to question the right or ownership over the property is beyond the scope of enquiry as contemplated under the Registration Act. It will be profitable to refer to para 3 of the abovesaid decision in Sarojini's case supra, which reads as follows:

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“3. The petitioner need not establish the title before the Registrar to get his document registered. It is to be noted that the possessory right is also partiable in law. The establishment of the nature of the right or ownership of the property is not a pre-condition for registration under the Registration Act. The competency to present a document alone can be disputed by the registering authority. The power to question competency cannot be equated with power to demand establishment of the right over the property. If somebody's else right is entered in the records, of course competency can be disputed. In the absence of such objection, Registering Authority cannot insist for production of the documents to establish right. The power to question the right or ownership over the property is beyond the scope of enquiry as contemplated under the Registration Act. If the executants of the documents do not have any title or interest or ownership of the property nevertheless, even by registering the said document, it cannot confer any right over the property. That being so, the third respondent is directed to register Ext.P1, but satisfying other conditions for registration. Writ Petition is disposed of.”

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This Court has also held in Ext.P-8 judgment dated

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12.6.2013 in W.P.(C).No.11669/2013 that there could not have been any

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W.P.(C).10072/18 - : 3 :-

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refusal on the part of the respondent SRO in registering the document therein on the ground of non-registration of the will, as will is not a document liable to be compulsorily registered under Sec.17 of the Registration Act. The judgment of this Court in W.P.(C).No. 11669/2013 read as follows:

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“Grievance of the petitioner is against the callous inaction on the part of the first respondent in causing the original of Ext.P3 Gift Deed to be registered. The petitioner is the owner of the property concerned, in respect of which Ext.P3 Gift Deed was executed in favour of her son. The said document was taken for registration before the first respondent; but it was refused to be registered, stating that derivation of the title was on the basis of an 'unregistered Will' and hence it cannot be registered. This made the petitioner to approach this Court by filing this writ petition.

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2 . Despite completion of service, no counter affidavit has been filed from the part of the respondents.

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3. Heard the learned Counsel for the petitioner as well as the learned Government Pleader.

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4. A copy of the 'unregistered Will' has been produced as Ext.P1. It is stated that the executant of the Will took his last breath on 22.01.2004 as borne by Ext.P2 Death Certificate and the Will has come into operation, thus confirming the flow of title. The learned Counsel for the petitioner submits that Ext.P1 Will is not a document which is liable to be compulsorily registered under the Registration Act.

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5. After hearing both the sides, this Court finds that the petitioner is perfectly justified in making the submissions. There could not have been any refusal from the part of the first respondent in registering Ext.P3 referring to non-registration of Will as 'Will' is not a document liable to be compulsorily registered under Section 17 of the Registration Act.

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6. In the said circumstance, the petitioner is entitled to succeed. There will be a direction to the first respondent to register Ext.P3 Gift Deed, as and when the Original is presented for registration, subject to satisfaction of all other requirements, in accordance with the relevant provisions of the Registration Act/Rules.

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The writ petition is disposed of.”

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In the light of these aspects, it is only to be held that the

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W.P.(C).10072/18 - : 4 :-

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stand of the 1^st respondent SRO, Kadachira, Kannur, in refusing to register Exts.P-5 and P-6 gift deeds on the ground that the title of the executant is based on an unregistered will, etc. is not tenable. In that view of the matter, the impugned Ext.P-7 rejection order dated 17.3.2018 will stand set aside. The petitioner will forthwith present the originals of Exts.P-5 and P-6 gift deeds for registration before the 1^st respondent SRO and upon such presentation, the said authority shall register those documents, if it is otherwise in order.

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With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.

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nkr/20.07.2018 sdk+

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Sd/- ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Kanikot Abdul Latheef v. the Sub Registrar

Case brief

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Kanikot Abdul Latheef v. the Sub Registrar

Case brief

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