Allowed

Jose.B.J, v. the Sub-Registrar

Kerala HC19 Dec 2018WP(C)/36281/2018

Case brief

AI extract

What is this about?

This judgment holds that a Sub-Registrar cannot refuse to register a sale deed by demanding a No Objection Certificate (NOC) under Section 4 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, because the testator died before the Act commenced and the property was not transferred inter vivos.

What did the court decide?

The respondent Sub-Registrar is directed to register the petitioner's sale deed immediately without insisting on an NOC under Section 4 of the State Act 12 of 1999.

Jose.B.J, Vs the Sub-Registrar — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM (C.R)

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940

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WP(C).No. 36281 of 2018

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PETITIONER/S:

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JOSE.B.J, AGED 71 YEARS, S/O JOSEPH, THEKKETH HOUSE, PUZHAKKAL P O, THRISSUR DISTRICT, PIN-687581.

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BY ADV. SMT.K.P.GEETHA MANI

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RESPONDENT/S:

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THE SUB-REGISTRAR, OFFICE OF THE AGALI SUB REGISTRAR, PALAKKADU DISTRICT, KERALA STATE, PIN-678581.

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.36281/2018

(CR)

ALEXANDER THOMAS, J.

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W.P.(C)No.36281 of 2018

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Dated this the 19^th day of December, 2018

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JUDGMENT

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

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“a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to register document for sale to be presented by the petitioner in respect of Exhibit P-1 property without insisting NOC from any of the Authorities as a condition precedent for registration of the said document.

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b) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the respondent has no authority to insist NOC from the revenue authorities as a condition precedent for registration of the document in respect of property covered by Exhibit P-1.”

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2. Heard Smt. K.P. Geethamani, the learned counsel

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appearing for the petitioner and Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents.

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According to the petitioner, he has purchased 12.5 cents (5.06 Ares) of landed property on the basis of Ext.P1 registered deed dated 3.8.2015 of SRO Agali. That after the said purchase, the property has been duly mutated in the name of the petitioner and the land tax has also been accepted from him as per Ext.P2 receipt dated 10.5.2018 and Ext.P3 possession certificate dated 11.5.2018 also has been issued by the Village Officer

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concerned. According to the petitioner, he has decided to sell the property covered by Ext.P1 and the interested purchaser has come forward and therefore when he had approached the respondent Sub Registrar, he was told that such a sale deed in respect of the property covered by Ext.P1 will not be registered by him on the ground that the property once belonged to a scheduled tribe person and that hence the petitioner will have to obtain No Objection Certificate (NOC) from the competent revenue authorities concerned, presumably as conceived in Section 4 of the Kerala Restriction on Transfer by and Restoration of Lands t0 Scheduled Tribes Act, 1999, ( State Act, 12 of 1999). According to the petitioner, the said insistence of NOC as conceived in Section 4 of the above said Act is untenable and the petitioner would place reliance on judgments of this Court as in Ext.P5 common judgment dated 16.12.2014 in W.P.(C)No.29977/2014 and connected cases, wherein this Court has held that the benefit of the proviso to Section 5 of the said Act could be claimed in those cases etc. The petitioner would point out that the total extent of land of the scheduled tribe persons concerned is much below to the limit of 2 hectares. Further that during his life time, the scheduled tribe person has not transferred his property to any one and all what he has done is that he had authored unregistered Will where

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W.P.(C)No.36281/2018

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making a testamentary disposition of his property in favour of his son-in-law, one Mangalassery Balakrishnan, who does not belong to scheduled tribe community. It is pointed out that the said son-in-law of the scheduled tribe person had obtained the property only after the death of the scheduled tribe person on 22.1.1980 and that therefore, since testamentary disposition by authoring a Will does not amount to transfer of property inter vivos, there is no question of the application of the restriction on transfer as conceived in Section 4 of the above said 1999 Act etc.

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The learned Government Pleader has furnished the written instructions by the respondent Sub Registrar, wherein it is stated that on the basis of Ext.P1 document No.1312/2005 of SRO Agali , the petitioner had purchased 5.06 Ares of property from one Kandachamy and that in the previous documents it is stated that one Rengabandari, a scheduled tribe person had got patta from the Land Tribunal, Agali on 28.12.1973 on the basis of document No.815/1973. That thereafter, one Mangalassery Balakrishnan, who does not belong to scheduled tribe community, and who is the son-in-law of the said Rangabandari (who belongs to ST) and got properties on the basis of unregistered Will dated 28.11.1979 said to have been authored by Rangabandari. Further it is alleged by the respondent that the said Mangalassery

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W.P.(C)No.36281/2018

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Balakrishnan had fabricated the unregistered Will of Rangabandari etc.

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At the outset it is to be borne in mind that the respondent Sub Registrar has no case whatsoever as to the objective basis pursuant to which he has come to the considered conclusion that the above said Registered Will dated 28.12.1973 authored by Rangabhandari (ST) is fabricated etc.

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From the pleadings and materials on record, more particularly Ext.P4 encumbrance certificate, it appears that Sri. Rangabhandari, who belongs to scheduled tribe on the basis of registered document No.815/1973 of SRO, Agali had secured patta for the above said land on 28.12.1973 from the Land Tribunal, Agali. Thereafter, Rengabandari is said to have authored unregistered Will dated 28.11.1979, whereby he had made testamentary disposition of his property in favour of his son-inlaw, Mangalassery Balakrishnan, who does not belong to scheduled tribe community. Sri. Rangabandari had died thereafter on 22.1.1980. Later, Mangalassery Balakrishnan had sold the property to one Sanal Fazulal and the said Sanal Fazulal in turn had sold the property to one Kandachamy and it is thereafter the said Kandachamy had sold the said property to the petitioner as per Ext.P1 registered sale deed No.1312/2015 of SRO,

W.P.(C)No.36281/2018

Agali.

As noted herein above, no objective materials whatsoever have been even remotely cited by the respondent SRO for establishing that the above said unregistered Will authored by Rangabandari has been fabricated by his son-in-law Sri Mangalassery Balakrishnan. Merely because the Will is unregistered and merely because its author happened to belong to a weaker section of the Community like Scheduled tribe cannot be the legal basis for a responsible statutory official like the respondent to assert before this Court that the said Will is one, which is fabricated by Sri. Mangalassery Balakrishnan etc. That aspect of the matter need not really detain the attention of this Court any further for the simple reason that a testamentary disposition of the property on the basis of a Will in favour of a legatee, will not amount to ‘transfer of property inter vivos’ as understood in the Transfer of Property Act. Moreover, Section 2(g) of the Kerala Restriction on Transfer By and Restoration of Lands to Scheduled Tribes Act 1999 defines ‘transfer’ has to mean transfer made by any person belonging to scheduled tribe of lands in his ownership and possession to a person other than a member of the scheduled tribe by way of sale, mortgage, lease, gift or exchage etc. Hence, testamentary disposition of the property even

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W.P.(C)No.36281/2018

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by a scheduled tribe person by authoring a Will, be it registered or unregistered, cannot come anywhere even remotely to the concept of transfer of property inter vivos, as it is trite that at the time of execution of the will, there is no transfer of property in favour of the legatee concerned and the transfer of property in favour of the legatee concerned occurs only at the time of the death of the testator, provided that the Will is in force at the time of his death. Section 4 of the Kerala Restriction on Transfer By and Restoration of Lands to Scheduled Tribes Act 1999 reads as follows:

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“4. Restriction on transfer.- Notwithstanding anything to the contrary contained in any other law, or in any contract, custom or usage, or in any judgment, decree or order of any Court, any transfer effected by a member of the Scheduled Tribe, of land possessed, enjoyed or owned by him, on or after the commencement of this Act, to a person other than a member of a Scheduled Tribe, without the previous consent in writing of the competent authority, shall be invalid.”

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In view of the above said aspects, the bar on restriction of transfer by scheduled tribe person is not attracted in the instant case in as much as the scheduled tribe person during his life time has not transferred his property to any one.

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The above said Act 12 of 1999 is deemed to have come

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into force on 24.1.1986 in terms of Section 1 (3) thereof. Section 5 (1) of the Act reads as follows:

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“ 5. Certain transfers to be invalid. - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any Court, any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a

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Scheduled Tribe, effected on or after the 1^st day of January, 1960 and before the commencement of this Act shall be deemed to be invalid.

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Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected aforesaid period and the extent of which does not exceed two hectares”

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The Proviso to Section 5(1) has clearly mandated that

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nothing in sub section (1) of Section 5 shall render invalid any transfer of land possessed, enjoyed or owned by any member of scheduled tribe to a person other than a member of Scheduled Tribe effected during the aforesaid period (from 1^st January, 1960 to 24^th January, 1986) and the extent of which does not exceed two hectares. So assuming for argument sake that in the instant case, the scheduled tribe person, Sri. Rangabandari had transferred the property in the year 1979 or 1980, even if such transfer would have otherwise come within the scope of Section 5(1), the same is protected by the proviso in as much as the extent of land concerned is much less than the outer limit of two hectares mentioned in the proviso to Section 5(1). That aspect of the matter has been clearly dealt with in the judgments of this Court as in Ext.P5 common judgment dated 16.12.2014 in W.P.(C)No.29977/2014 and connected cases. Therefore, even it is assumed that the scheduled tribe person had actually transferred the property during his life time and the during the above said

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period in question covered by Section 5, such transfer of property will certainly be immune to the prohibition because of the beneficial stipulation in the proviso to Section 5(1) as aforestated.

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Therefore, the stand taken by the respondent Sub Registrar is absolutely untenable and unsustainable for the above said reasons. Hence, the respondent Sub Registrar cannot insist that the petitioner should necessarily produce the NOC as conceived in Section 4 of the above said Act. Moreover, a reading of Sections 4 and 5 would clearly indicate that the restriction of transfer mandated in Section 4 is only in respect of transfer of properties after coming into force of the

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Act, i.e. on or after 24.1.1986. In the instant case, the scheduled tribe person has died as early as on 22.1.1980 and therefore, even otherwise the question of applicability of his NOC/Permission as conceived in Section 4 of the Act will not come into play.

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In the light of these aspects, it is ordered that the impugned stand of the respondent Sub Registrar in refusing to register the sale deed presented by the petitioner is illegal and ultra vires. Consequently, it is ordered that it is for the petitioner to immediately present the sale deed concerned for the registration of the respondent upon which the said respondent shall register it, if it is otherwise in order. However, it is

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abundantly made clear that the respondent cannot refuse to register such sale deed on the ground that the petitioner should produce NOC /permission as conceived in Section 4 of the above said State Act 12 of 1999.

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

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sd/-

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ALEXANDER THOMAS, JUDGE.

acd

W.P.(C)No.36281/2018

APPENDIX OF WP(C) 36281/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1

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A TRUE COPY OF THE DOCUMENT DATED 3.8.2005 OF AGALI SRO REGISTERED IN FAVOUR OF THE PETITIONER.

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EXHIBIT P2 A TRUE COPY OF THE TAX RECEIPT DATED 10.5.2018 ISSUED BY THE VILLAGE OFFICER, AGALI IN RESPECT OF EXT. P1 PROPERTY.

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EXHIBIT P3 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.5.2018 ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, AGALI IN RESPECT OF EXT. P1 PROPERTY.

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EXHIBIT P4 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 7.5.2018 ISSUED BY THE REGISTRATION DEPARTMENT IN RESPECT OF EXHIBIT P1 PROPERTY.

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EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 16.12.2014 IN WPC.NO.29977/2014 AND CONNECTED CASES OF THIS HON'BLE COURT.

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TRUE COPY

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P.S.TO JUDGE.

Jose.B.J, v. the Sub-Registrar

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Jose.B.J, v. the Sub-Registrar

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