Madras HC: Sub- registrar should not insist for original document or non traceability certificate in case of lost document in every case for Property Transfer

 Adverting to the facts on hand, the document that is sought to be registered is a release deed executed by the sister in favour of the brother. The document recites that the property belonged to the father. The parties are not strangers to each other. They have produced registration copies of the antecedent documents which are registered in the very same office. Unless the Registrar has a doubt regarding the genuineness of the copies issued by his own office, insistence on production of originals is a superfluous exercise. As we had already stated, it is a common knowledge and accepted phenomena today that one cannot secure a certificate from a Government office without the price.{Para 10}

In such situation, driving executant of documents to obtain a non traceability certificate in case of lost document in every case, will result only in encouraging under hand dealings. When certified copies have been produced and it is not impossible for the Sub Registrar to have it verified with the original record that is available in his own office, insisting upon a non traceability certificate appears to be rather a wasteful exercise. Even in Punithavathy's case referred to supra, we have observed that the Registrars will not refuse registration particularly, when the parties to the documents are relatives and they take the risk of obtaining the document without examining the title. The copies of the documents have already been produced. The Sub Registrar could have verified the same with the original records in his office and register the instrument without dogmatically refusing registration. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

W.A.No.1160 of 2024

P.Pappu Vs  The Sub Registar,

CORAM :

 MR.JUSTICE R.SUBRAMANIAN

and

 MR.JUSTICE R.SAKTHIVEL

DATED : 27.09.2024.

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Whether a document can be registered after four month if it was presented within that time?

From the above, it is clear that no document other than a will shall  be accepted for registration unless presented to the Registering Authority within four months from the date of its execution. In the case on hand, it is obvious that the subject lease of agreement was executed on 20.11.2019 and appears to be presented before the Registering Authority and on acceptance and stated to have been orally given various dates to attend for registration drawn the Challan bearing No.5149659836504 on

12.03.2020, which is within the prescribed period of four months from the date of its execution and the actual date of four months would be completed on 20.03.2020. Though the statute makes it imperative to present an instrument for registration within four months from the date of its execution, no time is fixed within which a deed presented and accepted for registration must be registered; and, indeed, from the nature of the requirements of the Act, the period within which the registration must be completed could not have been fixed. Earlier, this

Court, in W.P. No.313 of 2020 on 01.10.2020, dealt with the similar

aspect and held at para 10 as under:

“….Since there is no period of limitation to register the

document, once it was presented before the authority

concerned within four (4) months after its execution and

when it was accepted for registration, registering the

document at a later stage i.e, on 31.08.2019 (after lapse of

22 years), cannot be faulted.” {Para 10}

 TELANGANA HIGH COURT

 WRIT PETITION No.15986 OF 2020

 Tata Consumer Products Limited and another Vs The State of Telangana

Coram: SRI JUSTICE N.V. SHRAVAN KUMAR

Dated 10.06.2022

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Whether recital in power of attorney that immovable property should not be sold below specific amount will invalidate sale deed?

 In other words, proceeding on the basis that the second defendant had a duty to not sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not sell below Rs.55,000/-, when the second defendant sold the property for Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of the power of attorney will make it clear that any restriction on the price is conspicuous by its absence in the power of attorney.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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How to prove valid cancellation of power of attorney?

 This correspondence between the plaintiff and the second defendant, in our view, would be fatal to the plaintiff’s case that the plaintiff had cancelled the power of attorney.

59. While on cancellation, we may notice that the plaintiff, in his deposition, has stated that he had cancelled the power of attorney at Mehre and there itself was the Office of the Sub-Registrar located. He has admitted that he did not get the power of attorney cancelled at the Sub-Registrar Office. Even, more importantly, he has admitted to not having sent any notice of cancellation. The only evidence consists of a statement of PW1 that the first defendant was aware of the cancellation and the statement of PW6, who had said that the first defendant was also there on 02.02.1987, when on two papers a line was drawn to signify the cancellation. The Trial Court and also the appellate court have relied upon the DX sent by the plaintiff himself, which appears to undermine the evidence about the cancellation on 02.02.1987. The High Court should not have, at any rate, disturbed the said finding in a Second Appeal. In such circumstances, the conclusion is inevitable that the case of the plaintiff that power of attorney stood cancelled, in the manner done on 02.02.1987, cannot be accepted. At any rate, we find it difficult to accept the case of the plaintiff that the first defendant, who is the third party, could be attributed any knowledge of the surrender or the alleged cancellation on 02.02.1987, even assuming for a moment that we could lend credence to the plaintiff’s version in this regard that the second defendant surrendered the power of attorney. We need not pronounce on the question whether the power of attorney being registered, it could be cancelled only by a registered power of attorney. This we say as even in the absence of a registered cancellation of the power of attorney, there must be cancellation and it must further be brought to the notice of the third party at any rate as already noticed. Such a cancellation is not made out.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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Whether the owner of immovable property can challenge the execution of the sale deed if the sub-registrar fails to verify the original power of attorney at the time of registration of the document?

 The second defendant, according to the plaintiff, could not execute the sale deed in the absence of the original power of attorney, and the sub registrar was supposed to verify the aspect from the second defendant under Sections 32, 33 and 34 of the Registration Act. The sale deed was without authority. The second defendant ‘was not competent to transfer the possession’. The special power of attorney is deemed to have been cancelled in the eye of law since it was handed over to the plaintiff.

25. For reasons, which we have indicated, Section 32(c) read with Section 33 and Section 34(2)(c) are interrelated and they would have no application in regard to the document presented for registration by a power of attorney holder who is also the executant of the document. In other words, there is really no need for the production of the original power of attorney, when the document is presented for registration by the person standing in the shoes of the second defendant in this case as he would be covered by the provisions of Section 32(a) as he has executed the document though on the strength of the power of attorney. To make it even further clear, the inquiry contemplated under the Registration Act, cannot extend to question as to whether the person who executed the document in his capacity of the power of attorney holder of the principal, was indeed having a valid power of attorney or not to execute the document or not.

28. Thus, the aforesaid provision deals with situations in which the Registering Authority refuses the registration. If the registering Authority is satisfied about the identity of the person and that he admits the execution of the document, it may not be a part of the Registrar’s duty to enquire further. The registration by itself will not bring the curtains down on questions relating to title to the property. The very purport of the Law of Registration is to usher in and maintain a transparent system of maintaining documents relating to property rights. It puts the world on notice about certain transactions which are compulsorily registrable Section 17 interalia. The law also makes available facility of registering documents at the option of the person (Section 18).

29. Section 57 of the Act provides for keeping Books No. 1 and 2 and the Index relating to Book No.1 open for inspection to any person applying to inspect the same. Book No.1, it must be noticed, as provided in Section 51, is a register of non-testamentary documents relating to immovable property. Book No.2 is a record of reasons for refusal to register.

32. On an analysis of the provisions, we have no hesitation in rejecting the argument of the plaintiff that the non-production of the original power of attorney by the second defendant, was fatal to a valid registration being effected. The understanding of the Courts regarding Section 18A is also erroneous. Section 18A was enacted only to ensure that the copying process is hastened, as noticed from the Objects and Reasons. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

CIVIL APPEAL NO. 5797 OF 2009

28th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 94

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Whether plaintiff is required to pay Advaloram court fees if he has only filed suit for registration of sale deed?

 In this case, plaintiff is seeking appropriate directions to the authorities to register the sale deed dated 1st February, 2011 and thus, it was not a comprehensive suit, being not coupled with any other reliefs. In the given set of facts, the subject matter of the dispute being not susceptible of monetary valuation, it is subject to valuation under clause (j) of Section 6 of the Maharashtra Court-fees Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5426 of 2012

Decided On: 05.07.2019

Prakash Nandkishor Bhalke  Vs.  The Joint District Registrar, Photozinco Premises 

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2020(1) MHLJ 646

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Precaution to be taken by sub registrar prior to registration of general power of attorney

 As is apparent from the plain language of the abovementioned
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.

Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 W.P.(C) 9445/2017

HARMOHINI SARNA  Vs   GOVT OF NCT OF DELHI 

CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
Dated: 28.01.2019

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Whether Sub Registrar can cancel registration of registered document?

The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan (supra). Section 17 of the Act of 1908 deals with documents which require compulsory registration. Extinguishment Deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to Government maps and surveys. There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make Rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6673 of 2014

Decided On: 26.10.2016

 Satya Pal Anand
Vs.
State of M.P. and Ors.

Coram:Ranjan Gogoi, Prafulla C. Pant and A.M. Khanwilkar, JJ.

Citation:(2016) 10 SCC767

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Whether it is duty of sub Registrar to inform talathi about transfer of land as per S 154 of maharashtra land revenue code?

The first Appellate Court seems to have been swayed away with the certification of the mutation entry after about one year. The first Appellate Court blamed the plaintiff for not moving the authority concerned for certification of the mutation entry. In this context, look to Section 154 of the Land Revenue Code is necessary. It provides that intimation of transfer by registering officer, in relation to document purporting to create, assign or extinguish any title to or in charge of land used for agricultural purposes or in respect of which the record of right has been prepared as registered under the Indian Registration Act, be given to the Talathi of the village in which the land is situated and to the Tahsildar in such format and at such times as may be prescribed by the Rules under the Act. The document in the case on hand is a registered sale deed. This fact cannot be disputed. In view of Section 154 of the Land Revenue Code, it is in fact the duty of the Sub-Registrar/Registering Officer to inform the transaction in question to the Talathi as well as to the Tahsildar. Thus, it is not an obligation on the part of plaintiff, on the case on hand, to report the transaction to the Village Officer or to the Revenue Officer. Section 149 has to be read withSection 154 and conjoint reading shows that in case of acquisition otherwise than registered instrument, party has to make a written application to the Village Officer. Suffice to say that in case of registered instrument, it is a legal obligation on the registering authority. If registering authority commits an error or fails in its duties, citizen like the plaintiff cannot be blamed or made to suffer. The finding of the first appellate Court is thus, suffers jurisdictional error. Any of the Courts below did not refer to the provisions of the Maharashtra Land Revenue Code, despite the fact that they were dealing with the transaction of agricultural land, mutations and record of rights.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

Bench: S Deshmukh

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Good legal article on drafting of contract and their use in court

DOCUMENT WHICH IS REGISTRABLE AND NOT TRANSACTION

Deb Dutt Seal v. Raman Lal, AIR 1970 SC 659 wherein the

Hon'ble Supreme Court has held that it is on the construction of the document wherein it requires registration or not. The Hon'ble Supreme Court observed that in order to require registration, document must contain all the essentials of transaction and one essential is that the title deeds contain all essential of transaction. According to the Hon'ble Supreme Court it is a document which is registrable under the Registration Act and not a transaction.

THE REGISTERED DOCUMENT WILL OPERATE, NOT FROM THE DATE OF ACTUAL REGISTRATION, BUT FROM THE DATE WHEN THE DEED WAS EXECUTED

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Whether it is necessary that same witnesses before whom deed has been executed should appear before Sub-Registrar?

It is also contended that the witnesses of the execution and that of registration are different. This is also not material. The law does not require that the same witnesses before whom the deed has been executed should appear before the Sub-Registrar. The witnesses have, however, proved the execution of the deed.

IN THE HIGH COURT OF ALLAHABAD

Second Appeal Nos. 279 and 102 of 1998

Decided On: 16.03.2001

Appellants: Hakim Singh
Vs.
Respondent: Ram Sanehi and others

Hon'ble Judges/Coram:
B.K. Rathi, J.

Citation: AIR2001All231, 2001 (43) ALR 534, 2001 2 AWC1118All

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Whether Sub Registrar can refuse to register document on the ground that no consideration passed between parties?

As regards the second point, it is not correct that there is a finding that Rs. 32,000 was not paid in cash. The learned Subordinate Judge considered that a finding on this point was not material in a suit under Section 77. It was merely in passing that be remarked that he was not prepared to believe this story. He has, however, given no reason for this opinion. The fact is that the parties do not appear to have regarded the establishment of the payment in question as essential in this case, and, although several witnesses were examined on behalf of the plaintiffs who would in the ordinary course have seen the alleged payment, only two of them spoke of it in examination-in-cbief, namely-Sheonandan Singh and Chetman Pande. The real point for consideration was the genuineness of the sale-deed, its validity and the passing of consideration were immaterial. In these circumstances, no weight can attach to the opinion expressed by the learned Subordinate Judge and certainly it cannot be made the basis of an argument that it is extremely unlikely that without receiving this money the defendants first party would execute the document in question and allow it to pass into the hands of the plaintiffs.

Patna High Court

Jogesh Prasad Singh And Ors. vs Ramchandar Prasad Singh And Ors. on 23 March, 1950

Equivalent citations: AIR 1950 Pat 370

Bench: Reuben, Jamuar

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Whether decree passed in suit under S 77 of Registration is binding on sub Registrar even though he is not party to suit?

Lastly, the non-addition to the sub-registrar (as) a party would not in this case he fatal to the suit although Shri Banarjee urges this point in support of the appeal. It was a statutory suit against the decision of a public Officer and as such the officer deciding the matter had hardly any duty to justify his decision. The order of the court of a competent jurisdiction was binding on him in spite of his non-joinder as a party.

Calcutta High Court

Sk. Md. Ismail vs Sk. Anwar Ali And Others on 12 February, 1991

Equivalent citations: AIR 1991 Cal 391

Bench: A K Bhattacharj

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Whether Sub Registrar can decide validity of document presented before him for Registration?

Reading these sections together it is clear that the only person, who can present a document for registration or institute a suit is the person claiming under the document, and the only person who is entitled to deny the execution is the person who is purported to be the executant of it. The scope of Section 77 of the Registration Act is limited only to the enquiry as to whether the document has been executed by the person alleged to have executed it. In the case of Dwijendra Narain Roy v. Jogish Chandra Dey it was observed at page 47 "it may be conceded that in a suit instituted under Section 77, the Court is concerned not with the validity but with the genuineness of the document sought to be registered, i.e., whether the document has been executed by the person by whom it is alleged to have been executed; the question of its validity must be determined in a suit) properly framed for the purpose." The case cited in the above case shows that even a defence as to the executing power of the alleged executant or the document being one void for want of consideration; fraud or undue influence is foreign to a suit under Section 77

Calcutta High Court

Baikuntha Kumar Shil vs Sarat Chandra Nath And Ors. on 23 February, 1925

Equivalent citations: AIR 1925 Cal 1257

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Whether General power of attorney should be disclosed under RTI?

  

GPA is a public document because the  grantee has to use it to convince any  prospective purchaser and it is also in the interest of that prospective purchaser to verify the veracity of the documents including GPA before finalizing the deal. Because the purpose of  GPA is to authorize another person to deal with the others i.e., to lease out, sale or mortgage  etc, it is an open document and after being registered it is put in public domain, and when  transferred to Delhi Archives, it continued to be in public domain. The RTI Act made it obligatory to disclose any document which is held by public authority unless  exemptions as mentioned in Section 8 are attracted. Assuming that Section 57 Registration Act  1908 authorizes them to deny the access to GPA, which the officers from Sub ­Registrar office are regularly raising as defence, the Commission would like to reiterate that as per section 22 of Right  to Information Act 2005, the 156 year old law has to yield to 2005 law which Parliament wanted to 
override the other laws. The Commission recommends the Respondent Public Authority to inform all the PIOs and officers registering the transactions on landed property to abide by the RTI Act  and   not   to   quote   obsolete   British   relic   Registration   Act,   1908.   As   the   age­old   maxim   says 
ignorance of law is no excuse, the respondent authority cannot plead ignorance of this law any  more as nine years passed after RTI Act came into existence. Any effort to quote British law to 
deny   the   copy   of   GPA   or   any   other   document   which   has   to   be   given   under   RTI   Act   will   be  considered as clever ploy to deny the information and the Commission warns the public authority  that this also will amount to violation of RTI Act attracting the penalties under Section 20 RTI Act. 
The office of PIO should desist from using the archaic law and First Appellate Authority cannot  reject first appeals on this ground. 

CENTRAL INFORMATION COMMISSION

File No.CIC/DS/A/2013/001968­SA


Shri Manish Bansal  Vs Delhi Archives      GNCTD, Delhi

Date of decision : 01-­09-­2014
  Information Commissioner :
Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)

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Whether Sub-registrar is bound to register a document if it is executed by a person who has not title to property?

Lastly, it was contended by the respondents that under no provision of law the Sub-Registrar is required to register a document after an enquiry as to the ownership of the property with respect to which a document is sought to be registered. It may be true that there is no such provision in the Registration Act, but if strictly interpreted, then the Registration Act would not empower the registering authority to register any document unless it falls within Section 17 or 18 of the Registration Act. Section 17 mentions those documents which are compulsorily registrable and Section 18 mentions those documents, of which, the registration is optional, but, the whole scheme of the Registration Act shows that it is incumbent upon the Registrar not to register documents that are unlawful. Obviously if a person has no right in the property and his interests in the property had extinguished, if he tries to execute any document for the same property, the document would be illegal. If 'A' executes a document with 'B' that he would kill 'C' on payment of a consideration and if such a document is presented before the Sub-Registrar, is the Sub-Registrar duty bound to register such a document? If 'A' executes a sale deed conveying the title of 'Charminar' or High Court for consideration, is the Sub-Registrar bound to register such a document? Besides, in the present case, the documents themselves show that the property had already been conveyed by a registered document, therefore, no enquiry was needed to be conducted. It is only on mere reading of the document that Sub-Registrar would come to a conclusion that the document, which was sought to be registered, was an illegal document and as such could not be registered. Therefore, the argument of the learned Counsel for respondents that the Sub-Registrar has no authority to make enquiries with regard to the title of the parties who executes the documents, would have to be accepted with exceptions. That may be true, but if the document itself shows that the party who executes the document has no title over the property, the Sub-Registrar is not bound to register such a document.1

Andhra High Court

Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006

Equivalent citations: 2006 (6) ALT 523, 2007 (1) CTC 97

Bench: B Nazki, V Rao, G Chandraiah

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Whether sub registrar can decide serious question of fraud and manipulation?

Where a serious question of fraud and manipulation is raised in a summary proceeding, like the one engaged attention of respondent no. 1, it would not have been a substitute to decide the serious civil dispute which has the effect of transferring of immoveable property from its owner to another. When the document was not presented by the proper person before the Sub Registrar and the executant denied its execution, etc. I am of the view that remedy lie by filing a civil suit for declaration and specific performance and not in the summary proceedings under Section 72/73 of the Act

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Case :- WRIT - C No. - 12312 of 2010 

 Smt. Raisa Begam Vs  District Registrar, Saharanpur & Anr. 

Hon'ble Sudhir Agarwal,J.

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