Registration; Divakaran Vs. State [Kerala High Court, 29-07-2016]

Registration Rules (Kerala) – Rule 67 – Whether Registrar can refuse registration of a document presented before him for registration – Held, Merely for the reason that the Act and the Rules do not make it obligatory for the Registrar to enquire into the validity of the document presented for registration, it cannot be contended that the duty of the Registrar is only to look into the objections referred to in Rule 67 of the Rules and that he is bound to register every document which does not involve objections referred to in the said Rule. A careful reading of Rule 67 would only indicate that the same makes it obligatory for the Registrar to consider the objections referred to in the Rule before registering the document.

Document Registration


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B. SURESH KUMAR, J.

WP(C).No.18664 of 2016-G

Dated this the 29th day of July, 2016

PETITIONER(S)

DIVAKARAN

BY ADVS.SRI.V.PHILIP MATHEW, SRI.GIBI.C.GEORGE, SRI.BIJU.K. MATHEW.

RESPONDENT(S)

1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REGISTRATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.

2. THE SUB REGISTRAR, KARUNAGAPPALLY (ADDITIONAL), SUB REGISTRAR OFFICE, KARUNAGAPPALLY, KOLLAM DISTRICT- 690 518.

3. THULASEEDHARAN, VICE PRESIDENT OF THE MUTHALASSERIL TEMPLE TRUST

R1 & R2 BY GOVT. PLEADER SRI.GIKKU JACOB. ADDL. R3 BY ADV. SRI.K.SUBASH CHANDRA BOSE

J U D G M E N T

Ext.P6 communication issued to the petitioner by the Registrar exercising powers under the

Registration Act

(‘the Act’ for short) in relation to a document presented by the petitioner for registration, is under challenge in this writ petition.

2. The case of the petitioner is that he is the owner of 14 Ares of property in re-survey No.65/7 of Thodiyoor village; that he obtained the said property by virtue of Ext.P1 partition deed; that he executed Ext.P2 settlement deed in respect of the said property in favour of his son and that when the said document was presented for registration, the Registrar refused to register the document. Ext.P6 is the communication issued by the Registrar to the petitioner in this connection. In Ext.P6, the Registrar has stated that the property sought to be conveyed as per Ext.P2 settlement deed is a property obtained by 56 persons by virtue of Ext.P1 partition deed and that the claim of the petitioner that he being the only surviving owner among the 56 persons referred to in the partition deed, the said property devolved on him, is incorrect. The petitioner is aggrieved by Ext.P6 communication.

3. One Thulaseedharan who got himself impleaded in this writ petition as the additional third respondent has filed a counter affidavit. In the counter affidavit, it is contended, among others, that the petitioner has no manner of right over the property and that he was not even a party to Ext.P1 partition deed as claimed by him.

4. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for the additional third respondent.

5. The learned counsel for the petitioner, relying on

Rule 67 of the Registration Rules (Kerala)

(‘the Rules’ for short) contended that it is not the duty of the registering officer to enquire into the validity of a document brought before him for registration. According to the learned counsel, the Registrar can refuse registration of a document presented before him for registration only on the grounds mentioned in Rule 67 of the Rules. It was contended by the learned counsel for the petitioner that since the case of the petitioner is not a case falling under any of the objections referred to in Rule 67, the Registrar was bound to register the document.

6. As indicated above, Ext.P2 is a document executed on the strength of the right alleged to have been obtained by the petitioner as per Ext.P1 partition deed. Ext.P1 is a document of the year 1103 M.E. Ext.P1 partition deed indicates that the properties dealt with therein belonged to the family of one Ummini; that a temple existed in the property at the time of Ext.P1 partition deed and that the temple property, in the circumstances, was included as a separate schedule in the partition deed with a direction that the same shall be possessed and managed by the heads (മൂപ്പന്മാർ) of the family without default. The relevant portion of Ext.P1 reads thus:

[Omitted]

It is conceded that Ext.P2 settlement deed is executed in respect of the temple property referred to in Ext.P1 partition deed. In the light of the recitals in Ext.P1 partition deed, it is evident that a private religious endowment is created in respect of the temple property referred to therein for the benefit of the members of the family. As such, the view taken by the Registrar that the petitioner does not have title to the property referred to in Ext.P2 settlement deed cannot be said to be incorrect.

7. The question now is as to whether the Registrar can refuse registration of a document on that ground. Though the Act does not contain any specific provision dealing with the circumstances under which the Sub Registrar can refuse to register a document, Section 71 of the Act indicates beyond doubt that the Registrar has the power to refuse registration in appropriate cases. Section 71 of the said Act 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.

(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.

(3) No registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self Government institutions unless it is accompanied by a no objection certificate issued by an officer authorised by the State Government in this behalf.”

Rule 191 of the Rules gives indications as to some of the circumstances under which the Registrar can refuse registration. Rule 191 of the Rules 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.