Registration Act; Hamsa Vs. District Registrar General [Kerala High Court, 20-07-2011]

Stamp Act, 1959 (Kerala) – Articles 15 & 21 – Registration Act, 1908 – Ss. 71, 76 & 77 – Registration Rules (Kerala) – Rules 67 – Sale Deeds – Cancellation deeds executed unilaterally by the vendor of a property which had been duly transferred and conveyed earlier are documents which are void, non est and “meaningless transactions”.

Sale Deeds

2011 (3) KLT SN 75 (C.No.72) : 2011 (3) KLJ 485 : 2011 (3) KHC 342

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble the Chief Justice MR.J.CHELAMESWAR and The Hon’ble MR. Justice P.R.RAMACHANDRA MENON

W.A. No. 990 of 2011

Dated this the 20th day of July, 2011

Hamsa Vs. District Registrar General

For Petitioner : V. Chitambaresh (Sr.) C. Devika Rani Kaimal N.M. Madhu For Respondent : S.V. Balakrishna Iyer (Sr.) K. Meera (G.P.) Jayanandan Madayi E.M. Unnikrishnan T.P. Saeed K.V. Pavithran

J U D G M E N T

J.Chelameswar, C.J.

Aggrieved by judgment dated 14.03.2011 in W.P.(C) No.9342 of 2008 by which the writ petition was dismissed with costs quantified at Rs. 25,000/- to be paid to the 3rd respondent therein, the unsuccessful petitioner preferred the instant appeal.

2. The appellant herein in his capacity as the Chairman and Managing Director of a Private Limited company and also in his individual capacity sold certain parcels of land in favour of another Private Limited company of which the 3rd respondent herein is the Managing Director. The said sale transactions were duly registered under the

Registration Act, 1908

The documents so registered are dated 31.08.07 and marked as Exts.R3(a) and (b) in the writ petition. Subsequently, the appellant sought to get two documents, styled as cancellation deeds, (marked as Exts.P1 and P2 in the writ petition) registered.

3. When such documents were presented for registration, the 2nd respondent herein impounded the documents and referred the documents to the District Registrar, Kozhikode ostensibly in exercise of the power under

Sections 33(1) and 37(2) of the Kerala Stamp Act.

4. The 1st respondent District Registrar issued Exts.P3 and P4 notices dated 02.02.2008 to the appellant intimating that the documents are liable for stamp duty calculated at 10% of the consideration shown in the sale deeds which are purported to have been cancelled under the deeds in question. It was indicated that such a duty is payable under Article 21 of the Kerala Stamp Act. The notice also demanded a penalty at 10 times the value of the stamp duty, which in the opinion of the 1st respondent, sought to be evaded by the appellant. The appellant disputed such liability and filed his objections.

5. On 03.03.2008, the 1st respondent passed two orders (Exts.P7 and P8) directing that the Stamp duty on the abovementioned documents is payable under Article 21 of the Kerala Stamp Act at 10% of the consideration shown in the sale deeds, i.e., R3(a) R3(b) and also a penalty of Rs. 500/- each. It was further indicated in the said order that in the event of failure by the appellant to make remittances referred to above, necessary steps in law would be taken to realise the abovementioned amounts.

6. Challenging the abovementioned documents, Exts.P7 and P8, the appellant herein approached this Court by way of W.P.(C) No.9342 of 2008 which was dismissed by the judgment under appeal.

7. The issues before the learned Judge were that (1)whether a concluded sale could be unilaterally cancelled by the vendor (2) whether such a document purporting to cancel a sale deed which was duly executed and registered earlier is bound to be registered without any question by the registering authorities and (3) if the answer to the second issue is – yes – what is the relevant Article of 1st Schedule to the Kerala Stamp Act which applies to such a document, whether it is Article 21 as opined by respondents 1 and 2 or Article 15 of the Kerala Stamp Act as contended by the appellant herein. Incidentally the question is whether the registering authorities are legally competent to embark upon the enquiry into the question of legality of the documents or the legal authority of the executant of the document etc.

8. The learned Judge by the judgment under appeal opined that a duly executed and registered sale deed cannot be unilaterally cancelled by paying the stamp duty invoking either Article 15 or 21 of the Kerala Stamp Act. The relevant portion of the judgment reads as follows:

“The sale being complete on the execution and registration of the sale deed, it cannot be unilaterally cancelled by the seller thereof. Such a cancellation deed of a sale deed cannot be registered invoking Article 15 of the Kerala Stamp Act. Even if stamp duty is paid under Article 21 of the Kerala Stamp Act, a duly executed and registered sale deed cannot be cancelled unilaterally by the seller. On execution of the sale deed, title to the property passes to the vendee. The vendee cannot be divested of his title by the unilateral act of cancellation of the sale deed by the vendor. Even on cancellation of the sale deed, the vendor would not get title to the property and only the vendee can confer title to the vendor. Such conferment amounts to conveyance. The view taken by the District Registrar (General) that stamp duty is payable under Article 21 of the Kerala Stamp Act, to that extent, may be correct, but it is not correct to the extent that the unilateral cancellation deed of the sale deed executed and presented for registration by the vendor can be registered on payment of stamp duty under Article 21 of the Kerala Stamp Act.”

9. The learned Judge also opined that the authorities acting under the Registration Act are not obliged to blindly register every document produced for registration unmindful of the validity and legality of a document. The relevant portion of the judgment reads as follows:

“It is not the duty of the Sub Registrar to register every document presented before him for registration, unmindful of its validity and legality. Only if a valid document is duly executed and presented for registration, the Sub Registrar is bound to register the document. Part XII of the Registration Act containing Sections 71 to 77 would clearly indicate that there is no duty cast on the Registrar to register a document which is not legally executable and registrable.”

10. The learned Judge relied upon an earlier judgment reported in