WP/9045/2008 of Tirumala Venkata Reddaiah Chowdary, Vs Potla Krishna Prasad (Defendant), on 30 December 2008

Conclusion

O r d e r:

The petitioners, who are minors, are represented by theirmother and natural guardian. The petitioner’s mother, who had swornto the affidavit filed in support of the writ petition states that thepetitioners succeeded to the property in question from their ancestors. While so, she states that the petitioners came to know that their fatherexecuted a registered sale agreement-cum-General Power of Attorneydated 09.10.2008 in respect of the property in question in favour ofrespondent No.1, who on the strength thereof, is seeking to alienatethe property in question. On coming to know of this, she states that thepetitioners got issued paper publication dated 10.04.2008 cautioningthe general public from entering into any sort of agreements withrespondents No.1, and they also filed suit in O.S. No. 495 of 2008 onthe file of the Junior Civil Judge, Vijayawada, seeking permanentinjunction, and pending thereof, in I.A. No. 269 of 2008, they obtainedinterim injunction, and thereafter, approached respondent No.2,namely Sub Registrar, Gundala, requesting him not to entertain anysale deed in respect of the land in question, but they were informed byrespondent No.2 that he has no right to stop the registration of saledeed for any property, except when there is a direction from the Courtrestraining him from entertaining any documents for registration inrespect of the property covered by the proceedings before it. Hence,assailing the said action of respondent No.2, as being illegal andarbitrary, the petitioner filed the writ petition.

The learned counsel for the petitioners submitted that eventhough respondent No.2 is not a party to the proceedings in O.S.No.495 of 2008 on the file of the Junior Civil Judge, Vijayawada, buthaving regard to the fact that there is an ad interim injunction ordergranted by the said Court in I.A. No. 269 of 2008 on 18.04.2008 in respect of the property in question, the same is binding on respondentNo.2, and therefore, respondent No.2 cannot contend that since thereis no direction to him, he has no power to stop registration of adocument.

The learned Government Pleader for Revenue appearing onbehalf of respondent No.2 submitted that S.O. No. 219 of the A.P.Registration Manual, Prohibits the Registering Officer from entertainingdocuments for registration when there in an injunction order granted bythe competent Civil Court or the High Court, but having regard to thefact that respondent No.2 is not a party to the suit in O.S. No. 495 of2008 on the file of the Junior Civil Judge, Vijayawada, the order ofinterim injunction, granted by the said Court in I.A. No. 269 of 2008, isnot binding on respondent No.2, and he is not under an obligation tostop registration of the property in question.

Heard the learned counsel for the petitioners and the learnedGovernment Pleader for Revenue for respondent No.2.

The transactions relating to transfer of immovable property isgoverned by the provisions of the Transfer of Property Act, 1882,Indian Stamp Act, 1899 and the Registration Act, 1908, while the title,capacity of the parties to transfer the property etc. are governed bydifferent laws such as Law of Succession, Testamentary or otherwise,etc. The normal understanding of the general public is that once adocument is registered under the provisions of the Registration Act,1908 they get title to the property. But that is not so. The execution ofor registration of a document by itself will not create any new title, andthe execution of or registration of such document covering animmovable property is governed by the principle Nemo Dat Quad NonHabet, which means ‘no person can transfer/pass a better title thanwhat he possess in the property so transferred’. Given the fact thattransfer of an immovable property is governed by this principles, theregistering authority when receives a document and registers it, doesnot decide title of the persons executing the document. Therefore,mere registration of a document will not confer any new title, and in thecase of any title disputes arising out of such registrations, they aresubject to and decided under the provisions of various other laws,governing the transfer of immovable property. The Orissa High Court in Jogi Das v. Fakir Panda[[1]]had occasion to consider the object andpurpose of the Registration Act, and having considered the same, it held as follows:

The object and purpose of the Registration Act, amongst other things, is toprovide a method of public registration of documents so as to give information topeople regarding legal rights and obligations arising or affecting a particular property,and to perpetuate documents, which may afterwards be of legal importance, and alsoprevent fraud.

From the above, it is clear that registration of a document,merely records the transaction and gives information to peopleregarding legal rights and obligations arising or affecting a particularproperty, which in future would be of legal importance and preventplaying of fraud.

The apex Court in State of Rajasthan v. Basant Nahata[[2]],held that the Registration Act only strikes at the documents and not atthe transactions, that the whole aim of the Act is to govern documentsand not the transactions embodied therein, and thereby only the noticeof the public is drawn.

A learned Judge of this court in Raghu Praveen & Ors. v.

R.D.O., Kakinada[[3]], held as follows:

Except in a case where a property is notified under Section 22-A of theRegistration Act, the registering authority has no power to refuse to register adocument presented to him as regards the property within his jurisdiction, if thedocument is otherwise in the order, and if there is no dispute as to the identity of the executant. I n Mandadi Nirmala v. District Collector, Hyderabad[[4]], a DivisionBench of this court was dealing with a case where the registering authority refused toregister the document on the ground that the proceedings relating to the subjectmatter of the document were pending in the Land Grabbing Court. Speaking for theBench, Sri Justice P. Venkatarama Reddi (as he then was), observed as under:

“We therefore, direct the Sub-Registrar to consider the question of registrationof the documents in the light of the Registration Act after referring to the objectionraised by the Mandal Revenue Officer and to pass appropriate orders according tolaw. In case it is decided to register and release the documents appropriateendorsements shall be made on the documents referring to the factum of objection bythe revenue department and the over-ruling of objection. It is made clear that thealienations in question will be subject to the result of the land grabbing case said to bepending in the Special Court”.

Therefore, the dispute as to title or pendency of proceedings does not conferany right on the registering authority to withhold the documents. The satisfaction forthe purpose of registration has to be wholly in terms of the provisions of the relevantActs and not beyond that.

In Thummlachetty Builders and Developers (Pvt) Ltd. v.

Commr and I.G. S & R[[5]], this Court considered the question whetherthe Registering authority would be justified in refusing to register a document when there is a civil dispute pending between parties andan order of injunction in operation, in the light of S.O. No. 219 of theA.P. Registration Manual, on which the learned Government Pleaderfor Revenue appearing on behalf of respondent No.2 in the instantcase, also has placed heavy reliance to justify the action of theRegistering authority in refusing to register the document. Havingconsidered the said question in the light of S.O. 219 of the A.P.Registration Manual, held as follows:

S.O. No. 219 can be pressed into service when there is an order of injunctiongranted by the competent civil Court or High Court against the Registering Officerfrom entertaining any document for registration in respect of the property covered byits orders. In the instant case, neither the petitioner nor the Registering Officer hasbeen made party to the suit in O.S. No. 455 of 2005 on the file of I Additional SeniorCivil Judge, Ranga ReddyDistrict, and the injunction orders dated 26.4.2005 grantedtherein operated only against the parties to the said suit, and not to any other person,much less the Registering Officer. This apart, it is brought to the notice of the Courtby the learned counsel for the petitioner that the said suit was dismissed for defaulton 1.4.2008.

In the instant case, though the petitioners filed suit in O.S. No. 495 of 2008 on the file of the Junior Civil Judge, Vijayawada, andobtained interim injunction orders in I.A. No. 269 of 2008, the factremains, they obtained such an order only against the respondentNo.1, and not respondent No.2-Sub Registrar. S.O. 219 of the A.P.Registration Manual, prohibits the Registering Officer from registeringdocuments only when there is an order of injunction operating againsthim. The petitioners, admittedly, leave alone obtaining orders oftemporary injunction against respondent No.2-Sub Registrar, have noteven made him party-defendant in the said suit. The petitionershaving not made respondent No.2-Sub Registrar as party-defendant inthe suit filed by them, and there being no order of interim injunctiongranted operating against them by the civil Court, cannot seekdirections to respondent No.2-Sub Registrar not to register anydocuments, in respect of the property covered by the orders in I.A. No.269 of 2008 in O.S. No. 495 of 2008, and no exception can be taken tothe action of respondent No.2 in taking steps to stop the registration ofthe property, particularly when under the provisions of the RegistrationAct, the Registering Officer, is not empowered to refuse to register adocument when presented for registration, except in the case, theproperty sought to be registered under the document, is covered byany of the properties mentioned in Section 22-A of the RegistrationAct, and in the event, the Registering Officer, refuses to register a document, he has to pass an order under Section 71 of theRegistration Act by recording his reasons for refusal to register, whichis appealable under Section 72 of the Registration Act, and any personaggrieved by the order passed in the appeal by the appellate authority,has to approach the competent civil Court under Section 77 of theRegistration Act. Therefore, no directions can be given to theregistering not to register the documents to be presented in respect ofthe land in question.

Before parting with the judgment, this Court would like to placeon record its anguish and concern as to the manner in which theunscrupulous elements are taking advantage of the loopholes in theRegistration Act, 1908 to cheat the gullible and innocent persons byselling the same land to more than one person. In olden days,transactions relating to transfer of moveable and immovable property,by way of sale, gift, lease etc., were entered into by the parties theretoby word of mouth or by reducing the terms and conditions of suchtransactions into writing on a white piece of paper, attested by personsknown to them personally, as witness to the said transactions. Suchoral or written agreements, were implemented in letter and spirit,without there being any scope for dispute. The degree of trust betweenthe parties to the agreements was of the highest standard, in that theymutually respected the terms and conditions of the agreements. Theparties to the agreements stood by what they have agreed orally or inwriting, and in case of disputes arising out of such agreements, theyused to be resolved mutually by themselves or with the intervention ofelders or witnesses to the agreements, without taking recourse to theremedy in any court of law. Even in those days, some of the parties gotthe documents entered into between them, registered.

Before the coming into force of the Registration Act, 1908,which was enacted under the British regime, and came into force from01.01.1909, the enactments relating to registration of documents werescattered in about seven enactments, and all such provisions werecollected, brought together and incorporated in the presentRegistration Act, 1908. The Registration Act, 1908 is an Act, whichstrikes at documents and not at transactions. The principal object ofregistering a document is to give notice to the world that such adocument has been executed, to prevent fraud and forgery and tosecure a reliable and complete account of all transactions effecting thetitle to the property. Its further object is to provide a method of public registration of documents so as to give information to people regardinglegal rights and obligations arising or affecting a particular property,and to perpetuate documents, which may afterwards be of legalimportance, and also to prevent fraud. Registration sought to provideinviolability and importance to certain classes of documents. UnderSection 17 of the Registration Act, 1908, certain documents, the valueof transaction of which is one hundred rupees and upwards, arerequired to be registered compulsorily, and the effect of non-registration of such documents, is stated in Section 49 thereof. Thusfrom the scheme of the Registration Act, 1908, by registration of adocument, it was intended to create legal rights and obligations whichmay be of legal importance in future and to prevent fraud and forgery.

The parties who got the documents registered under theRegistration Act, 1908, by paying registration fee and stamp duty, feltassured that they derived title to the property purchased by them andthat none can interfere with their possession and enjoyment thereof. Itis under this impression, the parties get the documents registered, andderive satisfaction that the property purchased by them was genuine.The Registration Act, 1908 stood the test of time and worked well fornearly a century. However, in recent times, with greed to make moremoney due to multi-fold appreciation in the value of property, andtaking advantage of the loopholes in the Registration Act, 1908,several acts of fraud and forgery are being committed.

Till recently, any dispute between the parties in relation to atransaction, was purely between them. However, the spiraling rise invalue of real estate, has added a new class of disputes to the courtdocket, which in fact, are arising between the parties due to theconduct of the owner of the property, who has resorted to selling of thesame piece of land to several persons by getting them registeredunder the Registration Act, 1908 again and again. Not a day passes,when cases of the nature, as stated above, are not heard. Though theRegistration Act, 1908 sought to prevent fraud and forgery,unfortunately, there is no mechanism provided thereunder for curbingthe multi-registrations of the same property by the same person toseveral persons, in that the Registration Act, 1908 merely provides thatwhen a document is presented for registration, the Registering Officerhas no other go, but to register the same. The acts of the owner of theproperty in indulging in multi-sales and registrations of the sameproperty to several persons, is nothing short of cheating. While such acts of the owners of the property, should be made punishable, theloopholes and silence of the law in that regard, has resulted in thebreachers of the law going unpunished.

Since the government collects registration fee and stamp duty, itis their bounden duty to ensure that the purchasers interest is protectedfrom the evil intention of the sellers, who are resorting to multi-sale andregistrations, taking advantage of the loopholes in the law. May be, thedrafters of the law, which was drafted 100 years ago, did not foreseethat disputes of the nature now being presented before the courts,would crop up. This Court is not a law making institution, and cannotmake a law for curbing such frauds. In a democratic country like ours,the power of legislation, is vested in the Legislature. It is alsoempowered to amend the laws keeping in view the changing needs ofthe people. Keeping in view the nature of frauds and forgeries thatemanate out of implementation of an Act, the Legislature has to takesuitable steps to amend the law, in such a manner that frauds andforgeries, do not recur, by providing for a foolproof mechanism in thelaw and thereby ensure that unscrupulous elements do not abuse theprocess and misuse the law. Unfortunately, the governments that behave not taken any steps in that direction. It is hoped that thegovernment will at least now take appropriate steps to amend the lawin such a manner that the interests of the parties who purchase theproperties from the rightful owners and get them registered by payinghuge amounts to the government, are protected.

With the observations as above, made in public interest, the writpetition is dismissed. The Registry is directed to mark a copy of thisorder to the Chief Secretary to the Government of Andhra Pradesh, fortaking appropriate steps in the matter. No costs.

Dated: 30[th] December, 2008

_________________

N.V. RAMANA, J.

Note:

Mark LR copy.

(B/o)KSR

[1]AIR 1970 ORISSA 22AIR 1970 ORISSA 22

[2]AIR 2005 SC 3401AIR 2005 SC 3401

[3]2003 (3) L.S. 902003 (3) L.S. 90

[4]2000 (2) ALD 725 = 2000 (2) ALT 64 (DB)2000 (2) ALD 725 = 2000 (2) ALT 64 (DB)

[5]2008 (6) ALD 8182008 (6) ALD 818