TaxTMI 
TaxTMI 
2006 (10) TMI 517
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....District Registrar and/or Sub-Registrar appointed by the State Government, is bound to refuse registration when a cancellation deed is presented? When cancellation deed is registered how the grievance, if any, is to be redressed in law? These and other incidental questions are required to be answered by this Full Bench. Background Facts 2. At the outset, brief reference may be made to the pleadings, in these petitions. W.P. No. 23005 of 2004' is filed by the petitioner seeking a writ of mandamus declaring the action of the third respondent (hereafter called, Sub-Registrar) in registering the deed of cancellation, dated 20.8.2003, bearing Document No. 2854 of 2003 executed by respondents 4 and 5. It is the case of the petitioner that her husband purchased Flat No. 302 in II Floor of Ashwood Villa under a registered sale deed, dated 12.1.1994, together with undivided share in the land admeasuring 100 square yards. The same was executed by respondents 5 and 6. The petitioner took possession of the flat and allegedly invested considerable amounts on improvements. It appears there is a dispute between the builder on one side and respondents 4 and 5 on the other side, who are s....
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....such document. The dispute relating to cancellation of sale deeds, gift deeds etc., are in the realm of private law and requires to be adjudicated only in common law proceedings, such as a suit under the Specific Relief Act, 1963. 4. In W.P. No. 25661 of 2005, the petitioner seeks a writ of certiorari quashing the registered document bearing No. 6119 of 2005, dated 24.10.2005, (cancellation of sale deed) and for a consequential direction to the respondents, namely, the Sub-Registrar, Deputy Registrar and one Nawab Mohammed Haji Khan, to declare the petitioner as the owner of the land covered by registered sale deed, dated 16.9.2005, bearing Document No. 4995 of 2005. It is the case of the petitioner that third respondent, who is the owner of land admeasuring Acs.107.00 in Survey Nos. 181/1 to 181/6 and 182 of Nagaram Village, executed agreements of sale-cum-General Power of Attorney documents in favour of one Syed Waheed Ahmed and that he purchased the land admeasuring Acs.20.38 guntas in Survey Nos. 181/3 of Nagaram Village under registered sale deed, dated 16.9.2005, executed by General Power of Attorney holder. The petitioner received a notice from the Sub-Registrar to the ef....
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....erein was very much required. The action of the Sub-Registrar, therefore, does not suffer from any illegality or impropriety. 6. The case of the Registering Officer is as follows. The Sub-Registrar filed a common counter in most of the writ petitions. It is stated that the Office of the Sub-Registrar is accepting and registering documents of "cancellation deeds" keeping in view the decision of this Court in Writ Appeal No. 972 of 2004, dated 11.10.2004, to the effect that the Registrar cannot look into validity of the document before registering the same. A reference is also made to circular Memo No. G 1/4838/04 , dated 17.12.2004, issued by the Commissioner and Inspector General of Registration and Stamps (the IG, for brevity) directing the Registering Officers to add a footnote to the effect that the cancellation deed is registered under the provisions of the Registration Act and that such unilateral cancellation is not valid unless the deed, which is cancelled, is annulled by the competent Court. It is also stated that in terms of the judgment of the Division Bench, the IG has taken all necessary steps for intimation to the buyers about the registration of the document to ena....
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....rs and created fabricated documents. The allegation that the respondents received sale consideration is denied. The writ petition is also opposed on the ground that the dispute in private law cannot be redressed in a public law remedy under Article 226 of Constitution of India. In all other writ petitions, the facts and allegations are on the same lines. Reference to Full Bench 9. At this stage, the genesis of the reference to the Full Bench may be noticed. In W.P. No. 14007 of 2004, the action of the Joint Sub-Registrar, Karimnagar, in accepting the deed of cancellation cancelling gift deed, dated 2.8.2004, was questioned. A learned Single Judge of this Court placing reliance on the judgment delivered by one of us (Justice V.V.S. Rao) in Property Association of Baptist Churches v. Sub-Registrar, Jangoan 2003(4) ALD 671 , dismissed the writ petition observing that a party aggrieved by a registered document of conveyance has to file a suit seeking proper declaration. The judgment of the learned Single Judge was assailed in W.A. No. 1486 of 2004, dated 11.10.2004. The Division Bench considered the question whether registering authority is duty bound to make any enquiry before r....
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.... do not inhere in him/her. The Registering Officers being public authorities have to act within the ambit of registration law and if a document does not fall under any of the categories in Sections 17 and 18 of the Registration Act, the Registering Officer is bound to refuse to admit the document for registration. A deed of cancellation (of sale deed) is one such species of the document, which ought to have been refused by the Registering Officer for registration. If the cancellation deed is considered to be a registerable document and the Registering Officer is permitted to register the cancellation deed, the same would be contrary to public policy. 12. After insertion of Section 32A by the Registration and Other Related Laws (Amendment), 2001 (Act No. 48 of 2001), whenever a document relating to transfer of ownership is presented for registration, the. passport size photograph and finger print of the vendor and vendee shall have to be affixed to the document. It is the submission of the learned Counsel that even when a cancellation deed is prevented, the provisions of Section 32A of Registration Act requires compliance. The Registering Officers have not followed this and, ther....
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....action in respect of immovable property is not amenable to writ jurisdiction as it is a private law dispute. Secondly, they would urge that in all the matters the vendees obtained sale deeds from persons, who had no valid title or authority to execute sale deeds, and from person, who played fraud on the real owners and without proper compliance with the requirements of law. These issues require recording and appreciating evidence before arriving at conclusions on the questions of fact and, therefore, writ petition is not proper remedy to adjudicate and resolve the controversy. They nextly contend that the Registering Officers are bound to register any document, which is compulsorily registerable under Section 17 of the Registration Act or which is presented before the Registering Officer as a document optionally registerable. According to the learned Counsel, Section 35 of the Registration Act contemplates only two situations when the Registering Officer can refuse a registration and the scope of Section 35 cannot be enlarged by the Court, which would amount to legislation. They urge that though under Rule 26 of the Registration Rules, the Registering Officers are entitled to exami....
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....ontains two parts. Part-A deals with ''Transfer of property whether movable or immovable' (Sections 5 - 34). Part-B deals with ''Transfer of immovable property' (Sections 38 to 53-A). A transfer as defined by Section 5 of TP Act is conveyance of property by one living person to one or more living persons or to him in present or in future. Section 6 of TP Act declares that property of any kind may be transferred except the transfer of property, which is prohibited by TP Act. Clauses (a) to (h) under Section 6 of TP Act, deal with some of prohibited transfers. Clause (h) lays down that "no transfer can be made (i) insofar as it is opposed to the nature of the interest affected thereby, or (ii) for an unlawful object, or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (iii) to a person legally disqualified to be transferee." Section 7 of TP Act enumerates that every person entitled to transferable property or authorized to dispose of transferred property, not his own, can transfer the property provided he is competent to do so. Section 8 of TP Act deals with 'operation of transfer'. It is to the effect that a transfer....
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....er wholly or in part, and either absolutely or conditionally, in the circumstances to the extent and in the manner allowed and prescribed by any law for the time being in force. 8. Operation of transfer.- Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; And, where the property is machinery attached to the earth the movable parts thereof; And, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; And, where the property is a debt or other actionable claim, the securities therefore (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transf....
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....eree is entitled for the transfer of the ownership, if the interest is acquired during the subsistence of the contract of transfer. Here again 'good faith' comes to the rescue of the transferee buying the property without there being a validly vested title in the transferor. Section 53 of TP Act speaks about fraudulent transfer. It reads as under. 53. Fraudulent transfer.-(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of immovable property made without consid....
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....y disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act). In the case of transfer by a seller having improper title in him, the situation would be different. Here again, there could be different circumstances. These are (i) a person having authority to transfer immovable property only under certain circumstances, when the transferee can assume that such circumstances existed at the time of transfer (Section 38 of TP Act); (ii) a transfer of property burdened with an obligation operating as an encumbrance on the land, is valid insofar as the transferee who was not put on a notice regarding such obligation even though the beneficiary of such burden of the property in law is entitled to the benefit of an obligation arising out of contract (Sections 39 and 40 of the TP Act); (iii) If the transfer is made by an ostensible owner (who on the face of it is inferred to be authoritative transferor of property) for consideration, the transfer shall not be voidable on that ground provided the transferee has taken reasonable care to ascertain that the transferor had power to make the transfer (Secti....
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....ract Act, 1872, a reference need to be made to relevant provisions of the Contract Act. The Indian Contract Act is not a complete code dealing with law of contracts. Whenever the provisions of the Contract Act do not apply the principles of English Law in turn would apply. (See Bhavandas v. Girdharlal & Co. [1966] 1 SCR 656 , and Superintendence Co. of India v. Krishna Murgai (1981) ILLJ 121 SC ). Be that as it is, sale of immovable property being contract, it is necessary to recapitulate the basic principles of contract. An agreement enforceable by law is a contract and agreement not enforceable by law is void, though an agreement enforceable at the option of one or more parties thereto becomes voidable. All agreements become contracts when there is a valid proposal and reciprocal acceptance of the proposal agreeing with the conditions subject to which one party makes the proposal and the other party accepts such proposal. A person who is of sound mind and who is not disqualified by any law is alone competent to contract. Sections 13, 14, 15, 16, 17, 18 and 19 of Contract Act define and explain the terms often used in the law of contract, namely, "consent", "free consent", "coerci....
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.... Is it necessary that a person who suffers injury by reason of transfer of immovable property (contract), which is between two persons in respect of his own property and which is void on the face of it for the reason that the vendor of the said transaction has no authority to transfer the property to the vendee, to file a suit? Can he not execute and register a deed cancelling the offending sale deed? 25. The above queries need consideration of two aspects. When a suit for cancellation of an instrument/deed or document is maintainable? When such a suit at the instance of original owner is not maintainable and what are the other remedies to such a person? Sections 31 and 34 of Specific Relief Act are relevant and read as under. 31. When cancellation may be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration ....
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....arted with the property under an instrument maintain an action for cancellation of the deed. It was held: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it cancelled. The test is "reasonable apprehension of serious injury". Whether that exists or not, depends upon the circumstances of each case. It cannot be laid down, as a rule of law, that in no case can a man, who has parted with the property in respect of which a void or voidable instrument exists, sue to have such instrument cancelled. 28. In lyyappa v. Ramalakshmamma ILR 13 549 , the Madras Division Bench laid down that a suit for cancellation of an instrument will be maintainable only by the person who executed the document. In that case, the suit-was brought alleging that the defendant forged the sale deed in the name of the plaintiff as executant and alternatively if it was in fact executed by the plaintiff the execution had been obtained by fraud and no consideration had passed upon him. The Court held that if the plaintiff did not execute the document and it was forgery, ....
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....sappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions. It was further laid down as under. The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case, the Court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the document is void on its face the Court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the Court. The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the ....
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....sent case, it cannot be successfully maintained that a reasonable apprehension can be entertained by the plaintiffs that if the sale-deed is left outstanding it may cast a cloud upon their title or cause them serious injury because the cloud upon their title will not be removed merely by a decree for cancellation of the instrument. The cloud will continue to hang over the plaintiffs by the hostile assertion of title by the executant of the sale-deed and those who claim a title to it. Therefore, the proper relief for the plaintiffs to seek in a case of this kind is a declaration of their own title or a declaration that the executant of the sale-deed in dispute has no title to the property. 32. The law, therefore, may be taken as well settled that in all cases of void or voidable transactions, a suit for cancellation of a deed is not maintainable. In a case where immovable property is transferred by a person without authority to a third person, it is no answer to say that the true owner who has authority and entitlement to transfer can file a suit under Section 31 of the Specific Relief Act for the simple reason that such a suit is not maintainable. Further, in case of an instrume....
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....er beware), however, has no application if vendor has practised fraud to induce the purchaser to accept the offer of sale, ['A Selection of Legal Maxims': Herbert Broom; Tenth edn., (1939), Sweet and Maxwell, pp.528-529.]. In case of fraud, the vendor cannot maintain any action against the purchaser. The legal maxim 'ex dolo malo non oritur actio' applies and the vendor who knowingly committed an act declared by the law to be criminal cannot maintain action against the purchaser who refuses to take the title conveyed under the deed. The maxim 'dolus mains' vitiates all transactions effected by fraud, [Ibid pp. 497; 540.]. Insofar as the buyer is concerned, as observed by Herbert Broom in his compilation of Legal Maxims (p.540), he may abide by the contract induced by fraud and bring an action for deceit (i.e., cheating in Indian law), for the damages sustained by the fraud. The buyer may also rescind the contract returning the goods if already accepted and recover the price paid. 35. What would be the remedy for the person who actually and factually holds a valid title to a property in respect of which a fraudulent transfer was effected by deceitful vendo....
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.... contract cannot be enforced and the suit is dismissed by the Court on a ground of want of title or imperfect title, the buyer has a right to the return of the deposit with interest thereon and shall also have a lien in the property to the extent of the deposit, interest and costs of the suit. 36. The position of transferee under a fraudulent instrument of conveyance is different from the true owner of the title to the property in question. Section 31 of the Specific Relief Act provides one remedy, namely, cancellation of the instrument by showing to the Court that such instrument is void or voidable and that if such instrument is allowed to outstanding, it would cause serious injury. The injury referred to in Section 31 need not be with reference to the person i.e., the true owner of the title, but can as well encompass the property involved. Indeed, Sub-section (2) of Section 31 of the Specific Relief Act requires the Court trying a suit for cancellation of instrument to send a copy of the decree to the Registering Officer, who shall note on the copy of the instrument contained in the books of registration the fact of its cancellation. This would only show that the law is anxi....
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....with longer perspective. 38. Justice K.K. Mathew in Murlidhar Aganval v. State of U.P. [1975] 1 SCR 575 , describes public policy as an unruly horse. His Lordship referred not only to public policy but also the policy of law. He observed that public policy must take into consideration the interest of all sections of the public ignoring the small section of the public who might be benefited by such an interpretation, which ignores the large sections of the public. His Lordship further held that public policy does not remain static in any given community. It may vary from generation to generation and may differ in the same generation, and public policy would be useless if it remains in fixed moulds for all time. It was also observed as under: The Courts may have to strike a balance in express terms between community interests and sectional interests. So, here we are concerned with the general freedom of contract which everyone possesses as against the principle that this freedom shall not be used to subject a class, to the harassment of suits without valid or reasonable grounds. Yet again it was observed: If it is variable, if it depends on the welfare of the ....
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....principles contained in the preamble to the Constitution of India. When the precedents are lacking, the Court can always be guided by principles underlying the fundamental rights and directive principles enshrined in our Constitution of India. The Court, further, observed that the term 'public policy' is required to be interpreted in the context of the jurisdiction of the Court and giving a wider meaning to prevent patently illegal results. 40. After giving our anxious consideration to these questions, we are of the opinion that the existing law is still effective to come to the rescue of the true owner of the immovable property to take steps rendering fraudulent transactions of transfer between two strangers to the property ineffective. Some more reasons for this conclusion are discussed in part IV of this judgment. Part - IV 41. It is a misconception to assume that whenever there is an instrument evidencing transfer of immovable property, a person has to seek a decree for cancellation of such instrument. This remedy has its own limitations. It is also a misconception to assume that the owner of the property cannot seek cancellation of an instrument or sale deed, ....
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....of documents. Before 1908, registration system envisaged optional registration but in 18th century, it was felt that registration of certain documents of transactions should be made compulsory so as to avoid conflicts in relation to various transactions. The purpose was to assure people that if a document evidencing transaction or conveyance is registered, no one can claim any interest by creating a forged or sham document. In Hemanta Kumaki v. Zamindari Co. AIR 1919 PC 79 (at p 81), and Tilakdhari Lal v. Khedan Lal AIR 1921 PC 112 (at pp 116-117), the Judicial Committee observed that, the object of registering a document is to give notice to the world that a document has been executed to prevent fraud and forgery and to secure a reliable and complete account of all transactions effecting the title to the property. In the latter decision, it was also observed that so as to classify as a valid document, such document should be registered strictly complying with the provisions of the Registration Act. Therefore, the purpose of giving information to people who deal with the property as to nature and extent of rights which might be affected in relation to property, can be achieved by m....
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.... comes into force, namely: (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, assign, limit or extinguish, whether in present or in future; any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property; (f) any decree or order or award or a copy thereof passed by a civil Court, on consent of the defendants or on circumstantial evidence but not on the basis of any instrumen....
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....erest; (c) x x x (cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees to or in immovable property; (d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property; (e) wills; and (f) all other documents not required by Section 17 to be registered. 48. There is no dispute that a sale deed under which immovable property is transferred by one person to another person falls under Section 17(1)(b) of the Registration Act. As already noticed supra, under Section 54 of TP Act, transfer of ownership in immovable property (sale) can only be made by a registered instrument, and therefore, the interpretation of Section 17(1)(b) is important in the context. The contention of some of the learned Counsel for the petitioners is that the sale of immovable property under registered doc....
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.... was held by grantor subject to any change grantor might make prior to death, and grantor did not actually deliver the deed, but his wife, the grantee, took it from his private papers after death and claimed title, the deed did not "purport to convey" the land within terms of statute governing adverse possession in favour of persons claiming under instruments "purporting to convey". In LAW LEXICON, [The Lexicon by P. Ramanatha Aiyar, (reprint edn., 1993, p. 1053) 101], the word 'purport' is defined as under: Purport. The word "purport", as used in speaking of the purport of an instrument, means the substance thereof as it appears on the face thereof to every eye that reads it. Purport imports what appears on the face of the instrument. It is usually intended to express the substance and effect as appears from the face of the instrument, in distinction from 'tenor', which means a copy or exactness. Purport means the design or tendency, the meaning or import when used in the expression, "An instrument purports." An instrument purports to be a particular instrument which it more or less resembles and this definition applies to a part, as w....
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....any document of transfer of immovable property does not escape the compulsory registration. Therefore, in the considered opinion of this Court, wherever a deed of transfer is registered under which a right, title and interest is assigned or transferred, the same need not always be conclusively taken to be a legal and valid transfer of title. Every sale deed must be treated as non-testamentary instrument, which purports to transfer. This interpretation is also supported by Section 18(a), which is to the effect that all instruments other than instruments of gifts and wills which purport to or create or assign right, title or interest in property of less than Rs. 100/- can be registered at the option of the parties. If Section 17(1)(b) is interpreted as dealing with all documents, which absolutely transfer the right, title and interest, the provisions of Sections 31 and 34 of the Specific Relief Act would be rendered otiose. Such an interpretation has to be avoided. Therefore, this Court must conclude that whenever sale deed is registered by one person in favour of the other person, the vendor can still has locus to question such sale deed under which the title is transferred or purpo....
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....als with registration and examination of documents, whereas Chapter XII of the Rules deals with enquiry before registration and examination of executing parties. The rules elaborately deal with all aspects of registration, including maintenance of registers, rectification of mistakes, fees payable for registration, maintenance and preservation of records, the method and manner of keeping the documents, and of late registration of documents through CARD, [Computer-Aided Administration of Registration Department]. The rules also contain as many as ten appendices dealing with different types of registers and entries to be made therein etc. 55. Rule 26, to which a reference has been made by some of the learned Counsel, gives the nature of examination to be made by the Registering Officer. The same reads as under. Rule 26 (i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance,- (a) that it has been presented in the proper office (Sections 28, 29 and 30); (b) that the person is entitled to p....
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....s follows. 58. It forms no part of a Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below: (a) that the parties appearing or about to appear before him are not the persons they profess to be; (b) that the document is forged; (c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity; (d) that the existing party is not really dead as alleged by the party applying for registration; or 57. Though Rule 58 prohibits the Registering Officers from enquiring into validity of the document, Rule 26 read-with Rule 58 reveals that it is always permissible for the Registering Officer to examine the document presented for registration as to whether the person who presented the document is entitled to present, whether such person is known to the officer or has been properly identified by the identifying w....
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....ealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. 61. Endorsements and certificate to be copied and document returned:-(1) The endorsement and certificate referred to and mentioned in Sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No. l: Provided that the copying of the items referred to may be done using electronic devices like scanner. (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52. 60. The above provisions would show that unless and until there is compliance with the provisions of the Registration Act and also with the provisions of Sections 34, 35, 58 and 59 of....
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....l apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration: Provided that, within three months from the twelfth day of September, 1917, any person claiming under a document to which this section applies may present the same or cause the same to be presented for re-registration in accordance with this section, whatever may have been the time when he first became aware that the registration of the document was invalid. 62. When a document is registered at the instance of a person not duly empowered to present the same, any person claiming under the document, may within four months from the date of knowledge that such document is invalid, may present such document in accordance with the provisions of Part VI (Sections 32 - 35) of the Registration Act. In such event, Registering Officer after following the same procedure contemplated under the Act, can re-register the document as if it has not been registered previously. Thus, it is not possible to accept the submission of the learned Counsel for petitione....
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..... When he was doing so, the Land Reforms Officer prevented him from felling the trees. He challenged the same before the High Court of Calcutta. The Division Bench relied on Section 4B of West Bengal Land Reforms Act, 1955, which required Collector's permission for felling the trees by owners of non-forest private plantations and held that the appellant was entitled to cut one out of ten trees in two years. Before the Supreme Court, the appellant contended that in the absence of any provisions in the Act or in any other legislation, he cannot be prevented from felling trees in his garden land. It was also urged that the Court cannot supply casus omissus when there was no such prohibition for felling the trees from non-forest private land. The Apex Court referred to the decisions in Commissioner of Sales-Tax v. Parson Tools and Plants [1975] 3 SCR 743 and Sankar Ram & Co. v. Kasi Naicker AIR 2003 SC 4156 and held that when the language of the statute is plain and unambiguous, casus omissus cannot be supplied. It was observed as under: It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or d....
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....w, which also governs the exercise of power of judicial review by this Court is intended to see that all the public authorities, who are vested with powers discharge their duties and functions in accordance with rule of law, in a manner which is not illegal, irrational or improper. In post constitutional era, all the power exercised in the democratic governance flows from super statute i.e., the Constitution of India. There is no gain saying that all power is a trust and the trust should be discharged legally, fairly, impartially and with accountability. There is always presumption - though rebuttable; in law that all public functions are discharged for public good in accordance with law. If a public authority is induced to discharge the trust (exercise power) in a manner which is fraudulent, whether such public authority can recall/revoke earlier fraudulent order? Insofar as the judicial authorities and Courts are concerned, it is now settled law that every Court in judicial hierarchy has inherent power to revoke an earlier order obtained by fraud. 68. Fraud is a conduct which induces another person or authority to take a definite determinative stand in response to such person&....
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....Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick... From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it as false. (emphasis supplied) 70. In S.P. Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 , quoting Lord Edward Coke (that 'fraud avoids all judicial acts, ecclesiastical or temporal',) Supreme Court of India emphasised that the judgment or decree obtained by fraud on the Court is nullity and non est in the eye of law. It was also held that a decree/judgment vitiated by fraud must be ignored treating it as nullity by every Court whether superior or inferior as "finality of litigation is not available when fraud is alleged". The following passage from the said judgment is relevant here. ....The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine....
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....ourt. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka; Gajanand Sha v. Dayanand Thakur; Krishnakumar v. Jawand Singh; Devendra Nath Sarkar v. Ram Rachpal Singh ILR (1926) Luck 341 : AIR 1926 Oudh 315; Saiyed Mohd. Raza v. Ram Saroop ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385 ; Bankey Behari Lal v. Abdul Rahman ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63; Lekshmi Amma Chacki Amma v. Mammen Mammen 1955 Ker. LT 459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton v. Sitaram Kumar AIR 1954 Pat. 450) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh AIR 1958 Pat 618 ; Tara Bai v. V.S. Krishnaswamy Rao. (emphasis supplied) 72. It is thus law of the land that even administrative authorities have inherent powers to recall or revoke their own orders if such order was obtained by playing fraud on such public authority. As a necessary corollary if something is done by public authority at the....
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.... day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what had happened in the present case. Once the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders or removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (in) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent....
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....e), the following is elucidated: Para 786. Entry of existence of overriding interests. Where the existence of any overriding interest is proved to his satisfaction or admitted, the registrar may, subject to prescribed exceptions, enter notice of the interest or of a claim to it on the register. This is a general provision which authorizes entry of notice of, among other things, the burden of an easement, right or privilege (being an overriding interest) acquired in equity by prescription if it be of such an estate and nature as is capable of taking effect at law. Any person desiring an entry to be made must make a written application giving particulars of the entry required. If the applicant is the proprietor of the land, or the liability, right or interest has been created by the proprietor, and if in either case there is no caution, restriction or inhibition on the register, an entry of the existence of the liability, right or interest may be made accordingly. In other cases evidence satisfactory to the Registrar must be produced of the existence of the liability, right or interest. The proprietor of the land, if not the applicant, must have notice of the applic....
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....f one year in November, 2004. In the second group of cases, the sale deeds were cancelled by the vendors alleging that the owners executed General Power of Attorney in favour of two persons, that subsequently they cancelled the GPA in 1997 and that in spite of cancellation those persons executed sale deeds in the year 2000 without any authority or entitlement to transfer the property. These are W.P. Nos. 879 to 882 and 979 to 981 of 2006. In the third category of cases, being W.P. Nos. 25661 to 25666 of 2005, the contesting respondents alleged that the person who executed sale deeds claiming to be GPA holder played fraud and misrepresented, that he has such authority or power to execute sale deeds and that the executant obtained GPA by playing fraud on the real owner. 80. Assuming that the petitioners filed suits before the civil Court for the relief, as is prayed herein before this Court, having regard to the pleadings, the civil Court has to necessarily frame the issues, which would be somewhat like this, namely, (i) whether the sale deeds executed by the vendors in favour of the petitioners are valid and binding on the owners of the property; (ii) whether the GPA executed by ....
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..... In the former case, they cannot be dragged to public law Courts and in the latter case they cannot escape scrutiny by public law Courts. 82. It is misnomer to assume that all statutory authorities like registering authority, always discharge public law functions. Some of the functions like registration of documents/instruments may be in exercise of statutory power but such functions may or may not strictly are concerned with public law. For instance, a registration of gift deed executed by donor in favour of donee is only pursuant to statutory power but the same does not involve any public law function. Similar is the case in the event of registration of a sale deed, mortgage deed or licence deed, compromise deed and/or cancellation of any of these deeds. 83. Judicial review has its own limitations and all decisions of public bodies are not amenable to this public law power. Nor is it permissible for a reviewing Court to deal with matters which lack adjudicative disposition by reason of prerogative nature of the power exercised by the public authority or exclusive entrustment of powers to a specialized body of the State. As the legislative and executive wings are prohibited....
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....rcising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. (ii) A petition for a judicial review would lie only on certain well-defined grounds. (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. (iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeking that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice. (v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies. 85. Apart from the limitations pointed out by the Supreme Court, the power of judicial review is not available when there is an effective alternative remedy to the aggrieved per....
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.... a contract between two persons and if one person after conclusion of the contract goes back and makes attempt or purports to make an attempt to deny the benefit of the contract of the other party, the remedy is only in the civil Court. 87. Registration Act would show that the registering authorities are creations of statutes and they are conferred powers under the statute to enable them to discharge statutory duties. A registering authority has a role of a catalyst in the sense of legitimizing certain transactions by registering as per law. By the action or inaction of registering authority, there is no involvement of the State or the Government as such, except to the extent of charging registration fee for the service of registration as well as keeping the registers. Therefore, any instrument between the two persons, is governed by private law principles and registration thereof does not play any pervading role in rendering the transaction legal or otherwise. For instance, if a contract is prohibited by reason of its being against public policy, the registration of the document evidencing such contract does not render it valid. Similarly, if two joint owners of immovable prope....
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.... with proper stamp duty and registration charges. A party aggrieved by a registered document on conveyance has to file civil suit seeking appropriate declaration under Section 34 of the Specific Relief Act, read with Article 59 of the Schedule under the Limitation Act, 1963. The writ petition is not a proper remedy. 89. Following the decision in Property Association of Baptist Churches (supra), another learned single Judge in Karimnagar Education Society, Karimnagar v. The District Registrar, Registration and Stamps, Karimnagar, an unreported Judgment in W.P. No. 14007 of 2004, dated 18.8.2004, dismissed the writ petition observing as under: This Court in Property Association of Baptist Churches (supra), categorically held that the limited power of the Registering Officer to enquire into the objections that the executing party had no right to execute document get extinguished the moment the document is registered. No power inheres in the Registering Officer or the District Registrar to cancel the deeds, unless another document is presented with proper stamp duty and registration purpose. A party aggrieved by a registered document on conveyance has to file a civil suit s....
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.... civil Court and a writ petition would not lie. Another aspect of the above decision is that if there is participation by all the parties to the document, there can be a cancellation deed and according to learned Judge, unilateral cancellation cannot be permitted. Be that as it is, the decisions in Karimnagar Education Society (supra) and K. Gopal Reddy (supra), were the subject-matter of writ appeals. W.A No. 1486 of 2004 was filed against Karimnagar Education Society (supra) and W.A. No. 972 of 2004 was filed against K. Gopal Reddy (supra). The Division Bench, by order dated 11.10.2004, dismissed the W.A. No. 1486 of 2004 laying down as under: The short question that falls for consideration is whether the registering authority is duty bound to make any enquiry as such before registering the deeds of cancellation. The learned Counsel for the appellant very fairly stated before us that there is no provision, which enables or obligates the registering authority to make any such enquiry before registering the cancellation deed. In such view of the matter, in our considered opinion, the public law remedy invoked by the appellant herein is ill suited to resolve the controversy....
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....ia cannot be exercised if the order passed by this Court cannot be carried out without prejudicing the rights of the others. As observed by the Supreme Court in A.R. Antulay v. R.S. Nayak 1988 CriLJ 1661 , "it has been said long time ago that "Actus Curiae Neminem Gravabit", the act of the Court shall prejudice no man and that this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law". Be it noted that even according to the petitioners, the sale deed obtained by them is valid till it is cancelled by the civil Court. Therefore, even if the cancellation deed is allowed to remain, no prejudice would be caused to the petitioners. It is also pointed out to us by the learned Government Pleader that as per the instructions issued by the IG under Section 69 of the Registration Act, the registering authority is issuing a notice to the earlier purchasers and also endorsing on the cancellation deed that such cancellation deed does not alter the rights. 95. That disputed questions of fact cannot be gone into in a writ petition is axiomatic. A copious reference to case law is not necessary. As pointed out earlier, among many; it ....
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....uld not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised. (emphasis supplied) Part - VI Conclusion 97. As already referred to in these cases, there are serious disputed questions of fact regarding the allegations of fraud and misrepresentation played by the vendors as well as vendees against each other, there are also questions raised regarding the competence and entitlement of a person executing the document. In some cases (W.P. Nos. 22298, 23005 and 23088 of 2004), the sale deeds were cancelled sometime in August, 2003, but the writ petitions are filed with consider....
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....d dismissed the appeal. In that judgment, it was observed that the Registration Act does not enable the registering authority to make an enquiry before registering a cancellation deed. Therefore dispute, if any, between the parties, was a dispute essentially in terms of private law which could only be agitated in common law proceedings by seeking a declaration under the Specific Relief Act. Thereafter, Writ Petition Nos. 23005 and 23088 of 2004 came up before another Judge. In these writ petitions also, registration of cancellation deeds was challenged. The learned Single Judge felt that various legal questions were not brought to the notice of the Division Bench when it decided Writ Appeal No. 972 of 2004 and referred the matters to another Division Bench. The Division Bench referred the matters to the Full Bench. This is the background in which these matters have come up before us. 101. The learned Single Judge in Writ Petition Nos. 23005 and 23088 of 2004, was of the opinion that the law laid down by this Court in Writ Appeal No. 1486 of 2004 was sought to be applied to sale deeds whereas registration of cancellation of gift deed was the subject-matter in Writ Appeal No. 1486....
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....ecting that property. They further contend that there would have been no need for having an Act like the Registration Act if it was not felt necessary that people should know and people should be able to find out whether any particular property with which they may be concerned, had been subjected to any liability or legal obligation. Therefore, the scheme of the Registration Act provides that one should give importance and solemnity to certain classes of documents by directing that they shall be compulsorily registerable and the general purpose of the Act appears to be to put on record somewhere the particulars of ownership of property where people can examine those particulars if they are interested in such properties. It also appears from the scheme of the Registration Act that the Act reduces the chances of fraud. It is further contended by the learned Counsel for the petitioners that sale is governed by the provisions of Transfer of Property Act, 1882 (hereinafter referred to as 'the TP Act') and 'sale' is defined under Section 54 of the TP Act as, ""Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. " It fu....
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.... extinguished and he has no rights whatsoever left in the property, there arises no question of his executing a fresh deed cancelling the sale deed. Sale is not a unilateral act, but is a bilateral act. As a result of this bilateral act, the rights of the vendors in the property get extinguished and get transferred wholly to the vendee. Vendor is left with no rights vis-a-vis the property. Therefore, if any deed styled as 'cancellation of sale deed' is executed or registered, it would amount to fraud because, by such a deed, neither rights are extinguished nor created but has the potential of creating a mischief. The deed of cancellation of sale deed which is duly registered by the Sub-Registrar, does not confer in law any rights to the erstwhile vendors. These documents are only executed for the purpose of creating a mischief and blackmailing the vendees. It was submitted that these documents, after registration, are presented to banking authorities and are given publicity so that the bankers and the prospective purchasers entertain doubts about the title of the land and the vendees-the bona fide purchasers, find difficulty in raising finances, using the property or transf....
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....art of Contract Act-The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (IX of 1872). [And Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908 (XVI of 1908)] 111. Transfer of property has been defined under Section 5 as under- In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and "to transfer property" is to perform such act. 112. Section 8 of this Act lays down- 8 Operation of transfer-Unless; a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery ....
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.... the Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act') is applicable to the present controversy. It lays down that an agreement is void if it deviates the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Therefore, such a document, in my view, is a fraudulent document within the meaning of Section 23 of the Contract Act and as such, cannot be registered. It is even against public policy. 'Public policy' was defined by Supreme Court in Murlidhar Agarwal v. State of Uttar Pradesh [1975] 1 SCR 575 . In Para 28, the Supreme Court discussed public policy vis-a-vis policy of law. Para 28 is reproduced hereunder- 28. The expression 'public policy' has an entirely different meaning from 'policy of the law' and one much more extensive. Nevertheless, the term 'public policy' is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute (s....
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....nd that there remains a broad field within which Courts can apply a variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community. See Dennis Lloyd, "Public Policy", (1953), pp. 112-113. In Para 31, the Supreme Court held that public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. 117. One of the arguments advanced by the respondents in this case, which has found favour with my brother Mr. Justice V.V.S. Rao, is that the remedy available to the petitioners is to go to a civil Court under the provisions of Specific Relief Act. The same argument can be used against the respondents in this case, who, if aggrieved of registration of a sale deed which they had executed, themselves should have gone to the civil Court for such a remedy. I do not agree with my learned brother that the writs are not maintainable, as the remedy to the petitioners is at common law by going to a civil Court. The effect of registration of a cancellation deed is against pub....
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.... things recognition of rights or title over immovable property and transactions therein give rise to manifold problems. Movable property, depending upon its size or dimension, can be kept in absolute control in possession of its owner and a third party may not be in a position even to know where the same has been kept. But this is not so for an immovable property which lies in the open, attached to the earth at a particular place and the owner may be residing at a faraway place. The owner may give the property on lease or licence to someone else who may get physical possession thereof and enjoy the usufruct thereof. In order to get over this difficulty, a system of registration of title to immovable property has been evolved which is followed in many countries. In the United States the legal position has been described as under in Corpus Juris Secundum, Vol.76, p.525: "Systems looking toward the registration of titles to land, as distinguished from the practice under Recording Acts generally of recording or registering the evidence of such title, are in effect by virtue of statute in several of the United States, and the Courts are bound by such provisions rather than by a....
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.... that requires the Chief Land Registrar to continue to keep a register of title to freehold and leasehold land. 705. The Land Registry Act, 1862-The Land Registry Act, 1862 marked the first attempt to introduce registration of title as distinct from registration of deeds by memorial. Registration was on a voluntary basis and subject to conditions, which included conditions (1) that a marketable title should be shown; (2) that the boundaries of the land should be officially determined and defined as against adjoining owners; and (3) that partial interests should be disclosed and registered. The Act continues to apply to estates registered under it as if the Land Registration Act, 1925 had not been passed, until such time as those estates are registered pursuant to the Act of 1925. The intention that the registration of such estates is to be transferred to the modern register is confirmed by power given to the Lord Chancellor to provide by order that all titles registered under the Land Registry Act, 1862 should be registered under the Land Registration Act, 1925 without cost to the parties interested. 121. To the same effect, reference can also be made to the Supreme Cou....
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....at documents which create interest or extinguish interest are either compulsorily registerable or are to be registered at the option of the executor. Besides this, what is sought to be revoked by this cancellation deed, is the earlier registered sale deed. One of the documents we are taking as an example is the cancellation deed filed in W.P. No. 22257 of 2004, which reads as under- Cancellation of Sale Deed This Cancellation of Sale Deed is made and executed on this the 20th day of August, 2003 at Hyderabad - A.P, by:: 1. Dr. P.S.N. Murthi, S/o. Sri P.V. Venkat Rao, aged about 68 years, Both R/o.8-2-322, Road No. 7, Banjara Hills, Hyderabad-34. 2. Smt. P. Nageswaramma, W/o. Dr. P.S.N. Murthi, aged about 64 years; Hereinafter called the "First party/party of the first part. And Sri. Ch. Surendra Reddy, S/o. Sri Ch. Veera Reddy, aged about 42 years, R/o. Plot No. 385, Road No. 22, Jubilee Hills, Hyderabad - A.P. Hereinafter called the "Second parry/party of the Second Part. WHEREAS the party of the first part herein has executed a Registered Sale Deed in favour of the party of the Second part in respect....
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....following witnesses. NORTH : Road No. 3 SOUTH : Neighbors Property. EAST : Road No. 7 WEST : Neighbors Property. First Party 123. In this document, it has been stated that all rights, titles and interests vesting with the party of the second part shall stand revoked and terminated. Party of the second part is not a party to the deed itself, whereas in the preamble of the deed it is stated that the document is executed between Dr. P.S.N. Murthi and Smt. P. Nageswaramma as the first party and Sri Ch. Surendra Reddy as the second party. The second party had not even executed this document and had not signed the document and registration of this document amounts to nullifying of earlier document registered by the Sub-Registrar and the Sub-Registrar does not have any power whatsoever over a document, which is already registered by him. In this connection, we are fortified in our view by a Division Bench judgment of Punjab and Haryana High Court in Ravindra Pharmaceutical Pvt. Ltd. v. State of Haryana. Since this is a small judgment, we are reproducing the whole judgment- Order (Annexure P-6) issued by Sub-Registrar, Pehowa, on August 10....
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....y, if any, after registration of the document. While allowing the writ petition, we quash the notice Annexure P-6. 124. To the same effect, there is another judgment of Supreme Court in Komal Chand v. State of Madhya Pradesh AIR 1966 MP 20 . In this case, after registration of a document, the registering authority had ordered an enquiry regarding the value of the property covered by the deed. But the Supreme Court found that after registration of a document, the registering authority would become functus officio and held, "After the registration of the 'Takseemnama' on 31st October 1956, the registering authority had no power to hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duty". The Supreme Court was considering this case in the light of the various provisions of Registration Act and also various provisions of the Stamp Act and it held- Neither in the Registration Act nor in the Stamp Act is there any provision giving to the Registering Officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the Registering Offi....
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....e of the party presenting the document for registration and the situations mentioned in the above said provisions under which the registration can be refused are for different purpose and only under those contingencies he can refuse. This Court cannot enlarge the scope of these provisions under the guise of interpretation of statute. Further when there is no prohibition under the Act the Registering Officer has to register the documents presented for registration in accordance with law and this Court by judicial interpretation cannot impose the same into the statute. It is well settled that what has not been provided for in a statute cannot be supplied by Courts and to do so will amount to legislating which is not the function of the Courts. 129. The main grievance of the petitioners is that by permitting the registration of cancellation deeds, the vendors of immovable property are misusing the provisions and allowing it would amount to abuse of process of law. This contention cannot be countenanced for the reason that admittedly there is no prohibition under the statute and if there is misuse, it for the legislators to make necessary amendments and this Court under Article 226 ....