SWATHI v. STATE OF KERALA

BY ADV V.GANGADHARAN BY ADV.SMT.DEEPA.V., GOVERNMENT PELADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.39767/2023 3 JUDGMENT Dated this the 05th day of January 2024 Petitioner has approached this Court seeking to quash Ext.P2 order dated 06.10.2023 and for a direction to the second respondent to register Ext.P1 draft sale deed.

2. Petitioner proposes to purchase a property having an extent of 35.42 Ares from the third respondent and others and executed a sale deed. When the deed was presented for registration before the second respondent, he refused to register the document and issued Ext.P2 wherein the petitioner was directed to produce documents to show the ownership and title over the property. A perusal of Ext.P1 draft sale deed shows that the sellers of the property is only having a leasehold right and has been in possession of the property and therefore, there is no prior deed for the said property and the same has been in the possession and enjoyment of the party respondent and the predecessor for more than one generation. Petitioner further submits that the property has been assigned under thandaper No.26551 and tax has been remitted as is evident from Ext.P3 series WP(C)NO.39767/2023 4 of tax receipts. Petitioner also relies on Ext.P4 circular dated

13.09.2012 issued by the Inspector General of Registration and submits that the only requirement for the registering authority is to ascertain from the records available as to whether there is any alternative right or that the record reflects/points towards the contradictory right claimed by the executant. Petitioner also relies on the judgment in Sumathi and another v. State of Kerala and others [2018(5) KHC 586] wherein in paragraph 8 of the judgment, this Court held that the Sub Registrar is not legally justified to insist that executant should produce prior title deeds to satisfy the title and ownership of the property before he could register the deed concerned and that even possessory right could also be conveyed and there is no bar or legal impediment in transferring the possessory rights from one person to another and whether the possession is based on lease or title are all not matters or enquiry by the Sub Registrar and only those rights which the executor are having alone could be conveyed to the transferee. In other words, mere execution of the deed by itself will not be conclusive of the title and ownership rights of the person WP(C)NO.39767/2023 5 concerned merely on the basis of the description and recitals in the deed concerned. Identical situation was considered by this Court in Sarojini v. State of Kerala and others (2015 KHC 2498) wherein paragraph 3 of the judgment reads as follows : “The petitioner need not establish the title before the Registrar to get his document registered. It is to be noted that the possessory right is also partiable in law. The establishment of the nature of the right or ownership of the property is not a pre- condition for registration under the Registration Act. The competency to present a document alone can be disputed by the registering authority. The power to question competency cannot be equated with power to demand establishment of the right over the property. If somebody's else right is entered in the records, of course competency can be disputed. In the absence of such objection, Registering Authority cannot insist for production of the documents to establish right. The power to question the right or ownership over the property is beyond the scope of enquiry as contemplated under the Registration Act. If the executants of the documents do not have any title or interest or ownership of the property nevertheless, even by registering the said document, it cannot confer any right over the property. That being so, the third respondent is directed to register Ext.P1, but satisfying other conditions for registration.” The said issue was again considered by the judgment in Balachandran v. Sub Registrar [2023 KHC OnLine 9122] wherein in paragraph No.4, it was held as follows : WP(C)NO.39767/2023 6 “Having heard the learned counsel for the petitioner, the learned Government Pleader and having regard to the law laid down by this court in Sumathi (supra), I am of the view that these writ petitions are liable to be allowed. The learned counsel for the petitioner is right in contending that it is open for persons to transfer possessory right. That is settled by judgment of this court in W.P (C) No.2871/2018 where in paragraph 2, this court held as follows; “2. The possessory rights also can be conveyed. There is no bar impediment under transferring the possessory right of a person to another person. The possession is based on a lease or under a title, is not a matter of enquiry by the Sub Registrar. What all the rights the petitioner is having, alone can be conveyed to the transferee.” I am of the view that the same principle can be applied in the facts of these cases as well. The persons executing the document can only transfer the right that they have and merely because they are purporting to transfer possessory rights and they are not been able to produce any prior documents cannot be a ground for the Sub Registrar to refuse registration. Therefore these writ petitions are allowed. The documents presented for registration in both these cases shall be registered subject to compliance of usual formalities without insisting for production of prior documents.”

3. In view of the categorical declaration of law as stated above, the stand taken in Ext.P2 to deny registration of the deed as Ext.P1 will have to be interfered with. WP(C)NO.39767/2023 7 Therefore, Ext.P2 is set aside with a consequential direction to the second respondent to register Ext.P1 if the same is otherwise in order, without insisting for production of prior documents. Writ Petition is disposed of as above. Sd/- VIJU ABRAHAM JUDGE WP(C)NO.39767/2023 8 APPENDIX OF WP(C) 39767/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 TRUE COPY OF THE DRAFT SALE DEED DATED 04/10/2023 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 06/10/2023 TRUE COPY OF THE TAX RECEIPT DATED 04/10/2023 Exhibit P3(a) TRUE COPY OF THE TAX RECEIPT DATED 01/01/2020 Exhibit P3(b) TRUE COPY OF THE TAX RECEIPT DATED 14/12/2021 Exhibit P3(C) TRUE COPY OF THE TAX RECEIPT DATED 18/05/2022 Exhibit P4 TRUE COPY OF THE CIRCULAR ISSUED BY THE INSPECTOR GENERAL OF REGISTRATION DATED 13/09/2012