Karnataka High Court
M. Ramakrishna Reddy vs Sub-Registrar, Rajajinagar, ... on 5 April, 1999
Equivalent citations: AIR2000KANT46, ILR1999KAR2033, AIR 2000 KARNATAKA 46, 1999 (3) KANTLD 655, (1999) ILR (KANT) 2033, (2000) 2 LANDLR 65, (1999) 6 KANT LJ 68, (2000) 1 CIVLJ 744, (2000) 3 CIVILCOURTC 660
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. Sri S. Udayashankar, learned AGA, is directed to take notice for first respondent (the Sub-Registrar, Rajajinagar, Bangalore).
2. Petitioner claims that he had purchased Site No. 206, measuring 40' x 60' situated at Mahalakshmi House Building Co-operative Society Layout, West of Chord Road, II Stage, II Phase, Bangalore (morefully described in the Schedule to the writ petition) under a registered sale deed dated 22-1-1981 registered as document No. 5225 of 1980-81 in Book I, Volume 391, page 193 (filed in SF Vol. 103, page 107) in the office of the first respondent.
3. Petitioner claims to have applied for and obtained an Encumbrance Certificate dated 21-11-1998 (Annexure-D) for the period 1-4-1980 to 20-11-1998. On obtaining such certificate, he claims to have become aware of the fact that the very same site has been sold by M/s. Co-operative Department Employees' Housing Co-operative Society Limited ('CDEHCS Ltd.' for short) in favour of the second respondent under a registered sale deed dated 29-10-1981 (registered as document No. 3773 in Book I, Vol. 259, page 61 in the office of the first respondent).
4. According to the petitioner, he is the lawful owner of the said site; that CDEHCS Ltd., had no right in the petitioner's site, nor could it be sold by the said society in favour of second respondent; and that first respondent could not have registered the sale deed relating to the said site in favour of second respondent. He, therefore, claims to have issued a notice dated 15-12-1998 to the first respondent calling upon him to remove the name of second respondent as purchaser of his site, in the records of the first respondent. The grievance of the petitioner is that first respondent has not complied with the said notice. Hence, he has filed this petition seeking a direction to the first respondent to "remove the encumbrance and entries effected in the name of second respondent in respect of the schedule property as contained in Annexure-D". Alternatively, the petitioner seeks a direction to first respondent to consider his demand contained in his notice dated 15-12-1998 (Annexure-G).
5. The petition proceeds on a misconception as to what is an 'Encumbrance Certificate'. It proceeds on the assumption that it is a document of title and an entry therein by itself affects the title of the owner. An Encumbrance Certificate neither creates, nor affects title. It is not a document of title, but a document giving the references of the deeds of title and encumbrances. A brief reference to the relevant provisions of the Registration Act, 1908 ('the Act' for short), the Transfer of Property Act, 1882 ('the T.P. Act' for short) and the Karnataka Registration Rules, 1965 ('the Rules' for short) will be necessary to know the true meaning and effect of an Encumbrance Certificate.
5.1 The object and intent of providing for registration of instruments under the Act is to create and maintain a public record of transactions relating to immovable properties, on which every person dealing with an immovable property can rely with confidence, for a full and complete account of the transactions by which his title to the immovable property, may be affected. Section 17 of the Act enumerates the documents of which the registration is compulsory. All instruments (except Wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, in regard to an immovable property, the value of which is Rs. 100/- or more, and all Gift Deeds as also leases relating to immovable properties for any term exceeding one year, are compulsory registerable.
5.2 Section 3 of the T.P. Act defines the terms "registered" and "a person is said to have notice". The word 'registered' means registered under the law for the time being in force regulating registration of documents. 'A person is said to have notice' of a fact, when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanations I, II and III to the said definition refer to three classes of constructive notice. What is relevant is, Explanation I [to Section 3 of the T.P. Act] which provides that where any transaction relating to an immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property (or part or share or interest in such property) shall be deemed to have notice of such registered instruments, provided (i) such instrument has been registered and its registration completed in the manner prescribed by the Act and the rules thereunder; (ii) the instrument has been duly entered or filed in the books kept under Section 51 of the Act; and (iii) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of the Act. Thus, any person who wants to deal with an immovable property is deemed to have knowledge of all duly registered instruments relating to the said immovable property.
5.3 Section 51 of the Act requires four books to be kept and maintained in all registration offices, of which 'Book No. 1' is the Register of non-testamentary documents relating to immovable property (registered under Sections 17, 18 and 89 of the Act). Once the documents registered are copied/filed, they have to be entered in current indexes. Section 54 of the Act requires every registration office to prepare and maintain current indexes of the contents of 'Book No. 1' and that entries shall be made in such indexes immediately after the registering officer has copied/filed the documents. Section 55 requires two Indexes to be maintained regarding Book No. 1. Index No. I shall contain the names of persons executing the document and persons claiming under every document entered/filed in Book No. 1. Index No. II shall contain the particulars (description with boundaries, etc.) of the property and other particulars relating to every such document as may be directed by the Inspector General from time to time. Rule 125 prescribes the manner of preparing Indexes. Form No. 16 relates to Index No. I (Nominal Index to Book No. 1). Forms 17 and 17-A relate to Form of Index No. II (Descriptive Index to Book No. 1).
5.4 Section 57 of the Act provides that subject to the payment of prescribed fee, Book No. 1 and the indexes relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same; and copies of entries made therein shall be given to all persons applying for such copies. Rule 148 of the Rules relates to issue of Encumbrance Certificates. It provides that when an application is made for a search for encumbrance in respect of any immovable property and for issue of a Certificate of Encumbrance should be furnished to him, the request should be complied with by the Registering Officer and a Certificate should be issued in the prescribed form. Rule 151 provides that a Certificate of Encumbrance shall contain a complete list of all acts and encumbrances affecting the property in question. The Encumbrance Certificate is issued in Form No. 15 when there are entries relating to the property and in Form No. 16 when there are no entries. While issuing a Certificate in Form No. 15, the Registering Authority has to mention in regard to each entry (transaction which has been registered) the description of the property, date of execution, nature and value of the documents, name of executants, name of claimants under the documents and the particulars of registration (Registration Number of the document with year of registration and volume and page, of Book No. 1 at which it is copied). The certificate contains a caveat that though the requisite search has been made by the office as carefully as possible, the Registration Department will not, on any account, hold itself responsible for any errors in the results of the search embodied in the Certificate.
5.5 When an application for search of Book No. 1 and its Indexes is made, the registration office goes through the Indexes (I and II) and lists all transactions relating to the property during the period for which such search has been sought, in the form of an Encumbrance Certificate. Where no entries are found in the Indexes, a nil Encumbrance Certificate is issued. Thus, a Certificate of Encumbrance issued by a Registering Office is nothing but a list of references/extract of entries relating to the specified property, from Index Nos. I and II of Book No. 1 maintained in the Registration Office.
6. In this context, it should be noticed that the term 'encumbrance' occurring in the 'Encumbrance Certificate' is somewhat misleading. The term 'encumbrance' in law refers to a burden, a charge, a legal claim, lien or liability attached to or upon a property. In the strict sense of the word, a sale or partition or release is not an encumbrance. Mortgage is an encumbrance. An Encumbrance Certificate relating to an immovable property issued by the Registration Office is not only of encumbrances, but of "all acts and encumbrances affecting such property". It is an enumeration of all documents relating to the specified immovable property, which have been registered and entered in Book No. 1 (and the Indexes relating to Book No. 1), during the period for which search is sought. As an Encumbrance Certificate is nothing but an extract of the entries in the Indexes relating to Book No. 1, it is not a document of title.
7. To ensure that a transaction under a registered instrument is properly recorded and indexed, care should be taken, while drafting the instrument, to incorporate the full and correct description of the property (as required under Section 21 of the Act). Similarly, to ensure that all acts and encumbrances are reflected in the certificate of encumbrance, the applicant should furnish full and correct description of the property. For example, if a search is sought in regard to a site allotted by BDA which falls under Bangalore City Corporation area, it is advisable to refer to the BDA site number and the Municipal number assigned by the Bangalore City Corporation, while describing the property. Instances are not wanting where confusion is confounded on account of the same property being described differently in different documents, by referring to survey number, House List number, Village Panchayat number, Kaneshmari number, Khata number, Assessment number, etc. It is always better to give the Survey number, House List number and Assessment number in regard to houses/sites in villages and the Municipal number and City Survey number in regard to city properties and such other particulars/numbers as may be prescribed.
8. The next question for examination is whether an entry in an Encumbrance Certificate can be deleted or Removed'. A Registering Officer has no power or authority to decide upon the title to a property. Nor is he required or expected to verify or satisfy himself about the title of the executant of the document, to the property which is the subject-matter of the document. If a duly stamped document is presented for registration with required registration fee (with supporting enclosures required to satisfy the provisions relating to valuation and payment of stamp duty under the Karnataka Stamp Act, 1957 and the requirements of Section 230-A or 269-UL of Income-tax Act, 1961 and Section 22-A of the Registration Act and Section 26 of Urban Land (Ceiling and Regulation) Act, 1976 and any other relevant statutory provisions), the Sub-Registrar will proceed to register the document. Before registration, the Registering Officer will peruse the document to be registered and supporting documents (like tax paid receipts, revenue register extracts and even copies of earlier title deeds). But such incidental examination is not with the purpose of ascertaining or verifying the title of the executant, but only to ensure that there is no violation of Section 22-A of the Act and that there is compliance with the statutory requirements under Stamp Laws, Taxation Laws, Land Ceiling and Land Reforms Laws etc. As observed by the Madras High Court in Park View Enterprises v State of Tamil Nadu, the functions of Sub-Registrar, for purposes of registration, are purely administrative and not quasi-judicial. Deciding questions of title is in the realm of Civil Courts and not the Registering Officers under the Act. If the Registering Officer is not empowered to decide on question of title, it follows that he cannot decide whether a document which is registered is executed by a person having title as recited in the instrument. Therefore, he cannot entertain or decide any question about the validity of the title of the executant of the instrument, nor delete, modify or alter any entries made in the Indexes relating to documents registered and copied in Book No. 1.
9. To summarise, the position is as follows:
(a) Every document affecting an immovable property (as provided in Section 17) has to be registered, so that any person who wants to deal with such property can find out about the encumbrances, legal obligations, rights and ownership of such property; and such registration acts as constructive notice to a person who subsequently acquires such property or any part thereof, or share or interest therein;
(b) Every document so registered is copied (or copy filed) in Book I and particulars thereof (name of executant/s and claimant's under the document and description of the property and nature of transaction and the consideration) are entered in the statutory Indexes I and II.
(c) When a person wants to ascertain whether any transactions have taken place in regard to an immovable property or the particulars of such transaction, he can either apply to the Registration Office to make a search or seek permission to personally inspect the Indexes. An Encumbrance Certificate or Nil Encumbrance Certificate, as the case may be, is issued by the Registration Office showing the result of such search.
(d) The Encumbrance Certificate or Nil Encumbrance Certificate issued is not a document of title or document affecting title to a property, but is only a list of the acts and encumbrances affecting an immovable property being copies of entries in Indexes, made on the basis of the documents registered and entered in Book I.
(e) The Registering Officer has no power or authority to modify or delete any entries made in Book I or in the Indexes relating to Book I, by holding an enquiry relating to the validity of the document. Consequently, he cannot delete or modify any entry made in an Encumbrance Certificate (except where it may relate to a clerical error).
10. In view of the above, when a person who claims to be the owner or a person interested in an immovable property, finds that someone else has executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs. If he is satisfied such sale deed is executed by a person without any title and that the deed is void ab initio, he may even choose to ignore the same and leave it to the person claiming title under such deed to establish his title in appropriate proceedings. A Court of Law has the jurisdiction to declare a document to be void or even cancel a document. But under no circumstances, a person claiming to be the owner of a property or a holder of a property, can require the Registering Authority to cancel the registration of a document or to cancel the entry made in Book No. 1 in regard to a registered document or to delete or remove the entry made in the indexes relating to Book No. 1. The Registering Officer has no such power. Consequently, the question of the Registering Officer deleting any entry either from the Indexes of Book No. 1 or the extracts therefrom contained in the Encumbrance Certificate by holding transaction covered by a registered instrument is illegal or void, does not arise.
11. The petitioner is not entitled to the relief sought. Petition is, therefore, rejected without prejudice to his right to approach the Civil Court, if he is advised to do so.