Kerala High Court
Manush Anastin vs The Sub Registrar on 27 May, 2014
Author: Manjula Chellur
Bench: Manjula Chellur, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936
WA.No. 885 of 2014 () IN WP(C).12942/2014
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AGAINST THE JUDGMENT IN WP(C) 12942/2014 DATED 27-05-2014
APPELLANT/PETITIONER:
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MANUSH ANASTIN, AGED 44 YEARS
S/O.HENDRY REBERA, KANIATH HOUSE, KANAYANNUR TALUK
NETTOOR VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SRI.B.PRAMOD
RESPONDENT/RESPONDENT:
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THE SUB REGISTRAR,
THE SUB REGISTRAR OFFICE, ALAPPUZHA.
BY GOVERNMENT PLEADER SRI. JOE KALLIATH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-07-2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
MANJULA CHELLUR,C.J.
&
P.R.RAMACHANDRA MENON, J.
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W.A.No.885 of 2014
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Dated this the 1st day of July, 2014
JUDGMENT
Manjula Chellur,CJ Heard learned counsel for appellant as well as learned Government Pleader.
2. The brief facts that led to filing of the writ petition are:-
Ext.P6 is a partnership deed came to be registered way back in 2006 under Indian Registration Act. Consequently it was shown as encumbrance in respect of properties covered under two sale deeds Ext.P1 and P2. As Ext.P6 was not a document where Section 17 of the Indian Registration Act is attracted and necessarily nothing can be entered in the encumbrance certificate pertaining to the properties of the partnership, appellant approached learned Single Judge seeking following reliefs:-
W.A.No.885 of 2014 2
"(i) Issue a writ of mandamus or any other writ or order commanding the respondent to cancel the registration of Ext.P6 partnership deed and not to show the same as an encumbrance over the properties covered by Ext.P1 and Ext.P2 sale deeds;
(ii) Issue a writ of certiorari calling for the original of Ext.P8 certificate to the extent it shows Ext.P6 partnership deed as an encumbrance over the properties covered by Ext.P1 and Ext.P2 sale deeds."
3. It is also submitted during the course of arguments, dissolution of partnership also came to be made as per Ext.P7, fortunately not by a registered document by Sub Registrar. According to petitioner, the document had to be registered before Registrar of firms, but instead, ignorantly it was placed for registration before the Sub Registrar and Sub Registrar registered the document. The purpose of entering details of a registered document in encumbrance is to declare to the world about what is happening to a particular property, that is, at what point of time, any liability is created or assignment of rights by one party in favour of other party, so that interest of third parties are not jeo-paradised. So far as partnership deed, it is not a document which has to be compulsorily registered under Section 17 of Indian Registration Act. Therefore, even if it is W.A.No.885 of 2014 3 registered before a Sub Registrar instead of Registrar of Firms, it will not enhance sanctity or validity of the document. On the other hand, for all practical purposes so far partnership Act is concerned, it is an unregistered partnership deed. Rights and liabilities of partners inter se or rights of the partners against third parties vice versa have to be decided only in accordance with provisions of partnership Act and mere registration of document will not create any better right than what an unregistered partnership deed could confer. In order to remove practical difficulties of entering details of transactions pertaining to the properties of the partnership, the petitioner has approached the learned Single Judge.
4. If any dispute arises which has to be decided in a civil court, either with regard to inter se dispute between partners or against the firm or third parties or against third parties by the partnership firm at the relevant point of time, the civil court will decide what rights would flow from unregistered partnership deed. Therefore, mere granting of reliefs in the writ petition, rights of neither third parties nor partners inter se will not be disturbed. Virtually registration of this document before Sub W.A.No.885 of 2014 4 Registrar will not give any right to anyone better than what they have under unregistered document.
5. In the light of such observations, we are of the opinion, the details shown in the encumbrance in respect of properties of partnership document under Ext.P6 have to be removed.
Accordingly, appeal is allowed, setting aside the judgment of learned Single Judge.
MANJULA CHELLUR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE.
sj 2/06