Andhra HC (Pre-Telangana)
Smt. G. Kadambari W/O G. Kesavulu vs District Registrar Of Assurances, The ... on 19 February, 2008
Equivalent citations: 2008(2)ALD662
ORDER G. Yethirajulu, J.
1. A This writ petition has been preferred by the petitioner seeking to declare the order of the first respondent, dated 22-01-2004 and the order of the second respondent, dated 02-12-2003 as illegal, arbitrary and consequently to direct the second respondent to register the document without insisting for payment of stamp duty on the present market value of the property.
2. The petitioner purchased an extent of 222 square yards in Sy. No. 132 and 160 of B.K. Guda, Hyderabad from her vendor A.V. Pentaiah, who is the absolute owner of the property. A sale deed was executed on 28-02-1979 and it was presented to the Sub-Registrar, Khairatabad, the third respondent herein, for registration on 02-03-1979. The third respondent refused to register the document on the ground that certificate of permission from the competent authority under the Urban Land Ceiling Act was not enclosed along with the sale deed and the document was kept pending. Thereafter, on 28-05-1982, the third respondent passed an order refusing to register the sale deed. As the vendor of the petitioner failed to get the permission from the Urban Land Ceiling Authority, the petitioner was constrained to file O.S. No. 1344 of 1984 on the file of the XI Assistant Judge, CCC, Secunderabad seeking a direction to the vendor for specific performance of agreement of sale and to apply permission to the Urban Land Ceiling Authority, Hyderabad and to take steps to get the certificate also also for the relief of permanent injunction. During the pendency of the suit, the petitioner filed an Application covered by I.A. No. 252 of 1984 to implead the respondents 1 to 3 herein as the respondents in the said LA. The respondents raised a plea that they are not necessary parties to the proceedings. The trial Court dismissed the said Application through the order, dated 27-08-1987. The suit was decreed in favour of the petitioner. Thereafter the vendor filed A.S. No. 51 of 1991 on the file of the I Additional Chief Judge, CCC, Secunderabad and it was dismissed through the order, dated 09-12-1997. Despite the decree of the Civil Court, the vendor of the petitioner has not taken any steps to get the letter from the Urban Land Ceiling Authority, therefore, the petitioner filed the E.P. for execution of the decree granted by the Court. Subsequently, the vendor obtained a clearance certificate from ULC authorities, dated 21-07-2003 and the same was furnished to the petitioner on 20-08-2003. The petitioner made an application on 23-08-2003 for registration of the document. The petitioner further pleaded that the second respondent has issued the impugned letter mentioning that the document is not being considered and the petitioner has to file an Appeal under Section 72 of the Indian Registration Act, 1908 (for short 'the Act'). On receipt of the letter from the second respondent, she filed an Appeal before the first respondent. The first respondent refused to entertain the Application on the ground that the period of limitation is only 30 days from the date of the order. Questioning the said order, the petitioner filed W.P. No. 22863 of 2003 before this Court and this Court, while disposing of the writ petition, through the order, dated 03-11-2003, directed the second respondent to receive the document for registration and to pass appropriate orders. The petitioner submitted that she submitted the document for registration before the second respondent, but he has passed an order holding that the document is treated to have been submitted only in the month of August, 2003 and the registration fees should be paid on the basis value of the department as on 24-11-2003 which comes to Rs. 97,680/- towards stamp duty and Rs. 67,155/- towards registration fees and directed her to remit the amount within a period of one week. The petitioner filed an Appeal before the first respondent, but the first respondent passed order stating that the Appeal is not maintainable as the second respondent only directed to pay the stamp duty and registration charges. Being aggrieved by the said order, the present writ petition has been
3. The petitioner contended that as the High Court observed that the respondents are under the obligation to receive the document and pass appropriate orders, the document now submitted for registration should be treated as fresh submission with the same stamp duty. She further contended that when once the document has been presented, the same cannot be refused by the respondents on the ground of non-enclosure of a certificate from the Urban Land Ceiling Authority though the document is resubmitted after 24 years.
4. The learned Counsel for the petitioner submitted that as there is no provision under the Act as to what has to be done when the document is represented after complying the objections, therefore, it shall be treated as a fresh presentation and the document has to be registered on the same stamp duty which was paid in the year 1979.
5. The learned Government Pleader for Revenue submitted that in the light of the provisions of the Act, the petitioner is expected to present the document within four months from the date of execution and if there is any delay, further four months time is available with the permission of the Registrar and as the document was represented 24 years later, it is barred by limitation and as there is no illegality committed by the respondents, the writ petition is liable to be dismissed.
6. In the light of the respective contentions of the parties, the point for consideration is:
Whether there are sufficient grounds to issue directions to the second respondent to register the document on the same stamp duty as pleaded by the petitioner?
7. Section 23 of the Registration Act reads as follows:
23. Time for presenting documents: Subject to the provisions contained in Sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.
Section 25 of the Act reads as follows:
25. Provision where delay in presentation is unavoidable: (1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made in India is not, presented for registration till after the expiration of the time herein before prescribed in that behalf, the Registrar, in cases where the delay in possession does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
Section 77 of the Act reads as follows:
77. Suit in case of order of refusal by Registrar: (1) Where the Registrar refuses to order the document to be registered under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.
(2) The provisions contained in Sub-sections (2) and (3) of Section 75 shall, mutates mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit.
8. It is an undisputed fact that the petitioner presented the sale deed for registration for the first time on 02-03-1979. The Sub-Registrar did not register the document on the ground that the permission from the Urban Land Ceiling Authority is not enclosed to the sale deed. The document was kept pending for more than two months and ultimately on 28-05-1982, the third respondent passed an order refusing to register the sale deed. Subsequent to the order of the third respondent to register the document, the petitioner filed a suit covered by O.S. No. 1344 of 1984, but the respondents were not parties to the suit. The petitioner is said to have obtained a decree against her vendor directing him to produce permission certificate from the Urban Land Ceiling Authorities and to execute the document. The Appeal covered A.S. No. 51 of 1991 preferred by the vendor of the petitioner was said to be dismissed on 09-12-1997. The vendor delivered a certificate, dated 21-07-2003, to the petitioner and the petitioner once again produced the document for registration along with the no objection certificate along with the application to the second respondent, dated 23-08-2003 mentioning that when the Sub-Registrar refused to register the document, she filed O.A. No. 1344 of 1984 and obtained a decree against her vendor and on production of the permission certificate from the Urban Land Ceiling Authorities, she is representing the document for registration. After representation, the second respondent passed the order, dated 26-08-2003 mentioning that the refusal document No. p273/79 of S.R.O. Khairatabad was presented before him for reconsideration and registration. In the order, the second respondent instructed the petitioner to prefer an Appeal under Section 72 of the Act or make an Application under Section 73 of the Act to the District Registrar, Hyderabad along with a copy of refusal order and original document. When the petitioner made an Application on 22-09-2003 to the District Registrar, the following order was passed on 25-09-2003:
The attention of the party is invited to the subject cited. He is informed that as per the Section 72 of the Indian Registration Act an appeal shall lie against an order of Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such sub Registrar is subordinate, if presented to such Registrar within 30 days from the date of the order and the Registrar may reverse such order.
In view of the above your appeal has been deferred.
Being aggrieved by the said order, dated 25-09-2003, the petitioner preferred W.P. No. 22868 of 2003 by contending that the Registrar is under an obligation to find whether the document is registerable or not and that if a document, which is presented for registration, is returned and later it is directed to be registered it would relate back to the date of earlier presentation.
9. The Court observed that the order of the Sub-Registrar refusing to register the document cannot be faulted for the reason that the petitioner has not complied with the statutory obligation of production of the ULC certificate. The registering authority is under the obligation to receive the said document along with the ULC certificate and pass appropriate orders whether the document submitted for registration will amount to fresh submission and whether it is registerable with the same stamp duty. It is always open for the registering authority to insist for payment of stamp duty on the present market value if he decides that the document submitted for registration shall be treated as having been submitted only in August, 2003. In pursuance of the said order of the High Court, the petitioner presented an Appeal before the Registrar under Section 72 of the Act and the Registrar passed an order, dated 22-01-2004, which reads as follows:
Smt. K. Kadambari W/o G. Kesavulu is hereby informed that, as told by the Sub Registrar, SanjeevaReddy Nagar, the document was not refused but the Sub Registrar, has only issued a notice to the party asking him to pay the deficit stamp duty and Registration Fee and Transfer duty calculated as on the date of representation of the document, in question. When he has not refused, the question of appeal does not arise.
Being aggrieved by the said order, the petitioner approached this Court seeking the reliefs as indicated above.
10. Section 23 of the Act envisages that a document shall not be accepted for registration unless it is presented within four months from the date of its execution. Admittedly, the present document was presented within four months from the date of execution. But, it was presented without enclosing the certificate issued by the Urban Land Ceiling Authorities, without which the registration cannot be made, therefore, it can be said that it is not a proper presentation before the Sub-Registrar as required under Section 23 of the Act. Therefore, the Sub-Registrar was right in refusing to register the document without the production of ULC certificate. When the document is presented for registration after four months from the date of execution, the Sub-Registrar has no authority to register the same and under Section 25 of the Act, the Registrar has no jurisdiction to register the document if it is presented after four months without accounting for the delay. If the presentation of the document for registration has not been made within four months, the delay can be condoned under Section 25 of the Act, provided the Registrar is approached within four months i.e., within eight months of the execution of the document. If the Registrar condones the delay, it can be presented for registration. But, if the Registrar is approached after the expiry of the period of eight months of the execution of the document, the Registrar shall have no jurisdiction to condone the delay under Section 25 of the Act.
11. Where a document which requires registration is not presented for registration within the time prescribed, it will not be open to the parties to have it registered in an indirect manner by simply adopting the device of referring to it or making it a part of a later document which could be presented for registration. Even if there is any agreement between the parties for the postponement of the registration after the execution, it cannot be permitted to be enforced, when the time for presentation has expired.
12. The following is the legal position in this regard:
In Shama Charan Das v. Joyenoolah 1885 ILR (9) Calcutta Series 750, the defendants executed a mortgage deed of certain properties in favour of the plaintiff on 10-06-1882. The document was presented for registration on 06-10-1882, but the Sub-Registrar, finding the stamp of one rupee affixed thereon to be insufficient, impounded the document, sending it to the Collector of the district. On 07-11-1882 the Collector passed an order directing the realization of Rs. 2-8 annas as additional stamp duty and Rs. 7 as penalty. This order was duly served on the defendants. The defendants took no steps in compliance of this order and the plaintiff, therefore, on 10-08-1883 paid the money himself. On 23-08-1883, the document was then returned to the Sub-Registrar, but that officer refused to register it on the ground that the executants had not appeared before him within the time allowed for presentation by Sections 23 to 26 of the Act as required by Section 34 of the Act. The plaintiff then unsuccessfully appealed to the Registrar on 07-09-1883 and on 27-09-1883 brought this suit to compel registration.
The Munsif held that the executants had not under Section 34 appeared before the Sub-Registrar within the time allowed for presentation under Sections 23 to 26; that no application for a direction under the proviso of Section 34 had been lodged with the Sub-Registrar; and that therefore the Sub-Registrar could not have registered the document. The Munsif further held that there was nothing in the Registration Act which would allow the time expended in getting the document sufficiently stamped being deducted from the period allowed for registration; and that therefore the plaintiff had not complied with the conditions precedent to the bringing of his suit and accordingly dismissed the suit.
The plaintiff preferred the Appeal to the Subordinate Judge who held that the document, having been insufficiently stamped on its presentation on 06-10-1882, could not, at the time when it came before the Sub-Registrar sufficiently stamped on 23-08-1883 be said to have been presented within the time allowed by the Act; and that no application for a direction having been lodged with the Sub-Registrar as required by Section 34, it could not be said that the plaintiff had done all he was bound to do under the Act before he brought his suit under Section 77 of the Act.
With the above observations, the Subordinate Judge dismissed the Appeal. The plaintiff appealed to the High Court.
The Calcutta High Court held that:
There is no provision, either in the Registration Act or in the Stamp Act, which lays down that where a document is presented for registration insufficiently stamped, such a presentation shall have no effect. The only effect of such a presentation is that the actual registration is delayed.
There is in law no limitation for the actual fact of registration, provided that the requirements of the Act have been complied with in the matters for which a limitation of time is provided.
In Raja Hazari v. Bhagwandas AIR 1928 Nagpur 29, the Nagpur High Court while considering the scope of Sections 23 and 24 of the Registration Act, held as follows:
Execution mentioned in Section 23 is the complete execution of the document, and where a document is executed by several persons the section contemplates registration within four months of the last execution in respect of all previous executions, whether they were within the four months or not. Section 24 merely provides a safeguard for the case of a document never executed at all by one or more of the people by whom it was to have been executed, when each execution is good to the extent of the executant's interest in the subject-matter.
Where out of five expected executants of a document four signed at intervals of four months and the fifth refused to sign and could not be compelled to do so:
Held: the last execution would be the fourth and registration would be time barred four months after it, but within those four months it would be within time against the first three executants also.
In Changan Lal v. Kashiram 1923 Nagpur 76, the Nagpur High Court held that:
Where the object of the agreement to postpone the registration of the deed of lease is obvious enough from the circumstances and scarcely needs specific admission, and is to conceal the actual sivai amdani of the village, and so to reduce the assessment of Land Revenue.
Held, this would defeat the provisions of the Registration Act and probably the Transfer of Property Act and the Stamp Act as well; it was fraudulent in that it attempted to conceal the assets of the village and so to reduce the assessment; it involved injury to all other members of the community in that they would get as Land Revenue less than their proper share of the income of the village; and it was obviously opposed to public policy.
In Maheshwar Dayal v. Neel Kantheshwar Dayal , the Allahabad High Court held that:
If the document had already been presented within four months as provided under Section 23 of Registration Act or in pursuance of an order passed by the Registrar under Section 25 of Registration Act that document if unstamped or insufficiently stamped shall be registered if it bears an endorsement of the Collector under Section 42 (1) of Stamp Act. If the presentation of a document for registration has not been made within four months, the delay can be condoned under Section 25 provided the Registrar is approached within next four months i.e. within eight months of the execution of the document. What is material is that the Registrar should be approached within eight months of the execution of the document. He would naturally take some time and the order may be passed even after the expiry of eight months but if the Registrar condones the delay the document can be presented for registration. But if the Registrar is approached after the expiry of the period of eight months of the execution of the document the Registrar shall have no jurisdiction to condone the delay under Section 25, even if the document bears an endorsement of the Collector under Section 42 (2), Section 42 (2) does not extend the period of limitation beyond that prescribed under Section 23 or Section 25.
In P.A.J. Seetharama Raju v. L.G.G.A. Dept. , the Madras High Court held that:
Where a document which requires registration is not presented for registration within the time prescribed, it will not be open to the parties to have it registered in an indirect manner by simply adopting the device of referring to it or making it a part of a later document which could be presented for registration.
In Daw Nyi Ma v. Ma E Tin AIR 1938 Raggoon 53, the Rangoon High Court, while considering the scope of Section 25 of the Registration Act, held that the Sub-Registrar is not empowered to extend the time beyond the standard four months, which power is only under the Registrar himself under Section 25 of the Registration Act, had no jurisdiction to proceed with the registration of a document, which is already four months old. Where, therefore, a document already four months old is registered by a Sub-Registrar, the registration is bad.
13. In the present case, the petitioner kept quite for a period of two years, after the Sub-Registrar refusing to register the document. In filing the suit and the decree in the said suit is not binding on the respondents to execute the terms of the decree in violation of the provisions of the Act. When the party fails to present a document for registration within four months after the execution, it cannot be registered and if there is any delay in presentation of the document, an application may be made to the Registrar for condonation of the delay and if the Registrar condones the delay, when such application is made within a period of further four months, the registration can be done irrespective of the fact whether the process of registration is done beyond the period of eight months. When once the party fails to present the document within eight months, it cannot be presented at any time subsequently. The petitioner once again presented the document after the expiry of 24 years, which is beyond the scope of Sections 23 and 25 of the Act.
14. In the light of the provisions of Sections 23 and 25 of the Act, which are mandatory in nature and in the light of the legal position as referred above and in the light of the foregoing discussion, I am of the view that the impugned orders passed by the respondents were in accordance with law and they are neither illegal nor arbitrary, therefore, I do not find any grounds to set aside the orders by invoking the extraordinary writ jurisdiction under Article 226 of the Constitution of India.
In the result, the writ petition is dismissed. No order as to costs.