Karnataka High Court
Smt E Susheelamma vs The State Of Karnataka on 16 August, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION Nos.63467-63468/2016(GM-ST/RN)
BETWEEN:
1. SMT.E.SUSHEELAMMA,
W/O SRI.SHIVAMURTHAIAH,
AGED ABOUT 54 YEARS,
R/O. THIPPAREDDY NAGARA,
CHITRADURGA TOWN,
CHITRADURGA-577 501.
2. SMT.E.CHANDRAMATHI,
W/O LATE MURUGESH,
AGED ABOUT 52 YEARS,
R/O.SHIVANANGA (P),
TALYA HOBLI, HOLALKERE TALUK,
CHITRADURGA DISTRICT-577 527.
...PETITIONERS
(BY SRI.NAGARAJA M, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY IT PRINCIPAL SECRETARY,
DEPARTMENT OF STAMPS AND
REGISTRATION,
VIKASA SOUDHA,
DR.AMBEDKAR VEEDHI,
BENGALURU-560 001.
2
2. THE DISTRICT REGISTRAR,
OFFICE OF THE DISTRICT REGISTRAR,
ABOVE MAHESH MOTORS,
MAHENDRA COMPLEX,
RTO OFFICE ROAD,
CHITRADURGA-577501.
3. THE SUB-REGISTRAR,
OFFICE OF THE HIRIYUR SUB-REGISTRAR,
TALUK OFFICE PREMISES,
HIRIYUR TOWN,
CHITRADURGA DISTRICT-577 598.
...RESPONDENTS
(BY SRI.D.R.ANANDEESHWAR, HCGP, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF CONSTITUTION OF
INDIA, PRAYING TO QUASH THE OFFICIAL
MEMORANDUM PASSED BY THE RESPONDENT NO.2
VIDE DATED 23.09.2016 VIDE ANNEXURE-L
CONSEQUENTLY DIRECT THE RESPONDENT NO.3
TO REGISTER THE COURT DECREE DULY
ENGROSSED ON STAMP PAPERS AS PER
ANNEXURES A AND B.
THESE PETITIONS COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
3
ORDER
Though matter is listed for preliminary hearing, by consent of learned counsel appearing for both parties, it is taken up for final disposal.
2. Heard Sri.Nagaraja M, learned counsel appearing for petitioners and learned Government Advocate appearing for respondents and perused the records.
3. Impugned endorsements dated 12.05.2016 and 13.05.2016 issued by respondent No.2, intimating respondent No.3 that compromise decree produced by the petitioners for registration, was beyond the prescribed period of eight months, namely beyond the time prescribed under Section 23 read with Section 25 of the Registration Act 1908 and thereby rejecting the said compromise decree being registered has been called in question.
4. Sri. Anandeeshwara, Learned Government Advocate appearing for the State would justify the issuance of impugned endorsements by contending 4 same is appealable under Section 72 of the Registration Act, 1908 and as such, this Court should decline to exercise extraordinary jurisdiction. In the normal course, this Court would have accepted said contention and relegated the petitioners to avail the available alternate remedy. However, this writ petition has been pending before this Court since last two years. Power vested in this Court under Articles 226 and 227 of Constitution of India can be exercised where a litigant alleges violation of natural justice or there has been challenge to any provision of a statute or order passed by the authority is without jurisdiction. However, in normal course, this Court would have directed the petitioners to approach the alternate forum available, but at the same time, it cannot be gain said by the State that when an alternate remedy is available under law, it would not be appropriate for this Court to exercise writ jurisdiction under Articles 226 and 227 of Constitution of India, particularly where litigation has been pending from quite long and relegating the party 5 to avail alternate remedy would not sub serve the ends of justice. Under these circumstances, this writ petition is taken up on merits and issue involved in this petition is being examined by this Court.
5. Petitioners herein are uterine sisters and there was a suit pending in O.S.No.38/2014 filed by them for partition and separate possession of the suit schedule properties. Said suit came to be compromised between them resulting in a compromise decree being passed. Accordingly decree came to be drawn on 04.12.2015 by the jurisdictional Court as per Annexure-A and B. Though petitioners were are required to present said decree for registration before the Sub Registrar office, namely, respondent No.3 herein within four (4) months as contemplated under Section 23 of the Act, for reasons best known, they did not do so. However, they submitted an application before Tahsildar and sought for mutation of revenue records in respect of properties allotted to them under the compromise decree and at that point of time 6 jurisdictional Tahasildar by endorsements dated 12.05.2016 and 13.05.2016 Annexures-E and F respectively refused to mutate the revenue records to their names on the ground that decree passed by the Civil Court has not been duly registered. Immediately thereafter, petitioners presented said decrees for Registration before respondent No.3 on 30.08.2016 and paid requisite registration fees, stamp duty and other fees as prescribed under the Karnataka Registration Rules, 1965 vide Annexures-G and J. Since said documents were presented belatedly namely, beyond the period of four months from the date of decree, third respondent called upon the petitioners to pay fine of 10 times of registration fee as required under Section 25 of the Registration Act and accordingly, said fine namely ten times the amount of registration fees came to be paid by petitioners as per Annexures-H and K respectively. Said decree being forwarded by 3rd respondent to 2nd respondent, it came to be rejected on the ground that decree has been 7 presented beyond the period of eight months. Hence, petitioners are before this Court.
6. Perusal of records would disclose that undisputedly, within a period of four months from the date of drawing of the decree petitioners had approached the revenue authorities for mutation of revenue records in respect of land allotted to their share under the decree passed in OS.No.38/2014 by submitting a representation on 18.03.2016 as per Annexures-E and D which is also duly acknowledged by the office of Tahasildar, Hiriyur. Thus, intimation required to be reported by a person acquiring the right over property as contemplated under Section 138 of Karnataka Land Revenue Act, 1964 has been complied by the petitioners. Jurisdictional Tahsildar has also not intimated the petitioners immediately thereafter rejecting their request. However, on 12.05.2016 and 13.05.2016 Annexures-E and F has rejected the prayer of petitioners namely, not to mutate the 8 revenue records on the ground that decree in question has not been registered.
7. In the above background, petitioners presented the compromise decree in question for registration before 3rd respondent on 30.08.2016. It is no doubt true that there has been lapse on the part of the petitioners also. However, this Court cannot lose sight of the fact that petitioners herein are uneducated, illiterate rustic ladies coming from rural background and they do not possess any worldly knowledge. Hence, certain latitude has to be extended for accepting the cause for delay on the part of petitioners in presenting decree in question for registration.
Sections 23 and 25 of the Act reads as under:
"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:9
Provided that a copy a 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.
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 36 [India] is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation 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."
A plain reading of Section 23 of Registration Act, 1908 would indicate that subject to provisions contained in Sections 24, 25 and 26 no document other than a Will will be accepted for registration unless presented for that purpose before Registering Officer within four months from the date of its 10 execution. Proviso to Section 23 of the Registration Act, 1908 would indicate that a copy of a decree or order may be presented for registration 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.
8. Reading of Section 25 of the Act would indicate that if owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order is not presented for registration till after expiration of the time prescribed in that behalf, Registering Officer can direct that on payment of a fine not exceeding ten times amount of the proper registration fee to be accepted for registration where such delay in presentation does not exceed four months. In other words, the delay which the Registrar or the Registering Officer is empowered to condone would be upto 8 months. However, in other circumstances, a succour is provided under Section 34 of Registration Act, 1908 and which reads as under; 11
"34. Enquiry before registration by registering officer.--(l) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26:
Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.
(2) Appearances under sub-section (1) may be simultaneous or at different times.
(3) The registering officer shall thereupon--
(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him 12 and alleging that they have executed the document; and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-
Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders."
9. A bare reading of sub-section (1) of Section 34 of the Act would indicate that no document can be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized, appear before registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26. Proviso to sub-section (1) of Section 34 of the Act would indicate that if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four 13 months, can register the document on directing payment of fine not exceeding ten times the amount of proper registration fee, in addition to the fine, if any, payable under Section 25 of the Act. As such, it has to be examined as to whether delay which has been explained by the petitioners in the present case deserves to be accepted by this Court or the matter is required to be remitted back to the respondent No.2 for re-examination.
10. In the instant case, it is not a case of sale deed executed by vendor/s in favour of purchaser/s, but on the other hand, it is a decree which has been passed by competent Civil Court and that too on a compromise arrived at between the parties under Section 23(3) CPC. Pursuant to same, petitioners herein have been allotted a particular share in the joint family property. In order to enjoy the fruits of the decree and under a bonafide impression of that they have been obtained the decree from the Civil Court and being ignorant of the fact that said decrees needs 14 to be registered, did not present it for registration and they have submitted their application on 18.03.2016 along with copy of the decree before the jurisdictional Tahsildar for mutating the revenue records to their names. It is only when the jurisdictional revenue authorities intimated the petitioners on 12.05.2016 and 13.05.2016 (Annexures-E & F) that compromise decree is to be registered, they have woken up from their slumber and approached the jurisdictional Sub- Registrar on 30.08.2016 by presenting the decree for registration. At the cost of repetition, it requires to be noticed that under Section 128 of Karnataka Land Revenue Act, 1964 any person acquiring any right as a holder, occupant owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof shall report orally or in writing, his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition.
11. In the instant case, as already noticed herein above, by way of representation dated 15 18.03.2016, petitioners have submitted intimation to the jurisdictional Tahsildar of the fact of having acquired right, title and interest over the property bearing Sy.No.94/04 to an extent of 1 acre 08 guntas out of 9 acres 11 guntas to the jurisdictional Tahsildar on 18.03.2016. This is not seriously disputed by respondents and it is also evident from Annexures-C and D that the Taluk office has acknowledged the receipt of the said representation. In other words, rigour of Section 23 of Registration Act, 1908 has been complied. Proviso to Section 23 would indicate that copy of decree or order can be presented within four months from the date day on which decree or order was made or where it is appealable within four months from the day on which it becomes final. In the instant case, decree in question has been passed by Prl. Civil Judge on 04.12.2015. Under Article 116 of Schedule to the Limitation Act, 1963, time limit for filing of an appeal to the appellate Court is 30 days and if the same is reckoned from the date of drawing 16 of the decree i.e., 04.12.2015, period prescribed for filing of the appeal ends on 30th day i.e., on 03.01.2016. Time limit of four months prescribed for presenting the decree for registration would commence from 03.01.2016 and would end on 03.05.2016. Further period of four months provided under Section 25 of the Act if reckoned from said day, it would end on 03.09.2016. Decree in question having been presented for registration on 30.08.2016 by the petitioners before 3rd respondent, this would meet the statutory requirement prescribed under Sections 23 and 25 of the Act namely outer limit of 8 months. The Registering Officer in such circumstances will have to satisfy himself about execution of said document as well as delay in presenting the deed or document for registration was genuine. Only then registering officer would be empowered to register the document. In fact, in the instant case, registering officer on being satisfied with these aspects had directed the petitioner to pay ten times registration fee as fine and they have also remitted the same. This is the strong 17 circumstance, which has swayed in the mind of this Court to accept the submission of learned counsel for the petitioners in the instant case. In the instant case, registering officer in the first instance had accepted the delay by receiving fine amount. Ordinarily, a person who acquires title to a property under a document or a deed would not stand to benefit by presenting the said document for registration belatedly. Thus, when substantial justice is pitted against technicalities, necessarily such technicalities will have to kneel before substantial justice. Whether such delay in presentation is not deliberate or intentional would all depends on facts and circumstances of each case and there cannot be any straight jacket formula in that regard so as to hold that Registering Officer has to accept or reject the cause for such delay as a matter of course. Section 34 of the Registration Act, 1908 would disclose that enquiry contemplated thereunder would act as sufficient guard or check to ascertain whether cause shown for producing documents belatedly is 18 sufficiently explained or not and in the event of Registering Officer not being satisfied with the cause shown, can call upon the executant of documents to appear before him in order to admit the execution of document.
12. Hence, cause for delay in not presenting the decree for registration within four (4) months as explained in the instant case deserves to be accepted.
Hence, I proceed to pass the following:
ORDER
i) Writ petitions are hereby allowed.
ii) impugned endorsement dated
23.09.2016 Annexure-L issued by
respondent No.2 in the peculiar
circumstances of the case is hereby quashed.
iii) The Sub-Registrar, Hiriyur town, Chitradurga is hereby directed to accept the compromise decree for registration and shall duly register the 19 same expeditiously at any rate within four weeks from the date of receipt of certified copy of this Order.
iv) However, it is made clear, that Sub-
Registrar would be empowered to collect any additional fee, fine or penalty as prescribed under Registration Act, 1908 and Karnataka Stamp Act of 1957 and rules made there under.
v) Rule made absolute.
vi) No costs
Ordered accordingly.
SD/-
JUDGE
SB