Rajasthan High Court - Jaipur
Smt. Kishni Devi vs The State Of Rajasthan And Ors. on 11 September, 1990
Equivalent citations: AIR1992RAJ24, 1990(2)WLN102, 1990WLN(UC)351
ORDER Milap Chandra, J.
1. This writ petition has been filed for directing the Sub-Registrar, Jodhpur (respondent No. 2) to register the sale-deed dated May 15, 1987 (Annexure-2). The facts of the case giving rise to this writ petition may be summarised thus.
2. The vendors Parasmal and Sardarmal' Kankaria, Queens Park, Calcutta agreed to : sell their small piece of land measuring 57 sq. meters situated near Isolation Hospital, Jodhpur for Rs. 500/- to the petitioner. On May 15, 1987 the holder of their general Power of Attorney, Rajesh Lodha, executed the sale-deed Annexure-2 on requisite stamps in favour of the petitioner. On July 14, 1987, he presented it before the Sub-Registrar, Jodhpur for its registration and deposited the requisite registration charges through the receipt Annexure-1. The Sub-Registrar summoned the executant (Rajesh Lodha) for September 15, 1987, he appeared before him and admitted the execution of the sale-deed Annexure 2. The Sub-Registrar completed all the formalities required under Sections 34, 35,58 and 59 of the Registration Act (hereinafter to be called 'the Act). On March 31, 1987 the executant had given a notice under Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 to the Competent Authority intimating about the said proposed sale. It did not exercise option to purchase the said land as provided under Section 26(2) of the aforesaid Act. The Sub-Registrar did not register the sale-deed and kept it pending. Writ Petition No. 1381/88 was filed. On August 22, 1988, the Court directed the Sub-Registrar to decide the question of registration of the said sale-deed within a period of 10 days. In compliance thereof, the Sub-Registrar passed order Annexure 4 on August 30,1988 refusing the registration of the document for want of clarification from the Urban Improvement Trust, Jodhpur. An appeal was filed against his order before the District Registrar, Jodhpur (respondent No. 3). He rejected it by his order dated December 5, 1988 (Annexure 5) on the grounds that it is the duty of registering authority to see that the orders of the Government issued from time to time are complied with, the provisions of the Act are not infringed, the Power of Attorney execut-
ed by the Venders in favour of Rajesh Lodha has been cancelled by May 16, 1987 and he had no authority to present the sale deed for its registration or admitting its execution.
3. Despite seeking several adjournments for filing reply, it has not been filed by any. respondent. On January9,1989, Smt. Sudesh Kakkar moved an application for being impleaded as a party on the ground that she is in actual and physical possession of the land which has been sold through the sale deed Annexure 2. The same day the application was dismissed by this Court. On August 22, 1990, she moved another application for being impleaded as an interven or.
4. It is contended by the learned counsel for the petitioner that the Sub-Registrar could not refuse the registration of the sale deed Annexure 2 after completing all necessary formalities required under Sections 34, 35, 58 and 59 of the Act. He also contended that the appeal has also been dismissed by the Registrar on untenable grounds, not permissible under the Act. He also contended that the Registering authority is not concerned whether the vendor had a valid title to transfer it or the holder of power of attorney continues to hold such a power. He relied upon the provisions of Sections 52, 58 and 71 of the Act, Rules 39 and 105, Rajasthan Registration Rules, 1955 (hereinafter to be called 'the Rules') and J.D. Pathak v. B.B. Barot, AIR 1982 Guj 317.
5. In reply, the learned Government Advocate and the learned counsel for the applicant Smt. Sudesh Kakkar tried their best to support the orders of the Sub-Registrar, Jodhpur arid also of the Registrar, Jodhpur. They relied upon Smt. Gomati v. Rameshwar Das, 1971 RLW 1 : (AIR 1971 Raj 211) (FB).
6. Admittedly, sale deed whose copy is Annexure 2 was executed on May 15,1987 by Rajesh Lodha, holder of general power of attorney, for and on behalf of the vendors Parasmal and Sardarmal in favour of the petitioner Smt. Kishni Devi it was presented before the Sub-Registrar, Jodhpur for registration on July 14, 1987 by the Petitioner, the execution Rajesh Lodha was summoned by the Sub-Registrar, Jodhpur for September 14, 1987, he duly appeared before him and he admitted its execution. It is further clear from a perusal of the photostat copy of Annexure 2 and also the original sale deed shown during the arguments by the learned counsel for the petitioner that all necessary formalities required under Sections 52, 58 and 59 of the Act were complied with. Despite them, the Sub-Registrar, Jodhpur refused its registration by its order dated August 30, 1988 on the ground that the Competent Officer under the Urban Land (Ceiling and Regulation) Act, 1975 has written to him that the sale deeds be registered only after making an enquiry from the Secretary, Urban Improvement Trust, Jodhpur and no report of inquiry has so far been received from the latter. The petitioner filed an appeal under Section 72 of the Act before the Registrar (Additional Collector), Jodhpur. After hearing the parties, the appeal was dismissed by him by his order dated December 5, 1988 (Annexure 5). The relevant portions of his order run as under:--
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7. It is clear from a perusal of the various provisions of the Act that the powers of the Sub-Registrar and Registrar have been clearly defined and demarcated by the Act. The Act authorises the Sub-Registrar to refuse to register a document if it is not properly executed or presented or the subject matter of the document lay beyond the territorial jurisdiction of the Registrar or Sub-Registrar, as the case may be. The Sub-Registrar can refuse to register a document under Section 21 of the Act, if it does not contain the description of the immovable property sufficient to identify the same; under Section 23, if a document is not presented within 4 months of the day of its execution; under Section 28, if the document is presented for registration in the office of the Sub- Registrar within whose sub-district the whole or some portion of the property is not situated; under Section 32, if the document so registered is not presented by the person executing it or claiming under the same or by representative or assign of such person; under Section 35, if the Sub-Registrar is not satisfied about the identity of the person/persons they represented themselves to be, or such a person or persons do not admit the execution of the document, or a person or such persons appear to be minor or lunatic or idiot or if the person by whom the document purports to be executed is dead and his representatives or assigns deny its execution.
8. Rule 39, Rajasthan Registration Rules, 1955 runs as under:--
"39. Registering Officers not concerned with validity of documents.-- Registering Officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration and that it would be wrong for them to refuse to register on any such grounds as under .-
(1) that the executant was dealing with property not belonging to him;
(2) that the instrument infringed the rights of third persons not parties to the transaction;
(3) that the transaction was fraudulent or opposed to public policy;
(4) that the executant had not agreed to certain conditions of the document;
(5) that the executant was not acquainted with the conditions of the document;
(6) that the executant declared that he had been deceived into executing; and (7) that the executant is blind and cannot count.
These and such like are matters for decision, if necessary, by competent courts of law, and registering officers, as such, have nothing to do with them. If the document be presented in a proper manner, by a competent person, at the proper office, within the time allowed by law, and if the registering officer be satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effects. But the registering officer shall make a note of such objections of the kinds mentioned in grounds (1) to (7) above, as may be brought to his notice in the endorsement required by Section 58."
Rule 42 of the Rules said as follows :--
"42. Registration to be completed necessarily .-
(1) If the executant appears and admits execution and his identity is established, the registration should be completed even though one or both of the parties may ...after this stage, desire to withdraw the document from registration. If after admission of execution the executant refuses or neglects to sign the endorsement, the registering officer should note this refusal as prescribed in Section 58 of the Act.
(2) If after admission of execution and the necessary identification of the parties, the presenter (irrespective of the executant's action) refuses to proceed or 'to sign the endorsement, the registration should never the less be completed and a note of the refusal to sign endorsed 'on the document. The document, if not claimed, should be kept for one month under Rule 22 and then sent to the District Registrar."
9. The Sub-Registrar and the Registrar are the creation of the statute and they draw their authority there from. The powers and duties are defined under the Act and Rules. Their statutory functions could not be curtailed by any executive instructions issued by the State Government or any authority. The Sub-Registrar could not refuse to register the sale-deed on the ground that inquiry report had not been received from the Secretary, Urban Improvement Trust, Jodhpur.
10. The Registrar sustained the order of the refusal of the registration also on the ground that the holder of general power-of-attorney Rajesh Lodha ceased to be so as his authority was withdrawn by the vendors Parasmal Sardarmal prior to his appearance before the Sub-Registrar, Jodhpur in compliance of his summons. Admittedly, the sale deed was not executed by the vendors parasmal and Sardarmal, it was executed by Rajesh Lodha on their behalf as holder, of general power of attorney and it was presented before the Sub-Registrar for registration by the vendee Smt. Kishni Devi petitioner. According to Rule 39 of the Rules, the Registrar was not concerned whether the Authority executed in favour of Rajesh Lodha by the venders Parasmal and Sardarmal continued till July 15, 1988 or not. It is Well settled law that where a person holds a power of attorney authorising him to execute the document on behalf of his principle and he executes the document, he is treated as the executant of the document for the purpose of registrtion. Production of any power of attorney as required under Section 33 of the Act is not required. Reference of Goswami Malti Vahuji Maharaj v. Purushottamlal, AIR 1984 Cal 297, may be made here. Admittedly, the saledeed was executed by Rajesh Lodha on May 15, 1987 and the general power-of-attorney executed in his favour by Parasmal and Sardarmal is said to have been withdrawn by getting their notice of revocation published in 'Rajasthan Patrika' of May 16, 1987. Thus the sale-deed was executed by Rajesh Lodha prior to the revocation of his authority to execute it. Section 204, Contract Act runs as under:
"204. The principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regards such acts and obligations as arise from acts already done in the agency."
When Rajesh Lodha had executed the sale-deed, he was fully competent to appear before the Sub-Registrar as its executant and also as an authorised agent of the said vendors. It is clear from the provisions of Sec. 47 of the Act that a registered document operates from the date of its execution and not from the date of its registration.
Reference of Nand Ballabh Gurnami v. Smt. Maqbool Begum, 1981 Allahabad Rent Cases 516 (SC) may be made here. To say the least, it appears that the Registrar and the Sub-Registrar were ignorant of the aforesaid provisions of the Registration Act and the above quoted Rules, otherwise they would not have refused the registration of the said sale-deed. The registration of the sale-deed could not be refused on the ground mentioned in their orders. Reference of J.D. Pathak v. V.B. Barat, AIR 1982 Gujrat 317, Kailash and Ors v. Sub-Registrar of Assurances Indore and another, AIR 1985 MP 12 and Krishna Gopal Kataria and another v. State of Punjab and others, AIR 1986 P & H 328 may be made here. As such the writ petition deserves to be accepted.
11. Consequently, the writ petition is allowed with costs which are assessed at Rs. 1,000/-. The orders of the Sub-Registrar, Jodhpur (Annx. 4) and of the Registrar, Jodhpur (Ann. 5) are set aside.
12. The Sub-Registrar, Jodhpur is directed to give necessary certificate of registration on the sale-deed together with number and pages of book in which it is copied out and return it to the petitioner as required under Sections 60 and 61 of the Registration Act, within three months of its representation before him.