Karnataka High Court
Veerabhadrappa And Anr. vs Jagadishgouda And Ors. on 17 April, 2002
Equivalent citations: ILR2003KAR3042, 2002(5)KARLJ55
Author: R.V. Raveendran
Bench: R.V. Raveendran, K.L. Manjunath
JUDGMENT R.V. Raveendran, J.
1. Appellants herein were respondents 5 and 6 in Jagadishgouda and Anr. v. Vyavasaya Seva Sahakari Sangha Limited, Galagali, Biligi Taluk, Bagalkot District and Ors., 2000(3) Kar. L.J. 152 Respondents 1 and 2 herein were the petitioners, respondents 3 and 4 herein were respondents 1 and 2 and respondents 5 and 6 herein were respondents 3 and 4 in the said writ petitions.
2. Late Chatura Chand Shah (father of respondents 5 and 6) was the owner of Sy. No. 61/1 measuring 7 acres 6 guntas and respondent 6 was the owner of Sy. No. 60/2 measuring 12 acres 8 guntas in Choudapur Village, Biligi Taluk, Bagalkot District. Respondent 6 sold land bearing Sy. No. 60/2 in favour of second appellant under sale deed dated 4-3- 1982 for a consideration of Rs. 25,000/-. Chatura Chand Shah sold land bearing Sy. No. 61/1 to the first appellant under sale deed dated 20-10-1982 for a consideration of Rs. 25,000/-. The Sub-Repscrar, Biligi (fourth respondent), being of the opinion that documents were undervalued, kept them pending by assigning pending number and issued notices dated 30-11-1983 to the appellants informing that the sale deeds in their favour were undervalued and that the correct value was Rs. 1,91,300/-and Rs. 3,16,450/-. The said notices required the first appellant to pay Rs. 18,320/- and the second appellant to pay Rs. 32,070/- as deficit stamp duty and registration charges on the difference in value.
3. The said notices dated 30-11-1983 were challenged by the appellants in W.P. Nos. 5046 and 5047 of 1986. The said writ petitions were allowed by order dated 11-11-1993. This Court quashed the notices and remanded the matter for fresh consideration in the light of the decision in Mokan Shet v. State of Karnataka and Ors., holding that the Registering Officer could not decline to register the documents on the ground of undervaluation. This Court also observed that if the Sub-Registrar was of the view that the properties covered by the sale deeds were undervalued, he ought to have referred to the documents on the basis of which he was of the view that sale deeds v/ere undervalued and thereafter made an appropriate order. The learned Single Judge held that there was nothing to show that Sub-Registrar had reason to believe that properties were not properly valued. The effect of disposing of the said writ petitions in terms of the earlier decision in Mohan Shet's case, supra, was to direct the Sub-Registrar, Biligi to proceed in accordance with law and register the sale deeds in favour of appellants 1 and 2, unless there was any other impediment against the registration.
4. In the meanwhile Chatura Chand Shah died. Respondents 5 and 6 executed two fresh sale deeds dated 7-6-1990 in favour of respondents 1 and 2 respectively purporting to sell the very same lands (that is Sy. Nos. 6171 and 6072) for a consideration of Rs. 90,000.00 and Rs. 1,52,000.00 respectively. According to respondents 1 and 2 (purchasers) and respondents 5 and 6 (vendors), the lands in question were encumbered in favour of third respondent even before the sales in favour of appellants and no title was conveyed under the sale deeds dated 20-10-1982 and 4-3-1982 in favour of appellants and therefore respondents 5 and 6 continued to have valid title to the lands even after executing the sale deeds dated 20-10-1982 and 4-3-1982; and that respondents 5 and 6 sold the said lands under sale deeds dated 7-6-1990 to respondents 1 and 2, after respondents 1 and 2 had discharged the encumbrance in favour of the third respondent. The said sale deeds in favour of respondents 1 and 2 were registered as Document No. 295 of 1990-91 of Book I, Volume 177 at pages 132 to 135 and Document No. 294 of 1990-91 of Book I, Volume 178 at pages 67 to 70 in the Office of the Sub-Registrar, Biligi.
5. When the said sale deeds were executed in favour of respondents 1 and 2, by respondents 5 and 6, the earlier sale deeds dated 20-10-1982 and 4-3-1982 executed in favour of appellants 1 and 2 were pending registration and were the subject-matter of W.P. Nos. 5046 and 5047 of 1986. When W.P. Nos. 5046 and 5047 of 1986 were allowed by order dated 11-11-1993, the legal heirs of Chatura Chand Shah and the sixth respondent (the two vendors) filed W.A. Nos. 1515 and 1516 of 1994 challenging the said order, contending that the documents executed by them in the year 1982 were not sale deeds and that they were executed only as security for the loans obtained by them and therefore the learned Single Judge ought not to have directed registration of the documents. As they were not parties to the writ petitions, they also sought leave to file the said appeals. The Division Bench granted permission to file the appeals but later dismissed the said appeals by order dated 21-10-1997 on the following reasoning:
"The pleas raised by the appellants are beyond the scope of enquiry contemplated under the provisions of the Registration Act. The question as to whether the documents produced before the Court were sale deeds or any other documents cannot be adjudicated in the proceedings requiring registration of the documents. For the grievance projected in the appeals, the appellants are at liberty to sort out the same from other remedies available to them under law. These appeals have no merits and are accordingly dismissed".
6. Thereafter, it is stated that respondents 1 and 2 as also respondent 3 (who claimed to be the secured creditor of Chatur Chand Shah and sixth respondent) filed objections on 20-4-1998 before the Sub-Registrar, Biligi, contending that the sale deeds dated 20-10-1982 and 4-3-1982 were not really sale deeds but were security documents, that the properties covered by those deeds were subsequently sold to respondents 1 and 2 under sale deeds dated 7-6-1990 to discharge the previous encumbrance in favour of third respondent, and therefore the deeds dated 20-10-1982 and 4-3-1982 in favour of appellants 1 and 2 should not be registered. The Sub-Registrar returned the objections with endorsements dated 28-4-1998 stating that it was not possible to stay the registration of the documents having regard to the order of this Court dated 21-10-1997 in W.A. Nos. 1515 and 1516 of 1994 and in view of Rule 145 of the Karnataka Registration Rules, 1965. Thereafter, the Sub-Registrar, Biligi, proceeded to register the sale deeds dated 20-10-1982 and 4-3-1982 in favour of appellants 1 and 2 on 28-4-1998 as Document No. 63 of 1998-99 in Book I, Volume 257 at pages 83 to 85 and Document No. 62 of 1998-99 in Book I, Volume 254 at pages 50 to 52.
7. Feeling aggrieved respondents 1 and 2 filed W.P. Nos. 21974 and 21975 of 1998 and sought quashing of the said endorsement dated 28-4-1998 returning their objections. They also sought a direction to the Sub-Registrar, Biligi, to hold an enquiry in pursuance of the order dated 11-11-1993 in W.P. Nos. 5046 and 5047 of 1986 and a declaration that the sale deeds dated 20-10-1982 and 4-3-1982 executed fay respondents 5 and 6 in favour of appellants are null and void. The learned Single Judge allowed the said writ petitions by order dated 12-10-1999 (Ja-gadishgouda's case, supra) accepting the contention of petitioners therein (respondents 1 and 2 herein) that the sale deeds dated 20-10-1982 and 4-3-1982 in favour of appellants herein were executed as security for loan amount of Rs. 25,000.00 each and no title was intended to be conveyed by way of sale under those deeds in favour of appellants herein. The learned Single Judge held that as registration of the said sale deeds dated 20-10-1982 and 4-3-1982, on 28-4-1998, was subsequent to registration of the sale deeds dated 7-6-1990 in favour of respondents 1 and 2 herein, the sale deeds dated 7-6-1990 will be effective and the sale deeds dated 20-10-1982 and 4-3-1982 cannot be considered as valid sale deeds* As a consequence, the learned Single Judge quashed the endorsement dated 28-4-1998 of the Sub-Registrar on the objections of respondents 1 and 2 and also quashed the registration of the sale deeds dated 20-10-1982 and 4-3-1982 in favour of appellants 1 and 2 and declared that no title in the properties passed to the appellants herein in regard to the lands in question under the said sale deeds.
8. Feeling aggrieved, appellants have filed these writ appeals and sought setting aside the order of the learned Single Judge and dismissal of the writ petitions filed by respondents 1 and 2. On the points urged, the following points arise for consideration:
(i) Whether the action of the Sub-Registrar, Biligi, keeping the registration of the sale deeds dated 20-10-1982 and 4-3-1982 pending, is valid?
(ii) Whether the registration of the said sale deeds on 28-4-1998 relates back to the date of execution, that is 20-10-1982 and 4-3-1982?
(iii) Whether the registration of sale deeds dated 7-6-1990 in favour of respondents (on 7-6-1990 itself) being prior to the date of registration (28-4-1998) of the sale deeds dated 20-10-1982 and 4-3-1982, the sale deeds dated 7-6-1990 will prevail over the earlier sale deeds executed in 19S2?
(iv) Whether the endorsement dated 28-4-1998 of the Sub-Registrar rejecting the objections of respondents 1 and 2 suffers from any infirmity?
(v) Whether the learned Single Judge was justified in recording a finding in a writ proceedings that the sale deeds dated 20-10-1982 and 4-3-1982 were loan documents and not sale deeds?
Re. Point No. (i):
9. When the sale deeds in favour of appellants were executed in the year 1982, Section 45-A of the Karnataka Stamp Act, 1957 ('Act' for short), was inapplicable to Biligi Taluk where the lands are situated. The provisions of Section 45-A was made applicable to Biligi area only from 1-4-1991. This Court in the case of Huleppa Balappa Karoshi v. Sub-Registrar, Chikodi, had occasion to consider the procedure to be adopted by the Sub-Registrar when he is of the view that document is undervalued at a time when Section 45-A of the Karnataka Stamp Act, 1957 was not applicable to the area. This Court held that Sub-Registrar had no power to impound (or postpone registration of) the document on the ground that property covered by the document was undervalued. This Court also held that if stamp duty had been paid on the consideration shown in the document, the Sub-Registrar had no authority to go beyond the recitals and contents of the document to hold that the document was undervalued or that document was not duly stamped. In other words, Sub-Registrar can neither keep the document pending nor impound it on the ground that valuation shown was incorrect, but could only take action under Sections 28 and 61 of the Karnataka Stamp Act. Even after Section 45-A of the Act came into effect, the registration of the document could not be kept pending on the ground of undervaluation as held in Mohan Shet's case, supra. It therefore follows that the Sub-Registrar could not have kept the sale deeds dated 20-10-1982 and 4-3-1982 pending on the ground that the properties sold thereunder were undervalued. Therefore, the notices dated 30-11-1983 holding that documents were undervalued and demanding deficit stamp duty as a condition precedent for registration, were illegal and without jurisdiction. Therefore, when the said notices dated 30-11-1983 were quashed on the ground that the Sub-Registrar had no authority to keep the registration of the sale deeds pending, the Sub-Registrar had no alternative but to register the documents. Further having regard to the order dated 11-11-1993 in W.P. Nos. 5046 and 5047 of 1986, affirmed by the decision of the Division Bench of this Court by order dated 21-10-1997 in W.A. Nos. 1515 and 1516 of 1994, the challenge to the validity of registration of the deeds dated 20-10-1982 and 4-3-1982, by respondents 1 and 2, is without merit.
Re. Point Nos. (ii) and (iii):
10. It is well-settled that when a document is duly presented for registration (within the time prescribed), if its registration is refused or if its registration is kept pending, and thereafter the document is registered either on the direction of the Registrar or competent Court or on the Sub-Registrar satisfying himself that there is no impediment for registration, the registered document will operate, not from the date of actual registration, but from the date when the deed was executed. This principle can be gathered from the provisions of the Registration Act, 1908 (Sections 47 and 75) and several decisions the earliest of which are that of the Madras High Court in the case of Venkatarama Reddi v. Pillati Rama Reddy, ILR 1916(40) Mad. 204 and of the Privy Council in the case of Chhotey Lal v. Collector of Moradabad, AIR 1922 PC 279 : ILR 1922(44) All. 514. A learned Single Judge of this Court in the case of Azeezulla Sheriff alias Anwar Pasha and Ors. v. Bhab-huthimul, 1972(2) Mys. L.J. 408 : AIR 1973 Mys. 276, held thus:
"Sub-section (3) of Section 75, only determines the deemed date of registration in respect of documents compulsorily registered in pursuance of an order made under Section 75(1). Sub-section (3) of Section 75 does not deal with the effect of registration of a document. That topic is dealt with by Section 47 which states that once a document is registered, it shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its -registration. The expression "not from the time of its registration" used in Section 47 makes it clear that the date of registration, whether actual or the deemed date under Section 75(3), has no relevance whatsoever for determining the time from which the registered document operates. Once the document is registered, whether it is on admission of execution under Section 35 or by way of compulsory registration under Part XII of the Act, the provisions of Section 47 are attracted for the purpose of determining the time from which the registered document operates".
This was reiterated in the case of Rathnakar v. H.S. Madhava Rao and Ors., 1990(4) Kar. L.J. 541 : ILR 1991 Kar. 2190 10.1 In Labhu Ram v. Charnu Fauju and Ors., AIR 1929 Lah. 409 : 116(1929) IC 317 a Division Bench of Lahore High Court held thus:
"Registration is merely an act allowing the document to be let in evidence and has nothing to do with the execution of the documents which takes effect from the date of execution and not of registration. . . The registration is an act of the Registrar of an administrative character and any error committed by him may be regarded as an error of procedure covered by Section 87 of the Registration Act. . . The Registration of a deed is not necessarily invalid by reason of a failure on the part of the Registering Officer to comply with the provisions of the Registration Act. . . There is a clear distinction between a defect in procedure that is the fault of the Registering Officer for which the person presenting the document is in no way responsible and a mistake made by such a person in complying with the statutory provisions of the Act. . . ".
(emphasis supplied) 10.2 In Mt. Sardar Begum v. Syed Masoom Shah and Anr., AIR 1945 Pesh. 9 a Division Bench of Peshawar J.C. Court held thus, while referring to the provisions of Registration Act:
"A comparison of Sections 47, 60 and 75 shows that normally a document becomes effective between the parties from the date when it is drawn up (Section 47) but it is taken to be registered only when it is entered in the book (Section 60). In the case of compulsory registration there could have been a doubt as to when the document takes effect between the parties. It was clearing this doubt, this Section 75(3) was enacted. It was made clear that just as any other document, the document compulsorily registered was to operate as a valid effective document between the parties from the date on when it was executed. In other words it was laid down that the provisions of Section 47 applied to cases of compulsory registration. The words "shall take effect" in Section 75(3) must be taken to have the same meaning as the words "shall operate" in Section 47".
10.3 Merely because registration of the two sale deeds in favour of appellants 1 and 2 were kept pending on account of an error committed by the Sub-Registrar or because challenge to the wrong action of the Sub-Registrar was pending in Court for several years, it does not mean that sale deeds dated 20-10-1982 and 4-3-1982 which were validly executed Became invalid or lost their effectiveness or that they became effective only from 28-4- 1998 when they were registered.
11. The learned Single Judge also fell into an error in holding that as the sale deeds in favour of the appellants 1 and 2 though executed in 1982, were registered subsequent to the execution and registration of sale deeds in favour of the respondents 1 and 2 in the year 1990, the earlier sale deeds of 1982 in favour of appellant were not valid. When registration of a document is ordered to be kept pending, or when registration of a document is refused, and subsequently such document is ordered to be registered, such registration takes effect as if the document had been registered when it was first duly presented for registration. That would mean that the registration relates back to the date of execution. The well-settled principle is that if there is a competition between registered documents relating to the same property, the document first in order of time has priority over the other, though the former document may not have been registered until after the latter.
We may refer to the decision of this Court in Azeezulla Sheriffs case, supra, and the decisions of other Courts in Sadei Sahu v. Chandramani Dei and Anr., AIR 1948 Pat. 60 Duraisami Reddi v. Angappa Reddi and Anr., AIR 1946 Mad. 140 Ramaswami Pillai v. Ramasami Naicker and Ors., and Kuldip Singh v. Balwanth Kaur, wherein it is held that in view of Section 47 of the Registration Act, and Section 48 of the Transfer of Property Act, a sale deed executed on an earlier date though registered later, will operate from the date of its execution if it is duly registered and shall take precedence over the sale effected later but registered earlier.
12. The finding of the learned Single Judge that sale deed dated 7-6-1990 in favour of respondents 1 and 2, which were executed long after execution of sale deeds in favour of appellants 1 and 2, but which were registered prior to the registration of the sale deeds dated 20-10-1982 and 4-3-1982, will prevail, and that the sale deeds dated 4-3-1982 and 20-10-1982 are invalid, is contrary to the provisions of Registration Act, 1908 and Transfer of Property Act, 1882 and the settled legal posi tion accepted by all High Courts before which this question arose. The sale deeds dated 20-10-1982 and 4-3-1982 having been duly registered (irrespective of date of registration), relate back to the date of this execution and any subsequent sale deeds executed by the same vendors in regard to the same lands on 7-6-1990 will not convey any title to the subsequent purchasers.
13. We therefore answer point No. (ii) in the affirmative and point No. (iii) in the negative. We however make it clear that the above observations in regard to validity of the sale deeds are made with reference to their execution and registration and will not come in the way of either respondents 1 and 2 and/or respondents 5 and 6 filing or pursuing any suit for appropriate declaration in a Civil Court, if so advised.
Re. Point No. (iv):
14. We will now deal with the validity of the endorsement dated 28-4-1998 made by the Sub-Registrar rejecting the objections to registration. The role played by the Sub-Registrar in registering a document is rather limited. He has no power or authority to examine the rival claims as to whether a sale deed presented for registration is really a sale deed or not, nor is he empowered to grant any declarations in regard to binding nature of documents.
14.1 In S. Sreenivasa Rao v. The Sub-Registrar (Headquarters), Mysore, this Court held that if the provisions of the Registration Act and Rules and other laws are complied with, the Sub-Registrar is bound to register the document and no direction can be issued to the Sub-Registrar not to register the document. It was also held that if any person is interested in contending that the registered document is invalid or illegal for any reason, he has to question the validity before the proper forum in appropriate proceedings.
14.2 In M. Ramakrishna Reddy v. Sub-Registrar, Rajajinagar, Bangalore and Anr., it was held that 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 declarations/clearances required under law) the Sub-Registrar will have to proceed to register the document. Deciding questions of title is in the realm of Courts, and a Sub-Registrar can neither entertain nor decide any question relating to title.
14.3 Rule 145 of the Karnataka Registration Rules, provides thus:
"Protests against registration of documents.--The Registering Officer should not entertain any petition protesting against registration of document. Such petitions, when insisted should be received and returned immediately with an appropriate endorse ment and no record should be kept in the office. Since these petitions are not to be filed, their copies cannot be granted".
15. The documents dated 20-10-1982 and 4-3-1982 were kept pending only on the ground of suspected undervaluation. This Court had already declared that the said sale deeds cannot be kept pending for registration on the ground of undervaluation. In fact there was a direction by this Court to register the deeds dated 20-10-1982 and 4-3-1982 if there was no other impediment. There was no other impediment as it was duly presented. Therefore, the Sub-Registrar was justified in rejecting the objections and proceeding to register the documents on 28-4-1998.
Re. Point No. (v):
16. While the jurisdiction under Article 226 is wide and mere existence of an alternative remedy may not affect the jurisdiction of the High Court, the said jurisdiction will not be exercised for granting declaratory reliefs in regard to immovable properties, involving disputed questions of fact. That should be left to the Civil Courts. In this case we find that merely on the basis of the pleading in the writ proceedings, without any issues or evidence, the learned Single Judge has granted the declaration that the sale deeds dated 20-10-1982 and 4-3-1982 are not really sale deeds, but are documents executed as security for loans of Rs. 25,000.00 and registration of those documents is not therefore valid. We fail to understand how such a declaration can be granted in a writ proceedings in the absence of any evidence. The learned Single Judge has justified the grant of such a declaration by observing that the respondents 1 and 2 herein have stated in the writ petition that the sale deeds dated 20-10-1982 and 4-3-1982 executed in favour of appellants by respondents 5 and 6 were by way of security for loans of Rs. 25,000.00 and respondents 5 and 6 did not intend to transfer absolute title in favour of appellants under the said deeds; that the said averments in the writ petition was not traversed or denied by the appellants; and that therefore the claim of respondents 1 and 2 in the writ petition that the sale deeds were not really sale deeds has to be accepted. We find no basis for recording such a finding in a writ proceedings, for the reasons mentioned below.
Firstly, all that respondents 1 and 2 have stated in their writ petition in regard to the validity of the sale deeds is as follows:
"Though the sale deeds are said to have been executed, they cannot be called as sale deeds, as no satisfactory consideration has been passed between the parties and there was no intention to transfer the title from the vendor to vendee".
The above cannot be construed as a sufficient pleading to hold that the sale deeds in favour of the appellants were not sale deeds or that the sale deeds were null and void. Sufficiency of consideration is not a ground to hold that a conveyance is not valid. There is nothing to show that the value of the lands were higher in 1982. The respondents 1 and 2 could not plead what was the intention of Chatur Chand Shah and respondent 6 while executing the sale deeds dated 20-10-1982 and 4-3- 1982 as they have no personal knowledge about what transpired in 1982 when the said sale deeds were executed in favour of appellants by Chatur Chand Shah and sixth respondent. In fact their locus standi to challenge the validity of earlier sale deeds is itself doubtful.
Secondly, Chatur Chand Shah and respondent 6, who were the vendors under the sale deeds dated 20-10-1982 and 4-3-1982 respectively, appeared before the Sub-Registrar and admitted the execution. They did not object to registration on the ground that they were not really sale deeds. The Sub-Registrar kept the registration of the sale deeds pending not because there was any doubt about the nature of document, but on a wrong premise that the properties were undervalued.
Thirdly, in the statement of objections filed by appellants, to the writ petitions, the main thrust of their objections was in regard to the validity of the sale deeds with reference to the registration. Failure to specifically traverse a vague averment in the petition that the sale deeds in favour of the appellants cannot be called as 'sale deeds' is not of much relevance, particularly, when they have asserted that they are the owners in possession of the lands in question, having purchased them under the sale deeds dated 20-10-1982 and 4-3-1982 and the lands were transferred to their names in the Revenue Records and that they have been in possession of the lands right from the year 1982 when they purchased the lands.
17. We therefore, allow these appeals and set aside the order dated 12- 10-1999 of the learned Single Judge in Jagadishgouda's case, supra. The said writ petitions (W.P. Nos. 21974 and 21975 of 1998) are dismissed. This order will not come in the way of any of the parties approaching the Civil Court for any relief to which they may be entitled in accordance with law.