1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (Cr.) No.363 of 2016

Daduram Sidar S/o Late Shri S.P. Sidar, aged about 60 years,
posted at Tahsildar-Saja, Distt. Bemetara, Present Address – Near
Gondwana Bhavan, Ashok Nagar, Sarkanda, Bilaspur, Distt.
Bilaspur (CG)

--- Petitioner
Versus
1. State of Chhattisgarh through Station House Officer,
Dharamjaigarh, Distt. Raigarh (CG)
2. Ramkunwar W/o Late Lalsai Rathiya, aged about 65 years, R/o
Bakalo, P.S. - Kapu, Distt. Raigarh (CG)
3. Birsingh S/o Late Lalsai Rathia, aged about 36 years, R/o Bakalo,
P.S. - Kapu, Distt. Raigarh (CG)
4. Brindavati Rathia W/o Phool Singh, aged about 30 years, R/o
Ghonchal, P.S.-Kapu, Distt. Raigarh (CG)
5. Sanjay Kumar S/o Sahdev Khess, aged about 25 years, R/o
Kamosindand, P.S.-Kapu, Distt. Raigarh (CG)
6. Vijay Kumar S/o Sahdev Khess, aged about 28 years, R/o
Kamosindand, P.S.-Kapu, Distt. Raigarh (CG)
7. State of Chhattisgarh through Additional Secretary Law and
Legislation Works Department, Raipur, Distt. Raipur (CG)
8. Ramisha Bai D/o Anand Ram, aged about 40 years, R/o Village –
Geeta Kalo, P.S. & Tahsil – Dharajaigarh, Distt. Raigarh (CG)

--- Respondents

For Petitioner : Mr.Soumitra Kesharwani, Advocate

For Respondents No.1 & 7: Mr.S.K.Agrawal, Government Advocate
For Respondents No.2 to 6:Mr.Govind Dewangan, Advocate
For Respondent No.8 : None present though served

Hon’ble Shri Justice Sanjay K. Agrawal

Order on Board

20/06/2019

1. The petitioner is duly appointed as Sub-Registrar under Section 6

of the Registration Act, 1908 (hereinafter called as “the Act of

1908”). On 30.4.2008 while discharging his duty as Sub-Registrar

he allowed “sale deed” to be registered under the Act of 1908

executed by Ramkunwar, Birsingh and Brindawati in favour of

Sanjay Khess and Vijay Kumar Khess transferring 1.273 hectares

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of land out of total land 9.366 hectares, which they had at that time.

At that point of time, the subject land which was transferred was

held by four persons including one Anand Ram. On 24.5.2014

respondent No.8-Ramisha Bai, daughter of Anand Ram, one of co-

owners, lodged a complaint to Station House Officer, Police Station

Dharamjaigarh after lapse of six years stating that her father Anand

Ram was also co-owner of subject suit land, which has not been

partitioned. Ramkunwar, Birsingh and Brindawati had sold the suit

land to Sanjay Khess and Vijay Kumar Khess fraudulently as share

has not been given to her, therefore, FIR be registered and

necessary action be taken. On her report, FIR being Crime

No.271/2014 was registered by the Station House Officer, Police

Station Dharamjaigarh on 7.8.2014 and ultimately, petitioner-

Sub-Registrar, sellers and purchasers therein all were charge-

sheeted before the jurisdictional criminal Court on 22.6.2016 for

offence punishable under Sections 420, 120B and 424/34 of the

IPC and the petitioner and other co-accused persons are standing

trial. The petitioner has filed this writ petition questioning the

registration of FIR and consequent charge-sheet filed against him

for the above-stated offences.

2. Mr.Soumitra Kesharwani, learned counsel for the petitioner, would

submit that the petitioner herein/Sub-Registrar, who registered sale

deed in favour of two accused persons, has filed this writ petition

under Article 226 of the Constitution of India seeking quashment of

entire charge-sheet principally on the ground that he has purely

acted in the capacity of Sub-Registrar under the Act of 1908 and he

has duly registered sale deed in accordance with the provisions

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contained in the Act of 1908 and upon making an enquriy under

Section 34 of the Act of 1908 which does not contemplate by

making any enquiry qua title of the person who has executed sale

deed in favour of purchaser under Section 34 (3) of the Act of 1908,

as such, charge-sheet filed on the basis of complaint of respondent

No.8, who is daughter of Anand Ram, one of the co-owners,

deserves to be quashed as allegation made in the FIR/complaint,

even if, they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a

case against the petitioner, therefore, entire prosecution case

deserves to be quashed.

3. On the other hand, Mr.S.K.Agrawal, learned Government Advocate

for respondents No.1 and 7/State would support the prosecution

and would rely upon the provisions contained in Section 38 of the

Act of 1908. He would submit that though the subject suit land,

which was transferred by respondents No.2 to 4 in favour of

respondents No.5 and 6, was also recorded in the name of Anand

Ram, father of respondent No.8, but the petitioner did not make any

enquiry qua absolute title of vendors and deliberately allowed sale

deed to be executed in favour of respondents No.5 & 6 and thereby

committed the aforesaid offences, which has rightly been taken

cognizance of and the petitioner is being prosecuted along with

other co-accused persons i.e. respondents No.2 to 6, which cannot

be taken exception by filing the writ petition, which is strictly in

accordance with law.

4. Mr.Govind Dewangan, learned counsel for respondents No.2 to 6

would support the petitioner and submit that the subject land has
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rightly been transferred by respondents No.2 to 4 in favour of

respondents No.5 and 6.

5. I have heard learned counsel appearing for the parties, considered

their rival submissions made hereinabove and also went through

the records with utmost circumspection.

6. The dispute mainly relates to the suit land, which was sold by

Ramkunwar, Birsingh and Brindawati. Ramkunwar is widow of Lal

Sai, Birsingh is son of Lal Sai and Brindawati is daughter of Lal Sai.

Lal Sai had one more son i.e. Anand Ram, the

complainant/respondent is his daughter and the suit property was

also recorded in the name of Anand Ram along with above three

persons, but the suit property was sold by only three persons

excluding Anand Ram on 30.4.2008, who is said to be missing for

last several years and after six years, complaint was filed by his

daughter i.e. respondent No.8 and upon which, charge-sheet has

been filed and cognizance of above-stated offences have been

taken on that charge-sheet.

7. The question for consideration would be whether the petitioner/Sub-

Registrar while registering sale deed was required to make roving

enquiry upon the absolute title of the vendors qua subject land

before making registration of said sale deed dated 30.4.2008 in

favour of respondents No.5 and 6 ?

8. At this stage, it would be appropriate to notice Section 34 (3) of the

Act of 1908 which states as under:-

“34. Enquiry before registration by registering officer.-

(1) xxx xxx xxx
(2) xxx xxx xxx
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(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 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.”

A careful perusal of the aforesaid provision would show that enquiry

to be made by the registering officer is confined to (i) on the factum

of execution of the document, (ii) the identity of the person who

claims to have executed the document and (iii) the right of the

person who appears as a representative, assignee or agent of the

executant

9. If the registering officer is satisfied about the factum of execution

and the identity of the person executing the document, he becomes

obliged to register the document by virtue of the provisions of

Section 35(1) of the Act of 1908 which states as under:-

“35. Procedure on admission and denial of execution

respectively.- (1) (a) if all the persons executing the
document appear personally before the registering officer
and are personally known to him, or if he be otherwise
satisfied that they are the person they represent
themselves to be, and if they all admit the execution of the
document, or
(b) if in the case of any person appearing by a
representative, assign or agent, such representative,
assign or agent admits the execution, or
(c) if the person executing the document is dead, and his
representative or assign appears before the registering
officer and admits the execution,
the registering officer shall register the document as
directed in sections 58 to 61 inclusive.”

10. The obligation of the registering officer to register a document

presented to him for the purpose, after reaching a subjective

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satisfaction about the identity of the person and the factum of

execution, is made explicitly clear in the last portion of Section

35(1), by the use of the words “the Registering Officer shall register

the document” as directed to Section 58 to 61 of the Act.

11. A conjoint reading of Sections 34 and 35 of the Act of 1908 shows

that the scope of enquiry to be made by the registering officer is

limited by the Act, restricted to the factum of execution and the

identity of person executing document, other than the levy of stamp

duty, collection of registration charges and the completion of

procedural formalities such as attestation etc. There is nothing in

this provision requiring the registering officer to make roving enquiry

about the title of the person with regard to the property which is

being sold by sale deed. In my considered opinion, provisions

contained in Section 34 (1) of the Act of 1908 do not cast any duty

on the registering officer to make an enquiry qua title of the person

transferring the subject land to the transferee/purchaser.

12. The High Court of Madhya Pradesh in the matter of

Ramprasad Yadav v. State of M.P. 1 while dealing with identical

fact situation whether the Sub-Registrar who registered sale deed

without making enquiry as to the title of the person who sold the

land against whom offence under Sections 420, 467, 471 and 109

IPC was registered has clearly held that the registering authority is

not required to make an enquiry qua title, which is subject matter of

the sale land. It was held as under:-

“The provisions of sections 34 and 35 of the Act deal with

the duty of the registering officer. There is nothing therein
to establish that it was the duty of the petitioner to make an
enquiry whether or not the property being sold by the sale
1 2002 MPWN (II) 147
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deed actually belonged to the seller. The provisions of

clause (b) of sub-section 3 of section 34 of the Act provide
that the registering officer shall satisfy himself as to the
identity of the person appearing before him and alleging
that he has executed the documents. There is nothing in
this clause requiring the registering officer to make an
enquiry about the title of the person with regard to the
property being sold by the sale-deed.
A perusal of the record reveals that the petitioner has
been prosecuted on the basis of the opinion given by the
District Public Prosecutor who opined that before
registering the sale-deed, it was the duty of the petitioner
to inspect the revenue record regarding the property which
was being sold by the document presented before him for
registration. The learned counsel for the respondent-State
did not show any provision in the Act except to provision of
clause (b) of sub-section 3 of section 34 of the Act casting
a duty on the registering officer to make an enquiry or to
inspect the revenue records to ascertain the title of the
seller before registering the document. As discussed
above, the provisions of clause (b) of sub-section 3 of
section 34 of the Act do not cast such duty on the
registering officer.”

13. Similarly, in the matter of Bihar Deed Writers Association

and others v. State of Bihar and others 2 the Division Bench of

Patna High Court has clearly held that if a document otherwise

complying with the statutory requirements and formalities is

presented for registration, the registering authority is bound to

register it. It is not for the registering authority to enquire and

ascertain the title to its own satisfaction. Under the provisions of the

T.P. Act, 1882, if the transferor does not have any title or has an

imperfect title to the property, the transferee on transfer will either

get no title or he will get an imperfect title. This will be to the

prejudice of the transferee and is not of any concern to the

registering authority.

14. In the matter of Mary Joyce Foonacha (MRS) v. K.T.

Plantations Pvt. Ltd. and others 3 Their Lordships of the Supreme

2 AIR 1989 PATNA 144
3 1995 Supp (2) SCC 459
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Court have clearly held that under Section 34(3) of the Registration

Act the Sub-Registrar was required to satisfy himself with the due

execution of the document/deed said to have been executed by the

person who was not the person at the time of registering the

document.

15. Thus, the mandate flowing from Section 34 (3) of the Act of

1908 and conspectus of the above-stated authorities would clearly

show that the aforesaid provisions do not empower the registering

authority to make an enquiry on the question of title of the vendor,

before registration of document/sale deed. The registering authority

has only to see whether the document is complying with the

statutory requirements and formalities is presented for registration.

16. The submission of learned Government Advocate for the

State/respondents No.1 to 7 is that since the property was jointly

owned by Anand Ram also whose daughter i.e. respondent No.8

has made complaint, therefore, the property could not have been

allowed to be transferred by the petitioner and registration of sale

deed could have been refused deserves to be noticed herein.

17. In order to answer such plea, it would be appropriate to notice

Section 44 of the Transfer of Property Act, 1882 (hereinafter called

as “TP Act”) which states as under:-

“44. Transfer by one co-owner.—Where one of two or

more co-owners of immoveable property legally competent
in that behalf transfers his share of such property or any
interest therein, the transferee acquires as to such share or
interest, and so far as is necessary to give, effect to the
transfer, the transferor’s right to joint possession or other
common or part enjoyment of the property, and to enforce a
partition of the same, but subject to the conditions and
liabilities affecting at the date of the transfer, the share or
interest so transferred.
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Where the transferee of a share of a dwelling-house

belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle him
to joint possession or other common or part enjoyment of
the house.”

Section 44 of the Act of 1882 provides that one of two or

more co-owners of immoveable property is legally competent to

alienate his share of such property or any interest therein.

18. This Court in the matter of Mst.Nirashi Bai v. Ramlal

Ganda and others 4 while considering the provisions contained in

Section 44 of the Act of 1882 has held that transfer of undivided

share cannot be declared void for want of partition. It was observed

as under:-

“16. From the aforesaid provision, it is apparent that

undivided shares can validly be transferred and transferee
acquires right of share or interest of the transferor. The sale
in favour of defendant No.1/appellant by deceased Sadvo
for consideration and that too by a registered instrument,
cannot be declared void for want of partition or for reasons
stated in the impugned judgment. Accordingly, question
No.2 is answered.”

19. It is well settled law that undivided share of a coparcener can

be a subject-matter of sale/transfer, but possession cannot be

handed over to the vender unless the property is partitioned by

metes and bounds, either by the decree of a court in a partition suit,

or by settlement among the co-shares. (See Hardeo Rai v.

Sakuntala Devi and others 5, Gajara Vishnu Gosavi v. Prakash

Nanasaheb Kamble and others 6, Jai Singh and others v.

Gurmej Singh 7 and Lachhman Singh v. Pritam Chand 8).

4 (2006) AIR (Chhattisgarh) 73

5 (2008) 7 SCC 46
6 (2009) 7 SCC 444
7 (2009) 15 SCC 747
8 AIR 1970 P&H 304
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20. In view of the above-stated analysis and legal position, I do

not have slightest hesitation to hold that the petitioner/Sub-

Registrar while registering sale deed is not required to make an

enquiry under Section 34(3) of the Act of 1908 qua title of vendor of

subject land, which is subject-matter of sale deed before

registration of sale deed and one of two or more co-owners of

immoveable property is legally competent to alienate his share of

such property or any interest therein by the provisions contained in

Section 44 of the TP Act. In view of the matter, registration of sale

deed allowed by the petitioner/Sub-Registrar while acting in the

capacity of Sub-Registrar was in accordance with law and

therefore, if allegations made in the complaint are taken at their

face value and accepted in their entirety, prima-facie do not make

out a case much less the offence under Sections 420, 120B and

424/34 of the IPC qua the petitioner.

21. As a fallout and consequence of the above-stated discussion,

initiation and continuance of criminal case being Criminal Case

No.329/2016 (State of Chhattisgarh v. Ramkunwar and others) qua

the petitioner only namely Daduram Sidar is hereby quashed. It is

made clear that this Court has not stated anything about criminal

case registered and pending against other co-accused persons.

22. The writ petition is allowed to the extent indicated

hereinabove. No cost(s).

Sd/-

(Sanjay K. Agrawal)
Judge
B/-
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HIGH COURT OF CHHATTISGARH AT BILASPUR

Writ Petition (Cr.) No.363 of 2016

Petitioner Daduram Sidar

Versus

Respondents State of Chhattisgarh and others

(English)

Sub-Registrar appointed under Section 6 of the Registration Act,

1908 is not empowered to make roving enquiry qua title of the vendor
under Section 34(3) of the Act of 1908.

(fgUnh)

iathdj.k vf/kfu;e] 1908 dh /kkjk 6 ds varxZr fu;qDr mi iath;d

vf/kfu;e] 1908 dh /kkjk 34¼3½ ds varxZr fodzsrk ds gd dh vfrxkeh tk¡p

djus ds fy;s l'kDr ugha gSA