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1994 Supreme(HP) 10

1994 2 CurLJ 82 ; 1994 2 ShimLC 48

High Court Of Himachal Pradesh

DEVINDER GUPTA,LOKESHWAR SINGH PANTA
SURINDRA SOOD - Appellant
Versus
STATE - Respondent
Civil Writ Petition No. 1717 of 1993
Decided On : 01/11/1994

Subject: Registration of Documents - Statutory Obligations of

Registering Officers

Registration Act, 1908 - Duties of Registering Officers - Endorsements on

Documents - Refusal of Registration - Appeal against Refusal -
Compulsory Registration - Object and Purpose of Registration Act - Land
Definition under Tenancy Act - Power of Superintendence and Control

Act Referred :
ANDHRA PRADESH RULES FRAMED UNDER REGISTRATION
ACT : S.68, S.69
HIMACHAL PRADESH TENANCY AND LAND REFORMS ACT :
S.118

REGISTRATION ACT, 1908 - Section 52 - Registration of a deed of

conveyance - Petitioner executed a deed of conveyance transferring and
conveying her right, title and interest in relation to property alongwith
1/3rd share in the land on which the aforesaid property was built in
favour of her son and presented the same for registration but
respondents failed to act in accordance with the provisions of Act -
Held, Section 52 enumerates the duties of registering officers, when the
documents is presented for registration Respondents No.2 and 3 not
only failed to discharge their statutory obligation enjoined upon them
under the provisions of the Act but also failed to take an independent
decision in the matter as required by the Act - Property transferred
was also not land as defined in Section 118 of H.P. Tenancy and land
Reforms Act Respondent No. 3 directed to admit for registration the
deed of conveyance - Petition allowed.

Cases Referred:
(1) AIR 1919 PC 79, , - Referred
(2) AIR 1921 PC 112. - Referred

Advocates Appeared:
For the petitioners) : Mr. R. L. Sood , Advocate. For the respondent(s):
Pt. Om Parkash , Additional Advocate General.

JUDGMENT

Devinder Gupta, J.—Petitioner has made a grievance in the instant writ

petition against respondents 2 and 3 in having failed to act in accordance
with the provisions of Registration Act, 1908 (hereinafter called as the Act).

2. It is stated that a deed of conveyance was executed by the petitioner,

transferring and conveying her right, title and interest in relation to
property, namely, basement of the house known as Triveni, Shimla, along-
with l/3rd share in the land on which the aforesaid property is built, situate
within Station Ward Bara Shimla, in favour of her son Ashok Sood, on 27th
October, 1993. It was presented for registration before respondent No. 3, so
as to enable the said respondent to register the same under the provisions of
the Act. It is also stated that respondent No. 3, after obtaining signature of
the petitioner on the back of first page of the deed of conveyance, apprised
the petitioner that the document would be registered in due course, after
seeking approval/instructions from his superiors, namely, respondent No. 2
and when respondent No. 2, was approached, both respondents 2 and 3
insisted upon the petitioner that it would be appropriate for the petitioner
and her son to seek the requisite permission of the State Government for
transfer of the property, in accordance with the provisions of section 118 of
the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No. 8 of
1974) (hereinafter called as the Tenancy’ ‘Act). Despite the petitioners
informing them that no such permission was required, since it was neither
land within the ambit of section 118 of the Tenancy Act, nor the transfer
was in favour of non-agriculturist, since the transferee was the vendors son,
no such permission was required, respondents 2 and 3 failed to discharge
their statutory obligation under the provisions of the Act. It is also stated in
the petition that both the respondents were apprised of the judgment of this
Court in R.F.A. 88 of 1991. Nirmal Singh v. Randhir Sharma, decided on
6th July, 1993 but they instead of acting in accordance with law have failed
to discharge their statutory obligation. Consequently, a direction is sought
against the respondents for registering the document, copy of which is
Annexure P-I.

3. Respondents were called upon to file the reply. Reply has been filed on
behalf of the respondents on the affidavit of Mr. P. C. Pharka, Registrar
(Collector), Shimla District. In the reply it is not disputed that the deed of
conveyance (copy Annexure P-I) was presented for registration before
respondent No. 3 and also that a copy of the judgment in R.F.A. 88/91, was
also cited by the petitioner, but the petitioner was informed that clarification
and guidance has been sought by respondents 2 and 3 from the Inspector
General of Registration, Himachal Pradesh and from the Government of
Himachal Pradesh (Revenue Department) and final decision with regard to
that was still awaited. It is not averred that for this reason the document has
not been registered.

4. The contents of the reply makes the position clear and leaves no manner
of doubt that both respondents 2 and 3 have not only failed to discharge
their statutory obligation enjoined upon them under the provisions of the
Act but also failed to take an independent decision in the matter. The Act
enjoins upon a duty upon the Sub-Registrar or Registrar appointed under
the Act to exercise statutory obligation to register document when presented
for registration, on satisfaction of certain conditions. Section 52 of the Act
enumerates the duties of registering officers, when the document is
presented for registration. Every document is required to be endorsed with
the day, hour and place of presentation alongwith signatures of the person
presenting the document alongwith time of presentation. A receipt is
required to be given to the presenter by the Registering Officer. In case the
document is in a language, other than the one known to the Registering
Officer, a translation thereof is required to be supplied by virtue of section
62 of the Act. Subject to this provision, every document admitted for
registration is required to be copied, without any delay, in an appropriate
book, in accordance with its admission. Section 58 requires various
particulars to be endorsed on every document, admitted for registration,
which are to be signed and dated by the Registering Officer (sec section
59). After doing the needful, certificate of registration is to be endorsed
thereon by the Registering Officer alongwith his signatures, date and seal.
After copying in the margin of register book, such of the endorsements, as
have been made under sections 59 and 60, the document is to be returned to
the presentor or his nominee.

5. While there is a duty to register a document imposed on a Sub-Registrar,

he is equally competent to refuse registration also on valid grounds. In case
of refusal, he is bound to record his reasons on the document (section 71).
The order of Sub-Registrar is appealable to the Registrar under section 72.
On reversal of the order, Sub-Registrar is bound to register the document
when presented to him for this purpose. In certain eventualities, the
Registrar has the power to order registration of documents, when the Sub-
Registrar has refused to register a document on the grounds stated in section
73 of the Act. When a Registrar refuses to order registration of document,
either under section 72 or under section 76, the remedy of the person
aggrieved is to institute a suit in a competent court of civil jurisdiction.

6. In this case neither the Sub-Registrar nor the Registrar have discharged
their statutory obligation of making the required endorsements. It amounts
to neglect in the discharge of duty enjoined on them in accordance with law.
In action on their part has led the petitioner in approaching in this Court.
The original document, which admittedly was presented for registration has
been shown to us. It has been returned without any endorsement, which is
not permissible in law. The reason now assigned in reply is that clarification
or guidance was sought by respondents 2 and 3 from the Inspector General
of Registration and/or from the State Government, in view of the decision
of this Court. As a matter of fact, it appears to us to be a case of total non-
application of mind.

7. The object and purpose of Registration Act, amongst others, is to provide

a method of public registration of documents so as to give information to
the word that such a document has been executed affecting the legal rights
and obligations arising or affecting a particular property. This is to prevent
fraud and forgery and to secure a reliable and complete account of all the
transactions effecting title to the property. This will be evident in case
reference is made to sections 47 to 50 in Part X of the Act A document,
which in law is required to be compulsorily registered, if not registered,
cannot affect any immovable property or does not confer any power to
adopt. It can, by virtue of section 49 of the Act can neither be received in
evidence, nor affect any immovable property or confer power to adopt.
Judicial Committee of the Privy Council in two decisions, viz. Hemanta
Kumari Debt v. Midnapur Zamindari Co., AIR 1919 PC 79 and Tilakdhari
Lailand Khedan Lal and others, AIR 1921 PC 112, highlighted the objects
of the Act. Keeping in view the object by which the Act has been enacted,
the authorities appointed under the Act must discharge their legal
obligations in accordance with law and cannot decline to perform their
functions. The document in this case is required to be compulsorily
registered by virtue of section 17 of the Act.

8. In Nirmal Singhs case {supra), the definition of land within the ambit of
section 118 of the Tenancy Act came to be interpreted wherein it was held
that : "Reading of the three clauses collectively alongwith clause (7) of
section 2 of the Act would make it clear that all types of land situate in
Himachai Pradesh including sites and other structures on such lands,
whether let for agricultural purposes or for the purpose of subservient to
agriculture including orchards, Ghasnis, Banjar lands and private forests are
included within the expression land5, for the purposes of section 118 of the
Act. The only category of land, which is excluded from the operation of
section 118 is that land or area which is constructed but which is not
subservient to agriculture. Even an area, if recorded in revenue records as
Gair-mumkin or Gair-mumkin Makaan, the same would be included in the
expression of land irrespective of the purpose for which the same is
occupied or let out, except a constructed area which is not subservient to
agriculture. In other words, prohibition contained in section 118 of the Act
will not apply to a constructed area which is not subservient to agriculture."
Applying the ratio of the aforesaid judgment, there is no manner of doubt
that the property transferred is not land as defined in Section 118 of the
Tenancy Act. It appears that respondents 2 and 3 further failed to apply their
minds to the facts of the present case, wherein, even if it be presumed that
the property transferred was covered by the definition of land, as contained
in section 118 of the Tenancy Act, even in that case it is a transfer made by
a mother in favour of her son. Since the mother held the property, she will
be deemed to be an agriculturist under the provisions of the Tenancy Act (in
case the property is land), and by virtue of the deeming provisions
contained in section 2, sub-clauses (2), (4) and (5) of the Act, the son would
also be covered by the definition of agriculturist.

9. On the question whether a document is or is not to be registered, the

decision has to be by the office before whom document is presented and not
by his superior officer, as has been done in this case. The power of
superintendence and control, which a Registrar can exercise over Sub-
Registrar is enumerated in section 68 and that of Inspector General is
detailed in Section 69 of the Act. None of these can be said to be controlling
the discretion to be exercised by a Sub-Registrar. As such, the action of
respondents 2 and 3 cannot be sustained in law.

10. In these circumstances, respondents 2 and 3 having failed to discharge

their statutory obligation, there is no option left except to allow the writ
petition, which accordingly is allowed. Respondent No. 3 is directed to
admit for registration the deed of conveyance (copy of which is Annexure
P-I), on the day, when it is presented for registration before him by the
petitioner and then register it in accordance with law. In the facts and
circumstances of the case, respondents 2 and 3 are burdened with the costs
of the petitioner, which are quantified at Rs. 500. Basil copy on usual terms.
Writ petition allowed.