Radha Swami Satsang Sabha, Dayalhagh Agra v. District Registrar, Agra
1984-03-29
R.B.LAL
body1984
DigiLaw.ai
JUDGMENT R. B. Lal, J. 1. BY this writ petition u/Article 226 of the Constitution the petitioners pray for quashing the order of the District Registrar, Agra dated 9-1-1978 and the order of the Sub-Registrar dated 31-8-1977 and for issue of a writ of mandamus directing the respondents to register the deed of assignment dated 20th August, 1977. 2. THE facts leading to this writ petition are these : THE Radhaswami Satsang Sabha, petitioner no. 1 (briefly the Sabha) owns some property (houses and a shop) situate in Jaganpur within the urban agg'omeration of Agra. This property was in occupation of one Chandra Bhan. THE Sabha filed suit no. 235 of 1968 in the court of Civil Judge, Agra, for recovery of possession over the said property after ejectment of Chandra Bhan. THE suit was decreed for the relief of possession and recovery of damages for use and occupation on 1-8-1974. THEreafter Smt. Asha Rani, petitioner no. 2, offered to purchase the said decree for a consideration of Rs. 6000/-, and a deed of assignment was executed on 20-8-1977. Tne Sub Registrar refused to register the deed of assignment unless the permission of the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (briefly the Act) was obtained. Against this order of the Sub-Registrar, the present petitioners filed an appeal before the District Registrar Agra under section 72 of the Indian Registration Act. THE District Registrar also held that obtaining the permission of the Competent Authority under the provisions of the Act, was necessary. The orders of the Sub Registrar and the District Registrar have been challenged in this writ petition. 3. I have heard learned counsel for the parties. 4. A non-testamentary instrument transferring or assigning any decree of a court when such decree purports or operates to create any right, title or interest in immovable property, is compulsorily registrable under clause (e) of sub-section (1) of Section 17 of the Indian Registration Act. The decree obtained by the Sabha in suit no. 235 of 1968 on 1-8-1974 is a decree falling within the four corners of clause (e) and, therefore, it is compulsorily registerable.
The decree obtained by the Sabha in suit no. 235 of 1968 on 1-8-1974 is a decree falling within the four corners of clause (e) and, therefore, it is compulsorily registerable. This legal position has not been disputed by the learned counsel for the petitioners The Sub-Registrar did not refuse to register the deed of assignment on account of non compliance with any provision of the Registration Act; he refused to register the said deed, which is compulsorily registerable under the Registration Act, in view of the provisions contained in section 28 of the Act. This section enjoins on a registering officer not to register documents of certain categories unless the transferor produces before him permission in writing of the Competent Authority for such transfer. Section 28 clause (b) and sub-section (1) of Section 27 of the Act are relevant in this connection and their relevant portions read thus : " 28. Regulation of registration of documents in certain cases; Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of clauses (a) to (e) of sub-section (1) of Section 17 of the Registration Act, 1908 (16 of 1908), purports to transfer by way of sale, mortgage, gift, lease or otherwise any land, or any building (including any portion thereof)- (a)......... (b) in the case of transfer referred to in section 27 no registering officer appointed under that Act shall register any such document unless the transferor produces before such registering officer the permission in writing of the competent authority for such transfer or satisfies the registering officer that the period of sixty days referred to in sub-section (4) of that Section has lapsed. "27.
"27. Prohibition of transfer of urban property-(1) Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of sub section (3) of Section 5 and sub section (4) of section 10, no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years or otherwise, any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of ten years of such commencement or from the date of which the building is constructed, whichever is later, except with the previous permission in writing of the competent authority." The question which arises for consideration in this writ petition, therefore, is whether the deed of assignment of the decree is a transfer for purposes of section 27 (1) and Section 28, clause (b) of the Act. 5. FIRST, the effect of the deed of assignment of the decree may be examined. The copy of the deed is Annexure I to the writ petition. Paragraph 6 of this deed of assignment is important and reads thus : "That, the vendee shall have a right to execute the said decree and realise the fruits thereof or to compromise or to do whatever the law authorises her to do as the owner of the decree as the Decree Holder just as the Vendor could have done itself." 6. THIS deed is silent as to what would happen to the property after the vendee obtains possession over it in execution of the decree. The terms of paragraph 6 quoted above are very wide. These will enable the vendee to remain in possession of the property and enjoy the same for an -indefinite period, even permanently, without payment of any further consideration, premium or rent. She (vendee) will also have power to deal with the property as she likes. Thus, it can reasonably be said that in the garb of assignment of the decree, it is a transfer of all rights and interests in the property covered by the decree, to the vendee. It is a virtual sale of the property without saying so in so many words. Now section 27 (1) of the Act may be considered.
Thus, it can reasonably be said that in the garb of assignment of the decree, it is a transfer of all rights and interests in the property covered by the decree, to the vendee. It is a virtual sale of the property without saying so in so many words. Now section 27 (1) of the Act may be considered. Important words used in this sub section are: 'No person shall transfer by way of sale...or otherwise any urban or urbanisable land with a building.' The term 'transfer' has been defined in section 5 of the Transfer of Property Act with reference to the word convey. This word (convey) has been used in a wider sense to include any form of assurance. The term transfer should, therefore, be taken in a wider sense. Term 'otherwise' too should be taken to have wider amplitude. The use of this term indicates that the Legislature intended to cover all kinds of conveyance of property involving urban or urbanisable land with building thereon. Since it was not possible to enumerate all types of transfer of such property, which human ingenuity could invent, words of wide amplitude were employed so that all transfers may be within the sweep of the provisions of section 27 (1) and section 28 of the Act. 7. IN the opening sentences of section 28, inter alia the important words used are : "Where any document...purports to transfer by way of sale...or otherwise". The terms 'transfer' and 'otherwise' have already been considered above in connection with sub section (1) of section 27 of the Act. The word 'purports' in section 28 is also significant and needs consideration. IN Azimunnissa v. The Deputy Custodian E. P., AIR 2961 SC 365, the Supreme Court while considering the meaning of the word 'purport' observed thus : "The word 'purport' has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import." IN Stroud's Judicial Dictionary one meaning of the word 'purports' is 'has the effect of. IN Chamber's dictionary meaning of the word 'purport' are given as: "To give out as its meaning; to convey to the mind, to seem, claim, profess (to mean, be, etc.)". IN my view the word 'purports' in section 28 of the Act should be taken to mean 'has the effect of.
IN Chamber's dictionary meaning of the word 'purport' are given as: "To give out as its meaning; to convey to the mind, to seem, claim, profess (to mean, be, etc.)". IN my view the word 'purports' in section 28 of the Act should be taken to mean 'has the effect of. Thus, if a document compulsorily registrable under clauses (a) to (e) of sub-section (1) of section 17 of the Registration Act, has the effect of 'otherwise transferring' the property of the kind mentioned in section 27 (1), it will fall within the ambit of section 28 clause (b). 8. THE deed of assignment, though clothed to appear prima facie as an innocuous transfer of the decree, in substance, has the effect of transferring the immoveable property to the vendee. It is not in dispute that the property covered by the decree is situate within the urban agglomeration of Agra. Hence, my view is that the deed of assignment of the decree is squarely covered under the provisions of section 27 (1) and section 28 clause (b) of the Act. Here it may be pointed out that the petitioners have not taken up the stand that section 27 (1) of the Act has no application to the instant case, because the total land held by the Sabha is within the ceiling limit applicable to it under the provisions of the Act. 9. THE learned counsel for the petitioners has urged that a decree is not immoveable property, and therefore, its assignment could not amount to transfer of immoveable property. It is not at all material that the decree creates a right to or interest in immoveable property. In support of this submission the learned counsel has placed reliance on the decisions Abdul Majid v. Mohammad Faizullah, (1890) 13 Alld. 89 (DB) and Mumtaz v. Shriram, (1913) 35 Alld. 524. THE question for consideration in these cases was whether assignment of a decree relating to immoveable property required registration under the Registration Act. This Court took the view that decree could in no sense be regarded as immoveable property and, therefore, assignment was not of immoveable property, but of the decree itself and the deed of assignment did not require registration. A contrary view was taken by the Bombay High Court which held that the assignment created right in immoveable property and, therefore, the deed was compulsorily registerable.
A contrary view was taken by the Bombay High Court which held that the assignment created right in immoveable property and, therefore, the deed was compulsorily registerable. THE Legislature accepted the view of the Bombay High Court and added clause (e) to sub-section (1) of section 17 of the Registration Act (Act no. XVI of 1908) by the amending Act no. XXI of 1929. In view of this amendment, an assignment became compulsorily registerable. THE question whether a decree is or is not immoveable property should be viewed in the light of this legislative history. So far as the present case is concerned, the question as to what is the effect of the deed of assignment of the decree has to be considered and determined in the light of the provisions of sections 27 (1) and 28 (b) of the Act. That aspect has been discussed earlier. For these reasons this submission of the learned counsel cannot help the petitioners. 10. IN view of the foregoing discussion, I am clearly of the view that the Registering Officer was justified in insisting on compliance with the provisions of clause (b) of section 28 of the Act. The impugned orders do not suffer from any error of law. In the result this writ petition has no merit and is accordingly dismissed with costs. Petition dismissed.