GOPALAN NAIR v. GOVERNMENT OF KERALA — 1986 DIGILAW 83 (KER)

Judgment :- 1. This appeal is against an order of the Forest Tribunal, Kozhikode dismissing the appellant's application for a declaration that the land described therein has not vested with the Government as per S.3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short'the Vesting Act'). The extent of the land claimed is 17.75 acres in Kavilumpara Village in Badagara taluk. The said land, according to the appellant, forms part of a larger extent of land sold in a court sale in O. S. No. 703 of 1956 of the Munsiff's Court, Nadapuram and a certificate of sale was granted to the appellant as the purchaser in that court sale. The appellant contends that the said area has not vested in the Government for two reasons. The first is that the area has ceased to be forest, as it was brought under cultivation long prior to 10-5-1971 (the appointed date specified for vesting of the forests in the Government as per S.3 (1) of the Vesting Act). The second reason is that, even if it is a private forest on the said date he is entitled to the exemption under S.3 (3) of the Vesting Act. 2. The Forest Tribunal repelled both the said contentions of the appellant and dismissed the appeal. The learned counsel for the appellant has argued that the evidence on record is sufficient to hold that the land has not vested in the Government on account of the exemption under S.3 (3) of the Vesting Act. 3. S.3(1) of the Vesting Act causes the vesting of all forests in the Government with effect on and from the appointed day, i. e.10-5-1971, and this vesting process is subject to sub-sections (2) and (3) of S.3. In this appeal the learned counsel for the appellant did not contend that subsection (2) is applicable and the appellant's claim is confined to the exemption under S.3 (3) of the Vesting Act. 4. Three conditions are to be satisfied to attract the exemption contained in S.3 (3) of the Vesting Act. In this appeal the learned counsel for the appellant did not contend that subsection (2) is applicable and the appellant's claim is confined to the exemption under S.3 (3) of the Vesting Act. 4. Three conditions are to be satisfied to attract the exemption contained in S.3 (3) of the Vesting Act. They are: (1) The land must be private forests held by an owner under a valid registered document of title executed before the appointed day; (2) the owner should have the intention to cultivate the said land and (3) the said land together with the other lands held by him shall not exceed the ceiling limit applicable to him as per S.82 of the Kerala Land Reforms Act, 1963. 5. There is no dispute that the land claimed herein is a private forest. The second condition aforesaid is fulfilled when the appellant expressed his intention to cultivate the land. The Forest Tribunal held that the first and the third conditions are not satisfied in this case. The first condition is not satisfied, according to the Forest Tribunal, because the document (certificate of sale granted by the civil court) under which he got the title, though valid, is not a registered document. The third condition is not fulfilled, according to the Forest Tribunal, because the appellant has not produced the required certificate from Tahsildar and no affidavit of the appellant mentioning about the other areas of land in the possession of himself and members of his family has been filed. 6. The learned counsel for the appellant has contended that a certificate of sale is a registered document as per the provisions of the Registration Act, 1908 (for short'the Act'). S.89(2) of the Act enjoins on the court which grants the certificate of sale of immovable property, to send a copy of such certificate to the registering officer. Once it is so sent, it is incumbent on the registering authority to file the said copy in Book No.1 mentioned in that Act. There is a presumption that the formalities of the Registration Act have been duly complied with in the case of a certificate of sale. Once it is so sent, it is incumbent on the registering authority to file the said copy in Book No.1 mentioned in that Act. There is a presumption that the formalities of the Registration Act have been duly complied with in the case of a certificate of sale. But the contention of the learned Government Pleader is that the mere filing of a copy of the certificate of sale in Book No.1 will not amount to registration of that document and hence such a certificate of sale cannot be treated as a registered document. 7. What is meant by a registered document? The Act is a consolidated law for registration of documents, as can be seen from its preamble. But the word "registration" is not defined in the Act. The ordinary meaning of the words "to register", in a context like this, is "to enter or cause to be entered in a particular register, or registers" (Vide-Concise Oxford Dictionary). Part III of the Act consists of a fasciculus of sections under the title "of registerable documents". The said part contains S.17 to 21. S.17 mentions a list of documents which are compulsorily registerable under the Act, and S.18 enumerates a list of documents which are not compulsorily registerable, but still they can be registered. All documents excluded from the former category are included in the latter category. Some documents are specifically described in S.17 as outside the requirement of compulsory registration. "A certificate of sale of any property sold by public auction by a civil or revenue officer" is mentioned in clause (xii) of S.17 (2) as one of the excluded items from the purview of compulsory registration. Still, that document is included in the category of "registerable documents". So the Act contemplated registration of a certificate of sale, which in other words is a registerable document. S.89 (2) of the Act says that every court granting a certificate of sale of immovable property under the Code of Civil Procedure shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in Book No. 1. 8. Part VI of the Act deals with the presentation of a document for registration and S.32 comes under the said part. 8. Part VI of the Act deals with the presentation of a document for registration and S.32 comes under the said part. S.32 stipulates that "except in the cases mentioned in S.31, 88 and 89", every document to be registered under this Act, whether such registration be compulsory or optional shall be presented at the proper registration office. This means that formalities prescribed in Part VI need not be adhered to in respect of documents coming under S.89. S.51 of the Act contains sufficient indication to support the contention that what the Act envisages therein is another procedure for the registration of certain documents. First sub-section refers to five different Books, each of which is called a "register". Book No.1 is "Register of non-testamentary documents relating to immovable property". The second subsection of S.51 is the most important provision in this context and hence it is quoted here: "(2) In Book I shall be entered or filed all documents or memoranda registered under S.17,18 and 89 which relate to immovable property, and are not wills" (emphasis supplied) The above sub-section is sufficient postulation that the process envisaged in S.89 is one of registration of the documents mentioned therein. The three sub-sections of S.89 deal with three varieties of documents and the officers issuing those documents are bound by the provision to send a copy to the registering officer, who in turn "shall file the copy in Book No. 1". This act of filing a copy of the document mentioned in each of the sub-sections in the register called Book No. 1, is thus a special mode of registration of the document concerned. If the process is not intended to be one of registration of the document, we do not find reason for inclusion of such provisions in the Act, which is a consolidated law for registration of documents. S.53 provides that "all entries in each book shall be numbered in a consecutive series, which shall commence and terminate with the year, a fresh series being commenced at the beginning of each year." 9. A Division Bench of the Madras High Court in Tinnappa v. Murugappa (I. L. R.7 Mad. S.53 provides that "all entries in each book shall be numbered in a consecutive series, which shall commence and terminate with the year, a fresh series being commenced at the beginning of each year." 9. A Division Bench of the Madras High Court in Tinnappa v. Murugappa (I. L. R.7 Mad. 107), held that "the certificate of purchase must be regarded as a registered document, a copy having been transmitted by the Court and filed by the Registrar under S.89 of the Act, that being the method of registration prescribed by the Act for sale of the certificate". But a contrary view was taken by the Karnataka High Court in Samuel v. K. Sitarama (A.I.R.1977 Karnt.158). In that case property covered by a mortgaged decree was brought for sale in execution and the judgment-debtor raised an objection based on S.27 of the Urban Land (Ceiling and Regulation) Act, 1976 which prohibits transfer of any urban land without the previous permission in writing of the competent authority mentioned in that Act. On the basis of that provision a contention was raised that the court has no power to order sale of the property in the absence of permission of the competent authority. The said contention was repelled by the Karnataka High Court holding that "the purchaser at a court sale acquired title by operation of law and at such sales, title is transferred without a registered deed; the court merely issues a Sale Certificate". The decision does not contain any reasoning. The decision in Masarat-Un-Nissa v. Adit Ram (I. L. R.5 All. 568) was rendered by a Bench of five judges of the Allahabad High Court as early as 1884. The subject considered in that decision was the Registration Act III of 1877 which was the Act in force immediately preceding the enactment of the present Act. S.89 and 51 of the old Act are analogous to S.89 and 51 respective of the present Act. The point considered in the above decision was whether a certificate of sale granted by a civil court was compulsorily registerable by S.17 of that Act. In considering that point Stuart, C.J. speaking for himself and Tyrrell, J. observed that "sale certificates are, by the Registration Act subjected to a procedure which is tantamount to registration" . The point considered in the above decision was whether a certificate of sale granted by a civil court was compulsorily registerable by S.17 of that Act. In considering that point Stuart, C.J. speaking for himself and Tyrrell, J. observed that "sale certificates are, by the Registration Act subjected to a procedure which is tantamount to registration" . The other three judges did not express any dissenting opinion to the above observation of Stuart, C.J., although they delivered a separate judgment. The observation of Stuart, C.J., is in support of the view expressed by us. 10. The learned Government Pleader has cited a Full Bench decision of the Andhra Pradesh High Court in Satyanarayana v. Gangamma (A.I.R.1959 A.P. 626). That decision does not mention anything about the registration of a certificate of sale. We do not find anything useful in that decision. 11. The result of the above discussion is that we hold that a certificate of sale, copy of which has been filed in Book No.1 as provided in S.89(2) of the Act is a registered document. 12. We further hold that the appellant has fulfilled the first two conditions laid down in sub-section (3) of S.3 of the Vesting Act. What remains is the 3rd condition therein. The Forest Tribunal has pointed out that the appellant, instead of producing a certificate as per R.4 of the Rules framed under the Vesting Act, has produced two certificates from the village officers. They are Exts. P9 and P10. The certificate is to be obtained from the higher officials and hence the Forest Tribunal has declined to act on Exts. P9 and P10. The learned counsel for the appellant has made a request that one more opportunity may be granted to the appellant to prove that the total extent of land held by the appellant, including the land claimed herein, does not exceed the ceiling limit applicable to him or his statutory family. We are inclined, in the interest of justice, to afford such an opportunity. Accordingly, we allow this appeal, set aside the impugned order and remand the case to the Forest Tribunal, Kozhikode for the fresh disposal of the application, by giving a reasonable opportunity to the appellant to satisfy the 3rd condition mentioned in S.3 (3) of the Vesting Act. There will be no order as to costs. The case will be called before the Forest Tribunal on 25-3-1986. There will be no order as to costs. The case will be called before the Forest Tribunal on 25-3-1986. Allowed.