John v. Thaikkad Panchayat — 1990 DIGILAW 398 (KER)

Judgment :- Second appeal is by the plaintiff, who is the owner of the suit property measuring 131/2 cents. The first defendant is the Thaikkad Panchayat, in which the plaintiff was a member. The suit is one for recovery of the property on the strength of title. Admittedly the appellant gave possession of the property to the Panchayat. His case is that surrender was conditional on the Panchayat constructing its office building in the property within one year in the name of his deceased father and the condition was not fulfilled. He would also say that no deed was executed and he did not divest himself of his title. The Panchayat said that the property was unconditionally surrendered and a kychit was also executed, but it was clandestinely removed by the appellant with the connivance of some Panchayat employees. Both the courts held, on the evidence, that title and possession were unconditionally surrendered by the appellant and hence the suit was dismissed. 2. The main question to be considered is whether title still vests with the appellant or it was surrendered in favour of the Panchayat. The first point to be considered in that respect is whether a Kychit surrendering his title unconditionally was executed. Secondly, it has to be considered whether such a kychit, if any, is sufficient to divest the appellant of his title and invest the same in the Panchayat. If these two points are found in favour of the Panchayat, the second appeal has only to be dismissed. 3. Execution of the Kychit is denied. The Kychit has not been produced. It is said to be missing. The case of the Panchayat is that it was clandestinely removed by the appellant. For that, there is no evidence. Such a case came only when the appellant issued Ext. A5 notice on 8-7-1980 to surrender the property. Then the President of the Panchayat filed Ext. B2 first information before the police on 16-6-1980 and gave Ext. A6 reply on 23-6-1980. The complaint ended in failure, as seen from Ext. A7 order dated 3-7-1981. Secondary evidence was also not adduced regarding execution of the kychit. 4. Under Rule 3 of the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 (for short, the rules ) the Panchayat shall not acquire any immovable property unless certain conditions are satisfied. The complaint ended in failure, as seen from Ext. A7 order dated 3-7-1981. Secondary evidence was also not adduced regarding execution of the kychit. 4. Under Rule 3 of the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 (for short, the rules ) the Panchayat shall not acquire any immovable property unless certain conditions are satisfied. Among them, the conditions necessary for our purpose are: a) the approval of the District Panchayat Officer that the property is suitable for the intended purpose; b) there should be an encumbrance certificate examined by the legal adviser or Government Pleader; and c) there must be a deed in the appropriate form under Schedule I transferring the property to the Panchayat. These conditions are relaxed only in cases where Panchayat purchases immovable properly by sale in execution of a decree obtained by it. If there is a requisite transfer and the difficulty is only that the deed is missing, atleast the first two conditions could have been proved by secondary evidence. That was also not attempted. The only document relied on is Ext. B5(6) resolution of the Panchayat dated 22-5-1978, to which the appellant is also a signatory. The maximum that could be found from the resolution is that a kychit was executed by the appellant. Its contents or conditions are not in evidence and not admitted also. There is no knowing whether the kychit satisfies the requirement of the rules. Anyhow, it is admitted that the kychit is not attested by anybody and it is not registered also. Approval of the District Panchayat Officer is not there and encumbrance certificate examined by the Legal Advisor or Government Pleader is also not there. There is also no knowing whether the kychit is in the form prescribed under the schedule to the rules. 5. No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the courts to try to get at the real intention of the legislature by carefully attending to the whole scope. Intention of the legislature is to be accertained from the language, subject matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act. Intention of the legislature is to be accertained from the language, subject matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act. If the provisions of the rules are considered in that way, it is clear that compliance of the conditions is mandatory. What rule 3 says is that a Panchayat shall not acquire any property unless the following conditions are satisfied. When a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This rule has stood the test of time (Ramchandra KeshavAdke v. GovindJoti Chavare and others - AIR 1975 S.C. 915). 6. The courts below, after having found that there was a kychit, without being aware of its contents, proceeded to take shelter under the proviso to S.65 of the Kerala Panchayat Act (for short, the Act). The section deals with acquisition under the Land Acquisition Act. The proviso only says that nothing in the section will prevent acquisition of immovable property by private purchase or free surrender. The courts below said that "free surrender" under the proviso gives untramelled powers of acquisition in any manner without observing any of the formalities under the Act, Rules or under the Transfer of Property Act or Registration Act and hence the mere formality of a free surrender will suffice. The Act, Rules and the forms prescribed therein contemplate acquisition of immovable property other than by court sale or under the Land Acquisition Act only by sale, mortgage, lease or gift. The four forms provided in Schedule I are forms 1 (a), l(b), l(c) and 1(d). Other forms are irrelevant for our purpose. The document must be signed and attested by witnesses also. There is no provision in the Act exempting the Panchayat from the provisions of the Transfer of Property Act or Registration Act. If so, registration is also a necessary formality. "Free surrender", mentioned in the proviso to S.65, could only be a gift in favour of the Panchayat and it cannot be a new innovation, for which no other provision is made. If so, registration is also a necessary formality. "Free surrender", mentioned in the proviso to S.65, could only be a gift in favour of the Panchayat and it cannot be a new innovation, for which no other provision is made. The transfer in this case could be accepted as a gift capable of divesting and investing title only if the legal requirements for that purpose are satisfied. 7. When faced with these legal positions, the learned counsel for the Panchayat said that the Transfer of Property Act is not a complete code of transfers and other modes of transfers of immovable property without the formality of a written document or registration as required by the two enactments have been recognised by judicial pronouncements. It is true that Suleman Isubji Dadabhai v. Naranbhai Dahyabhai Patel and others (AIR 1980 Guj. 165) And Lachminarayan v. Janmaijai Mahton(MR 1953 Pat. 193) said that the Transfer of Property Act is not a complete code and certain forms of transfers of immovable property without complying with the requirements of the Transfer of Property Act and Registration Act are possible. Creation Of trust may not require a registered document, as held in Suleman Isubji Dadabhai's case (AIR 1980 Guj. 165). Bhubaneswar Naik Santoshrai v. Special Tahsildar and others (AIR 1980 A.P. 139) said that certain types of gifts at the time of marriage do not require registration. Correctness of that legal proposition need not be considered by me. It may be possible to give up separate rights and place separate principles in the common stock by blending without a registered document, as held in various decisions including G.V. Krishna Rao and others v. First Additional Gift Tax Officer (AIR 1970 AP. 126), Keshavlal Lallubhai v. Commissioner of Income Tax (AIR 1962 Guj. 6), Commissioner of Gifts Tax v. Satyanarayana Murthy (AIR 1965 A.P. 95). As pointed out by the Supreme Court in Commissioner of Income Tax v. Juggilal Kamalapat (AIR 1967 S.C. 401),a deed of relinquishment in the case of a partnership may not require registration. Dedication of properties to an idol may be had without a registered document, as held in Champa Bibi v. Panchiram Nahata Siva Bigraha and others (AIR 1963 Cal. 551), Shanti Sarup v. Radhaswami Satasang Sabha (AIR 1969 All. 248) and other decisions. Dedication of properties to an idol may be had without a registered document, as held in Champa Bibi v. Panchiram Nahata Siva Bigraha and others (AIR 1963 Cal. 551), Shanti Sarup v. Radhaswami Satasang Sabha (AIR 1969 All. 248) and other decisions. A unilateral declaration in a document may not be bad for want of registration, as pointed out in Provat Kumar Mitter v. Commissioner of Income Tax (AIR 1959 Cal. 434). It is not necessary for me to consider these aspects because we are not faced with any such situation. We are concerned only with the validity of an alleged gift of immovable property by an individual in favour of a panchayat and whether it satisfies the requirements of the Panchayat Act taken along with the provisions of the Transfer of . Property Act and Registration Act. 8. A gift of immovable property in favour of the Panchayat could beheld to be valid and capable of divesting ownership and investing it in the Panchayat only if there is a document satisfying the requirements of law. The provisions of the Act and Rules taken with those of the Transfer of Property Act and Registration Act will have to be complied. S.17(1)(a) of the Registration Act provides that ah instrument of gift of immovable property must be written and registered. S.122 of the Transfer of Property Act defines gift and S.123 insists that the document must be attested and registered. S.49 of the Indian Registration Act says that no document required by S.17 or by the provisions of the Transfer of Property Act to be registered shall affect any immovable property or be received as evidence of any transaction affecting such property unless it is registered. S.123 of the Transfer of Property Act has to be read as supplemental to the Indian Registration Act, as provided in S.4 of the Transfer of Property Act. The controversy whether S.4 read with S.123 of the Transfer of Property Act will come within the purview of S.49 of the Registration Act was set at rest by amending S.49 to include the provisions of the Transfer of Property Act also, as held in Raghunath and others v. Kedarnath (AIR 1969 S.C.1316). The controversy whether S.4 read with S.123 of the Transfer of Property Act will come within the purview of S.49 of the Registration Act was set at rest by amending S.49 to include the provisions of the Transfer of Property Act also, as held in Raghunath and others v. Kedarnath (AIR 1969 S.C.1316). The amendment made it clear that documents, for which registration is necessary under the Transfer of Property Act, but not under the Registration Act, also fall within the scope of S.49 of the Registration Act. If not registered, such documents are not admissible as evidence of any transaction affecting immovable property and they do not affect any such immovable property. A petition reciting an earlier gift is not admissible as evidence of the gift (Varatha Pillai and another v. Jeevarathammal - XL VI Indian Appeals 285 - followed in Padma Vithoba Chakkayya v. Mohammed Multani -AIR 1963 S.C. 70). 9. A transfer of immovable property cannot be affected in any manner not prescribed by the provisions of the Transfer of Property Act unless there is some other statutory method (Immudipatian Thirugnana Kondama Naik and another v. Periya Dorasami and another - ILR 24 Madras 377 = XXVIII Indian Appeals 46). The formal requirements of the Transfer of Property Act cannot be avoided by calling a transaction by a particular name under the Hindu Law (Made Gouda and others v. Chenna Gouda and others - AIR 1925 Mad. 1174). A person cannot by merely recognising another as co-owner convey title to him in immovable property without observing the formalities required by law. 10. Tewari Raghuraj Chandra and others v. Rani Subhadra Kunwar and others (AIR 1923 P.C. 87) was wrongly understood and interpreted by the District Judge. That decision said that once a gift deed is executed and delivered to the donee, the donor cannot revoke the gift even before its registration on the ground that the gift is not completed until it is registered. After execution of the document, consent of the transferor is not necessary to register it if execution is admitted or proved. There is a time limit also for getting registered. Under S.47 of the Registration Act, the document when registered operates not from the time of registration, but from the date on which it would have operated if no registration was necessary. There is a time limit also for getting registered. Under S.47 of the Registration Act, the document when registered operates not from the time of registration, but from the date on which it would have operated if no registration was necessary. But before registration, a compulsorily registrable document is incomplete and incapable of conveying title. Only thing is that as soon as registration is effected, enforceability relates back by notion of S.47 to the date of execution or such other date. It is clear from Kalyanasundaram Pillai v. Karuppa Mooppanar and others (AIR 1927 P.C. 42) followed in Venkat Subba Srinivas Hegde v. Subba Rama Hegde (AIR 1928 P.C. 86) that S.123 of the Transfer of Property Act can be reconciled with S.47 of the Registration Act only on the view that while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the'gift until registration actually takes place. A compulsorily registrable document so long as it remain unregistered cannot affect immovable property. Actual transfer of possession without a registered document would not make a gift complete in law (Hiralal Chimanlal v. Gavrishankar Ambashankar - AIR 1928 Bom. 250). A registered document is necessary to complete the transfer (Ke/an v. Govindan -1969 KLT 415 and Tilakdhari Singh v. Gour Narain - AIR 1921 Patna 150). 11. In this case, there is not even the evidence that there was a valid gift under the provisions of the Act and Rules. Appellant says that he only gave possession subject to certain conditions on the acceptance, of which a deed has to be executed and registered, but these conditions were not fulfilled and hence he withdrew. Even if his case is not accepted, there is no evidence of any valid transfer by gift. There is no "free surrender" outside what is provided in the Act and Rules. In order to have a free surrender or gift of immovable property in favour of the Panchayat capable of making it the owner, there should be a document as provided in the Act and rules and there should also be compliance of the provisions of the Transfer of Property Act and Registration Act. Appellant was admittedly the owner and he did not divest himself of title. He is entitled to recover possession on the strength of his title. Appellant was admittedly the owner and he did not divest himself of title. He is entitled to recover possession on the strength of his title. Second appeal is allowed and the decrees and judgments of the courts below are set aside. The appellant is given a decree to recover possession of the suit property on the strength of his title. Claim for profits is disallowed. Parties will suffer costs in the circumstances.