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2003 DIGILAW 124 (HP)

NARINDER SINGH v. STATE OF H. P.

2003-05-26

A.K.GOEL, V.K.GUPTA

body2003
JUDGMENT Arun Kumar Goel, J. - This writ petition was initially filed by two petitioners namely, Jasbir Singh and Narinder Singh. Relied prayed for by them was as under:- "It is, therefore, most respectfully prayed that this writ petition may very kindly be allowed and the orders Annexure P-11 passed by respondent No. 2 and the sale deed registered consequent thereto, executed by respondent No. 4 in favour of respondent No. 5 may also be quashed and set aside. (b) That the records of the case from the Courts below may very kindly be summoned for the kind perusal of this Honble Court. (c) That any other order or further order which this Honble Court deems fit in the facts and circumstances of the case, explained hereinbefore, may very kindly be passed in favour of the petitioners and against the respondents, to secure the ends of law and justice." 2. With a view to properly adjudicate this case, it is necessary to briefly notice the relevant facts. There are:- Both Jasbir Singh and Narinder Singh owned land measuring Five Bighas and One Biswa, comprised in Khasra Nos. 188/125 and 190/126, situate in village Daghota, Tehsil and District Solan, Himachal Pradesh. It was agreed to be sold by these two petitioners by a registered agreement to sell dated 26.4.1993. This agreement to sell was registered with Sub Registrar, Chandigarh and was entered into between these petitioners and respondent No. 4 Smt. Adarsh Kaur. In her favour, a duly registered power of attorney was also executed. This agreement was also registered with Sub Registrar, Chandigarh on 26.4.1993. Copy of this agreement is Annexure R-4/D and of General Power of Attorney is Annexure P-1. The Attorney, by virtue of this power of attorney was authorised to sell, gift, exchange, mortgage with or without possession, transfer, convey or assign the said property. It may be noted in this behalf that this power of attorney also pertained to the aforesaid land measuring Five Bighas and One Biswa owned by the two petitioners. 3. In the aforesaid background, sale deed Annexure R-4/A was executed on 8.5.1998 and presented by respondent No. 4 as the attorney of the petitioners before the Sub Registrar, Solan, on the same date. Its copy is Annexure R-4/B. This bears the endorsement as under:- "R/C Identified by shri Pankaj Sharma, Advocate, Solan. Sd/- (illegible), 8.5.1998. 4. 3. In the aforesaid background, sale deed Annexure R-4/A was executed on 8.5.1998 and presented by respondent No. 4 as the attorney of the petitioners before the Sub Registrar, Solan, on the same date. Its copy is Annexure R-4/B. This bears the endorsement as under:- "R/C Identified by shri Pankaj Sharma, Advocate, Solan. Sd/- (illegible), 8.5.1998. 4. Petitioners allege in the writ petition that when the sale deed was presented by respondent No. 4 in favour of respondent No. 5, it was ordered to be presented before respondent No. 3. Having come to know of the execution of the sale deed, a protest petition Annexure P-4 was filed on 10.5.1998 by the petitioners. This was followed by notice dated 13.5.1998, Annexure P-6 from Narinder Singh petitioner addressed to Registrar and Sub Registrar, Solan requesting both of them that no document be registered either in the shape sale deed, gift, mortgage, affidavit or any other document in respect of the property detailed hereinabove. Another notice Annexure P-5, dated 22.5.1998 by Jasbir Singh petitioners was sent to respondent No. 4. It was intimated in it that power of attorney given by said petitioner to her (Smt. Adarsh Kaur .respondent No. 4), stands already revoked and thus she could not act on its basis. 5. Petitioner also placed reliance on Annexures P-7 and P-8. By means of Annexure P-8, registration of the sale deed Annexure R-4/A was refused on two grounds, namely (a) that the executant was not present; and (b) it cannot be registered on a back date, i.e. 8.5.1998. Respondent No. 4 feeling aggrieved and dissatisfied with this refusal preferred an appeal under Section 73 of the Registration Act, 1980 before the Registrar-cum-District Magistrate, vide Annexure P-9. Objections to this appeal were filed by both the petitioners vide Annexure P-10. Finally, vide order dated 7.4.2000 in Case No. 6/9 of 1998, Registrar, District Solan has allowed the appeal and ordered registration of the sale deed in question w.e.f. 8.5.1998. 6. In the aforesaid factual background, learned senior Counsel submitted that Annexure P-11 is liable to be quashed and set aside, as it orders the registration of the sale deed Annexure R-4/A with effect from 8.5.1998. According to him, respondent No. 4 never presented the document i.e. sale deed for registration either on 8.5.1998 or 19.5.1998. Therefore, registration was rightly refused and no exception can be taken to it. According to him, respondent No. 4 never presented the document i.e. sale deed for registration either on 8.5.1998 or 19.5.1998. Therefore, registration was rightly refused and no exception can be taken to it. He further submitted that meanwhile power of attorney in favour of respondent No. 4 stood cancelled. Thus, authority if any, in favour of respondent No. 4 conferred by virtue of power of attorney vide Annexure P-1 came to an end. 7. Respondents when put to notice have filed their reply. Respondents No. 1 to 3 in their reply filed on the affidavits of Registrar, Solan have clearly stated that the order Annexure P-11 needs to be upheld as the sale deed in question had already been presented by respondent No. 4 on 8.5.1998 before revoking of the general power of attorney in her favour by the petitioners. It has further been mentioned in this reply, that document was admitted by Sub-Registrar, Solan; however, it was not registered due to technical ground. What was this technical ground, nothing was stated. Per him, it was presented by her husband on 19.5.1998 before the Sub-Registrar, Solan. It was in this reason that its registration was refused. 8. So far respondents No. 4 and 5 are concerned, they have seriously contested the claim of the petitioners as according to them, the writ petition is based on falsehood and petitioners have taken all sort of frivolous and baseless pleas with a view to obtain discretionary relief from this Court. 9. Before proceeding further in the matter, it may be noted that an application being CMP No. 1702 of 2000, was filed on behalf of Jasbir Singh petitioner No. 1 and A came up for consideration on 28.12.2000.Vide order of this date, name of said petitioner No. 1 was ordered to be deleted from the array of petitioners. Amongst other things, he stated in this application that he had become aware that he could not have cancelled the power of attorney in favour of respondent No. 4 and he is bound by her acts which she has done and executed by virtue of such power of attorney and the said document was registered at Chandigarh. Amongst other things, he stated in this application that he had become aware that he could not have cancelled the power of attorney in favour of respondent No. 4 and he is bound by her acts which she has done and executed by virtue of such power of attorney and the said document was registered at Chandigarh. This petitioner further confirmed everything done by respondent No. 4 qua the sale of the property in question in favour of respondent No. 5 and having handed over possession of the same by respondent No. 4 to respondent No. 5 whose title was perfect and clear to the property in question. He further mentioned in this application that neither he (petitioner No. 1) nor any other person claiming through or under him, shall have any right, title or interest as both the petitioners had received consideration qua the same. As such, the writ petition now survives qua petitioner Narinder Singh only. 10. On the basis of the pleadings on record and documents filed by the parties, learned senior Counsel appearing for the petitioner was specifically asked as to what his client has to say so far registered agreement to sell Annexure R-4/D and its contents are concerned. After having made an attempt to overcome the same, he was not in a position to dispute it. He, however, stated that because power of attorney stood cancelled, therefore, registration of the sale deed that to with effect from 8.5.1998 is contrary to law, particularly the provisions of Registration Act, 1908. As such, the writ petition is liable to be allowed on this short ground per Mr. Gupta. He further stated that the Registrar has fallen into error while allowing the appeal and ordering the registration of the document in question. 11. This argument is without any basis in law. There are two reasons for taking this view. Even if the Sub-Registrar had not ordered the registration of the document with effect from 8.5.1998, even then it would have been effective from the said date under Section 47 of the Registration Act, 1908. Because registered j document is operative from the time from which it would have! Commenced to operate if no registration thereof had been required and not from the date of its registration. Because registered j document is operative from the time from which it would have! Commenced to operate if no registration thereof had been required and not from the date of its registration. Other question that arises could the petitioners or any one of them have revoked the authority of respondent No. 4 (power of attorney Annexure P-1), after she had partly exercised her authority there under. Again Section 204 of the I Indian Contract Act, 1872 is a complete answer to it. As per provisions i of this Section, the principal (like petitioner in the present case), cannot? Revoke the authority given to his agent after the authority had been partly exercised so far acts already done by the agent are concerned. 12. In the instant case, it is clearly made out and proved that the respondent No. 4 had executed and presented the sale deed on 8.5.1998 before the Sub Registrar, Solan (Naib Tehsildar), and as per stand of respondent No. 2 in its reply to the writ petition, it was presented on the same date for its registration. Though this document was accepted for registration, but neither registered, nor its registration was refused on that date. Respondent No. 4 had acted and had created an obligation on the basis of power of attorney Annexure P-1, which was admittedly executed by both the petitioners as noted hereinabove. It may be reiterated that, execution and registration of General Power of Attorney by both the petitioners vide Annexure P-1 is not even disputed by the petitioners. In this view of the matter, respondent No. 4 as their agent on the basis of the authority given to her had partly exercised the same by executing the sale deed of the land in question and had also presented the same for registration. As such, in law, it could have been revoked by any of the petitioners. 13. Himachal Pradesh Registration Manual deals with, as also prescribes the procedure on acceptance of a document for registration. Rules 102 and 103 are relevant in the context of the present writ petition which are extracted here in below:- "102. Enquiry as to execution identity, etc. - The registering officer shall then, with an little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. Enquiry as to execution identity, etc. - The registering officer shall then, with an little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. In cases of alienation, he shall satisfy himself of the identity not only of the alien or, but also of the alienee, if the latter is present. If the presenter is the executant, or his representative, assign or agent, or if such executant, representative, assign or agent is present, the registering officer shall make the necessary enquiry at once. He should also require the presenter, if an agent, to produce a power-of-attorney authenticated in the manner prescribed in Section 33 of the Act, and, if a representative or assign, to produce evidence of his status. 103. Identification of parties. - When the registration officer is not personally acquainted with executant, he shall require them to produce persons to testify to their identity who are personally known to him or to some other person whom he personally knows or of whose identity and reliability he is otherwise fully satisfied. Stamp-vendors and petition-writers should never be allowed to identify executants whose deeds they have written, and in any case as a rule the registering officer should not accept persons of this class as witnesses of identity, nor should they have recourse to their own peons for this purpose. Preference should be given where possible to witnesses living in the executants neighborhood and of his class of life. As interested party to a deed should not be allowed to identity the executants of the deed. 14. Similarly registering officer is not concerned with the validity of document under this manual. For ready reference, Rule 111 of the said manual deals with this aspect and relevant is extracted here in below:- 111. Registering officers not concerned with validity of Documents. 14. Similarly registering officer is not concerned with the validity of document under this manual. For ready reference, Rule 111 of the said manual deals with this aspect and relevant is extracted here in below:- 111. Registering officers not concerned with validity of Documents. - Registering officers should bear in mind that they are in no way concerned with he validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such grounds as the following e.g., that the executant was dealing with property not belonging to him, or that, the instrument infringed the rights of third persons not parties to the transaction, or that the transaction was fraudulent or opposed to public policy. These and similar matters are for decision, if necessary, by competent courts of law and registering officers, as such, have nothing to do with them. If the document is presented in a proper manner by a competent person at the proper office within the time allowed by law, and if the registering officer is satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effects." 15. As already held hereinabove that on 8th May, 1998, sale deed in question had been presented by respondent No. 4 for registration herself. It was in that context that question of identity etc. under the aforesaid rules 102 and 103 arose. In case sale deed had not been presented by respondent No 4, as claimed by the petitioner, the endorsement, on which reliance is placed by both the sides as contained in Annexure R-4/B would not have been made. 16. In the context of cancellation of authority, while dealing with an identical situation, as in the present case under Registration Act, 1908 and also with the provisions of Rajasthan Registration Rules, 1985 similar to those as contained in HP. 16. In the context of cancellation of authority, while dealing with an identical situation, as in the present case under Registration Act, 1908 and also with the provisions of Rajasthan Registration Rules, 1985 similar to those as contained in HP. Registration Manual; in Smt. Krishni Devi v. The State of Rajasthan and others, AIR 1992 Rajasthan 24, it was held as under:- "10 The Registrar sustained the order of the refusal of the registration also on the ground that the holder of general power-of-attorney Rajesh Lodha ceased to be so as his authority was withdrawn by the vendors Parasmal Sardarmal prior to his appearance before the Sub-Registrar, Jodhpur in compliance of his summons. Admittedly, the sale deed was not executed by the vendor’s pearasmal and Sardarmal, it was executed by Rajesh Lodha on their behalf as holder of general power of attorney and it was presented before the Sub-Registrar for registration by the vendee Smt. Kishni Devi petitioner. According to Rule 39 of the Rules, the Registrar was not concerned whether the Authority executed in favour of Rajesh Lodha by the vendors Parasmal and Sardarmal continued till July 15, 1988 or not. It is well settled law that where a person holds a power of attorney authorising him to execute the document on behalf of his principle and he executes the document, he is treated as the executant of the document for the purpose of registration. Production of any power of attorney as required under Section 33 of the Act is not required. Reference of Goswami Malti Vahuji Maharaj v. Purushottamlal, AIR 1984 Cal 297, may be made here. Admittedly, the sale deed was executed by Rajesh Lodha on May 15, 1987 and the general power of attorney executed in his favour by Parasmal and Sardarmal is said to have been withdrawn by getting their notice of revocation published in ‘Rajasthan Patrika of May 16, 1987. Thus the sale deed was executed by Rajesh Lodha prior to the revocation of his authority to execute it. Section 204, Contract Act runs as under "204. The principal cannot revoke the authority given to his agent after the authority has been partly exercised; so far as regards such acts and obligations as arise from acts already done in the agency. Section 204, Contract Act runs as under "204. The principal cannot revoke the authority given to his agent after the authority has been partly exercised; so far as regards such acts and obligations as arise from acts already done in the agency. When Rajesh Lodha had executed the sale deed, he was fully competent to appear before the Sub-Registrar as its executant and also as an authorised agent of the said vendors. It is clear from the provisions of Section 47 of the Act that a registration document operates from the date of its execution and not from the date of its registration. Reference of Nand Ballabh Gurnami v. Smt. Maqbool Begum, 1981 Allahabad Rent Cases 516 (SC) may be made here. To say the least, it appears that the Registrar and the Sub-Registrar were ignorant of the aforesaid provisions of the Registration Act and the above quoted Rules; otherwise they would not have refused the registration of the said sale deed. The registration of the sale deed could not be refused on the ground mentioned in their orders. Reference of J.D. Pathak v. V.B. Barat, AIR 1982 Gujarat 317, Kailash and others v. Sub-Registrar of Assurances Indore and another, AIR 1985 MP 12 and Krishna Gopal Kataria and another v. State of Punjab and others, AIR 1986 P&H 328 may be made here. As such the writ petition deserves to be accepted. 17. While dealing with the provisions of Section 47 of the Registration Act, 1908, Supreme Court in K.J. Nathan v. S. V. Maruthi Rao and others, AIR 1965 SC 430 has held as under :- "19. If the mortgage by deposit of title-deeds was effected on May 10, 1947, or on July 5, 1947, the legal position would be the same, as the mortgage deed in favour of the 3rd defendant was executed only on October 10, 1947. Though Ex. A-19 was registered on June 22, 1948, under Section 47 of the Registration Act the agreement would take effect from July 5, 1947." 18. To similar effect is the decision of the Supreme Court in another case reported as Hamda Ammal v. Avadiappa Pathar & 3 others, JT 1990(4) S.C. 391. Took the same view. 19. Though Ex. A-19 was registered on June 22, 1948, under Section 47 of the Registration Act the agreement would take effect from July 5, 1947." 18. To similar effect is the decision of the Supreme Court in another case reported as Hamda Ammal v. Avadiappa Pathar & 3 others, JT 1990(4) S.C. 391. Took the same view. 19. In Nanda Ballabh Gururani v. Smt. Maqbool Begum, Unreported Judgments 1980 S.C. 597, what was held in the context of Section 47 of the Registration Act and is relevant for the present case was as under :- "6. The Court was shown the original registered sale deed. It was also shown to Mr. S.S. Khanduja, learned Counsel for the appellant. It clearly shows that the sale deed was executed on July 27, 1974, and it was offered for registration and admitted. For registration on July 28, 1974. This becomes evident from the endorsement of the Sub-Registrar on the sale deed itself. The confusion that the deed was registered on November 11, 1974, stems from the fact that the book in which all documents registered by the Sub-Registrar are transcribed as permanent record showed that the present sale deed was transcribed into the book on November 11, 1974. However, in view of the provision contained in Section 47 of the Indian Registration Act, it clearly transpires that once the deed is registered, it would operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. There is no suggestion that the sale deed was deliberately ante dated. Therefore, on registration the sale deed operated from July 27, 1974, the date of its execution. The relevant provision prohibits Court from entertaining a petition for release of accommodation within three years from the date of purchase and not from the date of registration of sale deed. Once it is established that the House from which the appellant was sought to be evicted was purchased by the landlady on July 27, 1974, and the application for release of accommodation was made by the landlady on September 10, 1977, it was certainly made after a lapse of three years from the date of the purchase and the proviso would not be attracted. This was the only point on which leave was granted by this Court and as there is no merits in it, the appeal fails and it is dismissed but in the circumstances with no orders as to costs. 20. In Thakur Kishan Singh (dead) v. Arvind Kumar, AIR 1995 SC 73, it was held as under in the context of Section 47 of the Registration Act: "3. The findings recorded by the High Court and the trial Court have been assailed by Shri Sen., the learned Senior Counsel appearing for the appellant, and it is claimed that the lease deed having been registered after the material date, it could not confer any title on the respondent as the right title-in-interest of the respondents predecessor already stood vested in the State prior to registration of the lease deed. The argument does not appear to be sound. Section 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. It is well established that a document so long it is not registered is not valid yet once it is registered it takes effect from the date of its execution. (See Ram Saran Lal v. Mst. Domini Kuer, AIR 1961 SC 1747 (1749) and Nanda Ballabh Gururani v. Smt. Maqbool Begum, 1980 UJ (SC) 597. Since, admittedly, the lease deed was executed on 5th December, 1949; the plaintiff after registration of it on 3rd April, 1950 became owner by operation of law on the date when the deed was executed. Therefore, the land did not vest in the State. And the courts below did not commit any error in negativing the claim of appellant. 21. So far powers exercised by the registering authorities under the provision of Registration Act, 1908, it may be appropriate to mention that they exercise such powers vested in them under the statute, i.e. Registration Act, 1908. With a view to achieve the object of this Act, Registration Manual has been framed by the State Government. Some provisions out of it have been extracted hereinabove. I Therefore, it cannot be left to whim and fancy of the Registration Authority to register or not to register a document. With a view to achieve the object of this Act, Registration Manual has been framed by the State Government. Some provisions out of it have been extracted hereinabove. I Therefore, it cannot be left to whim and fancy of the Registration Authority to register or not to register a document. There is nothing on record placed by either the petitioner or the official respondents as to for what justifiable reason/ground the document was not registered after it had been presented by respondent No. 4 on 8.5.1998 who was duly identified, as is evident from the endorsement made on Annexure R-4/B. Plea there being on technical ground for its non-registration set-up in the affidavit of official respondents, cannot be accepted as nothing was disclosed in that behalf of respondents No. 1 to 3 in their reply. 22. Here another submission of Mr. Gupta learned senior Counsel needs to be noted. That Annexure R-4/A was not presented by respondent No. 4 on 8.5.1998. This argument has been raised simply to be rejected, particularly in view of the stand of respondent No. 2 and endorsement made on the top of Annexure R-4/B. 23. Again an attempt was made by Mr. Gupta to show that the endorsement extracted above made on the top of annexure R-4/B suggests that it was not presented by respondent No. 4 on 8.5.1998. At the cost of repetition, it is endorsed to "R.C." (Registration Clerk), and it further mentions" identified by Shri Pankaj Sharma, Advocate, Solan." (Emphasis supplied) 24. Thus, it is not at all difficult to decipher as to who was identified by the Advocate. It is well known that law requires a seller to be identified before the Sub-Registrar. 25. Therefore what falls from this is that respondent No. 4 and none else had been identified by Shri Pankaj Sharma, Advocate at the time of presentation of the sale deed Annexure P-4/A in question on 8.5.1998. Technical ground as mentioned by respondent’s No. 1 to 3 in their reply is not spelt out either from their reply or by the learned Advocate General at the time of treating. As such, plea urged on behalf of petitioner that respondent No. 4 did not present the sale deed for registration on 8.5.1998 is without any basis either in law or in the facts and circumstances of this case and is hereby rejected. 26. As such, plea urged on behalf of petitioner that respondent No. 4 did not present the sale deed for registration on 8.5.1998 is without any basis either in law or in the facts and circumstances of this case and is hereby rejected. 26. Petitioner has otherwise disentitled himself from claiming relief for the following reasons also. A plain reading of the writ petition suggests, that both the petitioners have executed power of attorney in favour of Smt. Adarsh Kaur respondent No. 4 vide Annexure P-1. She executed and presented the sale deed Annexure R-4/A on 8.5.1998 as is evident from Annexure P-4/B. This document is relied upon by Mr. Gupta to support his plea that respondent No. 4 did not present the Original sale deed for registration on this date. Registered agreement was also executed by the petitioners vide Annexure R-4/D. There under Narinder Singh petitioner had received a sum of Rs.75,000/- by means of bank draft drawn on State Bank of India, Sector 37-C, Chandigarh and the receipt thereof was acknowledged by him before the Sub-Registrar, Chandigarh when this document was registered. This fact is even mentioned in the endorsement made by the Sub-Registrar on Annexure R-4/D who registered it. And as already observed, this factual position could not be controverted by learned senior Counsel. Unfortunately, there is not a word said about this agreement in the writ petition. When specifically questioned, learned Senior Counsel was unable to say anything in this behalf. Reason of omission on the part of the petitioner is not difficult to trace. Had he said anything in the writ petition in that behalf, probably it may not have been entertained or interim prayer may have been refused. 27. Proceedings under Article 226 of the Constitution of India are discretionary in nature, besides being based on equity. Petitioner in our considered view did not come to the court with clear hands before claiming equity; he ought to have given equity by stating the true facts correctly and thus having brought clear picture before the Court. No doubt one of the petitioners have become wiser after filing of the writ petition and have acknowledged the acts of his agent, i.e. respondent No. 4 in executing the sale deed and getting it registered and thus he withdrew from the array of petitioners. 28. No other point is urged. 29. No doubt one of the petitioners have become wiser after filing of the writ petition and have acknowledged the acts of his agent, i.e. respondent No. 4 in executing the sale deed and getting it registered and thus he withdrew from the array of petitioners. 28. No other point is urged. 29. In view of the aforesaid discussion, there is no merit in this writ petition which is accordingly dismissed leaving the parties to bear their own costs. As a result of the aforesaid discussion, interim orders passed from time to time are vacated forthwith and all applications also disposed of.