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2014 DIGILAW 243 (AP)

B. Sathi Reddy v. Gangumalla Mangamma

2014-02-14

S.V.BHATT

body2014
ORDER 1. The issue in the writ petition arises under the provisions of the Andhra Pradesh Rights in Land and Pattadar Passbook Act, 1971 (for short ‘the Act’). 2. The petitioners have invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records leading up to and inclusive of order in file No.F3/2/ROR/98-F3/7282/97 dated 13.12.2003 and quash the same as illegal and contrary to the provisions of the Act. 3. The case of petitioners is that one B.Sathi Reddy, the husband of the 1st petitioner and father of 2nd petitioner, applied under Section 5-A of the Act for regularization of the alleged transfer under the Will dated 12.04.1984 stated to have been executed by his mother-in-law Chandamma. It is matter of record that at the first instance through order dated 11.12.1992 by receiving stamp duty of Rs.35/-, the MRO, Wargal Mandal regularized the Will dated 12.04.1984 and issued Form XIII-B certificate to him. The 1st respondent filed appeal/revision before the 2nd respondent-Joint Collector, Medak and through order dated 04.07.1996, the 2nd respondent set aside the regularization order dated 11.12.1992 and remitted the matter back to the Mandal Revenue Officer, Wargal Mandal for de nova enquiry and a decision as per law. The MRO upon issuing notices to the parties concerned through order in file No.B/1275/96 dated 16.06.1997 confirmed the order of regularization dated 11.12.1992 in favour of B.Sathi Reddy. The 1st respondent preferred revision under Section 9 of the Act before the 2nd respondent. Through order dated 30.12.2003 in file No.F3/2/ROR/98-F3/7282/97, the 2nd respondent set aside the order of MRO dated 16.06.1997 and directed MRO, Wargal to effect necessary consequential changes in the village records as per the order of 2nd respondent. B.Sathi Reddy died during the pendency of revision before respondent No.2 and the writ petitioners were brought on record as legal representatives. Aggrieved by the order dated 13.12.2003, the present writ petition is filed by the wife and son of B.Sathi Reddy. 4. A reading of the order dated 13.12.2003 prima facie discloses that the impugned order is passed firstly without considering the material available on record and secondly non-application of mind is evident in extracting the contentions of parties or the documents they relied upon. The 1st respondent relies upon the sale deed in support of her claim for entries in revenue record. The 1st respondent relies upon the sale deed in support of her claim for entries in revenue record. The finding recorded by 2nd respondent is that the sale deed is a fake document. If this finding is accepted, the result ought to have been that the revision filed by the 1st respondent should have been dismissed. The 2nd respondent curiously had set aside the order of MRO dated 16.06.1997. The order of 2nd respondent does not observe whether the case before him is allowed or dismissed. This illegality is writ large on the face of the order impugned. On this aspect of the matter, the learned counsel appearing for the 1st respondent fairly conceded that the order impugned in the writ petition cannot be sustained by reference to the reasons recorded by the 2nd respondent. In normal course, by recording the fair concession of the learned counsel appearing for the 1st respondent, the writ petition is allowed and the matter remitted to the 2nd respondent. The Court has to consider the other legal contention of 1st respondent which if agreed will give a different outcome to the result of the writ petition. 5. The learned counsel for 1st respondent has urged a legal objection on the maintainability of application under Section 5-A of the Act for regularization of a Will and issuance of a certificate in Form 13-B. The objection is that the writ petitioners are placing reliance upon the Will dated 13.04.1984 said to have been executed by late Chandamma, w/o Venkat Reddy. The said Chandamma relies upon a declaratory deed stated to have been executed on 14.07.1974 by one Andalamma and another Mangamma/1st respondent in her favour. Through the deed, Chandamma claimed exclusive rights. The grievance is that Section 5-A of the Act provides a special mechanism for regularization of a few alienations or other transfers of lands. A Will deed is not one of the transactions covered by Section 5-A of the Act. Through the deed, Chandamma claimed exclusive rights. The grievance is that Section 5-A of the Act provides a special mechanism for regularization of a few alienations or other transfers of lands. A Will deed is not one of the transactions covered by Section 5-A of the Act. In support of his contention that the very application filed by late Sathi Reddy is not maintainable under Section 5-A as the disposition through Will is not a transfer within the ambit of Section 5-A. The learned counsel relies upon the decisions reported in KONKANA RAVINDER GOUD AND OTHERS V BHAVANARISHI COOPERATIVE HOUSE BUILDING SOCIETY, HYDERABAD AND OTHERS 2003 (5) ALD 654 (DB), KORAGAPPA GOWDA V. JINNAPPA GOWDA 1998 ILR KARNATAKA 436and BINDESHWARI V. BOARD OF REVENUE (2002)1 AWC 498 . 6. On the other hand, learned counsel appearing for the petitioners, submits that either under Sections 5-A or 5 of the Act, the competent authority is the MRO. The request made by Sathi Reddy was for correction of record of right in line with the Will dated 13.04.1984. Even if the order was passed under Section 5-A of the Act, it is the case of the learned counsel for the petitioners that it should be treated as a case of amending or updating the record of rights as contemplated under Section 5-A of the Act. The learned counsel placed reliance upon the decisions reported in V.GOUTHAM RAO V. REVENUE DIVISIONAL OFFICER, JAGITIAL, KARIMNAGAR DISTRICT AND ANOTHER 2003 (1) ALT 615 and M.B.RATNAM AND OTHERS V. REVENUE DIVISIONAL OFFICER, R.R.DISTRICT, EAST DIVISION AT HYDERABAD AND OTHERS 2003(1) ALT 688 in support of her contention that if at all there is a serious dispute between the parties, the party who is asserting right and title contrary to an entry existing in the record of right has to pursue the remedy before a Civil Court and the correction in the record of right is always subject to Section 8(2) of the Act. 7. Facts are not in dispute and maintainability of an application under Section 5-A of the Act for regularization of a Will is maintainable or not. 7. Facts are not in dispute and maintainability of an application under Section 5-A of the Act for regularization of a Will is maintainable or not. Section 5-A reads as follows: Regularization of certain alienations or other transfers of lands: (1) Notwithstanding anything contained in the Act, the Transfer of Property Act, 1882, the Registration Act, 1908 or any other law for the time being in force, where a person is an occupant by virtue of alienation or transfer made or effected otherwise than by registered document, such alienee or the transferee is permitted to apply to the Mandal Revenue officer for a certificate declaring that such alienation or transfer is valid. Under Section 5-A (1), a person who is an alienee or a transferee is permitted to apply for regularization notwithstanding the fact that such alienation or transfer is not in accordance with the provisions of firstly “the Act,” secondly the Transfer of Property Act, 1882 and thirdly the Registration Act, 1908 or for that matter any other law for the time being in force. The purpose of Section 5-A is to make the documents valid or legal which are otherwise inadmissible or invalid by operation of the provisions of the Transfer of Property Act and the Registration Act or as the case may be. In KONKANA RAVINDER GOUD AND OTHERS case (1 supra), the scope and object of Section 5-A of the Act is laid down by a Division Bench of this Court. The relevant portions are as follows: “The statement of objects and reasons of Act 1 of 1989 also clearly stipulated the purpose of introducing Section 5-A of the Act, namely, to regularise certain unregistered alienations or other transfers of land so as to enable the persons having acquired, right, title or interest in the land to obtain loans on such land. Obviously loan on land can be obtained by a person in case title had passed in the property in his favour. Even Form XIII(A) referred to in Rule 22(5)(i) of the Rules, which ultimately is required to be issued by the Mandal Revenue Officer to the concerned Sub-Registrar to fix up the value of the property and stamp duty payable, would show the nature of the transaction. Even Form XIII(A) referred to in Rule 22(5)(i) of the Rules, which ultimately is required to be issued by the Mandal Revenue Officer to the concerned Sub-Registrar to fix up the value of the property and stamp duty payable, would show the nature of the transaction. The intent and purport of the Act is very much clear that what was sought to be validated was only a completed contract of sale, which for want of registration, in view of the provisions of the Registration Act had not the effect, of conveying rights, title or interest in favour of the purchaser…………. In the instant case, we are concerned with the purport and meaning of the word "transfer" as contained in Section 5-A of the Act in the light of the objects and reasons in introducing the said provision, namely, to regularise an unregistered sale transaction, which would not mean to regularise incomplete transfers. There is no machinery or mechanism provided in the Act that even a person who has entered into an agreement of sale and in case sale is not completed but he has been put into possession of the property even on payment of entire sale consideration that can approach the Mandal Revenue Officer for grant of a certificate under Section 5-A of the Act. The Mandal Revenue Officer in such a case cannot proceed to hold an enquiry as to whether agreement of sale has been complied with or not. On the failure on the part of vendor to complete the sale transaction, a person in whose favour there is an agreement of sale can seek specific performance of the agreement of sale so as to convey right, title or interest of the vendors. The machinery provided under the Act is not the appropriate machinery for perfecting title merely on the basis of agreement to sell. We are, therefore, of the view that the finding of the learned Judge that there is a valid transfer of immoveable property under agreements of sale cannot be sustained. Thus, we have no hesitation in holding that the agreement of sale relied upon by the Society is not covered by the term transfer and cannot be treated as an "alienation" or "transfer" within the scope and meaning of Section 5-A of the Act and we answer the first question accordingly.” 8. Thus, we have no hesitation in holding that the agreement of sale relied upon by the Society is not covered by the term transfer and cannot be treated as an "alienation" or "transfer" within the scope and meaning of Section 5-A of the Act and we answer the first question accordingly.” 8. It is contended that the Will deed is not one of the instruments covered by Section 5-A of the Act, inasmuch as a Will is not included within the scope and ambit of provisions of the Transfer of Property Act, 1882 and the Will deed does not require registration in law. 9. Section 2(h) of the Indian Succession Act, 1925 defines ‘Will’: "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” The chief characteristics of Will are – (i) it takes effect after the death of the testator; and (ii) it must relate to disposition of property and such disposition is revocable during the lifetime of testator. Further, a sure test to ascertain nature of disposition is to find out whether the disposition takes effect during the lifetime of testator or after his demise. It means – that it should be the legal declaration of the intention of the testator; that the declaration must be with respect to the property of the testator; and that the testator should desire the intention to be carried into effect after his death. From the above, it is clear that a Will does not amount to transfer or alienation under the provisions of the Transfer of Property Act, but a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 11. Whereas under Section 5-A of the Act, the word “regularisation” is used to condone any procedural irregularity and meant to cure only such defects as are attributable to the methodology followed in execution of a deed. 12. A Will does not fit into the scheme of situations/circumstances contemplated by Section 5-A of the Act. 13. Through the process under Section 5-A of the Act, the Legislature provided for completing the legal formality of transfer, which otherwise is wanting in the instrument. The Will covers distinct disposition of property. 12. A Will does not fit into the scheme of situations/circumstances contemplated by Section 5-A of the Act. 13. Through the process under Section 5-A of the Act, the Legislature provided for completing the legal formality of transfer, which otherwise is wanting in the instrument. The Will covers distinct disposition of property. The same, even if unregistered or unstamped, does not require regularization to make the Will operational. From this perspective as well, the Will is not included as one of the transactions coming within the fold of Section 5-A of the Act. 14. Once it is not a transfer, much less alienation, and the same does not require registration, the filing of an application under Section 5-A for issuance of Form 13-B certificate does not arise and consequently the application of late Sathi Reddy under Section 5-A is not maintainable. 15. Having regard to the fact that the petition presented before the MRO is interdicted by the Court on the question of maintainability and having regard to the nature of controversy, the Court considers it appropriate to give liberty to the petitioners herein, if they are so advised, having regard to changed circumstances, to move an application as prescribed law. As and when such an application is filed, the same is considered in accordance with law and appropriate orders are passed by the Mandal Revenue Officer, Wargal. 16. The writ petition is, accordingly, ordered. There shall be no order as to costs. 17. Miscellaneous petitions, if any, pending in this writ petition shall stand disposed of.