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Gujarat High Court · body

2015 DIGILAW 752 (GUJ)

Hemant Kantibhai Patel v. State of Gujarat

2015-07-31

N.V.ANJARIA

body2015
JUDGMENT : N.V. Anjaria, J. 1. By invoking writ jurisdiction of this Court under Art. 226 and further invoking aid of Arts. 14 and 300A of the Constitution, the petitioner has prayed for a writ of certiorari seeking a direction to set aside the registration of the sale-deed dated 1-2-2014, registered on 16-12-2014. It is further prayed to set aside the mutation entry dated 8-1-2015 effected by the Mamlatdar-respondent No. 3 on the basis of the said sale-deed. The outlining of facts is always relevant, more so in the present case. Gathered from the pleadings and material on record, they are as under: 2. It is the case of the petitioner that he resides in United Kingdom. His three sisters also reside in the same country. They are the co-owners of the immovable property described as Survey No. 22/2, block No. 68, admeasuring 6779 sq.mtrs. situated at Village Bharthana Vesu Taluka Majura District Surat. The said property along with other parcel of land was originally owned by Bhikhabhai Morarbhai Patel grand-father of the petitioner, who in the year 1931 assigned his all properties including the aforementioned land to his legal heir one Ratanji Bhikhaji and said Ratanji Bhikhaji executing a sale-deed dated 11-11-1936 in respect of the land in question in favour of one Kantibhai Umedram. 2.1. It is the further case of the petitioner that the said transaction of sale was undertaken only for security of a loan advanced by said Kantibhai to said Ratanji and that on repayment of the loan, the land came to be reassigned to Ratanji. Ratanji Bhikhaji passed away on 26-7-1963, thereupon names of his legal heirs (i) Sanmukhlal Ratanji, (ii) Kantibhai Ratanji came to be mutated in the revenue record. Sanmukhlal passed on 30-11-1984 leaving no legal heirs. Kantibhai Ratanji and his H.U.F. became sole owner of the property. The petitioner has presented himself in the capacity of heir of said Kantibhai and co-parcener and has interest in the property. It is further stated that deceased Kantibhai had executed a sale-deed on 1-2-2014 in favour of respondent Nos. 5 and 6. It was signed by him as Karta of H.U.F. and the same was presented for registration before the Sub-Registrar on 18-2-2014. It is further stated that deceased Kantibhai had executed a sale-deed on 1-2-2014 in favour of respondent Nos. 5 and 6. It was signed by him as Karta of H.U.F. and the same was presented for registration before the Sub-Registrar on 18-2-2014. It appears that the registration of the said document did not take place in view of deficit stamp duty and the registration was prevented under Sec. 33 of the Gujarat Stamp Act, 1958. 2.2 The petitioner has further stated in the petition that said Kantibhai during his lifetime executed power-of-attorney dated 1-2-2014 in favour of private respondent No. 7. The same was accepted by respondent No. 7 on the same day. Copy of the power-of-attorney is made part of the record of present petition. It appears that while sale-deed dated 1-2-2014 was pending for registration to the office of Sub-Registrar - respondent No. 4, Kantibhai died on 4-8-2014 in United Kingdom, survived by the petitioner and three sisters. On death of Kantibhai, power-of-attorney given to respondent No. 7 came to an automatic end, pleads the petitioner, further that respondent No. 7 could not continue to present and act as power-of-attorney holder of the deceased Kantibhai. Petitioner has claimed that respondent No. 7, as well as respondent No. 5 who happen to be father of respondent No. 7, were aware about the death of Kantibhai as the Besana was held at Surat and obituary was published in the newspaper. 2.3. The petitioner has alleged in the averments that respondent Nos. 5 and 7 acting in collusion obtained order dated 16-12-2014 from Deputy Collector, Stamp Duty levying stamp duty of Rs. 5/- on the sale-deed and the sale-deed was registered. It is stated that to the shock of the petitioner, the respondents got their names mutated in the revenue on the basis of said registered sale-deed. It is stated that on 6-2-2015, objection was lodged before the revenue authority. It is further stated and could be seen from the document at Annexure-E that the petitioner issued notice dated 19-2-2015 to the Sub-Registrar stating that the registration of the sale-deed was fraudulent and thus, illegal, instructing the Sub-Registrar to cancel the sale-deed and not to act upon on that basis. 2.4. It is further stated and could be seen from the document at Annexure-E that the petitioner issued notice dated 19-2-2015 to the Sub-Registrar stating that the registration of the sale-deed was fraudulent and thus, illegal, instructing the Sub-Registrar to cancel the sale-deed and not to act upon on that basis. 2.4. Thus, the case of the petitioner in nutshell is that the power-of-attorney, respondent No. 7 herein could not have got the sale-deed registered as the power-of-attorney did not survive after the death of Kantibhai-the giver of power-of-attorney. Contending that the registration of sale-deed is illegal and void, the prayers as mentioned above are made. 3. Heard learned Advocate Mr. Umesh Shukla with learned Advocate Mr. S.A. Chhabaria, and learned Assistant Government Pleader Mr. Pranav Trivedi. 3.1. Learned Advocate for the petitioner submitted that Kantibhai died on 4-8-2014; upon his death the power-of-attorney executed in favour of respondent No. 7 could not be said to be remaining valid. The respondent No. 7 could not have exercised any authority or could not have represented on behalf of the giver of the power-of-attorney who was dead. It was submitted that the registration of the sale-deed was not permissible on the basis of said power-of-attorney. He submitted that petitioner who happens to be the heir of deceased Kantibhai, addressed letters of objection to the revenue authorities about mutation of the name on the basis of the sale-deed, and also objected in writing before respondent No. 4-Sub-Registrar that the registration of sale-deed was not legal and the transaction was, according to the petitioner, was fraudulent as Kantibhai Patel had died and the power-of-attorney expired for the reason of event of death. 3.2. Learned Advocate for the petitioner relied on provisions of Secs. 33, 34 and 35 of the Registration Act, 1908 and submitted that the power-of-attorney would not have been recognized by the registering authority after the death of Kantibhai. He submitted with reference to Sec. 34 that inquiry before the registration of document in question ought to have been made by the registering officer. He submitted that when respondent No. 4 has acted illegally and in contravention of provisions of the Registration Act, this Court may exercise writ jurisdiction to set aside the document of sale and mutation entry. 3.3. He submitted that when respondent No. 4 has acted illegally and in contravention of provisions of the Registration Act, this Court may exercise writ jurisdiction to set aside the document of sale and mutation entry. 3.3. Learned Advocate for the petitioner heavily relied on the decision of Punjab & Haryana High Court in Ajay Loothra, son of Shri Prakash Lal Loothra v. Deputy Commissioner-cum-Registrar, Gurgaon, being Civil Writ Petition No. 5114 of 2000 decided on 28-7-2011 and submitted that in that case, the Court directed cancellation of registration. 3.4. Adverting at this stage itself to consider the aforementioned decision relied on behalf of the petitioner, the reliance placed was totally misplaced. Merely for the reason that in that case, the High Court directed cancellation of registration of documents, that by itself does not make the decision applicable. The said decision may stand true on its own facts. Petitioners in that case, owners of the property, executed an agreement of sale. The dispute was with reference to purported execution of sale by 5th respondent as a power-of-attorney of the petitioners presenting before the Sub-Registrar and admitting execution. The sale-deed recited that petitioners had constituted one Jagan Nath-respondent No. 5, as their power-of-attorney by virtue of power-of-attorney. 3.4.1. Before the document of sale was presented before the Sub-Registrar, the petitioners claimed that they were informed by Sub-Registrar denying the execution of any power-of-attorney. It was claimed that on the same day, the document was presented for registration and a newspaper advertisement was given about cancellation of the power-of-attorney. The Sub-Registrar accepted the document and assigned the number, but did not register to make them available for return to the purchaser as registered. The withholding of registration was without passing any order and the aggrieved purchaser contended that it was a deemed refusal on part of the Sub-Registrar. The writ petitioner before the High Court challenged the order passed by the Registrar, for directing the Sub-Registrar to register the sale-deed. The said impugned order was passed on 17-4-2002 and by the time, the writ petition was filed, the registration of the document was effected by the Sub-Registrar who passed order dated 5-5-2000 that the purchasers shall not use the registered document. 3.5. The said impugned order was passed on 17-4-2002 and by the time, the writ petition was filed, the registration of the document was effected by the Sub-Registrar who passed order dated 5-5-2000 that the purchasers shall not use the registered document. 3.5. The High Court of Punjab & Haryana dealt with the question whether without any expressed order by the Sub-Registrar refusing to register the document, the Registrar could have directed the registration of the sale-deed. 3.6. Therefore, the decision by Punjab & Haryana High Court on which the reliance was placed does not assist the case of the petitioner, and it does not apply. The following observation would go to show the compass and controversy of the said case: "we are not dealing with the case of Registering Officer refusing to receive document or passing an order treating the document as not validly presented. Even the issue whether the power-of-attorney executed in favour of the 5th respondent was cancelled or not and whether such cancellation took effect in the manner laid down under Sec. 208 of the Contract Act, 1872, are again not issues for immediate consideration before me. Whether execution of a cancellation of power-of-attorney or publication in a newspaper could be sufficient or whether the cancellation should be effective only by some form of communication that brings home to the power-of-attorney such cancellation, are again matters, which do not, in my view, arise for consideration, for, I am dealing with a more fundamental issue of whether the Registrar had a power to proceed to pass an order under Sec. 75 even without an express order of refusal of the Registering Officer to record a refusal of execution." 4. In order to consider the legal aspects of the controversy, relevant provisions of the Registration Act, 1908 may be looked into. Part VI of the Act under the title of "of presenting documents for registration" contained group of provisions of which Sec. 32speaks about the persons who may present documents for registration. It says that to present documents for registration-except in the cases mentioned in Secs. 31, 88 and89, every document to be registered under this Act, 1908, whether such registration be compulsory or optional, shall be presented at the proper registration office. The class of persons who may present the document for registration are mentioned in clauses (a), (b) and (c) which is relevant. 31, 88 and89, every document to be registered under this Act, 1908, whether such registration be compulsory or optional, shall be presented at the proper registration office. The class of persons who may present the document for registration are mentioned in clauses (a), (b) and (c) which is relevant. It says that the document can be presented by the agent of such person, representative or assign duly authorized by a power-of-attorney. 4.1. Section 33 says that for the purpose of Sec. 32, only certain class of power-of-attorney would be recognized. They are (a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time-being in force, power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; (b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before an authenticated by any Magistrate; and (c) if the principal at the time aforesaid does not reside in India, a power-of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government. 4.2. Section 34 speaks about the inquiry to be made by the registering officer before registration of the document. The inquiry to be made includes as per clause (a) of sub-sec. (3), whether the document in question was executed by a person by whom it purports to have been executed. According to clause (b), the registering authority shall have to satisfy himself about the identify of the person who claims to have executed the document; and as per clause (c), where any person appears as representative, assign or agent, the authority shall satisfy about the right of such person so to appear. 4.3. The procedure on admission and denial of execution is dealt with in Sec. 35. 4.3. The procedure on admission and denial of execution is dealt with in Sec. 35. It inter alia provides that (i) if all the persons executing the document personally appear before the registering officer and are personally known to the officer, on being satisfied that they are the same person/s, he shall register the document, (ii) in the case, where the executant appears through a representative, an assignee or an agent and if such representative, assignee or agent admits the execution, then also the registering officer shall register the document, and (iii) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document. Above are the provisions in clauses (a), (b) and (c) in sub-sec. (1) of Sec. 35. 4.4. Sub-section (2) empowers the registering officer to examine any person in his office. Sub-section (3) provides for the circumstances and the cases in which the registering officer would refuse to register the document. The registering officer may refuse to register the document (a) if any person by whom the document purports to be executed denies its execution (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, and (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead. 4.5. Thus, before a document is registered, the procedure has certain stages. First stage is the execution of the document. Section and stage is the presentation of the document before the registering authority. Third stage is admission about the execution of the document as per the provisions of Sec. 35. The last and fourth stage is the registration. In respect of document of sale, the executant may be the owner or as power-of-attorney holder of the owner acting as assign or representative derives authority to execute the document on behalf of the owner. In such case, where the power-of-attorney is given, the power-of-attorney holder may also present the document before the registering authority. The registering authority will thereafter, following the procedure contemplated in the aforementioned group of provisions and satisfies himself. In such case, where the power-of-attorney is given, the power-of-attorney holder may also present the document before the registering authority. The registering authority will thereafter, following the procedure contemplated in the aforementioned group of provisions and satisfies himself. Section 35(1)(c) and Sec. 35(3)(c) deserve to be underlined in the context of the facts of this case. As is already noted, between the stage of presentation of document of sale and registration thereof, the process halted because of the order under Sec. 33 of the Gujarat Stamp Act, 1958 regarding deficit stamp duty. 5. Coming back to the facts and dates in the present case, copy of sale-deed dated 1-2-2014 produced on record showed that the same was executed by Kantibhai alias Kantibhai Patel in capacity of the Head of H.U.F. and the document bears his signature. It appears that on the same day, that is on 1-2-2014, the competent authority - Sub-Registrar accepted the document presented before him and entered the same at Serial No. 144. A power-of-attorney dated 1-2-2014 in favour of respondent No. 7 herein was executed by the said vendor Kantibhai, under which respondent No. 7 derived authority to present the document for registration before the competent authority and to get it registered. 5.1. From the copy of power-of-attorney produced along with the petition, it was seen that the said power-of-attorney was given specifically with reference to sale of the subject property and it was decided therein that since the principal-Kantibhai Patel was unable to personally present, the power-of-attorney was being conferred on respondent No. 7 for remaining present before the Sub-Registrar, admits the signature on the document and execution thereof, to present the document for registration and to get the same registered by the competent Sub-Registrar. In other words, the power-of-attorney was specifically given for the purpose of completing all formalities starting from presentation to registration and was specifically with reference to the property in question. 5.2. When the document was presented before the Registrar, the same was properly presented by the power-of-attorney duly authorized. The execution of the document was by Kantibhai himself for which there was no dispute. Neither was the question about the authority of the power-of-attorney to submit the document for registration. The document was accordingly received by the Sub-Registrar, and entered serially in his record. The execution of the document was by Kantibhai himself for which there was no dispute. Neither was the question about the authority of the power-of-attorney to submit the document for registration. The document was accordingly received by the Sub-Registrar, and entered serially in his record. The document however could not culminated into registration at that stage in view of order/endorsement under Gujarat Stamp Act, 1958 regarding stamp duty. The objection as regards deficit stamp duty was subsequently cleared and the document was registered on 16-12-2014. 5.3. There was no objection from the executant Kantibhai, nor was any such objection taken at any subsequent point of time by him. The death of Kantibhai occurred in the interregnum. The document which was presented, came to be registered later on as the stamp duty aspect was set right. The registering authority did not have any objection raised before it at any time during the interregnum from the date of presentation of document, that is, 18-2-2014 till the date of its registration 16-12-2014. As the presentation of the document was validly made by the representative and assignee of the executant-Kantibhai, namely the power-of-attorney holder, and the said power-of-attorney holder had authority to admit the execution and carry out the formalities upto the stage of registration on behalf of the principal-the executant. The registration of the document at the subsequent stage after clearing the stamp duty issue was part of same chain of authorized actions which were by virtue of power-of-attorney. 5.4. The mutation entries were made in the revenue record. The objection was thereafter taken by the present petitioner by issuing notice dated 19-2-2015 claiming that he was the heir of Kantibhai and that the registration of the document by respondent No. 7 power-of-attorney holder was not permissible in view of intervening event of death of Kantibhai. The petitioner's case, is that the transaction of registration was fraudulent and collusive. 5.5. Whether the action on part of respondent No. 7 power-of-attorney to get the sale document registered was collusive or fraudulent, as is the case put forth now by the petitioner is required to be established. It any view involves disputed questions of fact. And as discussed hereinabove, the presentation and registration of the document in question was under the authority derived from power-of-attorney. It any view involves disputed questions of fact. And as discussed hereinabove, the presentation and registration of the document in question was under the authority derived from power-of-attorney. How, it was unauthenticated and at which stage any breach of any of the relevant provisions of the Registration Act, 1908 took place is required to be proved by the petitioner. That is not the realm of writ jurisdiction, nor the domain of writ Court. 5.6. Secondly, as the facts detailed in Paragraphs 3 to 3.4 above suggest the rights claimed by the petitioner vis-à-vis raising the dispute about registration of sale document and the authority of power-of-attorney to get the registered, are in the arena of property rights. The controversy sought in its ultimate analysis is a civil dispute where the petitioners and the rival parties could be said to be asserting civil rights. If any rights are to be claimed, the remedy would be elsewhere. The sale-deed having been registered, the property stands conveyed and the title of whatever nature which the vendor had over the property, has passed. A prayer for cancellation of a registered document of sale cannot be granted in the writ jurisdiction in the facts of the case. 6. No case was made out or existed for exercise of writ jurisdiction under Art. 226 of the Constitution. The prayers could not be granted. The petition is summarily dismissed.