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2018 DIGILAW 724 (KER)

Varghese v. District Collector Ernakulam

2018-09-12

A.MUHAMED MUSTAQUE

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ORDER : A.MUHAMED MUSTAQUE, J. 1. This review petition is filed by the writ petitioner in W.P.(C) No.11225 of 2018. The review petitioner/writ petitioner purchased the property from one Sri.P.M Santhosh alias Santhosh Madhavan. The land belonged to Sri.Santhosh Madhavan appears to be under enquiry in connection with ceiling proceedings under the Kerala Land Reforms Act, 1963. The writ petitioner purchased the property and got it registered pursuant to the directions of this Court in W.P.(C) No.13400 of 2012. The directions in the judgment read as follows: “3. In the result, this writ petition is disposed of as follows: (i) The 1st respondent shall register the original of Ext.P8 sale deed within a period of 15 days from the date of receipt of a copy of this judgment. (ii) Registration of the property in the name of the petitioner shall be at the sole risk of the petitioner and he shall be bound by any direction or order issued by the Government or other statutory authorities, if it is ultimately found that the seller has no title or interest in the property”. Thereafter the writ petitioner approached this Court. The reason for approaching this Court was that the petitioner was not permitted to register the sale deed executed by him. This Court issued the following directions. “2. This Court is of the view that, the petitioner is permitted to sell his property at his own risk and the petitioner and the transferee are bound by directions or orders issued by the Government or Statutory authorities. The registration is without prejudice to the State to proceed against the property in question. Based on such registration, certainly the transfer of registry also shall be effected in favour of transferee”. 2. The petitioner had a specific prayer in the writ petition itself to remove the entry made in Ext.P6 Encumbrance Certificate indicating initiation of proceedings under Section 85(7) of the Kerala Land Reforms Act and seeking a direction to issue fresh Encumbrance Certificate without such reference to initiation of proceedings under the Act. This Court had not considered those reliefs while disposing the writ petition. This is how the writ petitioner had come up with this review. 3. This Court had not considered those reliefs while disposing the writ petition. This is how the writ petitioner had come up with this review. 3. Learned counsel for the review petitioner, referring to Section 51 of the Registration Act, 1908 and also referring to the judgment of the Karnataka High Court in M. Ramakrishna Reddy v. The Sub Registrar & Another ILR 1999 KAR 2033 argued that initiation of proceedings under the Land Reforms Act cannot be called or styled as encumbrance of the property in as much as that it is not a burden on the property and therefore, the registering authority is bound to remove such endorsement from the Encumbrance Certificate. Learned counsel also refers to the definition of 'encumbrance' as defined under the Blacks Law Dictionary. The Blacks Law Dictionary defines 'encumbrance' as follows: “A claim or liability that is attached to the property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. An encumbrance cannot defeat the transfer of possession, but it remains after the property or right is transferred”. 4. Perhaps, in this context, it is necessary to refer paragraph 6 of the judgment in Ramakrishna Reddy's case (supra). Paragraph 6 reads thus: “6. In this context, it should be noticed that the term 'encumbrance' occurring in the 'Encumbrance Certificate' is some what misleading. The term 'encumbrance' in law refers to a burden, a charge, a legal claim, lien or liability attached to or upon a property. In the strict sense of the word, a sale or partition or release is not an encumbrance. Mortgage is an encumbrance. An Encumbrance Certificate relating to an immovable property issued by the Registration Office is not only of encumbrances, but of “all acts and encumbrances affecting such property”. It is an enumerations of all documents relating to the specified immovable property, which have been registered and entered in Book No.1 (and the indexes relating to Book No.1), during the period for which search is sought. As an Encumbrance Certificate is nothing but an extract of the entries in the indexes relating to Book No.1, it is not a document of title”. 5. The initiation of proceedings under the Land Reforms Act cannot be termed as encumbrance. As an Encumbrance Certificate is nothing but an extract of the entries in the indexes relating to Book No.1, it is not a document of title”. 5. The initiation of proceedings under the Land Reforms Act cannot be termed as encumbrance. No doubt, the ultimate transaction of the property by the petitioner will be subject to the outcome of such proceedings. Nevertheless such proceedings cannot be treated as encumbrance on the property so as to put up a burden on the petitioner to transact the property. In that scenario, this Court is of the view that the registering authority is bound to remove such endorsement. In regard to the proceedings initiated under the Act, no doubt, as directed in the judgment of this Court in Ext.P2 (W.P.(C) No.13400 of 2012 dated 03.04.2013) as well as in the judgment subjected to review, the transaction of such property will be subject to the outcome of the proceedings initiated under the Land Reforms Act, 1963. However, that cannot be a reason to enter the proceedings as encumbrance on the property in the register maintained by the Sub Registrar. Therefore, the Sub Registrar is directed to remove such entry in the Encumbrance Register forthwith. This review petition is allowed to the extent above. The directions in the review petition will form part of the judgment in the writ petition as well.