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2018 DIGILAW 793 (KER)

T. P. SUBRAMANIAN, S/O. PARANGADAN v. STATE OF KERALA

2018-10-08

ALEXANDER THOMAS

body2018
JUDGMENT : The prayers in this writ petition are as follows: (a) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to register the original of Ext.P7 document submitted by the petitioner for registration. (b) Declare that the 3rd respondent cannot refuse to register the original of Ext.P7 on the ground that all the sharers have not affixed the signature in Ext.P1, taking into consideration the non signatories have accepted the partition and assigned the properties allotted to them as per Ext.P3 and Ext.P5. 2. Heard Sri.Rajit, the learned counsel for the petitioner and Sri.Saigy Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 to 3. Though substituted service has been duly served on the contesting respondents 4 and 5, the said parties have not chosen to enter appearance before this Court. 3. The instant writ petition has been filed mainly challenging the decision of the 3rd respondent Sub Registrar, SRO, Akkikavu, in refusing to register the original of Ext.P7 settlement deed dated 16.2.2017 on the ground that contesting respondents 4 and 5 who are two sharers out of the total sharers in Ext.P1 Partition Deed have not affixed their signatures in Ext.P1 Partition Deed. According to the petitioner, he along with six other sharers had entered into a partition deed in respect of the co- ownership property concerned dividing the property among the sharers as per Ext.P1 Partition Deed dated 4.9.1981, in which all the sharers except the contesting respondents 4 and 5 have duly affixed signatures in Ext.P1. That contesting respondents 4 and 5 were also duly allotted shares in Ext.P1 Partition Deed. Later, the contesting respondent No.4 (Lakshmi) had executed and registered Ext.P3 sale deed dated 21.3.1983, thereby she accepted her share in Ext.P1 Partition deed and had accepted her right through the wife of the petitioner as per Ext.P3 document. Further, the contesting respondent No.5 Gangadharan had also executed Ext.P5 sale deed dated 21.11.1987 thereby he has also accepted his share allotted in Ext.P1 partition deed and assigned and conveyed that right to petitioner and his son as per Ext.P5 document. That the 3rd respondent Sub Registrar, SRO, Akkikavu had registered both Exts.P3 and P5 without any demur or objections and notwithstanding the fact that the contesting respondents 4 and 5 had not affixed their signatures in Ext.P1. That the 3rd respondent Sub Registrar, SRO, Akkikavu had registered both Exts.P3 and P5 without any demur or objections and notwithstanding the fact that the contesting respondents 4 and 5 had not affixed their signatures in Ext.P1. Later, the petitioner also conveyed a portion of the property set apart to him as per Ext.P1 deed to his son and steps in that regard were taken for registration of Ext.P1 deed. Thereafter, the petitioner had taken steps for registration of Ext.P7 on 16.2.2017 which was refused by the 3rd respondent Sub Registrar on the ground that contesting respondents 4 and 5 have not affixed their signatures in Ext.P1 Partition Deed, etc. Immediately thereafter, the petitioner has filed the instant writ petition on 22.3.2017, which has been pending before this Court since then. 4. The 3rd respondent Sub Registrar has filed a counter affidavit dated 8.6.2017 in this case. Therein he has stated that contesting respondents 4 and 5, who are two out of the 7 sharers, had not affixed their signatures in Ext.P1 Partition Deed. It is stated that as per the provisions of Section 17 of the Registration Act, a deed as per Ext.P1 Partition Deed is compulsorily registrable. Further, reliance is placed on Section 24 of the Registration Act,1908, wherein it is provided that where documents are executed by several posts at different times, such documents may be presented for registration and re registration within four months from the registration of each execution. Hence it is contended that contesting respondents 4 and 5, who are sharers in Ext.P1 Partition Deed, had option to make use of the provision in Section 24 to have affixed signature in Ext.P1 and for re-registration of the Deed within the above said time limit. That contesting respondents 4 and 5 had not chosen to opt for the special provision contained in Section 24 of the Registration Act. It is further mainly contended by the 3rd respondent that since the contesting respondents 4 and 5 had not affixed their signatures in Ext.P1 Partition Deed, it cannot be said that they have duly accepted their shares in consultation with the provisions of the Registration Act. Hence it is submitted by the contesting respondents 4 and 5 that the petitioner cannot convey his right on the basis of Ext.P1 Partition Deed, etc. 5. Hence it is submitted by the contesting respondents 4 and 5 that the petitioner cannot convey his right on the basis of Ext.P1 Partition Deed, etc. 5. However, the crucial, relevant and factual aspect of the matter that Exts.P3 and P5 Deeds executed by the contesting respondents 4 and 5 have been duly registered by the 3rd respondent, is not in any manner denied. By Ext.P3 Deed dated 21.7.1983, contesting respondent No.4 had accepted her share in Ext.P1 Partition Deed and had assigned her said right to the petitioner's wife as per Ext.P3 Deed, which was duly registered by the 3rd respondent Sub Registrar. So also the contesting respondent No.5 had also duly executed Ext.P5 Deed, whereas he had accepted his share as per Ext.P1 Partition Deed and had assigned the above said right to the petitioner and son as per Ext.P5. It is also admitted that the 3rd respondent, without any demur or objection whatsoever, has registered Exts.P3 and P5 Deeds executed by contesting respondents 4 and 5 as afore stated. Therefore, the 3rd respondent is estopped from raising the contention that respondents 4 and 5 have not accepted their shares in Ext.P1 partition deed in the manner to law. If Deeds as in Exts.P4 and P5 were not registered, then certainly the said contention would have been available to the 3rd respondent. Hence, in the light of these aspects, it is ordered that the refusal on the part of the 3rd respondent Sub Registrar to register Ext.P7 Deed is illegal and ultravires. 6. Though Ext.P1 deed has been executed as early as on 16.2.2017, the matter has been pending before this Court since 22.3.2017 till date. Accordingly, it is ordered that it is for the petitioner to immediately present Ext.P7 Deed for registration before the 3rd respondent Sub Registrar, upon which the 3rd respondent will register such document it if it is otherwise in order. It is made clear that the 3rd respondent cannot refuse registration of Ext.P7 Deed on the ground that contesting respondents 4 and 5 have not affixed their signatures in Ext.P1 Partition Deed. The petitioner may produce a certified copy of this judgment before 3rd respondent for necessary information and further action. With these observations and directions, the Writ Petition (Civil) will stand finally disposed of.