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Allahabad High Court · body

2022 DIGILAW 1090 (ALL)

Mohd. Maqsood Khan v. State of U. P.

2022-07-14

MANISH KUMAR

body2022
JUDGMENT : MANISH KUMAR, J. 1. In compliance of order of this Court dated 13.04.2022, the affidavit of service has been filed by the learned counsel for the petitioner enclosing therewith the notices published in two newspapers i.e. Amar Ujala and Times of India as well as the notice pasted on the door of the Respondent No. 4. Despite the notice published in the new papers, no one has put in appearance on behalf of the Respondent no. 4. 2. Heard learned counsel for the parties and perused the record. 3. The present petition has been preferred for quashing of the appellate order dated 15.12.2021 passed by Additional District Magistrate (F&R) Sultanpur and the order dated 12.11.2018 passed by Sub-Registrar, Tehsil Sadar, District - Sultanpur refusing to register the document namely the sale deed said to be executed in favour of the petitioner. 4. The brief facts of the case as per the petitioner are that on 11.07.2018 the instrument was presented in the office of Sub-Registrar for the purpose of registration of the sale deed executed by one Tufail Ahmad - Respondent No. 4 in favour of the petitioner. After the enquiry as provided under Section 34 of the Registration Act, 1908, when the document was to be registered, Tufail Ahmad went away from the office of the Sub-Registrar. The Sub-Registrar vide its order dated 12.11.2018 had rejected the application for registration of the instrument as time barred with the finding that despite notice/summon to the Tufail Ahmad, he had not appeared. Against the said order, the petitioner preferred an appeal before the Additional District Magistrate (F&R) District Sultanpur and in the appeal vide order dated 15.12.2021 an order has been passed staying the proceedings of Appeal and file was consigned to record, feeling aggrieved by these orders, the present writ petition has been filed. 5. Learned counsel for the petitioner has submitted that the registering authority has wrongly refused to register the instrument as the same was presented by executor and the signature had been made on the same in the office of Sub Registrar. It is further submitted that after the signature made and accepting the consideration amount, the presence of the seller is not required for the purpose of registration of the documents as the formalities had already been completed. It is further submitted that after the signature made and accepting the consideration amount, the presence of the seller is not required for the purpose of registration of the documents as the formalities had already been completed. It is further submitted that the authorities had not registered the instrument till the period of limitation and after that rejected the same as time barred. It is further submitted that the authorities are bound to register the document as per section 35(1)(c) of the Registration Act, 1908. It is further submitted that the appellate authority had passed the order without application of mind and, hence it is liable to be quashed. 6. On the other hand, learned State counsel has submitted that there is no illegality in the orders impugned as passed by the Respondent No. 2 and 3 respectively. 7. After hearing learned counsel for the parties and going through the record and the provisions of Registration Act, 1908, where it has been provided that no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation. 8. The reliance placed by learned counsel for the petitioner that his case is squarely covered under Section 35(1)(c) of the Registration Act, 1908 and hence the Sub-Registrar is under obligation to register the instrument. For convenience Section 35(1)(c) is quoted herein-below: “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 as directed in sections 58 to 61 inclusive.” 9. In the present case, it is still not confirmed that Respondent No. 4 is dead or alive, and his representative i.e. wife appeared and moved an application for recall of an earlier order where she has stated that her husband has been kidnapped and an F.I.R. has been lodged after the order passed by the Court. It is further stated that she is not aware that her husband is dead or alive. The representative of Respondent No. 4 i.e. her wife has not admitted the execution of the deed, hence the provision of Section 35(1) (c) of the Act is not applicable in this case. 10. It is further stated that she is not aware that her husband is dead or alive. The representative of Respondent No. 4 i.e. her wife has not admitted the execution of the deed, hence the provision of Section 35(1) (c) of the Act is not applicable in this case. 10. Section 34 of the Registration Act, 1908, provides that the presence of the person, who has to execute the sale deed, his representative or his agent is necessary within four months from the date of presenting the documents for the purpose of registration for convenience, Section 34 of the Act is quoted herein-below: “34. Enquiry before registration by registering officer: (1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26: Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered. (2) Appearances under sub-section (1) may be simultaneous or at different times. (3) The registering officer shall thereupon: (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed. (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders.” 11. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders.” 11. It is an undisputed fact in the present case that the orders passed by the Sub Registrar is after the expiry of four months after presentation of document for registration and that the Respondent No. 4 had not appeared despite summons/notices, hence, there is no illegality in the order passed by the Sub-Registrar. A document cannot be registered in absence of executor before the Registering Authority or his authorized representative, assignee or any other person as permissible under the Act, admitting the execution of the document. 12. The appellate authority has rightly passed the order consigning the appeal to the record. 13. The appellate authority neither rejected the appeal nor closed the rights of the petitioner. Later on in case the executor is traced and may appear before the Sub-Registrar or if any of its respondent in case he is found to be dead, the petitioner may still move any appropriate application for registration of the instrument, if and as it may permissible under the law. 14. As discussion made hereinabove, there is no illegality in the orders impugned, hence the petition is devoid of merit and is accordingly dismissed.