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2023 DIGILAW 575 (AP)

Kamatham Vijaya Lakshmi v. State Of Andhra Pradesh

2023-03-16

TARLADA RAJASEKHAR RAO

body2023
ORDER : This Writ Petition is filed under Article 226 of the Constitution of India for the following relief: "To issue an appropriate writ, order or direction, more particularly a Writ in the nature of Mandamus declaring the action of the Respondent No.4 in refusing to register the Settlement Deed which was received and initially numbered as P No.261 of 2021 for the value of Rs.1,11,81,000/- dated 25.06.2021 executed by the petitioner in favour of her daughter Kamatham Prema by collecting registration fee in respect of the property situated in D.No.3/1330, having assessment no.1014015468, ward No.3 in Sy.No.357, in T.B.Road, Proddatur Town, Kadapa District to an extent of Ac.0.06 cents out of the 1/3rd share of the petitioner which she got out of 0.91 cents as illegal and arbitrary and in violative of the Provisions of the Registration Act, 1908, and the A.P. rules under the Registration Act apart from violation of Articles 14, 21 and 300A of the Constitution of India and principles of natural justice and consequently direct the Respondent No.4 to receive the document bearing no.P.No.261/2021, dt.02.07.2021 and register the same and pass such other orders or orders." 2. The 4th respondent-Joint Sub Registrar, vide refusal order No.33 pending file No.261 of 2021, the property situated in Ward No.3 of Proddatur Municipality belonging to D.No.3/1330 in Sy.No.357 of Proddatur village of an extent of Ac.0.06 cents was refused to registration on the ground that on going through the documents presented by the writ petitioner, i.e., viz., final decree passed by the Court of District Judge, Kadapa, in O.P.No.139 of 1991 and the registered Will No.10 of 1989, observing that the said documents are far of true and then not substantiated the right of the petitioner herein, and alluding in the above said manner, has refused to register the document. 3. The said refusal order is impugned in the present Writ Petition on the legal point that as per the terms of the Registration Act, the Sub Registrar cannot refuse the document and he cannot conduct a roving enquiry and he cannot refuse to register the document unless it is prohibited under Sections 19, 20, 21, 22A and 34 of the Registration Act (for short, „the Act?). Section 19 of the Act contemplates that if any document duly presented for registration, be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the documents, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy. Section 20 of the Act contemplates that if the document which is presented for registration in which any interlineations, blank, eraser or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineations, blank, eraser or alteration. Section 21 of the Act contemplates that the document shall contain maps and plans and when the document is opposed to public policy, the Registrar can refuse for registration under Section 23 of the Act. Section 34 of the Act contemplates that the Sub Registrar can refuse to register the document unless the persons executing such document or their representative, assigns or agents authorized as aforesaid appear before the registering officer within the time allowed for presentation under Sections, 23, 24, 25 and 26 of the Act. Under the above said circumstances, the Sub Registrar can refuse to register the document. Hence, the petitioner would contend that the Sub Registrar cannot refuse to register the document in the present Writ Petition and he prayed to set aside the impugned refusal order and consequently, prayed to direct the Sub Registrar to register the document. 4. The facts of the present case are like this: One Vempalli Mopuru Subba Reddy is having two wives and the first wife?s name is Narayanamma and through Narayanamma, he gave birth to one Vempalli Subba Reddy and the said Vempalli Mopuru Subba Reddy, after the death of his first wife-Narayanamma, married another woman and through his second wife, four sons and three daughters and Vempalli Mopuru Subba Reddy and Vempalli Subba Reddy got partitioned the properties in the year 1958. Later, the children of Vempalli Mopuru Subba Reddy, who born through his second wife, filed suit for partition, vide O.S.No.3 of 1978 on the file of the Court of the Subordinate Judge, Proddatur, Kadapa District, and a preliminary decree was passed in the said suit for partition of items 1 to 3 and a small portion of site in item No.9 occupied by Vijay Kumar cinema theatre and the whole of item No.11 (Vijay Kumar cinema theatre) between the plaintiffs and the 2nd defendant therein, each of the plaintiffs being entitled to 6/25th share and the 2nd defendant to 1/25th share and the rest of the prayer of the plaintiffs therein was dismissed without costs. Aggrieved by the said judgment and decree, the 1st defendant, who is Vempalli Subba Reddy, grand-father of the petitioner herein filed appeal before the High Court of Andhra at Hyderabad, vide A.S.No.176 of 1980, and the said appeal was allowed in part holding in the following manner: “The plaintiffs are liable to pay to the 1st defendant, an amount of Rs.20,500/- towards the value of the site given by the 1st defendant for the construction of the cinema theatre. From the above discussion, I find that the 1st defendant is not entitled to 1/5th share in the income derived from Vijaya Kumar Cinema theatre as a co-owner or co-sharer. He is, however, entitled to recover Rs.20,500/- towards the cost of the site which he has parted in favour of the plaintiffs to enable them to construct the cinema theatre.” Now, the dispute in the present Writ Petition is with regard to the property, i.e., vacant site of said cinema theatre, which was demolished. The said Vempalli Subba Reddy has fostered a son by name Nagi Reddy and the property belongs to him and as well as of his wife have been devolved on Nagi Reddy, who is a fostered son of Vempalli Subba Reddy. The Vempalli Subba Reddy has executed a gift deed in favour of his daughter by name Kamatham Vijaya Lakshmi. Kamatham Vijaya Lakshmi, in turn, has executed a settlement deed in favour of her daughter and presented the same to the Joint Sub Registrar, Proddatur, who is arrayed as 4th respondent herein, for registering the said document and it was refused to register the said document. 5. Kamatham Vijaya Lakshmi, in turn, has executed a settlement deed in favour of her daughter and presented the same to the Joint Sub Registrar, Proddatur, who is arrayed as 4th respondent herein, for registering the said document and it was refused to register the said document. 5. While the Writ Petition is pending before this Court, V.M.Narothama Reddy, who is son of Vempalli Mopuru Subba Reddy, and 7 others filed an application, vide I.A.No.2 of 2021 praying to implead them as respondents 5 to 12 in the Writ Petition. The said proposed respondents are great grant children of Vempalli Mopuru Subba Reddy, who begotten through his 7 second wife. Prior to the filing of the implead application, the proposed respondents filed an application to the Joint Sub Registrar, Proddatur, not to register the document, stating that the petitioner is not having any right and they are the absolute owners of the said property. The Joint Sub Registrar, by letter No.223/2020 dated 09.12.2020, has rejected the said application, directing the proposed implead respondents to file a civil suit observing that, being a Registration Officer, he cannot conduct enquiry as to the validity of document or as to whether the person executing the same has a valid title over it or not in the instance of District Registrar. Now the implead respondents have stated that the writ petitioner herein has no valid title as per the judgment of the High Court of Andhra Pradesh at Hyderabad in A.S.No.176 of 1980 dated 20.11.1989, and as both the parties are claiming for the very same property, the proposed implead respondents are proper and necessary parties to the present Writ Petition. The said I.A.No.2 of 2021 is allowed today, vide docket order. 6. It is the contention of the petitioner herein that the above facts are admitted facts and that Vempalli Mopuru Subba Reddy has brought up Nagi Reddy and admittedly, he executed the Will in favour of his daughter on 06.02.1989, which was registered as document No.858/1989. The property mentioned in the settlement deed which is refused by the Sub Registrar is a part and parcel of the present Will. 7. The property mentioned in the settlement deed which is refused by the Sub Registrar is a part and parcel of the present Will. 7. While disposing of the appeal by the High Court of Andhra Pradesh at Hyderabad, it is held that the plaintiffs are liable to pay to the 1st defendant (Vempalli Subba Reddy, who is the grand father of the petitioner herein), an amount of Rs.20,500/- towards the value of the site given by the 1st defendant. The judgment in A.S.No.176 of 1980 indicates that Vempalli Mopuru Subba Reddy is having right over the property as he was parted with the property and the High Court has directed to pay compensation to the said property and the said compensation was not paid and it was not denied by the implead respondents herein in I.A.No.2 of 2021. 8. While disposing of the appeal, i.e., A.S.No.176 of 1980, the High Court of Andhra Pradesh has held that the plaintiffs are liable to pay the 1st defendant an amount of Rs.20,500/- towards the value of the site for construction of the cinema theatre and the said amount has not been paid by the plaintiffs to the 1st defendant towards the value of the site, as such, the Court presumes that the title of the 1st defendant has not been transferred to the plaintiffs in the suit and it was not denied by the implead petitioners in the present Writ Petition with regard to the payment of the amount of Rs.20,500/-. Therefore, the Court presumes that as the amount has not been made by the plaintiffs, the 1st defendant in the suit possessed the title and the property has not been parted with. 9. It is the contention of the learned counsel for the petitioner herein that the said amount has not been paid, however, as the amount has not been paid by the implead respondents towards value of the site, Vempalli Mopuru Subba Reddy is having a right over the property. 9. It is the contention of the learned counsel for the petitioner herein that the said amount has not been paid, however, as the amount has not been paid by the implead respondents towards value of the site, Vempalli Mopuru Subba Reddy is having a right over the property. It is the contention of the petitioner herein that the 4th respondent-Joint Sub Registrar cannot conduct a roving enquiry while registering the document and if at all, he can refuse to register the document only under Sections 19, 20, 21, 22A and 34 of the Act and he relies on an order of the High Court of Andhra Pradesh at Hyderabad in Writ Petition No.19164 of 2007 dated 01.08.2008, wherein it is held that the Joint Registrar/Sub Registrar cannot conduct roving enquiry for registering a document and eventually, held that he can refuse to register the document only under the conditions as mentioned in the above said Sections. 10. Learned counsel for the implead respondents would contend that writ is not maintainable as against the order passed by the Joint Sub Registrar and an appeal is provided under Section 72 of the Registration Act and therefore, prays to dismiss the Writ Petition to avail remedy as provided under the Act. 11. In the case of Gafur Khan and others v. State of Rajasthan and others, AIR 2003 Rajasthan 233, a Single Judge of the Rajasthan High Court by following the judgment of a Division Bench of the same High Court held in the following manner: "Therefore, Section 71 in the context is part of procedure to be followed by Sub-Registrar in refusing to register a document as provided under the statute. 67. In this connection, reference may be made to Mahaliram Singhania v. Upendranath Pandey, ((19961) ILR Patna 879) (sic)) wherein the High Court said that there is no provision in the Act empowering a Registrar to refuse registration of a document on the ground of undervaluation or to enquire into the correctness of the valuation given in the document. 68. Reference in this connection may be made to Bench decision of this Court in Jeewan Ram v. State of Rajasthan, AIR 1954 Rajasthan 53. 68. Reference in this connection may be made to Bench decision of this Court in Jeewan Ram v. State of Rajasthan, AIR 1954 Rajasthan 53. In this case the Court said (Para 4) : "It was no part of the duty of the Sub-Registrar to go outside the powers conferred on him under Sections 34 and 35, of Registration Act and such provisions of other laws which have been made definitely supplemental to the Registration Act. Sections 34 and 35, Registration Act provide what a registering officer has to see before registering a document, Briefly speaking, he has to see that the document is presented in the manner prescribed by the Registration Act and by a person authorised to present it and before an officer authorised to register it. Before registering a document, the registering officer has to enquire whether or not the document was executed by the person by whom it purports to have been executed. He has also to satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. In the case of any person appearing as a representative, assign or agent, he has further to satisfy himself of the right of such person so as to appear. Thereafter, he cannot refuse to register the document except on the grounds mentioned in Section 35(3), Registration Act, or under the provisions of any other law which has been definitely made supplemental to the Registration Act. It is not the business of the registering officer to see whether a particular document is against any other law in force for the time being if the conditions prescribed for registration under Sections 34 and 35, Registration Act or any supplemental law are satisfied". 69. Apparently, the impugned order does not satisfy the touch stone of valid order in terms of the aforesaid principle. 70. The order, which has been quoted in extenso hereinabove does not show any reason which can emanate from the statute, which confers jurisdiction on the Registering Officer to refuse to register the document. 71. 69. Apparently, the impugned order does not satisfy the touch stone of valid order in terms of the aforesaid principle. 70. The order, which has been quoted in extenso hereinabove does not show any reason which can emanate from the statute, which confers jurisdiction on the Registering Officer to refuse to register the document. 71. From the above discussion, it is apparent that the impugned order by Sub-Registrar has been passed beyond his jurisdiction merely by entertaining suspicion about the correctness of facts stated in the document that too much late after requirements of Sections 34 and 35 were duly complied with and endorsement to that effect was made on the document on 12-5-93. 72. After the document was presented before him by the executrix about whose identity he satisfied himself. She has admitted execution of document before him. After the due execution of document was admitted before the Sub-Registrar on 12-5-93, there was no room for the Sub-Registrar to invoke the provisions of Sub-section (3) of Section 35 or for that matter to go into the question of genuineness of the transaction or question whether the document has been got executed by the person concerned through deceit. The said enquiry is not envisaged under any of provisions of the statute and has been specifically prohibited under Rules 39 and 40. The impugned orders are in breach of mandate of the provisions of the Registration Act and the Rules framed thereunder. 73. Once the requirements of Sections 34 and 35 are satisfied and the case does not fall u/Ss. 34 and 35, the Registering Officer is under an obligation to register the same except if he is able to point out any grounds mentioned in Section 35(3) or under any other provisions of Registration Act or any other law supplemental to the Registration Act. It is not the business of the Registering Officer to see whether a document is against any other law in force for the time being if the conditions prescribed for registration under Sections 34 and 35 of the Registration Act of supplemental law are satisfied. The genuineness of transaction, document and correctness of facts stated in the document are not the matters in which the Registering Officer can enquire into and refuse registration of the document presented before him. 12. The genuineness of transaction, document and correctness of facts stated in the document are not the matters in which the Registering Officer can enquire into and refuse registration of the document presented before him. 12. The principle is well settled that existence of alternative remedy is not absolute bar and does not affect the jurisdiction of this Court to entertain the petitions under Articles 226 and 227 in exercise of its extraordinary jurisdiction. The question of availability equally efficacious alternative remedy for securing relief claimed in the writ petition is germane for considering the question whether this Court ought to exercise extraordinary jurisdiction in a particular case. However, two well known exceptions to the general rule in the matter of exercise of discretion are where the impugned order has been passed by the authority having no jurisdiction to make such order; and where the impugned orders have been passed in breach of principles of natural justice. Ordinarily, in such circumstance existence of an alternative remedy is not considered a valid ground for rejecting the petition on that ground. However, the two exceptions generally required, are not the exhaustive list of cases where the Court will or will not exercise its extraordinary jurisdiction when an alternative remedy is provided. It still depends on the facts and circumstances of each case. 13. The principle is also well settled that notwithstanding the existence of an alternative remedy, if the petition has been admitted by the Court after hearing the parties and remained pending for considerable long period which renders the alternative remedy out of reach or makes it inefficacious. In this connection, reference may be made to L. Hirday Narain v. Income-tax Officer, Bareilly, AIR 1971 SC 33 . In the present case, it is apparent that not only the petition was admitted, but the petition has been admitted after due notice to the respondents and hearing them. The presumption is that in spite of preliminary objection as to maintainability of the writ petition, because of the availability of suit as an alternative remedy, this Court has admitted the petition, which was pending for hearing for more than two years. The presumption is that in spite of preliminary objection as to maintainability of the writ petition, because of the availability of suit as an alternative remedy, this Court has admitted the petition, which was pending for hearing for more than two years. Even otherwise, the remedy of regular civil suit for the limited purpose of seeking direction to register the document under Section 77 of the Act, in the facts and circumstances of the present case, cannot be considered to be equally efficacious alternative remedy, which may persuade this Court not to exercise its extraordinary jurisdiction to examine the issue raised in the petition on merit at this stage particularly when parties have argued on merits of the case. Accordingly, the preliminary objection raised by Mr. G.M. Khan, learned counsel for the respondents, is overruled. 14. Relying on the above judgment of the Honble Apex Court, the objection of alternative remedy is hereby rejected as the rejection order of Sub-Registrar is contrary to the provisions of Registration Act. 15. In the above judgments, i.e., Gafur Khan and others v. State of Rajasthan and others (1 supra), the Rajasthan High Court and the order of the High Court of Andhra Pradesh at Hyderabad in Writ Petition No.19164 of 2007 dated 01.08.2008, it is categorically held that the Sub Registrar/Joint Registrar cannot conduct a roving enquiry for registering the document. Hence, as rightly contested by the learned counsel for the petitioner, the Joint Sub Registrar cannot conduct a roving enquiry unless it is contrary to the provisions of Sections 19, 20, 21, 22A and 34 of the Registration Act. 16. For the aforesaid discussion, the impugned order dated 25.06.2021 passed by the 4th respondent is hereby set aside and consequently, the 4th respondent herein is directed to receive the document, which is pending, vide Pending File No.261/2021, and process and relieve the same by registering the document. 17. Accordingly, with the above direction, the Writ Petition is allowed. There shall be no order as to costs of the Writ Petition. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.