2006 Supreme(AP) 1228

2006 (6) ALT 523 (F. B.)
IN THE HIGH COURT OF JDUICATURE, ANDHRA PRADESH AT HYDERABAD
BILAL NAZKI, V.V.S.RAO and G. CHANDRAIAH, J.
Yanala Malleshwari and others - Petitioners.
v.
Ananthula Sayamma and others - Respondents.
Writ Petition No. 9512 of 2003 and Batch
Decided on 24-10-2006.
Advocates Appeared
M/s. M.R.K. Chowdary, K. Ramakrishna Reddy, Senior Counsel and B. Vijaysen Reddy, M. Sudhir Kumar, A. Rajasekhar Reddy, C. Damodhar Reddy, Y. Rama Rao, K. Raghuveer Reddy, N.Subba Reddy, V. Venkata Ramana, J. Prabhakar, H. Venugopal and Smt. B. Kavita Yadav, Counsel for the Petitioners.
G.P. for Revenue and M/s. P. Venugopal Rao, A. Shireesh, T.S. Anand, Mahamood Ali for S. Srinivas Reddy, Y.Srinivasa Murthy and M.S. Ramachandra Rao, Counsel for the Respondents.

Headnote:a) Constitution of India - Art. 226 - Writ Maintainability - Disputed Facts - Validity of cancellation deed nullifying earlier sale deed, challenged by filing writ - Serious disputed facts regarding allegations of fraud, misrepresentation by Vendor and Vendee against each other - Dispute cannot be decided without recording evidence - Disputed facts cannot be adjudicated under writ jurisdiction - parties should be relegated to civil court.

       Held : Judicial review has its own limitations and all decisions of public bodies are not amenable to this public law power. Nor is it permissible for a reviewing Court to deal with matters which lack adjudicative disposition by reason of prerogative nature of the power exercised by the public authority or exclusive entrustment of powers to a specialized body of the State. As the legislative and executive wings are prohibited from usurping the judicial functions of the State, the judiciary is not expected to discharge legislative and executive functions.

       Whether the vendors file suits for cancellation of the instrument under Section 31 or for declaration of title under Section 34 or whether vendees file suits for cancellation of the cancellation deed, there are bound to be allegations of fraud, misrepresentation and illegality by both the parties. An elaborate procedure is available under Code of Civil Procedure, 1908 (CPC), Evidence Act, Specific Relief Act and Transfer of Property Act, which has to be followed by a civil Court. Certain issues cannot be adjudicated by resorting to summary procedure. In a writ petition, this Court decides the issues based on the affidavit evidence. Whenever affidavit evidence is not sufficient and further probe is required in the sense that persons who swear affidavits need to be cross-examined and confronted with documentary evidence, a writ petition is not a proper remedy. In a sale transaction, it is essentially a contract between two persons and if one person after conclusion of the contract goes back and makes attempt or purports to make an attempt to deny the benefit of the contract of the other party, the remedy is only in the civil Court.

       Registration Act would show that the registering authorities are creations of statutes and they are conferred powers under the statute to enable them to discharge statutory duties. A registering authority has a role of a catalyst in the sense of legitimizing certain transactions by registering as per law. By the action or inaction of registering authority, there is no involvement of the State or the Government as such, except to the extent of charging registration fee for the service of registration as well as keeping the registers.

       Therefore, any instrument between the two persons, is governed by private law principles and registration thereof does not play any pervading role in rendering the transaction legal or otherwise. For instance, if a contract is prohibited by reason of its being against public policy, the registration of the document evidencing such contract does not render it valid. Similarly, if two joint owners of immovable property decide to exchange properties and do so without going to registering authority, no law prohibits such exchange. However, if either of them wants to produce such deed as evidence, by reason of Section 49(c) of Registration Act, the same cannot be received as evidence of transaction between them. The registration in certain circumstances is notice of a transaction relating to immovable property to a limited extent. Therefore, Registration Act and registering authorities acting thereunder mainly deal and regulate transactions in the realm of private law. For this reason also, the writ petition cannot be entertained.

       when once a document is registered by registering authority, the same can be nullified only by the civil Court and that at the time of registration, the registering authority has no power to make enquiry as to the competence or otherwise of the person presenting the document for registration.

       As seen from the counter affidavits filed by the contesting respondent, extremely serious questions regarding right and entitlement to immovable property have been raised. With the affidavit evidence, which by no means can be treated as elaborate, if this Court decides such serious questions, it would certainly prejudice the rights of the respondents and they would be deprived of the remedy before hierarchy of civil Courts. In the considered opinion of this Court, the jurisdiction under Article 226 of Constitution of India cannot be exercised if the order passed by this Court cannot be carried out without prejudicing the rights of the others. As observed by the Supreme Court in A.R. Antulay v. R.S.Nayak62, "it has been said long time ago that "Actus Curiae Neminem Gravabit , the act of the Court shall prejudice no man and that this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law". Be it noted that even according to the petitioners, the sale deed obtained by them is valid till it is cancelled by the civil Court. Therefore, even if the cancellation deed is allowed to remain, no prejudice would be caused to the petitioners. It is also pointed out to us by the learned Government Pleader that as per the instructions issued by the IG under Section 69 of the Registration Act, the registering authority is issuing a notice to the earlier purchasers and also endorsing on the cancellation deed that such cancellation deed does not alter the rights.

       there are serious disputed questions of fact regarding the allegations of fraud and misrepresentation played by the vendors as well as vendees against each other. There are also questions raised regarding the competence and entitlement of a person executing the document. In some cases (W.P.Nos.22298, 23005 and 23088 of 2004), the sale deeds were cancelled some time in August, 2003, but the writ petitions are filed with considerable delay: In some cases, there are complaints of cancellation of deeds/ instruments after lapse of ten years after execution of the original deed. In the opinion of this Court, these are the matters which are to be decided based on evidence and the affidavit evidence available on record is hardly sufficient to decide the issues in such a manner to meet the ends of justice. Indeed, in some of the matters W.P.Nos.879,880, 881,882,979,980 and 981 of 2006) suits are already filed for injunction and the orders of status quo are in force. Therefore, this Court is of considered opinion that the parties should be relegated to the civil Court.

       b) Registration Act, 1908 - Sections 17(1)(b), 18, 32, 49, 60, 61, 77; A.P. rules under Registration Act, 1908 - Rules 26,58 - Registration - Enquiry into nature of document presented for registration - Registering officer to conduct enquiry and satisfy as to identity of property, identity of person executing document etc. - Unless the enquiry conducted, Registering Officer cannot certify that document is registered.

       Held : Rule 58 prohibits the registering officers from enquiring into validity of the document, Rule 26 read with Rule 58 reveals that it is always permissible for the registering officer to examine the document presented for registration as to whether the person who presented the document is entitled to present, whether such person is known to the officer or has been properly identified by the identifying witnesses, and also examine the document with reference to the various provisions referred to hereinabove. If any objection is raised, the registering officer has to consider whether the parties appearing before him are not the parties they profess to be, whether the document is forged and whether the document is presented without proper authority by representative, and whether the executing party is dead or not. In case, the registering officer is not satisfied, he can refuse registration.

       Part XII of the Registration Act deals with refusal to register and Chapter XXIV of the Rules (Rules 161 to 164) deal with "refusal register". Under Section 71 of the Registration Act, the registering officer has to record his reasons for such refusal in book No.2 and endorse the words "registration refused" on the document and when asked for, to furnish the reasons to the person executing or claiming the document. The reasons for refusal could be many and many more as seen from Chapter XXIV of the Rules. When the registration is refused, the person aggrieved has to prefer an appeal to the Registrar (Section 72) and if the appeal is also rejected, the remedy to an aggrieved person is to file a suit under Section 77 of the Registration Act for a decree directing the document to be registered by the registering officer.

       When a document is presented for registration; whether such document is compulsorily registerable or not; the registering officer is bound to examine the document, conduct enquiry and satisfy himself as to the identity of the property, the identity of the person executing the document and as to the compliance with Stamp Act and other provisions of the Registration Act. Unless such an exercise is done, the registering officer cannot certify that the document is registered and only after such certification, the registration becomes valid.

       c) Interpretation of Statutes - Cases Omissions - Court, while construing law cannot supply omissions in a statute.

       d) Contract Act - Sec. 16 - Fraud - Fraud vitiated everything and renders a transaction null and void.

       e) Registration Act, 1908 - Section 17(1)(b), 18 - Registration of documents - Not conclusive of legal and Valid transfer of title.

       Held : a broad language was used by the legislature to see that any document of transfer of immovable property does not escape the compulsory registration. Therefore, in the considered opinion of this court, wherever a deed of transfer is registered under which a right, title and interest is assigned or transferred, the same need not always be conclusively taken to be a legal and valid transfer of title. Every sale deed must be treated as non-testamentary instrument, which purports to transfer. This interpretation is also supported by Section 18(a), which is to the effect that all instruments other than instruments of gifts and wills which purport to or create or assign right, title or interest in property of less than RS.1 00/- can be registered at the option of the parties. If Section 17(1)(b) is interpreted as dealing with all documents, which absolutely transfer the right, title and interest, the provisions of Sections 31 and 34 of the Specific Relief Act would be rendered otiose. Such an interpretation has to be avoided. Therefore, this Court must conclude that whenever sale deed is registered by one person in favour of the other person, the vendor can still has locus to question such sale deed under which the title is transferred or purportedly (allegedly) transferred. A document on the face of it, may appear to be sale deed evidencing transfer of property, but for reasons more than one; it may be void.

       f) Registration Act, 1908 - Sec. 17(1)(b), 18, 19 to 22, 32, 35 - Registration of Document - Refusal - Powers of Registration officers - Explained.

       Held : Under Section 32, when a document is presented by some person other than the person who executed the document, the registration can be refused and similarly under Section 35, the registering officer should be satisfied that the document presented for registration is in fact executed by the person, who appears before him and admits the execution. But, registration can be refused when the person by whom the document purported to be executed denies execution or the person, who purportedly executed is dead. Be it noted that by reason of the effect of Section 17 and 18, all documents whether compulsorily registrable or optionally offered for registration can be accepted for registration by the registering officer subject to the limitations contained in the provisions referred to hereinabove.

       When a document is presented for registration, it should contain the photographs and fingerprints affixed as per Section 32-A (if it is a sale deed, the photographs and fingerprints of the buyer and seller must be affixed). After receiving the document, the registering officer has to verify/examine a document with reference to Sections 19 to 22, 32 and 35. The registering officer is also required to follow the Rules promulgated by IG under Section 69 of the Registration Act. Chapter VIII of the Rules deals with registration and examination of documents, whereas Chapter XII of the Rules deals with enquiry before registration and examination of executing parties. The Rules elaborately deal with all aspects of registration, including maintenance of registers, rectification of mistakes, fees payable for registration, maintenance and preservation of records, the method and manner of keeping the documents, and of late registration of documents through CARD.

       g) Registration Act, 1908 - Sec. 17(1)(b), 18, 32, 49 ; T.P. Act, 1882 - Sections 4, 5, 8, 53 and 54 - Contract Act, 1872 - Sec. 23 - Cancellation of Registered Sale Deed - person, who executed a sale deed and got it registered cannot subsequently execute a document unilaterally canceling earlier sale deed.

       Held : when a person transfers all his rights, his rights in the property get extinguished and if he tries to get back the property, it has to be done by challenging the sale deed which he has executed and which is registered by the Sub-Registrar.

       Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as the Contract Act ) is applicable to the present controversy. It lays down that an agreement is void if it deviates from the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.

       One of the arguments advanced by the respondents in this case, which has found favour with my brother Mr. Justice V.V.S. Rao, is that the remedy available to the petitioners is to go to a civil Court under the provisions of Specific Relief Act. The same argument can be used against the respondents in this case, who, if aggrieved of registration of a sale deed which they had executed, themselves should have gone to the civil Court for such a remedy. I do not agree with my learned brother that the writs are not maintainable, as the remedy to the petitioners is at common law by going to a civil Court. The effect of registration of a cancellation deed is against public policy and it will create a chaos if such deeds are allowed to be registered. The purpose of registration of a document is not only to see that the rights of the vendor are extinguished and rights of the vendee are created, but the purpose is much more than that. It has been consistently held by the Courts that the purpose of registration is to inform and give notice to the world at large that such a document has been executed. Registration of a document is a notice to all the subsequent purchasers or encumbrances of the same property. The doctrine of constructive notice can be extended to others besides subsequent purchasers or encumbrances, as has been held in Tatyarao Venkatrao Vase v. Puttappa Kotrappa6. Therefore, the effect of registration of a sale deed is not effecting the rights of the present petitioners alone, but that registration is a notice to everybody in the world that the property belongs to the petitioners and if such a right is violated by subsequent registration of a cancellation deed by the Sub-Registrar, it cannot be said that writ petitions are not maintainable.

       If the present practice of cancelling the duly registered sale deeds as prevalent in the State of Andhra Pradesh is approved, then, the whole public policy with regard to registration of documents would get vitiated. Registered sale deeds executed duly, have some sanctity and people at large rely on them to test the title of a particular person to a particular property.

       If a person executes a sale deed and registers it today and then on the second day gets it cancelled, it will be simply a chaos.

       it was contended by the respondents that under no provision of law the Sub-Registrar is required to register a document after an enquiry as to the ownership of the property with respect to which a document is sought to be registered. It may be true that there is no such provision in the Registration Act, but if strictly interpreted, then the Registration Act would not empower the registering authority to register any document unless it falls within Section 17 or 18 of the Registration Act. Section 17 mentions those documents which are compulsorily registrable and Section 18 mentions those documents, of which, the registration is optional, but, the whole scheme of the Registration Act shows that it is incumbent upon the Registrar not to register documents that are unlawful. Obviously if a person has no right in the property and his interests in the property had extinguished, if he tries to execute any document for the same property, the document would be illegal. If A executes a document with B that he would kill C on payment of a consideration and if such a document is presented before the Sub-Registrar, is the Sub-Registrar duty bound to register such a document? If A executes a sale deed conveying the title of Charminar or High Court for consideration, is the Sub-Registrar bound to register such a document? Besides, in the present case, the documents themselves show that the property had already been conveyed by a registered document, therefore, no enquiry was needed to be conducted. It is only on mere reading of the document that Sub-Registrar would come to a conclusion that the document, which was sought to be registered, was an illegal document and as such could not be registered. Therefore, the argument of the learned counsel for respondents that the Sub-Registrar has no authority to make enquiries with regard to the title of the parties who executes the documents, would have to be accepted with exceptions. That may be true, but if the document itself shows that the party who executes the document has no title over the property, the Sub-Registrar is not bound to register such a document. The scheme of the Registration Act shows that documents which create interest or extinguish interest are either compulsorily registrable or are to be registered at the option of the executor. Besides this, what is sought to be revoked by this cancellation deed is the earlier registered sale deed.

       It has been stated that all rights, titles and interests vesting with the party of the Second part shall stand revoked and terminated. Party of the Second part is not a party to the deed itself, whereas in the preamble of the deed it is stated that the document is executed between Dr. P.S.N. Murthi and Smt. P. Nageswaramma as the first party and Sri Ch. Surendra Reddy as the second party. The second party had not even executed this document and had not signed the document and registration of this document amounts to nullifying of earlier document registered by the Sub-Registrar and the Sub-Registrar does not have any power whatsoever over a document, which is already registered by him.

       By registering so-called Cancellation of Sale Deeds , what the Sub-Registrars are doing, in effect, is that they are cancelling the registrations made earlier and once a registration is made, the Sub-Registrar has no power under the Registration Act to cancel such a registration, as he became a functus officio.