2018 Supreme(Ker) 543
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Ullas P.S. – Petitioner
Versus
State of Kerala Rep. by its Secretary, Local Administration Department – Respondent
WP (C) No. 26380 of 2018
Decided On : 09-08-2018
For the Petitioner: Sri. K.V. Jayadeep Menon.
Headnote:Constitution of India, Art.226 - Registration Act 1908 -apart any such condition as in Ext.P-1 sale deed, the 5th respondent will be under the constitutional responsibility to register any document implemented by the petitioner assigning his right, etc.
ALEXANDER THOMAS, J.
1. The petitioner is aggrieved by the condition restraining alienation or mortgage of the property imposed in Ext.P-1 sale-deed No. 1852/2005 dated 23.3.2005 of SRO, Alangad, executed in his favour, at the instance of respondents 1 to 4. The property was purchased by the petitioner based on a partial financial assistance given by the Government under a scheme formulated by the Government, for purchase of land for members of Scheduled Caste and Scheduled Tribe. It is stated by the petitioner that the financial assistance given under the said Government scheme is much lesser than compared to the amount that had to be spent by the petitioner for purchase of the land and construction of a building. It is contended by the petitioner that the said condition imposed on the petitioner is illegal and null and void. It is the further case of the petitioner that the wife of the petitioner is suffering from serous ailments and that for meeting the huge expenditure of the medical treatment, the petitioner was constrained to take loans from various financial institutions, as can be seen from Exts.P-3 to P-6. The petitioner would state that the petitioner is now facing with the situation that there is no other alternative, but to sell his land covered by Ext.P-1 sale-deed in order to pay off the loan and to meet the further expenses for the treatment of his wife. But that the respondents, more particularly R-5 Sub Registrar, SRO, Alangad, are not permitting the petitioner to deal with the property for his beneficial use, in view of the said restriction in the document. It is in the light of these factual averments that the petitioner has filed the instant Writ Petition (Civil) with the following prayers:
“(a) Issue a Writ of certiorari or any other appropriate writ, order or declaration holding that the condition restraining alienation or mortgage of the property covered under Exhibit P-1 is null and void or in the alternative declare that petitioner is having every right to alienate or mortgage the property covered under Exhibit P-1 document.
(b) Issue a Writ of mandamus or any other appropriate writ, order or direction commanding the 5th respondent to register the sale-deed or mortgage deed executed by the petitioner in favour of any person for valuable consideration without taking into account of the condition restraining alienation or mortgage in respect of the property covered under Exhibit P-1 document.
(c) Any other appropriate writ, order or direction as this Honourable Court deem fit and proper on the facts and in the circumstances of the case and allow this writ petition with cost for the ends of justice.”
2. Heard Sri. K.V. Jayadeep Menon, learned counsel appearing for the petitioner and Smt. A.C. Vidhya, learned Government Pleader appearing for respondents R-1, R-2, R-5 and R-6. As no specific relief is sought as against R-3 and R-4, notice to those parties party will stand dispensed with.
3. The petitioner places reliance on Ext.P-7 judgment dated 31.3.2016 in W.P. (C) No. 19579/2014 rendered by this Court in similar circumstances. The said judgment reads as follows:
“1. The petitioner purchased a property by Ext.P1 with aid provided under Peoples Planning Programme. The purchase was on 02.02.2000.
2. In the sale-deed it is mentioned that property is not alienable. The petitioner submitted that he is entitled to alienate the property, notwithstanding such stipulation in the deed. According to the petitioner, the stipulation as above is null and void and therefore, it has no legal effect.
3. It is to be noted that the petitioner is the absolute owner of the property. Therefore, notwithstanding any such stipulation in Ext.P1, the 4th respondent shall honour any document executed by the petitioner conveying her right in such property in accordance with law.
The writ petition is disposed of as above.”
4. The respondents have no case that the impugned restriction, which finds a place in Ext.P-1 sale-deed is on the