Possessory rights can be transferred without the need for prior documents under Section 17 of the Registration Act.

JUDGMENT :

The petitioners in these cases have approached this court being aggrieved by the refusal by the Sub Registrar to register documents presented by the petitioners on the ground that they petitioners have not produced any prior documents.

2. The learned counsel appearing for the petitioners in these cases would submit that the issue stands covered in favour of the petitioner by the judgment of this court in Sumathi and another v. State of Kerala and others; 2018 (5) KHC 586 where this court has taken the view that in the light of the provisions contained in Section 17 of the Registration Act the Sub Registrar is not authorised to insist that the executant must produce prior documents. Reference made in this regard to paragraph 8 of the judgment in Sumathi (supra) wherein it held as follows;

“8. This Court has also held in the judgment in 16.2.2018 in W.P. (C).No.2871/2018, which has been followed in a series of cases that the Sub Registrar is not legally justified to insist that executant should produce prior title deeds to satisfy the title and ownership of the property before he could register the deed concerned and that even possessory right could also be conveyed and there is no bar or legal impediment in transferring the possessory rights from one person to another and whether the possession is based on lease or title are all not matters of enquiry by the Sub Registrar and only those rights which the executor are having alone could be conveyed to the transferee. In other words, mere execution of the deed by itself will not be conclusive of the title and ownership rights of the person concerned merely on the basis of the description and recitals in the deed concerned. Accordingly, this Court had directed the Sub Registrar concerned to accept the document concerned and register the same in accordance with law which is otherwise in order, etc. In the light of the above said legal principles well settled in the aforecited judgments of this Court, this Court is of the considered view that the petitioners' contentions are sustainable and tenable. In Ext.P-2 thandapader account finalised after re-survey proceedings pertaining to the 1st petitioner's property, it is clearly shown that the total extent of land is 4.80 ares and the boundaries are also shown in Ext.P-2 which tallies with the boudaries shown in Ext.P-3 sale deed. It is true that in Ext.P-6 land tax receipt, the extent of land is only 4.05 ares and not 4.80 ares shown in Ext.P-2 thandaper account. This Court had specifically directed the Senior Government pleader to get instructions from the 4 th respondent-Tahsildar in the matter and the 4th respondent-Tahsildar, Ottappalam, has now furnished written instructions dated 20.10.2018 to the learned Senior Government Pleader, a copy of which has been made available for perusal of this Court, wherein it has been inter alia stated that the State Government as per Circular No.40837/E3/15/Rev. dated 12.10.2015 has ordered that the area mentioned in the re-survey record in each survey/sub division cases can be taken into account as basic record for pokkuvaravu (Transfer of Registry). The Government Circular No.40837/E3/Rev. dated 12.10.2015 issued by the government in the Revenue Department reads as follows:

xxx xxx xxx

Accordingly, it has been apprised by the 4th respondent, Tahsilar, that based on the entries made in the Basic Tax Registrar with respect to the property in re-survey No.3/40 Block No.78 of Kadambazhipuram Village-I, and physical verification report of the Village Officer concerned, an extent of 0.0480 hectares (about 12 cents) of land is admissible to the 1st petitioner, Sumathi, in the light of the abovesaid Government Circular dated 12.10.2015. In the light of these aspects, this Court is of the view that there are no legal impediments for admitting the pleas of the petitioners and accordingly it is so ordered. In that view of the matter, it is ordered that the view taken by the 3rd respondent-SRO, Kadamb