Payment of consideration is not a condition for registration of a document under section 35 of the Registration Act.

1. Sethi J. has raised doubts about the correctness of the judgment in Haji Habib Ullah Vs. Registrar and ors, reported in 1976 JKLR 430 In the said authority section 35 of the Registration Act does not seem to have been considered which, according to the learned Judge making the reference, would require re-consideration of the said authority.

2. Main Jalal-ud-Din J, as his Lordship then was, has held that payment of outstanding consideration is not a condition for admitting a document to registration, if the execution of the document is proved.

3. To understand the ambit and scope of the points raised in the reference, which fall for our consideration, it is necessary to give a brief resume of the facts of the case, out of which the reference has arisen.

4 Respondents 3 to 5 herein are the executants of a sale deed dated 29 7.1982 executed by them for consideration in favour of petitioners herein. The petitioners presented the sale deed for registration before the Registering officer Srinagar (Sub-Registrar, Munsiff, respondent No: 2, herein. The executants did not appear before the Registering Officer when the sale deed was presented for registration. Since nobody was present to admit the execution of the sale deed before the Registering Officer, he refused the registration of the deed by this order dated 2911.1982. The petitioners filed an appeal under the provisions of the Registration Act against the order of refusal of the registration of the document by the Registering Officer before the District Registrar, respondent No: 1, which came to be registered as Registration appeal No : 295/1982.

5. The Registration appeal No: 295/82 was decided and allowed by the respondent No: 1 by its order dated 2.3.83. The District Registrar directed the Registration of the sale deed subject to the following conditions to be carried out by the petitioners:

"That the document shall be admitted to registration by the concerned registering authority in accordance with law, provided the appellants pay the balance consideration of Rs. 40,OCO/- to the respondents 3 to 5 or deposit the same before the Sub Registrar, Srinagar- - --"

6. Payment of balance consideration was made condition for the registration of the document by the respondent No : 1, The petitioners filed a writ petition challenging the condition imposed by the respondent No: 1 with respect to the payment of consideration or its deposit before the Sub-Registrar at the time of registration of the document. The petitioners seek a direction to the respondents 1 and 2 for admitting the sale deed in question to registration. In this way a writ of certiorari and mandamus is prayed to be issued.

7. The petitioners urge that the direction given by the District Registrar with regard to the payment or deposit of the balance consideration before the document could be registered is without jurisdiction and in contravention of the provisions of the Registration Act. It is further contended that the respondents 1 and 2 have a statutory duty to register the document, execution where of is declared proved in appeal No: 295/1982. The payment or deposit of balance consideration cannot be made a condition for the registration of the document in question.

8. Judgment in Haji Habib Ullahs case (1976JKLR;430) supports the contention of the petitioners, The said judgment lays down, on consideration of sections 58,72 and 75 of the Registration Act, that nonpayment of consideration is not a ground for refusing the registration of a document and once the execution of the document is admitted, it is the statutory duty of the Registering officer to register the instrument. Registering Officer has no power to enforce the directions with regard to payment of consideration money when the document is presented to it for registration. In the order of reference Sethi J, while doubting this proposition, has observed that provisions of section 35 of the Registration Act were not kept in mind while deciding Haji Habib