@JUDGMENTTAG-ORDER
V.V.S. Rao, J.@mdashThese writ petitions are being disposed of by this common order in view of the commonality in the cases and also due to the fact that the order challenged is passed by the Sub-Registrar, Repalle, Guntur District (first respondent in all the writ petitions). Further, the impugned order of refusal of registration is similar. The background of these cases as is given in the next paragraph is also similar.
2. The fourth respondent, Jasti Venkata Subbamma, and her husband Jasti Venkata Subba Rao have three sons and four daughters. The elder son, Siva Rama Prasad, predeceased his father. The husband of fourth respondent died on 16.09.2007 leaving behind him considerable extent of immovable property - houses/house plots and agricultural lands in Tenali Mandal. It is also not disputed that during his lifetime, Venkata Subba Rao effected partition among his children, and after his death, his property was succeeded by the fourth respondent. Late Siva Rama Prasad, Subrahmanyeswara Rao and Bhujangeswara Rao (youngest one) (petitioner in W.P. No. 6015 of 2008) are her sons. Nagaraja Kumari (petitioner in W.P. No. 6021 of 2008), Damayanthi, Swarna Kumari and Vijaya Laxmi are daughters of fourth respondent. The second son - Subrahmanyeswara Rao, was given in adoption to father of fourth respondent.
3. On 16.01.2008 fourth respondent presented five gift deeds before Sub-Registrar, Repalle. These were executed in favour of her youngest son, her grandson, her granddaughter through first daughter, her eldest daughter and another grandson. First respondent, however, did not register them immediately for the reason that all properties are situated within the jurisdiction of registering authority of Tenali. Documents are kept pending being document Nos. P2 to P6 of 2008. On 22.01.2008 fourth respondent issued a Telegram to the first respondent informing latter that without her knowledge, petitioners brought into existence the gift deeds/settlement deeds, that she is not a native of Repalle Sub-Registrar limits and that her thumb impressions were obtained on the gift deeds under threat. She also lodged a First Information Report on 23.01.2008 with P.S. Amarthalur under Sections 420, 384, 506 read with Section 34 of the Indian Penal Code, 1860. On 29.01.2008, she gave a representation stating that gift deeds were obtained by coercion and without her consent. In response to all these, first respondent gave a notice to fourth respondent on 23.02.2008 and rejected the registration and subsequently on 26.02.2008 first respondent returned the five documents to fourth respondent. It is also brought to the notice of this Court (though no additional affidavit is filed) by the learned Counsel for the petitioners that subsequently the fourth respondent was taken to Vijayawada by Thummala Damayanthi (daughter) and fourth respondent executed gift deeds in favour of others, out of which, two are registered and others were rejected. In these writ petitions petitioners challenge the action of the first respondent refusing registration. They seek a writ of mandamus declaring the refusal as illegal and arbitrary and for a direction to first respondent to register the gift deeds by duly summoning them from the fourth respondent. 4. At the stage of admission itself, counter affidavits have been filed. First respondent filed counter affidavit justifying rejection contending as follows. Admitting the case of the petitioners to the extent of presenting the gift deeds and keeping them pending as document Nos. P2 to P6 of 2008, it is also admitted that after receiving the telegram issued by the fourth respondent on 22.01.2008, and certificate issued by Tahsildar cancelling the residence certificate, as well as representation dated 29.01.2008 sent by the fourth respondent, the documents were kept pending. Fourth respondent appeared before first respondent on 11.02.2008 and deposed that she has no property under the jurisdiction of first respondent and that her thumb impressions were obtained on papers without consent and knowledge. First respondent, therefore, refused registration u/s 35(3)(a) of the Registration Act, 1908 (the Act, for brevity), treating the ''admission of execution under threat'' as denial of execution.
5. Fourth respondent in her counter affidavit made allegations to the following effect. After death of her husband on 16.09.2007 the petitioner in W.P. No. 6015 of 2008 withdrew money from Andhra Bank by obtaining signatures. Thereafter, petitioners obtained gift deeds also in respect of some plots in Tenali. On 16.01.2008 petitioners took fourth respondent from her house in Kuchipudi Village stating that they are taking her to Tenali for medical checkup. She was taken to an unknown place. Her thumb impressions were obtained on several papers, the contents of which, are not known to her. She was forced to affix thumb impressions. On 17.01.2008 when her son, Subrahmanyeswara Rao, who was given in adoption to her father and is residing at Raichur, Karnataka, came to her, she narrated the incidents. Her son made enquiries and informed that she was taken to Repalle and her thumb impressions were obtained on the gift deeds in favour of the petitioners. The Sub-Registrar, Repalle, has no jurisdiction. So as to attract jurisdiction, an extent of 500 square yards in Thotapalem Village of Repalle Mandal was purchased on 16.01.1998, and the same was made into five pieces shown in each of the documents for the purpose of creating jurisdiction. Further, it was shown as if she is resident of Door No. 6-10-58/1, Repalle. A certificate from Tahsildar, Repalle, was obtained by playing fraud, though she never resided in the said place, and from her childhood she is permanent resident of Kuchipudi Village. She gave a complaint to Tahsildar to cancel the certificate after conducting enquiry. On 16.01.2008 Sub-Registrar, Repalle, was not present. Petitioners did everything in planned manner. She, therefore, lodged a complaint with the Police. Authorities conducted enquiry and recorded her statement. Petitioners have not filed reply affidavit denying counter averments of fourth respondent.
6. Learned Counsel for the petitioners placing reliance on Sections 34 and 35 of the Act submits that when once the document is executed in the presence of Registering Officer, the same cannot be kept pending without registration. According to the learned Counsel, even subsequently the person who executed document denies execution, the Registering Officer has no choice, but to register. He placed reliance on
7. The only point that arises for consideration is whether the impugned order of first respondent rejecting registration is justified in law. To appreciate the contention, the provisions of the Act and the Rules need to be noticed. It is also necessary to consider the powers of registering officers in discharge of their duties under the Act, to know whether it is mandatory for the registering officers to accept and admit every document presented in any form for registration or whether it is permissible for the registering officers to refuse registration and is it permissible to cancel the registration.
8. Sections 19, 20, 21 and 22 of the Act describe certain situations in which the registering officer can refuse registration. These are: when the document is in a language not understood by the officer, the documents with blanks, eraser, alteration etc., the documents without description of the property sufficient to identify the same and the documents which are presented for registration beyond four months from the date of execution. u/s 32 of the Act, when a document is presented by some person other than the person who executed the document, registration can be refused and similarly u/s 35 of the Act, 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.
9. When a document is presented for registration, it should contain the photographs and fingerprints affixed as per Section 32A of the Act (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 - 22, 32 and 35 of the Act. The registering officer is also required to follow the Rules promulgated by IG u/s 69 of the 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 (Computer-Aided Administration of Registration Department). The Rules also contain as many as ten appendices dealing with different types of registers and entries to be made therein etc.
10. Rule 26 of the Rules gives the nature of examination to be made by the registering officer. The same reads as under.
Rule 26
(i) Every document shall, before acceptance for registration, be examined by the registering officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance:
(a) that it has been presented in the proper office (Sections 28, 29 and 30);
(b) that the person is entitled to present it (Sections 32 and 40);
(c) that if it is a non-testamentary document and relates to immovable property, it contains a description of property sufficient to identify the same and fulfils the requirements of Rules 18 to 20.
(d) that if it is written in a language not commonly used in the District and not understood by the registering officer it is accompanied by a true translation into a language commonly used in the District and also by true copy (Section 19);
(e) that if it contains a map or plan, it is accompanied by true copies of such map or plan as required by Section 21(4);
(f) that if it contains no unattested interlineations, blanks, erasures or alterations, which in his opinion require to be attested as required by Section 20(1);
(g) that if the document is one other than a will it has been presented to within the time prescribed by Sections 23 - 26;
(h) that it bears the date of its execution and does not bear a date anterior to the date of purchase of stamp papers and the document is written on a date subsequent to the date of representation;
(i) that if the date is written in any document other than a will presented for registration after the death of the testator according to both the British and the Indian calendars, these dates tally; and
(j) that if the presentant is not personally known to the registering officer, he is accompanied by such identifying witnesses with whose testimony the registering officer may be satisfied.
(ii) If there are any informalities in presentation of a nature which can be remedied, for instance, non-compliance of the requirements mentioned in Clauses (a) to (f), (h), (i) and (j) of Sub-rule (i) or this rule, the registering officer shall give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form. The action of the registering officer shall be confined to advice and he shall not himself alter the document in any way.
Rule 58 of the Rules is also relevant and reads as under.
58. It forms no part of a registering officer''s duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:
(a) that the parties appearing or about to appear before him are not the persons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d) that the existing party is not really dead as alleged by the party applying for registration; or
11. Though Rule 58 of the Rules prohibits registering officers from enquiring into validity of the document, Rule 26 read with Rule 58 of the Rules 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.
12. Part XII of the Act deals with refusal to register and Chapter XXIV of the Rules (Rules 161 to 164) deal with "refusal register". u/s 71 of the 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 u/s 77 of the Registration Act for a decree directing the document to be registered by the registering officer.
l3. 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. Sections 60 and 61 of the Act deal with such situation. These provisions read as under.
60. Certificate of registration: (1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented fro registration have been complied with, the registering office shall endorse thereon a certificate containing the word ''registered'', together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.
61. Endorsements and certificate to be copied and document returned: (1) The endorsement and certificate referred to and mentioned in Section 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No. 1:
Provided that the copying of the items referred to be may be done using electronic devices like scanner.
(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52.
14. The above provisions would show that unless and until there is compliance with the provisions of the Act and also with the provisions of Sections 34, 35, 58 and 59 of the Act, there cannot be any presumption about the regularity of the proceedings before the Sub-Registrar as contemplated under Sub-section (2) of Section 60. When once an endorsement is made as stipulated in Section 60 of the Act, under Sub-section (2) of Section 61, registration shall be deemed complete and the document so registered shall have to be returned to the person, who presented for the registration.
15. Learned Counsel lays considerable emphasis on Section 34 of the Act. According to the learned Counsel, when once the Registering Officer completes the enquiry whether or not the document presented for registration was executed by the persons by whom it purports to have been executed, he cannot pass an order refusing registration. The submission cannot be accepted. Section 34 of the Act contemplates enquiry before registration and Section 35 of the Act contains procedure to be followed by the Registering Officer on "admission and denial of execution respectively". Section 35(3) of the Act, which is relevant, reads as under.
35(3). (a) If any person by whom the document purports to be executed denies its execution, or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution,
the registering officer shall refuse to register the document as to the person so denying, appearing or dead.
Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII.
Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to a Registrar for the purposes of this sub-section and of Part XII.
16. It is clear from the above provision that if any person by whom the document purports to be executed denies its execution, Registering Officer has no choice but to refuse the same. In this case, it is no doubt true that in the impugned order the first respondent mentions that fourth respondent presented gift/settlement deeds on 16.01.2008 and admitted execution. The same, in the considered opinion, however, does not amount to execution. As per Section 35(3)(a) of the Act, if the person by whom the document purports to be executed denies its execution subsequently, the same does not amount to execution for the purpose of Section 34(3)(a) of the Act. In this case, fourth respondent issued a telegram on 22.01.2008 and also appeared before first respondent alleging that her signatures were obtained without her consent by threatening. "Execution" for the purpose of the Act means signing the document with full knowledge of repercussions and consequences. Keeping this in view, Rule 26 of the Rules requires the registering authority to ensure that all the requirements prescribed in the Act and the Rules are complied with. One of the important requirements is the execution of a document by a person on his/her own volition and mere subscribing signature under any circumstances does not amount to execution. Rule 58 of the Rules makes it mandatory for the Registering Officer to enquire into validity of the documents including the question whether they have been executed by the person who professes to be one to have been executed the document.
17. The decision in Gafur Khan (supra) is a case where a sale deed was presented purported to be executed by Shahajadi Khatu and subsequently registration was refused on the ground that sale deed was got executed by misrepresenting that she had to execute certain documents for securing old age pension. When the refusal was communicated, the same was challenged before the High Court. High Court of Rajasthan gave a direction to register the document observing that once the requirements of Sections 34 and 35 of the Act are satisfied, Registering Officer is under obligation to register the same, except when he is able to point out any grounds mentioned in Section 35(3) of the Act. In that connection, it was observed as under.
Section 32 provides who can present the document for registration. In the present case there is no dispute about the fact that the document was presented by a person competent to present it. In fact, the document has been presented by executrix of document herself. There is no violation of that part of the provision. According to Sub-Registrar the document has been presented by none other than respondent No. 4 Shahjadi Khatu, W/o. Salim Khan, who has executed the said document.
18. Thus, even the decision relied on by the learned Counsel is to the effect that unless and until the conditions in Section 35 of the Act exist, the Registering Officer cannot refuse registration. In this case, as noticed supra, there are reasons more than one under which any reasonable man would come to conclusion that execution was not proved or admitted in accordance with Section 35(3)(a) of the Act read with Rules 26 and 58 of the Rules. Therefore, this Court does not find any infirmity in the order.
19. Section 72 of the Act contemplates an appeal against an order of refusal passed by the registering authority. Such an appeal is provided to the District Registrar. But, as rightly pointed out by the learned Counsel for the petitioners, if a refusal is made on the ground of denial of execution, appeal would not lie u/s 72 of the Act. When the refusal is denied on the ground of denial of execution, remedy is to file an application u/s 73 of the Act. In
...Section 73 of the Act enables a person who presents a document for registration, and registration of document is rejected/refused by the Sub-Registrar on the ground that the person purported to have executed denies such execution, the aggrieved party can file application before the Registrar in order to establish his right to have a document registered. u/s 75(4) of the Act the District Registrar is competent to summon and enforce attendance of witnesses and compel to give evidence as if he were a Civil Court. After doing so, u/s 75(1) of the Act if the Registrar finds that the documents has been executed and that the said requirements have been complied with, he shall order the document to be registered. In the background of this legal position, one thing is very clear that law does not stipulate method and manner or nature of enquiry to be made by the District Registrar into applications u/s 73(1) of the Act before passing order u/s 75(1) of the Act....
20. After an order is passed u/s 73 read with Sections 75 and 76 of the Act, the person aggrieved can file a suit for a decree directing the document to be registered within thirty days of passing of such decree. When such a suit is filed, civil Court is entitled to go into all questions including capacity of the person who executed document and allegations of misrepresentation and fraud.
21. Therefore, this Court is of considered opinion that petitioners be given liberty to apply to the District Registrar u/s 73 of the Act and also file a suit thereafter. It is needless to mention that District Registrar, Tenali or Guntur, whoever has jurisdiction, has to decide the matter without in any manner influenced by observations and findings made hereinabove, which are made only for the purpose of disposal of these cases.
22. The Writ Petitions are accordingly dismissed with the above observations. No costs.
