You are on page 1of 6

MANU/RH/0008/1992

Equivalent Citation: AIR1992Raj24, RLW1990(2)Raj548, 1990(2)WLN102, 1990WLN(UC )351

IN THE HIGH COURT OF RAJASTHAN


Civil Writ Petition No. 93 of 1989
Decided On: 11.09.1990
Appellants: Smt. Kishni Devi
Vs.
Respondent: The State of Rajasthan and Ors.
Hon'ble Judges/Coram:
M.C. Jain, J.
Counsels:
H.R. Panwar, Addl. Govt. Adv.
For Appellant/Petitioner/Plaintiff: A.L. Chopra, H.S. Sadhu and Sudesh Kakkar, Advs.
Case Note:
Registration Act - Sections 34, 35, 47, 58 and 59 and Rajasthan
Registration Rules, 1955-Rule 39--Registration refused for want of
classification from U.I.T.--Registered document operates from date of
execution and not from date of registration--Held, Registrar could not
refused registration of Sale-dead.
The Sub - Registrar passed order Annexure 4 on August 30, 1988 refusing the
registration of the decument for want of clarification from the Urban Improvement
Trust, Jodhpur.
It is clear from the provisions of Section 47 of the Act that a registered document
operates from the date of its execution and not from the date of its registration.
Reference of Nand Ballabh Gurnam v. Smt. Maqbool Begum, 1981 Allahabad Rent
Cases (S.C.) may be made here. To say the least, it appears that the Registrar and
the Sub-Registrar were ignorant of the aforesaid provisions of the Registration Act
and the above quoted Rules, otherwise they would not have refused the registration
of the said sale-deed. The registration of the sale-deed could not be refused on the
ground mentioned in their orders.
Writ Allowed.
ORDER
M.C. Jain, J.
1 . This writ petition has been filed for directing the Sub-Registrar, Jodhpur
(respondent No. 2) to register the sale-deed dated May 15, 1987 (Annexure-2). The
facts of the case giving rise to this writ petition may be summarised thus.
2. The vendors Parasmal and Sardarmal' Kankaria, Queens Park, Calcutta agreed to :

18-03-2019 (Page 1 of 6) www.manupatra.com Symbiosis Law School


sell their small piece of land measuring 57 sq. meters situated near Isolation
Hospital, Jodhpur for Rs. 500/- to the petitioner. On May 15, 1987 the holder of their
general Power of Attorney, Rajesh Lodha, executed the sale-deed Annexure-2 on
requisite stamps in favour of the petitioner. On July 14, 1987, he presented it before
the Sub-Registrar, Jodhpur for its registration and deposited the requisite registration
charges through the receipt Annexure-1. The Sub-Registrar summoned the executant
(Rajesh Lodha) for September 15, 1987, he appeared before him and admitted the
execution of the sale-deed Annexure 2. The Sub-Registrar completed all the
formalities required under Sections 34, 35,58 and 59 of the Registration Act
(hereinafter to be called 'the Act). On March 31, 1987 the executant had given a
notice under Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 to the
Competent Authority intimating about the said proposed sale. It did not exercise
option to purchase the said land as provided under Section 26(2) of the aforesaid
Act. The Sub-Registrar did not register the sale-deed and kept it pending. Writ
Petition No. 1381/88 was filed. On August 22, 1988, the Court directed the Sub-
Registrar to decide the question of registration of the said sale-deed within a period
of 10 days. In compliance thereof, the Sub-Registrar passed order Annexure 4 on
August 30,1988 refusing the registration of the document for want of clarification
from the Urban Improvement Trust, Jodhpur. An appeal was filed against his order
before the District Registrar, Jodhpur (respondent No. 3). He rejected it by his order
dated December 5, 1988 (Annexure 5) on the grounds that it is the duty of
registering authority to see that the orders of the Government issued from time to
time are complied with, the provisions of the Act are not infringed, the Power of
Attorney execut- ed by the Venders in favour of Rajesh Lodha has been cancelled by
May 16, 1987 and he had no authority to present the sale deed for its registration or
admitting its execution.
3. Despite seeking several adjournments for filing reply, it has not been filed by any.
respondent. On January9,1989, Smt. Sudesh Kakkar moved an application for being
impleaded as a party on the ground that she is in actual and physical possession of
the land which has been sold through the sale deed Annexure 2. The same day the
application was dismissed by this Court. On August 22, 1990, she moved another
application for being impleaded as an intervenor.
4 . It is contended by the learned counsel for the petitioner that the Sub-Registrar
could not refuse the registration of the sale deed Annexure 2 after completing all
necessary formalities required under Sections 34, 35, 58 and 59 of the Act. He also
contended that the appeal has also been dismissed by the Registrar on untenable
grounds, not permissible under the Act. He also contended that the Registering
authority is not concerned whether the vendor had a valid title to transfer it or the
holder of power of attorney continues to hold such a power. He relied upon the
provisions of Sections 52, 58 and 71 of the Act, Rules 39 and 105, Rajasthan
Registration Rules, 1955 (hereinafter to be called 'the Rules') and J.D. Pathak v. B.B.
Barot, MANU/GJ/0082/1982 : AIR 1982 Guj 317.
5 . In reply, the learned Government Advocate and the learned counsel for the
applicant Smt. Sudesh Kakkar tried their best to support the orders of the Sub-
Registrar, Jodhpur arid also of the Registrar, Jodhpur. They relied upon Smt. Gomati
v. Rameshwar Das, 1971 RLW 1 : (MANU/RH/0049/1971 : AIR 1971 Raj 211) (FB).
6. Admittedly, sale deed whose copy is Annexure 2 was executed on May 15,1987 by
Rajesh Lodha, holder of general power of attorney, for and on behalf of the vendors
Parasmal and Sardarmal in favour of the petitioner Smt. Kishni Devi it was presented

18-03-2019 (Page 2 of 6) www.manupatra.com Symbiosis Law School


before the Sub-Registrar, Jodhpur for registration on July 14, 1987 by the Petitioner,
the execution Rajesh Lodha was summoned by the Sub-Registrar, Jodhpur for
September 14, 1987, he duly appeared before him and he admitted its execution. It
is further clear from a perusal of the photostat copy of Annexure 2 and also the
original sale deed shown during the arguments by the learned counsel for the
petitioner that all necessary formalities required under Sections 52, 58 and 59 of the
Act were complied with. Despite them, the Sub-Registrar, Jodhpur refused its
registration by its order dated August 30, 1988 on the ground that the Competent
Officer under the Urban Land (Ceiling and Regulation) Act, 1975 has written to him
that the sale deeds be registered only after making an enquiry from the Secretary,
Urban Improvement Trust, Jodhpur and no report of inquiry has so far been received
from the latter. The petitioner filed an appeal under Section 72 of the Act before the
Registrar (Additional Collector), Jodhpur. After hearing the parties, the appeal was
dismissed by him by his order dated December 5, 1988 (Annexure 5). The relevant
portions of his order run as under:--
^^i{kdkjsa }kjk izLrqr rdZ cgl ,oa fu;eksa ls ;g Li"V gS fd dksbZ Hkh nLrkost lkekU;r;k
izLrqrdrkZ ,oa lEeifr ds VkbZVy dks ns[kdj gh iaft;u gsrq Lohdkj fd;s tkrs gS A iath;u djkus
gsrq lEcfU/kr O;fDr o mlds vf/kdkjh dks ns[kuk Hkh mi iath;u dk drZO; gS rFkk lkFk gh
jktdh; vkns'k rFkk iaft;u fu;eksa ds lkFk gh vU; izpfyr dkuwu vcZu ys.M flfyax vkfn ds rgr
Hkh nLrkost dk ijh{k.k fd;k tkuk pkfhg, mi iaft;d }kjk rnuqlkj gh nLrkost iaft;u ls vLohdkj
fd;k gS ftls vuqfpr ugh dgk tk ldrk gS A bl ekeys esa i{kdkj jsLiks- ua- 2 dh vkifÙk Hkh
mfpr izrhr gksrh gS A Jh jkts'k yks<k dk vke eq[rh;kjukek fnukad 16&5&1988 dks fujLr dj
fn;k x;k o ftldh lwpuk jktLFkku if=dk esa izdkf'kr gqbZ mls ns[krs gq, ;g Li"V gks tkrk gS
fd fnukad 16&5&1988 ls vke eq[r;kjukek izHkko 'kqU; gS rFkk mldk iz;ksx ugha fd;k tk
ldrk fdUrq vihy vk/khu nLrkost mi iaft;d ds ;gka fnukad 14&7&87 dks tcfd vke
eq[rh;kjukek blls igys gh jnn fd;k tk pqdk Fkk ckn esa iaft;u gsrq is'k fd;k x;k gS A bl izdkj
eqf[r;kjukek ds fo:) fl) gksus ds ckn Jh jkts'k yks<k ikjley dkadfj;k] ljnkjey dkadfj;k ds
eq[rh;kj ugha jgs o os jftLVªh lc jftLVªkj ds ;gka fnukad 14&7&87 dks cgSfl;r eq[rh;kj
is'k u dh tkus dh fLFkfr dks ns[krs gq, Jh jkts'k yks<k jftLVªh is'k ugha dj ldrk Fkk o
pwaffd izLrqrdrkZ fu"iknu ;ksX; O;fDr ugha gS u l{ke o lEcaf/kr O;fDr gh gS vr% /kkjk 34
jftLVªs'ku ,DV ds rgr mi iaft;d vke eq[rh;kjukes dh izfr izLrqr djk ldrk gS o blds fy,
mUgsa dkwuuu vf/kdkj gS o mi iafp;d ds ;gka ljnkjey }kjk fnukad 14&10&87 dks izkFkZuk
i= Hkh izLrqr djuk ik;k tkrk gS ftlls Hkh mi iaft;d dks ;g Kku gks tkrk gS fd eq[rh;kjukek
jnn gks pqdk gS o ,slh fLFkfr esa izLrqrdrkZ l{ke O;fDr ugha jgk o ftlls nLrkost dk fu"iknu
tks fu;ekuqlkj ugha dj ldrk gS lc jftLVªkj ds bl vf/kdkj dks ugha fNuk tk ldrk fd ;g rlYyh
djsa fd jftLVªs'ku MhM dksbZ Hkh O;fDr fu"iknu djus ckyk vf/kd'r O;fDr gS ;k ugh A
jftLVªs'ku MhM dksbZ Hkh O;fDr fu"iknu dj ldrk gS ijUrq dksbZ Hkh O;fDr fdlh nwljs
ds izfrfuf/k ds :i esa MhM fu"ikfnr djokuk pkgs rks lc jftLVªkj dks ;g tkuus dk gd gS fd og
O;fDr dk;ns ls vf/kd'r O;fDr gS ;k ugha- vkSj ;fn ugha rks og tkap dj ldrk gS rFkk rc rd
MhM fu"iknu jksd ldrk gS A bl U;k;ky; esa vihykUV ;g ckr ugha lkfcr dj ik;s gSa fd os ftuds
izfrfuf/k cudj vk jgs gSa os mudks izfrfuf/k cukuk pkgrs Hkh gSa A tc ekfyd us viuh ikoj
vkQ vVkjuh jnn dj nh rks ikcj vkWQ vVkjuh gksYMj dks ;g vf/kdkj ugha gS fd og tcjnLrh
mudk izfrfuf/k cus A og O;fDr vius Lo;a dh rjQ ls jftLVªh djsa rks dkuwu mldks btktr
nsxk ysfdu nwljs ds vukf/kd'r izfrfuf/k cuus ij jftLVªh dh btktr ugha feysxh oSls Hkh bl
ekeys esa ,d ;kstuk ds chp&chp esa xyh dwapk csph tk jgh gS tks tufgr esa Hkh mfpr ugha
yxrh gS vr% lqfo/kk dk larqyu Hkh vihykUV ds i{k esa ugh gS A

7 . It is clear from a perusal of the various provisions of the Act that the powers of
the Sub-Registrar and Registrar have been clearly defined and demarcated by the Act.
The Act authorises the Sub-Registrar to refuse to register a document if it is not
properly executed or presented or the subject matter of the document lay beyond the
territorial jurisdiction of the Registrar or Sub-Registrar, as the case may be. The Sub-

18-03-2019 (Page 3 of 6) www.manupatra.com Symbiosis Law School


Registrar can refuse to register a document under Section 21 of the Act, if it does not
contain the description of the immovable property sufficient to identify the same;
under Section 23, if a document is not presented within 4 months of the day of its
execution; under Section 28, if the document is presented for registration in the
office of the Sub- Registrar within whose sub-district the whole or some portion of
the property is not situated; under Section 32, if the document so registered is not
presented by the person executing it or claiming under the same or by representative
or assign of such person; under Section 35, if the Sub-Registrar is not satisfied about
the identity of the person/persons they represented themselves to be, or such a
person or persons do not admit the execution of the document, or a person or such
persons appear to be minor or lunatic or idiot or if the person by whom the document
purports to be executed is dead and his representatives or assigns deny its execution.
8. Rule 39, Rajasthan Registration Rules, 1955 runs as under:--
"39. Registering Officers not concerned with validity of documents.--
Registering Officers should bear in mind that they are in no way concerned
with the validity of documents brought to them for registration and that it
would be wrong for them to refuse to register on any such grounds as under
.-
(1) that the executant was dealing with property not belonging to
him;
(2) that the instrument infringed the rights of third persons not
parties to the transaction;
(3) that the transaction was fraudulent or opposed to public policy;
(4) that the executant had not agreed to certain conditions of the
document;
(5) that the executant was not acquainted with the conditions of the
document;
(6) that the executant declared that he had been deceived into
executing; and
(7) that the executant is blind and cannot count.
These and such like are matters for decision, if necessary, by competent
courts of law, and registering officers, as such, have nothing to do with
them. If the document be presented in a proper manner, by a competent
person, at the proper office, within the time allowed by law, and if the
registering officer be satisfied that the alleged executant is the person he
represents himself to be, and if such person admits execution, the registering
officer is bound to register the document without regard to its possible
effects. But the registering officer shall make a note of such objections of the
kinds mentioned in grounds (1) to (7) above, as may be brought to his
notice in the endorsement required by Section 58."
Rule 42 of the Rules said as follows :--
"42. Registration to be completed necessarily .-

18-03-2019 (Page 4 of 6) www.manupatra.com Symbiosis Law School


(1) If the executant appears and admits execution and his identity is
established, the registration should be completed even though one
or both of the parties may ...after this stage, desire to withdraw the
document from registration. If after admission of execution the
executant refuses or neglects to sign the endorsement, the
registering officer should note this refusal as prescribed in Section
58 of the Act.
(2) If after admission of execution and the necessary identification of
the parties, the presenter (irrespective of the executant's action)
refuses to proceed or 'to sign the endorsement, the registration
should never the less be completed and a note of the refusal to sign
endorsed 'on the document. The document, if not claimed, should be
kept for one month under Rule 22 and then sent to the District
Registrar."
9. The Sub-Registrar and the Registrar are the creation of the statute and they draw
their authority there from. The powers and duties are defined under the Act and
Rules. Their statutory functions could not be curtailed by any executive instructions
issued by the State Government or any authority. The Sub-Registrar could not refuse
to register the sale-deed on the ground that inquiry report had not been received
from the Secretary, Urban Improvement Trust, Jodhpur.
10. The Registrar sustained the order of the refusal of the registration also on the
ground that the holder of general power-of-attorney Rajesh Lodha ceased to be so as
his authority was withdrawn by the vendors Parasmal Sardarmal prior to his
appearance before the Sub-Registrar, Jodhpur in compliance of his summons.
Admittedly, the sale deed was not executed by the vendors parasmal and Sardarmal,
it was executed by Rajesh Lodha on their behalf as holder, of general power of
attorney and it was presented before the Sub-Registrar for registration by the vendee
Smt. Kishni Devi petitioner. According to Rule 39 of the Rules, the Registrar was not
concerned whether the Authority executed in favour of Rajesh Lodha by the venders
Parasmal and Sardarmal continued till July 15, 1988 or not. It is Well settled law that
where a person holds a power of attorney authorising him to execute the document
on behalf of his principle and he executes the document, he is treated as the
executant of the document for the purpose of registration. Production of any power of
attorney as required under Section 33 of the Act is not required. Reference of
Goswami Malti Vahuji Maharaj v. Purushottamlal, MANU/WB/0068/1984 : AIR 1984
Cal 297, may be made here. Admittedly, the sale deed was executed by Rajesh Lodha
on May 15, 1987 and the general power-of-attorney executed in his favour by
Parasmal and Sardarmal is said to have been withdrawn by getting their notice of
revocation published in 'Rajasthan Patrika' of May 16, 1987. Thus the sale-deed was
executed by Rajesh Lodha prior to the revocation of his authority to execute it.
Section 204, Contract Act runs as under:
"204. The principal cannot revoke the authority given to his agent after the
authority has been partly exercised, so far as regards such acts and
obligations as arise from acts already done in the agency."
When Rajesh Lodha had executed the sale-deed, he was fully competent to appear
before the Sub-Registrar as its executant and also as an authorised agent of the said
vendors. It is clear from the provisions of Sec. 47 of the Act that a registered
document operates from the date of its execution and not from the date of its

18-03-2019 (Page 5 of 6) www.manupatra.com Symbiosis Law School


registration.
Reference of Nand Ballabh Gurnami v. Smt. Maqbool Begum 1981 ARC 516 may be
made here. To say the least, it appears that the Registrar and the Sub-Registrar were
ignorant of the aforesaid provisions of the Registration Act and the above quoted
Rules, otherwise they would not have refused the registration of the said sale-deed.
The registration of the sale-deed could not be refused on the ground mentioned in
their orders. Reference of J.D. Pathak v. V.B. Barat MANU/GJ/0082/1982 : AIR 1982
Guj 317 Kailash and Ors v. Sub-Registrar of Assurances Indore and another,
MANU/MP/0004/1985 : AIR 1985 MP 12 and Krishna Gopal Kataria and another v.
State of Punjab and others MANU/PH/0184/1986 may be made here. As such the writ
petition deserves to be accepted.
11. Consequently, the writ petition is allowed with costs which are assessed at Rs.
1,000/-. The orders of the Sub-Registrar, Jodhpur (Annx. 4) and of the Registrar,
Jodhpur (Ann. 5) are set aside.
1 2 . The Sub-Registrar, Jodhpur is directed to give necessary certificate of
registration on the sale-deed together with number and pages of book in which it is
copied out and return it to the petitioner as required under Sections 60 and 61 of the
Registration Act, within three months of its representation before him.

© Manupatra Information Solutions Pvt. Ltd.

18-03-2019 (Page 6 of 6) www.manupatra.com Symbiosis Law School