REASONS FOR REFUSAL TO REGISTER TO BE RECORDED

SUBMITTED IN PARTIAL FULFILMENT OF B.A., L.L.B DEGREE

SUBMITTED TO: SUBMITTED BY:

PRADEEP KUMAR SAWAR LAL MANDA

ASST. PROFESSOR OF LAW 1454

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 CONTENTS

1. THE PROVISION...........................................................................................................................................2

2. PREVIOUS ACTS AND CHANGES....................................................................................................................2

3. SCOPE OF THE SECTION.................................................................................................................................3

4. REFUSING TO REGISTER- MEANING OF-........................................................................................................3

5. NO REFUSAL ON THE QUESTION OF MERIT....................................................................................................4

6. POWER OF SUB-REGISTRAR TO REFUSE REGISTRATION OR IMPOUND DOCUMENT.......................................4

7. COLLECTOR OF ANY DISTRICT HAS NO POWER TO ISSUE INSTRUCTION PROHIBITING REGISTRATION..........6

8. ORDER OF REFUSAL NOT FALLING UNDER THIS SECTION—NOT APPEALABLE.............................................6

9. THE EXPRESSION "WITHOUT PAYMENT"—MEANING OF..............................................................................7

10. NO SUIT LIES FOR COMPELLING REGISTRATION........................................................................................7

11. REGISTERING AUTHORITY IF REFUSED TO REGISTER DOCUMENT, HE HAS TO ASSIGN REASONS TO BE

RECORDED.............................................................................................................................................................7

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 REASONS FOR REFUSAL TO REGISTER TO BE RECORDED

1. THE PROVISION

Section 71. Reasons for refusal to register to be recorded.

(1) Every Sub-Registrar refusing to register a document, except on the ground that
the property to which it relates is not situate within his sub-district, shall make
an order of refusal and record his reasons for such order in his Book No. 2, and
endorse the words “registration refused” on the document; and, on application
made by any person executing or claiming under the document, shall, without
payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed
unless and until, under the provisions hereinafter contained, the document is
directed to be registered.

2. PREVIOUS ACTS AND CHANGES.

Nil. Some as the Sec. 71 of Act III of 1877.

Section 71 of Act III of 1871. —Same as above.

Section 71 of Act VIII of 1871. —Contained similar provisions; but contained another
exception which ran as follows: "Except where the registering officer, being a Registrar,
declines to accept the document on the ground that it ought to be registered in the office of a
Sub-Registrar.

Section 82 of Act MC of 1866. —Contained similar provisions; but enacted another

exception which ran thus: "Except one which he has discretion to refuse to accept for
registration:" this Act also required the party applying for a copy of the reasons of the
refusal to furnish a stamp-paper worth eight arenas.

Section 86 of Act XVI of 1864. —Contained similar provisions.

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 3. SCOPE OF THE SECTION.

Section 71 governs all cases, where a Sub-Registrar refuses to register a document, except when the
refusal is on the ground that the property, to which the document presented before him relate., is not
situate within his sub-district and he is bound to follow the procedure laid down therein 1. Under this
section, the document of which registration is refused is to be endorsed with the words "registration
refused" excepting when the instrument relates to property not situate within the sub-district of the
Sub-Registrar. If the Sub-Registrar refuses to register a document on the ground that the property does
not lie within his jurisdiction the refusal is conclusive 2. A contrary view has, however, been expressed
in Seth Suganmal v. Mst. Umrao Bibi3.

4. REFUSING TO REGISTER- MEANING OF-

Where the Sub-Registrar refuses to register a document on the ground that the persons
executing the document did not appear before the registering officer within the time allowed
for the presentation of documents and that the Registrar did not condone the delay the act of
the Sub- Registrar must be treated as an order under Sec. 71. 4 When the executant, after
being twice summoned failed to appear and the Sub-Registrar returned the document and
endorsed it and returned in accordance with the request of the party presenting it, it was held
that in the circumstances of the case, the Sub-Registrar's order returning the document was
really an order consequential on a refusal to register on the footing of denial of execution,
though he did not make the written order with reasons for a refusal as required by the law. 5

In the instant case admittedly, the petitioner did not make any application asking for a copy
of the reasons for refusal. In these circumstances, it is difficult to infer that the respondent
has refused to register the sale deeds. Mere fact that the petitioners have approached the
High Court is not sufficient to infer refusal by the respondent. Further, their conduct in not
making even an application, as contemplated under Sec. 71 of the Act, excludes any such
inference.6

1
Munshi v. Daulat Ram, AIR 1944 Lah. 349
2
Veerappa Chetty v. Kadirsen Chetty, 20 IC 385
3
AIR 1938 Nag. 550
4
Fatehchand Anandram Marwadi v. Umaji Valuji Mahar, AIR 1923 Bom. 290.
5
Subramanian Pattar Karilar v. Edathil Madhatil Krishna Iyer, AIR 1915 Mad. 442.
6
Deverneni Linga Rao v. Sub-Registrar, Peddapalli Krimnagar Dist., (1999) W A.L.T. 599 at PP. 601, 602 (A.P).

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5. NO REFUSAL ON THE QUESTION OF MERIT.

A registering authority may obviously refuse registration of a document on the ground of

any formal defect, when the formalities, required to be complied, e.g. want of requisite
stamps or certificates and the like. But, unless the relevant laws governing the matter
provide clearly to that effect, such an authority cannot go into question of the merits of the
transaction to which the documents relate.

6. POWER OF SUB-REGISTRAR TO REFUSE REGISTRATION OR IMPOUND

DOCUMENT.

In this case, it is apparent that the Sub-Registrar before whom the petitioner presented the
document for registration had found that the document ought to have been stamped at 6% of
the market value and not at 3% of the market value as is the case in respect of the document
in question In view of this opinion held by the Sub-Registrar, it was incumbent on him. is
view of the provisions under Sec. 33 of the Stamps Act, to impound the document It the
document is impounded by an authority receiving evidence and has admitted such
instrument in evidence upon payment of deficit stamp duty and penalty provided under Sec.
35 of the Stamp Act, he shall send to the Collector, an authenticated copy of such
instrument, together with a certificate in writing stating the amount of duty and penalty
levied in respect thereof and shall send such amount to the Collector or to such person as he
may appoint in his behalf, as contemplated in Sec. 38 (1) of the Stamp Act. This does not
apply in this case as the document in question was not presented before the Sub-Registrar
fur receiving in evidence. In such a case, the Sub-Registrar if he decides to impound the
document shall sent it in original to the Collector as provided for under Sec. 38 (2) of the
Stamp Act. Under Sec. 40 of the Indian Stamp Act, 1899, the Collector who has received the
document under Sec. 38 of the said Act shall proceed to decide whether the instruments is
duly stamped or is not chargeable with duty or if it is chargeable with duty and is not duly
stamped, he shall require payment of the proper duty or the amount required to make up the
same together with a penalty of Rs. 5/- or if he thinks fit, an amount not exceeding ten times
the amount of the proper duty or of the deficient portion thereof, whether such amount
exceeds or falls short of five rupees. It is obvious that in this case, the Sub-Registrar has
neither passed an order refusing to register the document as contemplated under Sec.71 of

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 the Registration Act nor he impounded the document as contemplated under Sec. 33 of the
Stamp Act.

It is only after the Sub-Registrar passes either of the order that the petitioner can
proceed in the matter. At any rate, it is clear that it is not for the High Court at this stage to
proceed to examine the document and determine whether the document falls under Art. 49-A
(a) or under Art. 49-B (sic 49-A (b)) of the Stamp Act. The Sub-Registrar concerned was
directed to either pass an order refusing to register the document under Sec. 71 of the Indian
Registration Act, if he so chooses, on the ground that the petitioner is not willing to pay the
deficit stamp duty as called for by him in the impugned memo or to proceed under the
provisions under Sec. 33 of the Stamp Act. 7

I n the present case the vendor of Annexure P-1 has not denied the execution. It is
only the Sub-Registrar who is not discharging his duty to register the document (Annexure
P-1) on the ground that a dispute about title is pending in the Court of Nazul and the
document cannot be registered during the pendency of such a title dispute. Duties and
powers of registering officers are contained in Part XI of the Registration Act. None of the
provisions empowers the registering officers to refuse to register a document in case of
dispute of title. Cumulative effect of the provisions contained in Parts XI, XII, Rules 35 and
36 makes it clear that the Sub-Registrar has no authority to refuse to register a document on
the ground that the vendor/transferor of Annexure P-1 has no title to the property in question
and is not competent to execute the sale deed. Obviously, the vendee/transferee would
derive by virtue of the registered document, right, title and interest which the transferor had
at the time of execution of the deed. There would be no effect on the validity of transferor
merely on account of pendency of case before Nazul Officer. No transfer of immovable
property is prohibited even during the pendency of such a dispute. Only thing is that the
transferee would get the right, title and interest of the transferee, If its vendor succeeds in the
litigation. Keeping this in mind, it cannot be side by any stretch of imagination that merely
on account of pendency of dispute the Court of Nazul. the registering officer nas a power to
refuse to register the document.

The reasons mentioned in Rule 35 as valid reasone though are not exhaustive and
there may be valid reasons apart from thoue mentioned in Rule 35. However, it may not be
lost sight of that in Rule 36, it is clearly mentioned that registration shall not be refused on
7
Kethineedi Jainendre kumar v. District Registrar, Eluru, 2000 (1)A.L.T. 336 at pp. 341, 342 (A.P.)

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 the ground that the document deals with property not belonging to the person by whom it
purports to have been executed. Thus, the absence of title with the executant of the
document has not been prescribed as a valid ground in express and specific language. This
being so, although the grounds enumerated in Rule 35 may not be exhaustive, but one thing
is defined that the refusal to register a document on the ground of absence of title with the
vendor has been prescribed as an invalid ground and the Sub-Registrar, Bhopal is not
registering the document contained in Annexure/P-I on such a ground is found to have acted
in dereliction of duties.

7. COLLECTOR OF ANY DISTRICT HAS NO POWER TO ISSUE INSTRUCTION

PROHIBITING REGISTRATION.

It is the duty of the Sub-Registrar to register the document in accordance with Sec. 71 of the
Registration Act, when presented, and when the duty is to be discharged in accordance with
law, it necessarily excludes extraneous considerations, such as, instructions, or directions
having no foundation in law and no public authority while so acting would introduce its own
fanciful notions in the matter. The appellate order makes a reference to certain executive
instruction issued by the Collector, Indore, in pursuance to which the Sub-Registrar had
refused registration of the document. No such instructions have been placed on record, even
assuming them to be so, the Registration Act does not confer any such power on the
Collector, of any district to issue any such instructions prohibiting the registration of
documents.8

8. ORDER OF REFUSAL NOT FALLING UNDER THIS SECTION—NOT

APPEALABLE.

The order of refusal passed by a Registrar, in a case where he had only a discretion to accept
an instrument for registration, e.g. where a Registrar refused, under Sec. 32, to register the
instrument on the ground that a Sub-Registrar might register it, was held to be not an order
falling under this section and not to be appealable. 9

8
Kailaah v. Sub-Registrar of Assurances, Indore, A.I.R. 1985 M.P. 12 at p. 17.
9
S.M. Sarkis v. &Ingram Singh, 14 W.R. 194; 6 B.L.R. 578, note, (Case decided underAct XX of 1866).

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 9. THE EXPRESSION "WITHOUT PAYMENT"—MEANING OF.

These words refer to inspection, search or copying fees payable under the rules framed
under Sec. 78. Under Sec. 71, no fees are payable for copies of reasons for refusal to
register, if such copies are granted by Sub-Registrars to persons executing or claiming under
the document where they are payable under the rules framed under Sec. 78. But for copies
given by Registrars or headquarters Sub- Registrars, copying fees must be paid as Sec. 76
does not exempt them. Copies of entries in Book B granted to persons other than the
executants or the claimants as also to those granted even to executants or the claimants on
the second or subsequent occasion are not so exempted and copying free shall be levied on
them.10 But under Art. 24, Sch. 1 of the Stamp Act, stamp duty is to be levied on all such
copies.11

10.NO SUIT LIES FOR COMPELLING REGISTRATION.

When the document of which registration is refused and is endorsed with the words
"Registration refused' no registering officer can accept it for registration until it is directed to
be registered under the provisions contained in subsequent sections of the Act. Without
following the procedure laid down in these sections, no suits lies for compelling registration.
as a public officer cannot be directed to do that which he is specially and plainly prohibited
from doing.12

11.REGISTERING AUTHORITY IF REFUSED TO REGISTER DOCUMENT, HE HAS TO

ASSIGN REASONS TO BE RECORDED.

After execution of the sale deeds, the petitioners approached the second respondent and
requested him to get the documents registered and the second respondent refused to register
the same on two grounds. but the said refusal is not be way of a written order. According to
the High Court the said action on the part of the second respondent is contrary to the
statutory requirements. The provisions of Section 71 of the Registration Act, 1908 clearly
mandates that the Registering Authority, if refused to register a document, has to necessarily
assign reasons to be recorded.
10
See rule 132, Central Provinces and Berar Rules.
11
Bengal Manual, 1928, p. 218, para 180; C.P. and Bernr Rule 132; U.P. Rule 320. According to Rule 144, Punjab
Manual (1929), copies are required to be stamped under Art. 9 of Sch. I of the Court-fees Act.
12
Bhagwan Singh v. khuda Baksh 1881 AWN 3 ILR 3 All. 397.

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 From the said provision of law. the High Court has no hesitation to come to the
conclusion that the action on the part of the second respondent in keeping the documents
pending with him and directing the petitioners to comply with the objections raised by him
is wholly arbitrary and illegal. When once a document is presented to the Registering
Authority either he has to register the said document or pass an order of refusal recording his
reasons, which is the requirement as provided for under the statute, but not the one as done
by the second respondent herein.

Further, if the Registering officer passed an order as provided for under Section 71 of
the Act, refusing to register the documents, petitioners can as well prefer an appeal as
provided for under Section 72 of the Act, which is a statutory appeal, and agitate the same
before the appellate authority. Hence, the High Court has held that these writ petitions can as
well be disposed of without going into the merits holding that the action on the part of the
Registering Authority, i.e. the second respondent in keeping the documents pending without
passing any order is definitely contrary to the provisions of law. Accordingly, the second
respondent is hereby directed to pass an order forthwith preferably within a period of four
weeks from the date of the receipt of a copy of the order, on merits, so that the petitioners
may approach the appellate authority as provided for under Section 72 of the Act. 13

13
K Surrender Rao v. Govt. of Andhra Pradesh, 2008 (1) ALD 645 at pp. 646, 647 (A.P).