Reserved
Court No. - 26
Case :- WRIT - C No. - 24928 of 2012
Petitioner :- Smt. Veena Singh
Respondent :- The District Registrar/Additional Collector (F/R) And Another
Counsel for Petitioner :- Ramendra Asthana, Surendra Kumar
Counsel for Respondent :- C.S.C.,A.C. Pandey,
P.H. Vashishtha
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by Mrs.
Veena Singh praying for a writ in the nature of certiorari for quashing the order dated 31.03.2012 passed by the District Registrar/Additional Collector (Finance and Revenue), Bareilly, by which he has allowed the Appeal No. 1 of 2012 (M/s Gujral Associates vs Smt. Veena Singh), and for issuance of a mandamus directing respondent No. 1 not to pass any order or take any action on the basis of the aforesaid impugned order dated 31.03.2012.
2. The facts of the case as mentioned in the writ petition as well as in his arguments by Mr. Ramendra Asthana, learned counsel for the petitioner are that an agreement to sell was initially entered into on 22.10.2010 by the petitioner on her own behalf, and on behalf of her daughters and her son in favour of Gujral Associates, Bareilly. It was agreed to sell 839.48 Sq. Mtrs. comprising of rare portion of House No. 110-B Civil Lines, Bareilly. The agreement to sell was accompanied by payment of some token amount through Cheque. However, the said Cheque of Rs. 3,00,000/- (rupees three lac) issued in the name of one Ahmad Hasan through Cheque No. 11168 dated 03.06.2009 was not received by her. The petitioner became suspicious of the intention of respondent No. 2, and therefore, did not wish to execute the Sale Agreement, but the Sale Deed was got prepared by Mr Paramjeet Singh Gujral partner of Gujral Associates on 20.06.2011, and he along with 4-5 of his associates came to the house of the petitioner and forced her to sign on the said Sale Deed on 20.06.2011 against her wishes. Later on, she discovered that the papers that were read out to her as the Sale Deed, initially described the property in question as admeasuring 839.48 Sq. Mtrs. However, when she was forced to sign the agreement, the property in question was shown as admeasuring 1839 Sq. Metres. The Cheque of Rs. 67,00,000/- (rupees sixty seven lac) that was allegedly given in part payment of the property in question to the petitioner was never encashed by the petitioner.
3. On 15.12.2011, the Sale Deed was presented by Paramjeet Singh Gujral for registration, and on 21.12.2011 the petitioner submitted her representation before the Deputy Registrar disclosing how she had been cheated at the hands of respondent No. 2. The Deputy Registrar directed the petitioner to appear before him on any working day prior to 20.02.2012.
4. The petitioner appeared before the Deputy Registrar on 17.02.2012, and her statement was recorded, in which she clearly mentioned that she did not wish to sell off her property as the boundaries of the property as well as the area of the property, both were wrongly mentioned in the Sale Deed. This fact was recorded by the Deputy Registrar in his report made on the file/Order Book II, and in exercise of powers vested in him under section 35(3)(a) of the Act read with Rule 249 of the Registration Manual passed an order refusing registration of the document.
5. It has been submitted that the order dated 17.02.2012 related to denial of execution under section 72 of Registration Act, and was not amenable to Appeal before the District Registrar. Only a representation could have been filed under section 73 of the Act. However, the Appeal No. 1 of 2012 was filed by the respondent No. 2 before the District Registrar, which was entertained. The petitioner filed her objections through her counsel saying that the appeal was not maintainable. Also she categorically denied having signed the document as presented for registration. In her objections, the petitioner stated that her signatures and thumb impressions were forged on the Sale Deed and its photocopy by the respondent No. 2. Respondent No. 1. However, without deciding the preliminary objection regarding maintainability of the appeal under section 72 of the Act, respondent No. 1 entertained the appeal and took the evidence in the form of statements of Paramjeet Singh Gujral, Mohit Saxena and Tara Chand Patel, the two attesting witnesses of the Sale Deed. The respondent No. 2 also filed a report of an alleged Handwriting Expert dated 20.03.2011, wherein he compared the thumb impressions of the petitioner as admitted by her in the Agreement to Sell with the thumb impressions on the disputed Sale Deed, and opined that both the thumb impressions were identical.
6. The Registrar in his order dated 31.03.2012 mentioned that Paramjeet Singh Gujral, the vendee of the Sale Deed and the two attesting witnesses Mohit Saxena and Tara Chand Patel had given statements through affidavit that not only the Sale Agreement, but also its photocopy was signed by the petitioner and she also put her thumb and finger print impressions on the disputed document in their presence. The Finger Print Expert report confirmed that the thumb impressions on the Agreement to Sell, which was admitted by the petitioner, and the Sale Deed were identical. He also mentioned that he had perused the order of the Deputy Registrar- I as recorded in the Order Book No. II, along with statement of the petitioner. The Registrar stated that the petitioner had not denied execution of the Sale Deed, but denied receiving payment and also denied the correct measurement of the property in question and that signatures had been obtained by fraud by M/s Gujral Associates, and stated that she did not wish to get the Sale Deed registered. The Registrar thereafter referred to the Rules Manual, wherein a duty is cast upon the Registrar to register a document, if there is no denial as to its execution. With regard to fraud being played by respondent No. 2, the Registrar in his order observed that this cannot be a ground for refusal to register the Sale Deed, and it was open for the aggrieved parties to approach the Competent Court of law to get such Sale Deed declared as null and void.
7. Mr Ramendra Asthana, learned counsel for the petitioner while arguing the matter has referred to sections 71 and 72 of the Registration Act and the Rules Manual, Rules 241 to 249 specifically, to argue that firstly no appeal was amenable against such an order passed by the Deputy Registrar as it recorded a refusal to register the Sale Deed on the ground of denial of execution, and also that respondent No. 1 in the impugned order dated 31.03.2012 had not looked into preliminary objection regarding maintainability of the appeal, but went ahead to allow the same by referring to the merits of the case as set up by respondent No. 2.
8. It has also been argued by Mr.
Ramendra Asthana that without reversing the finding of facts given by the Deputy Registrar and his reasons for not registering the Sale Deed, it was not open for the Registrar to direct the Registration of the document by the impugned order. Respondent No. 1 has failed to appreciate the distinction between admission of execution of a Deed/document and admission of correctness of the contents/recital in the same. Respondent No.
1 has misread the provisions of the Act and the Rules.
9. Mr. Ramendra Asthana has also argued that apprehending the registration of the said Sale Deed after an order was passed by the District Registrar under section 31(3) of the Act, the petitioner had also filed an FIR on 04.05.2012 registered as Case No. 1118 of 2012, under sections 420, 467, 468, 471, 506 IPC at P.S.
Kotwali, district Bareilly, and had approached this Court on 13.05.2012 by filing this writ petition, and praying for stay of operation of the order impugned as an interim measure. This Court while entertaining the writ petition and issuing notice to the respondent had directed that until further orders, the operation of the impugned order dated 31.03.2012 shall remain stayed. Despite this interim order being granted on 21.05.2012 the Sale Deed has been registered, and the respondents have acted in contempt of the orders passed by this Court.
10. Learned counsel for the respondent has raised a preliminary objection regarding the maintainability of the writ petition on behalf of a Power of Attorney holder as is the petitioner herein.
11. It has been submitted that the petitioner says that she is the owner of the property in question along with two daughters and one son. There is no partition of the property by metes and bounds amongst the four owners. She signed the Agreements to Sell and the Sale Deeds on the basis of Power of Attorney given to her by her two daughters and one son, therefore, now that she is disputing the said execution of Sale Deed, and has filed this writ petition challenging the order dated 31.03.2012, all the four owners of the property in question should have filed the said writ petition, the writ petition filed by the petitioner alone without specifically averring in the writ petition that she has been authorised to file this writ petition on behalf of other co-owners as well, was not maintainable.
12. Learned counsel for the respondent therefore, has prayed that this writ petition be dismissed for non-joinder of necessary parties. He has referred to judgments rendered by this Court in Dr. Prabhu Nath Prasad Gupta vs State of U.P. and others, reported in 2003 (4) AWC 3010 (paragraphs 8, 13 and 16) and a judgment rendered by Division Bench of this Court in Vice Admiral, Rustam Khusro Shapoor Ji Gandhi and others vs State of U.P. and others, reported in 2010 (3) AWC 2692.
13. This Court pointed out that a Full Bench of this Court has considered the maintainability of the writ petition filed on behalf of another by only one petitioner in Syed Wasif Husain Rizvi vs Hasan Raza Khan and 6 others, (Consolidation Writ Petition No. 534 of 2002) decided on 22.01.2016. Learned counsel for the respondent has argued that even if, judgments in Dr. Prabhu Nath Prasad Gupta (supra) and Vice Admiral, Rustam Khusro Shapoor Ji Gandhi (supra) may have been held to be not laying down good law. Yet the Full Bench has observed that a writ petition under Article 226 of the Constitution of India when instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him, but acts as an agent of the donor of the instrument. The petition so instituted, is always instituted in the name of the principal who is the donor of the power of attorney, and through whom the donee acts as an agent. In other words, the petition which is instituted under Article 226 of the Constitution of India is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal, in whose name the writ proceedings are instituted before the Court. Such a power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application. The affidavit which is executed in support of the writ petition by the holder of a power of attorney must also contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and that the donee is confining himself only to the authorisation given by the donee.
14. It has further been argued that in this case, although the property in question belongs to four persons that i.e. two daughters and one son and the petitioner herself, and the Sale Deed was executed by the petitioner on behalf of her three children also, as also in her personal capacity, the writ petition has been filed only in her personal capacity. It has also been mentioned in the writ petition that the power of attorney given by her daughters to her on 17.04.2010 has been cancelled on 27.09.2011. It has therefore been argued that the writ petition ought not to be heard on merits and is liable to be dismissed on this ground.
15. It has also been pointed out that the writ petition itself although instituted in the name of Mrs. Veena Singh does not have her affidavit in support thereof. One Ankit Lal her grandson and pairokar has filed an affidavit saying that he has been authorised by Mrs. Veena Singh to pursue this matter before the High Court. Ankit Lal does not say that he has been authorised by the two daughters and one son of Mrs Veena Singh also to file this writ petition.
16. It has also been argued by the learned counsel for the respondent that the writ petition was filed on 13.05.2012 saying that the petitioner apprehends that the Sale Deed shall be registered in consequence of the order impugned very soon, and therefore, an interim order be granted by this Court. However, it was concealed from this Court that the Sale Deed had already been registered on 16.04.2012. A photo copy of the certified copy of the Sale Deed complete with its endorsement has been filed along with counter affidavit by respondent No. 2 to show that the Sale Deed had already been executed even before the FIR was lodged in this connection by the petitioner on 04.05.2012 and before she approached this Court on 13.05.2012.
17. It has been argued that since, the Sale Deed has been registered, only a suit of its cancellation before the competent Civil Court is maintainable. This Court cannot and should not enter into disputed questions of fact relating to alleged fraudulent conduct of respondent No. 2 as has been submitted by the petitioner before this Court, whether the amount of sale consideration was paid or not to the petitioner has to be seen by the Registrar. It has also not been disputed by the petitioner that the consideration amount mentioned in the Sale Deed has been paid to her through cheque. The report of the Bank Manager filed by the petitioner in her rejoinder affidavit to show that Rs. 67,00,000/- (rupees sixty seven lacs) has not been paid to her, is misleading as the petitioner never presented the Cheque to the Bank for encashment. Respondent No. 2 is still ready and willing to pay the entire amount as agreed upon in the registered Sale Deed to the petitioner.
18. On merits Mr. Anupam Kulsheshtra, learned counsel appearing for the respondents has pointed out from the contents of the counter affidavit and supplementary counter affidavit that Agreement to Sell was entered into for House No.
110 B, Civil Lines, Bareilly in two parts, one related to sale of 1000 Sq. Metres of the property for Rs. 1,30,00,000/- (one crore thirty lacs), whereas the other related to sale of 1839 Sq. Metres of the property for Rs. 1,60,00,000/- (one crore sixty lacs). Two agreements to sell were entered into between respondent No. 2 and the petitioner on her own behalf and holding power of attorney for her two daughters and one son on 22.10.2010. A token amount was also paid through Bank Draft and through Cheques to the petitioner. After receiving Rs. 93,00,000/- (rupees ninety three lacs), the petitioner started negotiating with another builder, therefore respondent No. 2 stopped payment of one of the Cheques. Later on, the petitioner approached respondent No. 2 and the Sale Deed was executed thereafter. At the time of execution of Sale Deed, a Cheque of Rs. 67,00,000/- (rupees sixty seven lacs) was handed over to her as remaining part of the sale price agreed upon between the parties of Rs. 1,60,00,000/- (rupees one crore sixty lacs).
The petitioner does not deny receiving either Rs. 93,00,000/- (rupees ninety three lacs), which was paid to her through cheques and in cash earlier, or the payment of Rs. 67,00,000/- (rupees sixty seven lacs) made through cheque to her at the time to execution of Sale Deed. She did not encash the cheque of Rs. 67,00,000/- (rupees sixty seven lac) only to create to evidence against respondent No. 2 and to prejudice this Court.
19. With regard to FIR said to have been lodged by the petitioner, it has been submitted that the police filed a final report before the Magistrate concerned, and despite protest petition being filed thereon by the petitioner, the Magistrate accepted the final report submitted by the police.
20. The petitioner thereafter filed a Revision before this Court, which is pending, and also a complaint case before the Magistrate, which is also pending.
21. However, pendency of criminal proceedings would not detract from the validity the order of 31.03.2012 passed by the Registrar in exercise of his power under section 72 of the Registration Act for registration of a document. The respondent No. 1 has rightly referred to Rule 241 of the Registration Act, wherein it has been specifically stated that 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 that (a) the executants declared that he had been deceived into executing the document or (b) that the executant had not agreed to certain conditions of the document or that (c) the transaction was fraudulent transaction. If the Registrar is satisfied that the document is presented in a proper manner by a competent person at the proper office within the time allowed by the law and if the Registering Officer is satisfied that the alleged executant is the person, he represents himself to be (that he is not an impostor), and if such person admits execution, the Registering Officer is bound to Register a document, without regard to its possible effects. But the Registering Officer shall make a note of such objections as there are to such registration by the executant, in the endorsement required under section 58 of the Act and in the Order Book No. II.
22. Learned counsel for the respondents has also argued that since the Registrar has decided the appeal in a manner much similar to that adopted for decision of the representation under section 73 of the Stamp Act, it cannot be said that the order impugned dated 31.03.2012 is vitiated. The Registrar had two powers under sections 72 and 73. The first related to appeal and the second related to decision of a representation. He nevertheless under both sections, had the power to over turn the order passed by the Deputy Registrar refusing to register a document. He could direct its registration in exercise of this power either under sections 72 or 73 of the Registration Act.
23. With regard to the argument raised by the learned counsel for the petitioner regarding maintainability of the appeal filed under section 72 before respondent No. 1 by the respondent No. 2, learned counsel for respondent has argued that under section 73, the Registrar shall function as an original Authority and not as the Appellate Authority. While deciding the Appeal No. 1 of 2012, the Registrar has undertaken a detailed inquiry into the circumstances relating to the execution of the Sale Deed. He has examined the vendor and the vendee and the attesting witnesses and the opinion of the Finger Print Expert. The Registrar has not acted as an Appellate Authority, and mere referring to an incorrect provision of the Act would not invalidate such an order. The representation that was filed by respondent No. 2 was wrongly mentioned as an Appeal under section 72 of the Act. The Registrar rightly treated it to be a representation under section 73 of the Act.
24. Learned counsel for the Respondents to buttress his argument has referred to a judgment rendered in Challamane Huchha Gowda vs M.R. Tirumala, reported in 2001 (1) SCC 453. He has referred to paragraph 10 of the said judgment, where the Hon'ble Supreme Court has observed thus:
"......... The factum of the payment of entire decree amount to the Decree Holder with cost was not looked into by the First Appellate Court or by the High Court nor did it attach any value to the memo of objections for setting aside sale. It is also a settled position of law that a mere nonmentioning or wrong mentioning of a provision in an application is not a ground to reject an application, since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter it is not necessary to look into other aspects agitated by the contesting parties not to look into the authorities cited before us. Accordingly the order of the High Court affirming that of the First Appellate Court is set aside and order of the Executing Court is restored. Appeal allowed accordingly. "
(emphasis supplied.)
25. Learned counsel for the respondent has also argued that from a bare perusal of the order impugned, it is evident that the same has been passed by the Registrar as an original authority. The execution of the document had not been denied by Mrs. Veena Singh. She had denied the contents thereof, saying that the area mentioned therein sought to be sold was much more than was initially made out to her by respondent No. 2. The boundaries of area to be sold were incorrectly mentioned, and the consideration was pitiably inadequate. The property in question as per the circle rate was worth more than rupees six crores. It was alleged to have been sold only for Rs. 1,60,00,000/- (rupees one crore sixty lac), therefore it should be assumed that the petitioner's allegations of wrong mentioning of area in the Sale Deed are true. The petitioner had specifically mentioned to the Deputy Registrar that she wanted to sell only 839.48 Sq. Mtrs. of property, however when the Sale Deed was typed it showed 1839 Sq. Mtrs. of property, which included the part of house, in which she was living along with her daughters and son and which she never intended to sell, therefore, the Sale Deed was fraudulent and it ought not to be registered. Respondent No. 1 while dealing with these arguments has examined in detail the statement of Mrs. Veena Singh before the Deputy Registrar, the objections filed by her through her counsel in the appeal, and has also carefully examined the evidence led by respondent No. 2 and his witnesses, and had come to the conclusion that only the case set up by Mrs. Veena Singh is relating to not wanting the registration of the document to be done by the Registrar. It did not relate to a denial of execution at all. The Registrar also carefully examined the Agreement to Sell and it was for the same area of property as mentioned in the Sale Deed, and he came to the conclusion that Mrs. Veena Singh was now resiling from her commitment to sell for reasons best known to her.
26. Respondent No. 1 has referred to Rule 241 and to the fact that the petitioner had signed and put her thumb impression and finger print impression not only on the original Sale Deed, but on the photocopy thereof also as per the Rules, and therefore, had rightly passed the order dated 31.03.2012 for the Registration of the Sale Deed. The order dated 31.03.2012 was complied with by the Sub Registrar and the Sale Deed was registered on 16.04.2012, much before the writ petition was filed.
27. On the merits of the case, learned counsel for the respondent has also argued that the Hon'ble Supreme Court in Satya Pal Anand vs State of M.P. and others, reported in 2016 (10) SCC 767, has considered the question of whether the action of the Registrar in registration of a document could be said to be void ab initio and also without authority.
28. The Supreme Court observed that the role of the Sub-Registrar (Registration) stands discharged, once the document is registered. There is no express provision in the Act of 1908, which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter.
29. With regard to section 34 of the Registration Act, the Hon'ble Supreme Court has observed that the Registering Officer has a duty to (a) enquire whether or not such document was executed by the person by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such persons so to appear.
30. Under section 35, the procedure to be adopted by the Registrar on admission and denial of execution respectively has been given, and under section 35(3)(a), if any person by whom the document purports to be executed denies its execution, the Sub Registrar can refuse its registration and record the reasons of such refusal.
31. In paragraph 26, the Hon'ble Supreme Court has observed that under section 35 of the Act, no quasi-judicial power has been conferred on the Registering Authority. The Registering Officer is expected to ensure that the document to be registered is accompanied by supporting document. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. The Hon'ble Supreme Court observed that the judgment rendered in the case of Thota Ganga Laxmi and another vs Government of Andhra Pradesh and others, reported in 2010 (15) SCC 207, dealt with an express provision made as applicable only to the State of Andhra Pradesh. In the absence of any such express provision, in other State Legislations, the Registering Officer would be governed by the provisions of the Act of 1908 only. Going by the said provisions, there is nothing to indicate that the Registering Officer is required to undertake a quasi judicial enquiry regarding the veracity of the factual position stated in the document presented for registration or its legality, if the tenor of the document suggests that it requires to be registered. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction.
32. Learned counsel for the respondent has submitted that the Supreme Court has found that there is no power in the Sub Registrar to refuse to register a document only because the executant thereof says that her signatures thereon have been fraudulently obtained.
33. Mr. Ramendra Asthana, in rejoinder has argued that there is a distinction between the registration and execution of a document. When the execution of a document itself was being denied and Mrs. Veena Singh had specifically stated that her signatures were forged, and she did not put her thumb and finger print impressions on the disputed document, it amounted to a denial of execution, in which case the order passed by the Deputy Registrar under section 35(3)(a) dated 17.02.2012 was a valid order, only a representation against the same under section 73 was maintainable. If the Legislature had intended the power to be exercised by the Registrar as an Appellate Authority, even in case of denial of execution, then a specific provision thereof should have been made in the language of section 72 of the Act. Two different powers were given to the Registrar to be exercised in two different manner by the Legislature. The words used by the Legislature in framing of the Legislation being clear and unambiguous cannot be ignored by this Court only on the ground as argued by the learned counsel for the respondents that since the power was exercised by the same person it was meant to be exercised by, i.e. by the Registrar, in the manner that it was meant to be exercised, but not under the relevant section.
34. Learned counsel for the petitioner has also argued that once this Court is satisfied that the order dated 31.03.2012 is vitiated in law, it can set it aside, and all consequences would follow. He has referred to judgment rendered M/s Shree Chamundi Mopeds Ltd. vs Church of South India Trust Association, Madras, reported in AIR 1992 SC 1439, wherein the Hon'ble Supreme Court has observed in paragraph 10 that quashing of an order results in the restoration of the position, as it stood on the date of the passing of the order, which has been quashed. The order itself is wiped out from existence and any consequences of such an order also therefore, are wiped out from existence.
35. It has been further argued that if this Court is pleased to quash the order dated 31.03.2012, then the position as it stood on 17.02.2012 would stand revived, i.e. the date of the order passed by the Deputy Registrar-I, when the petitioner had denied execution of the disputed document. All other consequences would follow.
36. Learned counsel for the petitioner has also relied upon a judgment rendered by Division Bench of this Court in Satyendra Pal vs Regional Transport Authority, Agra and another, reported in 1982 Allahabad Law Journal 310, wherein the Division Bench had observed that the State-respondent could not be allowed to act in such a manner as to make an interim order infructuous. Proceedings taken by an Authority in flagrant disregard of the order of a Court are a nullity, and the Court should have no compunction in putting the hand of the clock back and restoring the status quo ante. Where an order of a Court is disobeyed, a writ must be issued to redress the injury suffered by a person on account of disobedience of such order.
37. Learned counsel for the petitioner has argued that the interim order was granted by this Court on 21.05.2012. The Sale Deed was registered after the interim order was passed, but it was ante-dated and shown to have been registered by 16.04.2012 and ought to be set aside on this ground alone.
38. The question to be considered by this Court in facts and circumstances of this case and in the light of arguments made by the counsel for the parties can be summarized thus: Whether the Writ Petition was maintainable in the form and manner it had been filed? What is the scope of power exercised by the Deputy Registrar under section 35(3)(a) of the Act? Whether the denial of execution of Sale Deed by the petitioner was correctly interpreted by the Deputy Registrar to exercise power under Section 35 (3)(a) and refuse registration? Whether the District Registrar could have considered the appeal filed by Respondent No. 2 as a representation and exercise power as an original Authority and not as an Appellate Authority? Whether Sale Deed which was Registered on 16.04.2012 before this Court passed its interim order can be set aside by this Court by holding that it was wrongly registered?
39. This writ petition has been filed by Mrs. Veena Singh in her personal capacity as she is aggrieved by the order passed by the District Registrar directing registration of a Sale Deed which according to her did not reflect the true intention of the vendors and her signatures on her own behalf and on behalf of her children were obtained on it by fraud. The writ petition is maintainable as it raises a grievance that is personal to Mrs. Veena Singh.
40. The scope of powers of Sub-Registrar under section 35(3)(a) of the Act have been clearly defined by the Supreme Court in the larger Bench decision in Satya Pal Anand (supra).
41. The Hon'ble Supreme Court observed that the Sub Registrar is not expected to decide the title or rights of the parties to the agreement, nor is expected to examine the document to ascertain whether the same is legal and permissible in law, or undertake an analytical analysis thereof. If the document registered by the Sub-Registrar is illegal or there is any irregularity, that must be challenged by invoking an appropriate proceedings before a Court of competent jurisdiction.
42. It observed in paragraph 36 as follows:
“36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Nonpresence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitly to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the Act of 1908 can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the Civil Court.”
(emphasis supplied)
43. With regard to the power of Sub- Registrar (Registration), the Supreme Court has made observations in paragraphs 38 and 41 as follows:
38. “Section 35 of the Act of 1908 provides for procedure of admission or denial of execution respectively. The same reads thus:
“35. Procedure on admission and denial of execution respectively (1)
(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or
(c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Sections 59 to 61 inclusive.
(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(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 assignee 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 SubRegistrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this subsection and of Part XII. ”
“41. …..Section 35 of the Act does not confer a quasijudicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises (supra) it has been observed that the function of the Registering Officer is purely administrative and not quasijudicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition.”
(emphasis supplied)
44. The Hon'ble Supreme Court observed that the High Court no doubt in exercise of power under Article 226 of the Constitution of India not only exercises an equitable jurisdiction, but also an extraordinary jurisdiction, but nevertheless the High Court is not expected to enter upon such questions, which related to declaring agreements and documents executed between private parties as illegal or for that matter void ab initio. Such remedy is available before the Competent Civil Court.
45. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extra-ordinary and discretionary. In the exercise of writ jurisdiction, the High Court cannot be oblivious of the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of action. The exercise of discretion to issue a writ is a matter of granting equitable relief. If the Competent Forum i.e. the Civil Court was to hold that the Registered Sale Deed was obtained by fraud or coercion by examining all contentious and disputed questions of fact as mentioned by the litigant herein, then alone can a registered document be set aside.
46. With regard to the role of Sub- Registrar (Registration), the Supreme Court observed that the power to cancel the registration is a substantive matter. In the absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of a document validly registered.
47. This Court is aware of decisions of co- ordinate Bench in Smt. Raisa Begam vs District Registrar, Saharanpur and another, 2011 (8) ADJ 726 and in Smt. Darpi and others vs A.D.M. Gorakhpur and others, 2011 (7) ADJ 573, wherein the Co-ordinate Bench of this Court has set aside the registration of a document on the ground of not following the procedure prescribed in the Act and the Rules, and also on the ground that serious question of fraud and manipulation had been raised before the Registrar, therefore, he could not substitute his decision to register a document for that of a Civil Court. The Registrar's decision to register a disputed Sale Deed/Will Deed had the effect of transferring of immovable property from its owner to another, moreso, when the executant had denied its execution.
48. This Court having considered the observations made therein regarding valid execution of Sale Deed/ Will Deed still cannot bring itself to set aside such registration, and grant the same relief as given by the Co-ordinate Bench in the aforecited cases in Smt Raisa Begam or Smt. Darpi (supra).
49. The inability of this Court to grant a writ of certiorari as asked for by the petitioner herein is mostly because the Supreme Court has held that the inquiry that is required to be done by the Registering Officer before registering a document as contemplated under sections 34 and 35 does not confer any quasi judicial power on the Registering Authority. The Registering Officer is expected to reassure himself that the document to be registered is accompanied by supporting documents. The Registering Officer is not required to evaluate the title or irregularity in the documents. The examination to be done by the Registering Officer is only to ascertain that there is no violation of the provisions of the Registration Act.
50. Section 58 of the Registration Act, 1908 provides particulars to be endorsed on the documents admitted to registration, section 59 also provides for an endorsements to be made and signed by Registering Officer and section 60 provides for the registration of the document. Where the Registering Officer finds that a particular document cannot be registered, he is required to give reasons under section 71. A person aggrieved by such a reason has remedy under sections 72 and 73 of the Registration Act. If a party is aggrieved by an order passed by the Registrar in such cases finding it to be irregular or illegal, then the same must be challenged by invoking an appropriate proceedings before the Court of competent jurisdiction. The Supreme Court has held that it was only when a Sale Deed was cancelled by a competent Court, that a cancellation Deed could be registered, and that too after notice to the parties concerned. The aforesaid principle is in line with section 31 of the Specific Relief Act, which states that it is only the Court, which has the power to cancel an instrument, where it is alleged that the written instrument is void or voidable.
51. I find strength from the observations made by a Division Bench in Dileep Sahani vs State of U.P. and others, decided on 17.04.2018 reported in MANU/UP/1855/2018, and also from an observation made by another Division Bench of this Court in Km. Sushila Saxena vs Sub- Registrar Shahjahanpur and others, reported in MANU/UP/0276/1998, in which it has been held that registration is merely a notification of factum of execution of documents evidencing the event of transaction affecting the title qua any person or property. The Registration of a document is a matter in between the person presenting it and the Registering Authorities. If a person is aggrieved he may challenge the legality of the transaction covered by the registered document and question the legality of the transaction covered by such document. It is open to challenge by the affected person only in appropriate proceedings in a Competent Civil Court.
52. With regard to the question whether after the Sub-Registrar had refused to register the document, the Registrar could while entertaining an Appeal under section 72, direct its registration.
53. This Court is aware that section 73 deals with an application/representation to the District Registrar, if the Sub-Registrar refuses to register the document on grounds of denial of execution. Under section 72 of the Act, an Appeal is provided, where the refusal is made to register document by the Sub-Registrar on the grounds other than of denial of execution. The basic difference between the two sections is obvious. Under section 71, the denial of execution has to be recorded by the Sub-Registrar, and the grounds thereof are mentioned in Order Book II for the benefit of the parties aggrieved to approach the Higher Forum. Under section 73, if the Registrar is satisfied that the person making such an application/representation is entitled for the document to be registered after conducting of inquiry direct the document to be so registered. Section 73 deals with the proceedings before the Sub-Registrar, where the Sub-Registrar merely states in the Order Book II that the person said to have signed the document has denied its execution. The Registrar while dealing with an application under section 73 shall follow the procedure provided under section 74 of the Act.
Section 74 contemplates that the original document, which has been refused to be registered by the Sub-Registrar must be presented before the Registrar for registration. In such a case when a document is presented before the Registrar and where such denial as aforesaid is made before the Registrar in respect of documents presented for registration, then the Registrar shall enquire that the document has been duly executed and whether the requirements of law for the time being have been complied with on the part of the applicant or the person presenting the document for registration, so as to entitle the document to be directed to be registered.
54. In this case, Mrs. Veena Singh appeared before the Deputy-Registrar and admitted that she had put her thumb and finger print impressions and also the signatures on the Sale Deed, but at the same time requested that the said Sale Deed be not registered as the thumb and finger print impressions and signatures of the vendor had been taken in a fraudulent manner by wrongly making out that she was selling only 839 Sq. Mtrs. of land, whereas actually she had put her signatures on the document showing sale of 1839 Sq. Mtrs of land. The Deputy-Registrar in exercise of power under section 35(3)(a) had no power to conduct any inquiry regarding execution or otherwise of the Sale Deed, his power under section 35 was only to record the denial of execution by the executant, and the reasons thereof under section 71 of the Act in the Order Book II.
55. In this case, the statute confers a greater power on the Registrar, than the one exercised by the Sub-Registrar under section 35. Section 74 (a) is an example of greater power being given to the District Registrar than to the Sub-Registrar, whereas the Sub-Registrar cannot register a document if a party denies its execution, the District Registrar can direct such registration to be made. The registration does not depend upon the consent of the executant, but on the Registrar finding that the executant had actually signed the document concerned, but now was requesting that it may not be registered for reasons other than its execution. The Registrar is required under section 74 to conduct an inquiry. If the Registrar finds that the document was duly prepared by the Scribe/ Deed Writer and the attesting witnesses to such document also deposed that the document was signed and the thumb and finger print impressions were made thereon by the vendor in their presence, and on inquiry from the vendor it comes out that indeed such facts were correct, the Registrar can direct registration of a document in spite of denial of execution before him by the person aggrieved if such registration of such a document is compulsory under the Act.
56. This Court finds that Mrs. Veena Singh in her FIR before the police on 04.05.2012 has stated that she had indeed put her signatures on the document and had also put her thumb and finger print impressions at the required places on the document and its photocopy also, but her grand-child had thereafter found on reading of the document that the same did not contain a correct recital/description of the property concerned.
57. It is the case of Mrs. Veena Singh that she had agreed to sell 839 Sq. Mtrs of land only, whereas she was duped into signing a document containing a recital that she had sold 1839 Sq. Mtrs. of land. In the FIR, it has also been mentioned that after the Registrar directed the registration of the document, she visited the office of the Deputy-Registrar, and found that the document was being registered against her will. She raised and alarm in the office and several people gathered around her in the office of the Sub-Registrar Shri Daya Prakash, but nevertheless the document was registered. The graphic details of such a incident having been mentioned in the FIR dated 04.05.2012 bely the assertion made in the various paragraphs of the writ petition and the rejoinder affidavit. The writ petition was filed after filing of the FIR and the interim order of this Court is dated 13.05.2012, whereas the order of the Registrar dated 31.3.2012 had been complied with and the Sale Deed had been registered on 16.04.2012 much before the writ petition was filed.
58. Initially, it had been pleaded before this Court that no signatures or thumb and finger print impressions had been put by Mrs. Veena Singh on the Sale Deed in question, and her signatures and thumb and finger print impressions were forged.
59. This Court finds that there is improvisation in the story as detailed in the FIR dated 04.05.2012 and as mentioned in this writ petition by the petitioner. In the FIR, there is an admission that she had indeed put her thumb and finger print impressions on the plain Stamp Papers and had also signed the same, but she had found an incorrect recital made in such Sale Deed. It is an admission of actually executing the document.
60. In the writ petition however the pleadings are to the effect that no such signatures were put and signatures and thumb impressions are all forged. Whether the signatures and finger print impressions have been forged by respondent No. 2, is a disputed question of fact that can only be thrashed out by leading evidence before the Competent Civil Court.
61. This Court cannot sitting in extraordinary writ jurisdiction give a finding either ways. Therefore, this writ petition is liable to be dismissed and is hence dismissed.
62. It will be open for the petitioner to approach the Competent Civil Court for a declaration of the Sale Deed to be void and being obtained by fraud.
Order Date :- 31.05.2018 Sazia