Full Judgment Text
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PETITIONER:
MRS. MARY JOYCE POONACHA V.
Vs.
RESPONDENT:
M/S. K.T. PLANTATIONS PVT. LTD. & ORS.(K RAMASWAMY &N. VEN
DATE OF JUDGMENT20/01/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 SCC Supl. (2) 459 JT 1995 (2) 540
1995 SCALE (2)26
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Leave granted.
2. We have heard the counsel on either side at length.
This appeal by special leave arises from the order of the
Division Bench of the High Court of Karnataka, dated
22.6.1994 made in W.A.No. 2667/ 93.
3. The facts relevant for the disposal of this appeal are
as under:
One Devika Rani had allegedly executed an agreement on July
30, 1991 and supplemental agreement on September 2 1, 1991
respectively to sell 223 acres of land in Tataguni Estates
on the outskirts of Bangalore City. It had been claimed
that in furtherance thereof she had executed a sale deed
said to be on 16.2.1992 but the same was not registered.
Respondent No. 1 filed O.S.No. 122/92 in the court of City
Civil Judge, Bangalore Rural for declaration that the said
sale deed dt. 16.2.92 executed by Mrs. Devika Rani Roerich
in its favour was valid and binding on her and also for
mandatory injunction restraining her from creating any
encumbrances on the said property or from transferring it
and for a further perpetual injunction restraining her from
interfering with his alleged possession and enjoyment of
that property. Devika Rani filed her written statement on
2.7.1992 whereby she denied the execution of the sale deed
and the agreements to sell in favour of the respondent No. 1
and of the passing of consideration under them. Thus,
according to the defendant, she did not execute any
agreement to sell or any sale deed in favour of the respon-
dent No.1 in respect of the suit schedule property and the
same is bogus and vitiated by fraud and misrepresentation.
4.Respondent No. 1 has been consistently making efforts and
attempts to grab the property of the defendant and their
earlier suit No. O.S.3692/92 which was filed in the City
Civil Court at Bangalore was withdrawn by them. The present
suit had been filed with an additional relief of declaration
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also. Evidently, the plaintiff was filing speculative and
false suits so as to somehow coerce the defendant to sell
away her estate to the plaintiff. This defendant had not
executed any agreement or supplementary agreement to sell
nor had made any application to the Income Tax Authorities
nor had she executed an absolute sale deed. The entire
agreement of sale and sale deed arc nothing but sham and
bogus and a collusive job of K.T. Bhagath, the Managing
Director of the K.T.Plantations and R.Devdas and Jude
Devdas. The agreements to sell and deed of sale were
vitiated by fraud and were
542
unenforceable in die eye of law. This defendant reiterated
that she has not handed over possession of the suit schedule
property to respondent No. 1 and that she was in possession
and enjoyment of the suit schedule property as its absolute
owner thereof. In support thereof, she has raised several
contentions which are not relevant for the disposal of this
appeal.
5. The Sub-Registrar, Kengeri in his endorsement dated
30.7.92 refused to register the document, the sale-deed.
This situation led respondent No. 1 to file an appeal before
the District Registrar within thirty days on 28.8.92. When
the Registrar was proceeding to hear the appeal to register
the document, the appellant sought for stay of further
proceedings in view of the pendency of the suit but he
declined to stay the proceedings. Now it is an admitted
fact that Devika Rani died subsequently. The appellant
filed W.P.No. 22677/93 in the High Court and the learned
Single Judge by his order dated 23.9.93 dismissed the same.
On appeal, as stated earlier, the Division Bench dismissed
the Writ Appeal. Thus, this appeal by special leave.
6.The only question that arises in this appeal is whether
the Dist. Registrar was right in proceeding with the
hearing of the appeal and whether the High Court was right
in declining to stay the proceedings before the District
Registrar. On a consideration of the facts and circum-
stances of the case, we are of the view that both the
District Registrar committed a palpable error of law in
proceeding with the matter and the High Court was unjus-
tified in refusing to interfere.
7. Section 34(3) of the Registration Act, 1908, (for
short, ’the Act’), empowers the Registrar when a document is
presented for registration to enquire and satisfy himself on
certain matters. Section 34(3) reads:
"34(3) The registering officer shall there-
upon-
(a) enquire whether or not such document was
executed by the persons 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 the case of any person appearing as a
representative, assign or satisfy himself of
the right of such so to appear." (emphasis
supplied)
8.Sub-Registrar is required to satisfy himself with the due
execution of the document/deed said to have been executed by
Devika Rani since she herself was not present at the time of
registration of the document. Consequently, the appeal came
to be filed. It was within his power that before proceeding
to register the alleged conveyance said to have been
executed by Devika Rani to satisfy himself whether or not
she executed it and whether or not the person presented on
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her behalf was authorised to have it registered on her be-
half He was also empowered to summon her to appear before
him before proceeding to register the document. Under the
circumstances he refused to register the document. Under
ss.72 and 73, of the Act, undoubtedly, the existence of the,
power of the, Register to proceed- with the peal is not
disputed and cannot be disputed. But the question is of the
propri-
543
etary and justness of the exercise of the
power. Whether he was right in his exercise of discretion
to proceed with the hearing of the appeal. As stated
earlier, when the executant has denied the execution of the
alleged sale deed and passing of the consideration as on
2.7.92 and the dispute when was pending trial in the civil
suit filed by the alleged vendee itself The appropriate
course should have been that the Registrar should have
stayed his hands and directed the plaintiff to obtain
appropriate direction from the Civil Court or a decree.
When the, appellant approached the High Court, the High
Court also should have directed the Civil Judge to dispose
of the suit. Then the Registrar should have heard the
appeal. Instead, the High Court dismissed the Writ Petition
and Writ Appeal. Therefore, the orders of the High Court
arc set aside. There shall be a direction to the District
Registrar not to proceed further with the hearing of the
matter till the civil suit is disposed of The trial court is
directed to dispose of the suit as expeditiously as possible
within a period of one year from today. Depending upon the
result in the suit, the District Registrar shall take
further action.
9. It is true as rightly contended by Shri R.F.Nariman,
the learned senior counsel, that by operation of the
prohibition contained in s.49 of the Act the unregistered
impugned document effecting the immovable property cannot be
looked into. Since the suit is not against an order under
sec.77 of the Act, lifting of the bar provided by sec. 78(3)
will not come to the aid of the plaintiff. It indicates
that when execution of sale deed is in controversy and is
subject matter of a suit, s.77(3) lifts the bar of s.49 and
enables the court to look into the document for adjudicating
the controversy. In these circumstances we direct the trial
court to look into the document only for the limited purpose
of finding out whether Devika Rani had executed the impugned
sale deed alleged to have been executed by her and not for
any other purpose. Status quo as on date of suit shall
continue till the suit is disposed of.
10. The appeal is accordingly allowed but, in the
circumstances, without costs.
545