SHRI BASAVARAJ vs THE SUPERINTENDENT
- Court
- Karnataka High Court
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NC: 2026:KHC-D:8208
WP No. 104928 of 2026
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
RD
DATED THIS THE 23 DAY OF JUNE, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 104928 OF 2026 (GM-RES)
BETWEEN:
SHRI BASAVARAJ SHANKRAPPA AVVANNAVAR,
AGE: 44 YEARS,
R/O. CHIKKAMALLIGAWAD ROAD, KUSUGAL,
TQ: HUBBALLI, DIST: DHARWAD.
PRESENT ADDRESS.
UNDER TRIAL PRISONER,
AT CENTRAL PRISON,
DHARWAD-580008.
… PETITIONER
(BY SRI SANKET SHANKRAPPA AMBALI, ADVOCATE)
AND:
1. THE SUPERINTENDENT
CENTRAL PRISON,
DHARWAD-580008.
2. THE SENIOR SUB-REGISTRAR,
DHARWAD-580001.
… RESPONDENTS
(BY SRI SHARAD V. MAGADUM, AGA FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF MANDAMUS/OR OF APPROPRIATE NATURE/
ORDER(S) TO THE RESPONDENT NO. 1 TO PERMIT THE
RESPONDENT NO. 2 OR ANY OFFICER AUTHORISED BY HIM ON HIS
BEHALF TO COMPLETE THE PROCESS OF REGISTRATION OF A SALE
DEED BY THE PETITIONER IN RESPECT OF SY. NO. 29 BLOCK HISSA
NO. 5 SITUATED AT KAMALAPUR VILLAGE OF TQ. AND DT.
DHARWAD MEASURING 22 GUNTAS.
Digitally signed by
MOHANKUMAR B
SHELAR
Location: HIGH
COURT OF
KARNATAKA
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THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The petitioner, who is presently in judicial custody as
an under-trial prisoner and lodged in the Central Prison,
Dharwad, has presented the instant writ petition seeking a
writ of mandamus directing respondent No.1–
Superintendent of the Central Prison to permit the
jurisdictional Sub-Registrar to visit the prison premises for
the purpose of completing the registration of a sale deed
by obtaining the petitioner’s signatures and complying
with the statutory formalities contemplated under the
Registration Act, 1908 (for short “the Act”).
2. The grievance of the petitioner is that his
incarceration pending criminal trial has rendered him
incapable of personally appearing before the office of the
Sub-Registrar, thereby impeding his lawful right to deal
with and alienate his immovable property, notwithstanding
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the statutory mechanism enabling registration of
documents executed by persons confined in jail.
3. This Court had adjourned the matter to enable
the learned Additional Government Advocate to obtain
necessary instructions from the respondent authorities.
Pursuant thereto, the learned Additional Government
Advocate, on instructions, submits that though the
jurisdictional Sub-Registrar had addressed a
communication requesting the Superintendent of the
Central Prison to facilitate registration of the proposed sale
deed by visiting the prison, the said communication was
never placed before the competent prison authority. It is
therefore contended that respondent No.1 had no occasion
to consider or act upon the request made by the Sub-
Registrar. It is submitted that the failure to facilitate the
registration process was not deliberate but was on account
of non-receipt of the communication addressed by the
Registering Authority.
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4. Having heard the learned counsel appearing for
the petitioner and the learned Additional Government
Advocate appearing for the respondents, this Court posed
a pointed query as to whether the provisions of the Act,
contemplate a situation where a person who is unable to
appear before the registering authority on account of
incarceration can nevertheless execute and register a
document relating to his immovable property. The learned
counsel for the petitioner invited the attention of this Court
to Section 38 of the Act and submitted that the statute
itself carves out an exception to the general rule requiring
personal appearance before the Registering Officer. It is
argued that the petitioner’s incarceration as an under-trial
prisoner does not deprive him of his proprietary rights
and, therefore, the statutory mechanism provided under
Section 38 of the Act squarely governs the present case.
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5. This Court, having examined Section 38 of the
Act, deems it appropriate to extract the same, which reads
as under:
“ 38. Persons exempt from appearance at
registration-office.- (1) (a) A person who by
reason of bodily infirmity is unable without risk or
serious inconvenience to appear at the registration-
office, or
(b) a person in jail under civil or criminal process, or
(c) person exempt by law from personal appearance
in Court, and who would but for the provisions next
hereinafter contained be required to appear in person
at the registration-office,
shall not be required so to appear.
(2) In the case of every such person the registering
officer shall either himself go to the house of such
person, or to the jail in which he is confined, and
examine him or issue a commission for his
examination.”
( emphasis supplied by me)
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6. A plain and meaningful reading of Section 38
leaves no manner of doubt that the Legislature has
consciously recognized the practical difficulties faced by
certain classes of persons in personally appearing before
the registration office. The provision expressly includes
within its ambit a person confined in jail under either civil
or criminal process. The legislative mandate is couched in
mandatory language. Once it is shown that the executant
is confined in prison, the Registering Officer is not
expected to insist upon his personal appearance at the
registration office. Instead, the statute obligates the
Registering Officer either to personally visit the prison
where such person is confined for the purpose of
examining him and completing the registration formalities
or to issue a commission for such examination. The
statutory intent is thus to ensure that a person’s legal
incapacity to physically appear before the registration
office does not result in deprivation of his lawful right to
deal with his property.
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7. It is equally well settled that an accused person
who is in judicial custody as an under-trial prisoner does
not suffer a civil death merely because he is facing
criminal prosecution. His incarceration pending trial does
not divest him of his ownership over his movable or
immovable properties nor does it extinguish his civil rights
except to the extent that restrictions are necessarily
imposed by law for maintaining prison discipline, security
and orderly administration. An under-trial continues to
remain clothed with all proprietary rights available to an
ordinary citizen, including the right to alienate, transfer or
otherwise deal with his property in accordance with law.
Such civil rights cannot be rendered illusory merely
because the person is unable to personally appear before
the Registering Authority on account of his confinement. It
is precisely to safeguard these rights that Section 38 of
the Act has been enacted.
8. In the present case, the petitioner seeks only to
avail the statutory procedure expressly contemplated
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under Section 38 of the Act. The request neither seeks any
extraordinary indulgence nor requires this Court to carve
out a new procedure. What is sought is only enforcement
of an existing statutory obligation. Once the jurisdictional
Sub-Registrar has expressed his willingness to visit the
prison for completion of the registration process, the
prison authorities are equally duty-bound to extend
necessary cooperation by facilitating access to the
petitioner, subject of course to compliance with the prison
rules and such security measures as may be considered
necessary. Administrative inconvenience cannot be put
forth as a ground to defeat a statutory right expressly
recognized by Parliament.
9. This Court is therefore satisfied that the
petitioner, though presently an under-trial prisoner,
possesses a legal and enforceable right to execute and
register a conveyance relating to his property by resorting
to the procedure prescribed under Section 38 of the Act.
Correspondingly, the Registering Officer is under a
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statutory obligation to undertake the exercise
contemplated under the said provision, while the prison
authorities are under a public duty to facilitate such
exercise by permitting the Registering Officer to enter the
prison premises and complete the necessary formalities in
accordance with law. Since the respondents have not
disputed the petitioner’s entitlement under Section 38 and
the only impediment appears to have been non-
communication of the request addressed by the Sub-
Registrar, this Court finds that the petitioner is entitled to
the relief sought.
10. In view of the foregoing discussion, this Court
proceeds to pass the following:
ORDER
(i) The writ petition is allowed ;
(ii) Respondent No.1 – Superintendent,
Central Prison, Dharwad, is directed to permit
respondent No.2 – the jurisdictional Sub-
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Registrar, to visit the prison premises and
complete the registration process by obtaining
the petitioner’s signatures and undertaking such
examination as is contemplated under Section
38(1)(b) read with Section 38(2) of the
Registration Act, 1908, subject to compliance
with the applicable prison regulations and
security protocols;
(iii) Respondent No.2 shall complete the
aforesaid exercise expeditiously and, in any
event, within a period of four (4) weeks from the
date of receipt of a certified copy of this order.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
CT:GSM
List No.: 1 Sl No.: 31