REMEDY TO REFUSAL OF REGISTRATION OF DOCUMENTS

 

Remedy to refusal of registration OF DOCUMENTS

 

The registration of documents such as sale deed, relinquishment deed, Power of Attorneys, Wills, Rent Deed etc is a common practice in everyday life. In every district, the office of Sub-Registrar is earmarked for the purpose of carrying out registration process. The registrar is authorized in terms of Section…..of Registration Act to carry out the registration of documents submitted, if the same are in order. The Sub-Registrar is also authorized to refuse the registration of documents, if according to Sub-Registrar, the registration of documents cannot be granted on account of the same not being in order or otherwise prohibited. The finding of Sub-registrar as regards refusal, however has to be based on cogent reasons and not arbitrary. The successive appellate tribunals for refusal to registration of documents or otherwise appellate remedy is prescribed against the order of grant of registration and refusal.   

The Registration Act 1908 itself encapsulates the mechanism of appeal/s 72 of the Registration Act, in  case executants or a party to the registration is aggrieved from refusal of registration. If the executants or a party to the documents presented for registration is aggrieved by refusal of registration of the said document, so presented with the Sub-Registrar, the appeal u/s 72 can be preferred by the aggrieved party before the Registrar of the District within 30 days from the date of the order of refusal. It may be of significance to iterate the provisions of section 72. The same are illustrated as under:

72: Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution.-

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

The Chapter XII of the Act specifically deals with the reasons for refusal to register a document on the part of the Sub Registrar. Section 71 of the Act says that the Sub Registrar has to give reasons for refusal and Section 72 of the Act says that in case of refusal, an appeal would lie before the Registrar against the order of Sub Registrar.

The registrar is therefore empowered to deal with the appeal preferred by the aggrieved party. As evident, the Registrar may confirm or set aside the ord4er of refusal as impugned and in that event the Sub-Registrar shall be obligated to carry out the registration.

In this context, it is also relevant to point out that should the aggrieved party assailing the order of refusal of registration passed by Sub-Registrar is still aggrieved, then, the order passed in appeal by the Registrar could be impugned before civil courts of appropriate jurisdiction u/s 77 of the Registration Act, 1908. Therefore, the order passed by Sub-Registrar has a clear two tier of appellate authority.    

WHAT PROPERTIES ARE TRANSFERRABLE?

All properties are transferrable, if owned by a person or has the authority to transfer by necessary implication,, unless barred as per law.

The Division bench of Madras High Court in a matter reported as Ramayee v Sub-Registrar (2020 6 CTC 697) has been a celebrated judgment in this context. The SLP (Civil) 4844 of 2021 against the said judgment before supreme court stands dismissed.  The Madras High Court in W.P.No.2758 of 2023 relying on the Ramayee (Supra) has authored the judgment captioned as The Federal Bank Ltd. Vs. The Sub Registrar, & Ors and observed as under:

“29. …..when we deal with the various provisions of the Transfer of Property Act the question arises as to whether the transfer is restricted to one time in respect of the immovable property, unless the previous transfer or any agreement is set aside in the court of law, and other transfer is permissible? The answer is absolutely “No” for the following reasons: The property of any kind may be transferred, except as otherwise provided by the transfer of property Act or by any other law for the time being, as provided in Section 6 of the Transfer of property Act.

30. Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force, as per Section 7 of the Transfer of Property Act. The reading of the above section makes it very clear that even a person not entitled transferable property is competent to transfer such property when he was authorised to dispose of such property.

31. Section 41 of the Transfer of Property Act deals with the power of the ostensible owner to effect the transfer of the property with consent, express or implied of the real owner.

32. From the principle underlined in the Section 41 of the Transfer of Property Act is that the ostensible owner of the property, with the consent express or implied and representing himself as owner of the property though he is not having the title, can deal with the property. Similarly, Section 42 of the T.P. Act deals with the transfer by a person having authority to revoke the former transfer. When a person transfers any immovable property reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee subject to any condition attached to the exercise of the power as a revocation of the former transfer to the extent of the power.

33. Similarly section 43 of Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. The above section makes it very clear that even a person who has no title over the property purports to transfer to another by deed and when he subsequently acquires any interest in the property, sufficient to satisfy the transfer, the title would pass to the transferee without any further  act on the part of the transferor, provided the transferee has not rescinded the transfer and opts for such effectuation. The above principle also makes it very clear even a transfer by unauthorised person is not prohibited. Only the validity of the title would be subject to his acquiring subsequent interest in the property.

34. Section 48 of the Transfer of Property Act deals with priority of rights created by transfer, which reads as follows: “48. Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.”

35. The above section determines the priority when there are successive transfers, where the person creates transfer at different times right in or over the same immovable property, such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation bind the earlier transferee and be subject to the rights previously created.

36. Reading of the above section makes it clear that there is no bar for successive transfers. However, the rights in later transfer shall always be subject to the rights already created in the earlier transfer.

No condonation of delay is prescribed in an appeal before the Registrar

When an appeal against the order of Sub-Registrar is impugned before the Registrar, thereby refusing registration of a document and if the same is filed beyond 30 days prescribed for preferring appeal, the appeal cannot be entertained, in as much as there is no power for condonation of delay available to the Registrar. The following judicial precedents may be relevant in the context:

(i)          In a matter captioned as MISC. SINGLE No. - 3223 of 2006 Amrawati Vs Registrar/Apar Collector Pratapgarh & Ors the Allahabad High Court dealt with two questions up for consideration (i) "whether Registrar could have entertained appeal preferred after expiry of period of limitation" and (ii) "whether condonation of delay under Section 5 of Act, 1963 was permissible."

It is understood as per catena of judgments that in respect of proceedings before Tribunals/quasi judicial bodies limitation Act 1963 is not applicable, since it is applicable to the Courts). The delay condoned was therefore set aside in Amrawati (Supra).

(ii)        Earlier also, the Section 72 and 78 of Act, 1908 itself came up for consideration before a learned Single Judge in State of U.P. Vs. District Registrar, Meerut and others AIR 1971 All 390. Court held that District Registrar is a creation of Act, 1908 and to exercise only those powers that have been given to him under Act, 1908. He does not exercise powers of a Court, though he sits in appeal against the order of Sub-Registrar under Section 72 of Act, 1908 but the powers therein are limited. Under Section 72 of Act, 1908 he can only direct a document to be registered by Sub-Registrar, who has refused registration on the ground, other than denial of execution. The Court categorically said: "Although he exercises powers as an appellate authority under the Act, he does not sit as a court."

(iii)       The same was also reiterated in Raghuvir Narain Rastogi Vs. State of U.P & others 2005 (2) AWC 1814 (All) wherein Allahabad High Court held that Registrar, Additional Registrar or the Sub-Registrar cannot be treated as a Court and Section 5 of Act, 1963 shall not be applicable to proceedings under Act, 1908.

(iv)       In Chhedu Vs. Abdul Hasan 1975 ALJ 462 also Allahabad High Court has held that Registrar while hearing an appeal under Act, 1908 does not act as a Court though as an appellate authority his functions are quasi-judicial but it is like an Executive Officer vested with quasi judicial functions for the limited purpose of Act, 1908.

(v)         The Supreme Court has held in a matter reported as Sushila Devi Vs. Ramanandan Prasad & ors AIR 1976 SC 177, Court said that provisions of Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Code of Civil Procedure.

Thus, whereas the appellate powers are conferred on the Registrar against the orders granting or refusing registration, but the delay occasioned in preferring appeal cannot be condoned by the Registrar, on view of the fact that there are no express provisions to that effect and judicial precedents has set out that as well.

CONDONATION OF DELAY IS NOT PRESCRIBED  u/s 77 of REGISTRATION ACT 1908

What is of further significance that there is no provisions for condoning delay even for preferring appeal before a civil court u/s 77 against order in appeal passed by a Registrar u/s 72 of the Act. It is held so by Delhi High Court in a matter captioned as Sub- Registrar Iv-A & Anr Vs Sol Infotech Pvt. Ltd. (2018) 08 DEL CK 0383 (Regular First Appeal No. 358 Of 2017). The trial court had dismissed the suit as time barred by dismissing an application under Section 5 of the Limitation Act, 1963. It was upheld by Delhi High Court.

However, the Delhi High Court in Sub-Registrar IV A (Supra) has held as under:

“7. The present is a classic case where because of illegal actions of the competent authorities acting under the statutory powers under the Registration Act, the appellant/plaintiff has suffered grave prejudice and losses including not only time and money but also of mental harassment on account of non-registration of an otherwise valid Gift Deed”.

Though, the impugned judgment of the trial court was sustained as the suit was barred by limitation inasmuch as there is no provision for condonation of delay in filing of the suit as per Section 5 of the Limitation Act and which has been filed beyond period of 30 days as provided in Section 77 of the Registration Act, however, the appeal was disposed of with the following directions:-

(i) The appellant/plaintiff will be entitled within one month from today seek refund of the stamp duty amount from the Collector of Stamps after depositing the Gift Deed dated 21.10.2014 typed on the non-judicial stamp duty papers, and the Collector of Stamps will refund the amount of non-judicial stamp duty minus the normal charges deducted when stamp duty is sought to be refunded within the statutory period of six months.

(ii) Appellant/plaintiff will now be entitled to get a fresh Gift Deed executed on appropriate stamp duty, and the statutory authorities acting under the Registration Act, including the Sub-Registrar, are directed to register this Gift Deed if otherwise the Gift Deed is in order as regards the stamp duty, and the registration of the Gift Deed should not be refused on the ground that the Uldhanpur, Naveen Shahdara, Delhi-110032, having total Land Area 195.096 sq. meters and Plinth Area 166 sq. meters.

(iii) appellant/plaintiff is not the owner of the subject property bearing no. 1/11277-A/1, Gali No. 1, Subhash Park Extension, Village (iv) A copy of this judgment be sent to all the Sub-Registrars functioning in Delhi for information and compliance.

WRIT P{ETITION AGAINST ORDER OF REGISTRAR U/S 72 pf the Registration ACT, 1908

A Writ petition is not maintainable against the order passed by the Registrar u/s 72 of the Act. It is held by Delhi High Court In Alka Goel  Vs State Govt Of Nct Of Delhi & Ors (2023) 03 DEL CK 0207. It is held by the High Court that as appellate remedy available as per the Act u/s 72 before the Registrar and yet another appellate remedy u/s 77 of the Act before a civil court is provided against the order of Registrar, therefore, a writ petition shall not lie.

In Mahavir Singh & Ors. Vs GNCT Of Delhi & Ors (2022) 11 DEL CK 0140 In the Delhi High Court Case No : Civil Writ Petition No. 4194 Of 2022 has observed that the Registration Act 1908 is a complete code in itself and all reasons for refusal have been enumerated therein under Sections 19, 20, 21, 22, 23, 24, 25, 28, 32, 33, 34 and 35 of the said Act and the Act and if refusing the registration is beyond the scope of the said enactment, then appeal u/s 72 of the Act shall follow and another appeal before court against the order of Registrar u/s 77 of the Act shall also lie. The writ petition shall not lie in view of the specific appellate remedy available as per the Registration Act 1908.

In Santosh Devi  Vs State Of Haryana & Anr the High Court Of Punjab And Haryana At Chandigarh Case No : Civil Writ Petition No. 13486 Of 2017, it is held that writ petition shall not be maintainable in view of express appellate provisions available u/s 72 and 77 of the Registration act 1908.

CONCLUSION

The office of Sub-Registrar and Registrar are interface for the purpose of registration of documents of all hues and plenty of issues in routine, emerges as regards grant of registration or refusal in granting registration. The Registration Act 1908 is a comprehensible Act encapsulating the details of law and procedure. The appellate remedy against the order of Sub-Registrar is provided for before the Registrar and yet again before the Civil Courts. The limitation periods for preferring such appeals are Thirty (30) days and the delay cannot be condoned in this regard. The rule of procedure is abstract and simple. The writ petition before a court of record i.e high court being extra- ordinary jurisdiction is generally not entertained. It is also a settled proposition in law, that if appellate remedy is available, the writ petition shall not lie. However, if a situation of grave wrong emerges, then in such exceptional cases, the high court may entertain writ petition. The law as regards registration of property and documents, apart from procedural aspects of it has been dealt with in the foregoing lines.

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                                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com