S.Ambika vs The State Of Andhra Pradesh,
2022 Latest Caselaw 9290 AP

        HON'BL SRI JUSTICE U. DURGA PRASAD RAO
                                  AND
       HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
                         W.A.NO.735 OF 2022

JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)


      This intra Court appeal is filed under Clause-15 of letters patent

challenging the order dated 01.09.2022 passed in W.P.No.19512/2019

by learned single Judge, while dismissing the writ petition leaving

open to the parties to pursue their legal remedies.


2.    The petitioners' case is that they are the legal representatives

(LRs) of one Perumallu Nadar who was the absolute owner of the

subject land property and some other properties. The said Perumallu

Nadar died on 15.12.1978 leaving behind the petitioners as his

successors to his properties.


      (a) While so, the petitioners entered into a joint family partition

and settlement deed and presented the said document on 26.07.2019

before the Joint Sub-Registrar-1, Nellore / 5th respondent who assigned

document with pending registration No.1305/2019 (CS.No.7459/2019)

without effecting registration. On persuasion, the 5 th respondent issued

refusal order No.22/2019 vide notice P/1305/2019, dated 13.08.2019

without assigning any reason. On enquiry the petitioners came to

know the reason for refusal of the registration was that the subject

property was already sold by the father of the petitioners late

Perumallu Nadar to the 6th respondent. The said fact was mentioned in

the 'Book-2 Register' maintained by the 5th respondent and the

petitioners obtained the copy of the same. However, in the refusal

order No.22/2019, dated 13.08.2019 no reason was mentioned so as to

enable the petitioners to take further legal course of action. The said

order is only a nonspeaking order. It is the further case of the

petitioners that even if the sale in favour of the 6th respondent is true, it

was only a conditional sale and the 6th respondent has not fulfilled the

conditions of the sale and therefore, she cannot get any title over the

subject property. Therefore, basing on the said ineffective and

inoperative sale deed, the 5th respondent could not have refused to

register the family partition deed presented by the petitioners. Hence

the writ petition No.19512/2019.

3. Respondent No.4 filed counter and opposed the writ petition on

the main contention that as per the sale deed bearing No.685/1976,

dated 27.07.1975 which was registered in the office of the District

Registrar, Nellore on 05.04.1976, the unofficial respondent No.6 has

purchased an extent of Ac.3.44 cents consisting of Rice Mill etc., from

S.R. Perumallu Nadar, the ancestor of the petitioners and some others

and as per Section 22-B of the Registration Act, no registering office

shall accept for registration any document relating to the sale of any

immovable property, if the property comprised therein has already

been conveyed or permanently alienated by same person or his

representatives, assignee or agent in favour of any other person by a

registered document unless the previous registered document is

cancelled by order of a Court. In view of statutory bar enacted under

Section 22-B of the Registration Act, the partition deed dated

26.07.2019 presented by the petitioners was rejected by the 5 th

respondent by the refusal order No.22/2019, dated 13.08.2019.

4. Learned single Judge on hearing both parties passed the

following order:

"In view of the statutory provision and as the object behind it is discernible, this Court does not wish to state anything more on the merits of the matter. The issues raised about the sale/conditional sale etc., are all matters of fact, which require evidence etc., to rule on the true import of the document. There are a number of other transactions which are visible from the record and relating to the property like Document Nos.2251/2016; 1345/2013; 1595/2016 etc. The impact of these on the deed of partition presented for Registration etc., is also a matter of pleading and evidence. There are complicated questions of fact to be looked into. Deciding the same is not permissible under Article 226 of the Constitution of India.

The writ petition is therefore dismissed leaving it open to the parties to pursue their legal remedies. It is made clear that nothing is stated on the merits of the matter. No order as to costs."

Hence the writ appeal.

5. Heard the arguments of Sri P. Veera Reddy, learned Senior

Counsel, representing Sri P.S.P. Suresh Kumar, learned counsel for

appellants on record, Sri V. Venkata Ramana, learned Senior Counsel,

representing M/s Bharadwaj Associates, learned counsel for the

unofficial respondents on record and learned Government Pleader for

Stamps and Registration representing the official respondents.

6. Sri P.Veera Reddy, learned Senior Counsel for the appellants

argued that the refusal order No.22/2019 dated 13.08.2019 passed by

the 5th respondent is bereft of any reasons and hence, it is not

sustainable under law. He would submit that the public authorities

while passing orders shall give cogent reasons in support of their

orders. However, the impugned order does not contain any reason

much less cogent reason and thereby, the petitioners are deprived of an

opportunity to know the ground on which the document was refused

for registration. He would further submit that no doubt on a

subsequent enquiry, the petitioners came to know that the reason for

refusal of registration was due to the alleged fact that the original

owner of the property viz., late Perumallu Nadar has already sold the

said property to 6th respondent under a registered Sale Deed in the year

1975 and on the objection of the unofficial 6th respondent, the Sub-

Registrar, Nellore, refused to register the document. Though the said

fact was mentioned in 'Book-2 Register' maintained by 5th respondent,

however, the same was not reflected in the impugned order dated

13.08.2019. Learned Senior Counsel further argued that even

assuming that the earlier Sale Deed was true, the contents therein

would reveal that it was only a conditional sale deed inasmuch as the

vendors imposed the obligation on the purchaser to redeem their debts

before claiming title in the subject property, but the 6th respondent did

not fulfill the said condition. Therefore, under law the 6th respondent

cannot claim title over the subject property and some other properties

by virtue of the said conditional Sale Deed. These are the legal issues

involved in connection with the said conditional Sale Deed. Therefore,

the Sub-Registrar cannot refuse registration of the partition deed of the

petitioners on the sole ground that the subject property was the subject

matter of the earlier Sale Deed. On the other hand, if the 6th

respondent is aggrieved by the registration of the petitioners'

document, she can take recourse under common law before a

competent Civil Court. While arguing so, learned Senior Counsel

mainly emphasized that in the impugned refusal order, the 5th

respondent has not mentioned any reasons and thereby left the

petitioners to lurch. Referring to Section 71 of the Registration Act,

learned counsel would submit that while refusing to register any

document, the Sub-Registrar has obligation to give reasons. He placed

reliance on Yadla Ramesh Naidu v. Sub-Registrar, Sabbavaram1.

(2009) 1 ALD 337 = MANU/AP/0762/2008

He would thus argue that irrespective of the validity of the reasons

mentioned in 'Book-2 Register', the impugned order dated 13.08.2019

is liable to be set aside, for, it contains no reasons at all. Learned

Senior Counsel lamented that unfortunately the learned single Judge

has not considered this aspect in right perspective and dismissed the

writ petition by referring to Section 22B of the Registration Act,

leaving the parties to pursue their legal remedies. Learned Judge did

not objectively assess the validity of the refusal order dated 13.08.2019

in the light of Section 71 of the Registration Act. He thus prayed to

allow the writ petition.

7. Per contra, learned Senior Counsel Sri Vedula Venkata Ramana

while supporting the impugned order argued on behalf of the

respondent No.6 that the petitioners are very much aware of the

reasons for refusal of the document for registration, inasmuch as the

petitioners admitted in the writ affidavit that on enquiry they came to

know from Book No.2 register that the registration was refused in view

of the prior sale deed in respect of the same property and thereby an

embargo was created under Section 22B of the Registration Act.

Therefore, the petitioners now cannot contend that no reasons were

mentioned in the order and thereby they were kept in darkness by the

5th respondent. Learned Senior Counsel would further submit that

during hearing of the writ petition learned single Judge verified the

record and having found that the subject property was already covered

by the earlier sale deed and in view of the embargo created under

Section 22B of the Registration Act, dismissed the writ petition and

gave liberty to the parties to pursue their legal remedies. Learned

Senior Counsel argued that there is no legal flaw in the order impugned

and hence the writ appeal may be dismissed. Learned Government

Pleader for Stamps and Registration argued in similar lines.

8. The point for consideration is whether there are merits in the

writ appeal to allow?

9. POINT: We gave our anxious consideration to above

arguments. As can be seen, Section 22B was inserted in the

Registration Act, 1908 by virtue of the A.P. State Amendment vide Act

No.20 of 2017 and G.O.Ms.No.43, dated 29.11.2017. Section 22B

reads thus:

"22B. Non-acceptance of Registration of document regarding the property already conveyed by a registered document by the same

person: - Notwithstanding anything contained in the Act or any other law for the time being in force, no Registering Officer shall accept for Registration any document relating to the sale of any immovable property, if the property comprised therein has already been conveyed or permanently alienated by the same person or his representative, assignee or agent in favour of any other person by a registered document unless the previous registered document is cancelled by order of a Court"

(a) While so, the 4th respondent filed counter in

W.P.No.19512/2019 wherein he took the plea that the subject property

was covered by the sale deed bearing No.685/1976, dated 27.07.1975

under which the 6th respondent herein purchased an extent of Ac.3.44

cents consisting of Rice Mill, Engine Room, Rice Room, office guest

rooms and an asbestos roofed house with varandahs etc., from S.R.

Perumallu Nadar who is the ancestor of the petitioners and some

others. In that view and in view of the embargo created under Section

22B of the Registration Act, the 5th respondent has rejected the

partition deed dated 26.07.2019 presented by the petitioners for

registration. The said reason is mentioned in Book No.2 register

maintained by the 5th respondent.

10. As already stated supra, the argument of appellants is

dipronged-firstly, the impugned order dated 13.08.2019 is bereft of

reasons and hence hit by Section-71 of the Registration Act and

secondly, though the reasons were mentioned in a separate register i.e.,

Book No.2 register maintained by the 5th respondent, the said reason is

legally untenable to create embargo under Section-22B of the

Registration Act and interdict the 5th respondent from registering the

partition deed of the appellants. The reason is that the earlier sale deed

is only a conditional one and since the 6th respondent who is the vendee

under the said sale deed has not fulfilled her obligation incorporated in

the sale deed, neither she can take any objection nor the 5 th respondent

is refrained from registering the partition deed. If she is aggrieved by

the registration of appellants' document, she can take recourse before a

competent Court of law.

11. In respect of 1st argument, we perused Section-71 of the

Registration Act which reads thus:

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."

The above section would depict that when the Sub-Registrar

refuses to register a document,

i. he shall make an order of refusal ii. record his reasons for such order in his Book No.2 iii. make an endorsement of words "registration refused"

on the document iv. 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.

12. Be that as it may, in Yadla Ramesh Naidu's case (1 supra)

High Court of Andhra Pradesh observed as follows:

"23. Section-71 of the Registration Act deals with reasons for refusal to register to be recorded, as per which, every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within the sub-district, shall make an entry in Book No.2, and endorse the words "registration refused", while Section 72 of the Registration Act, deals with an appeal to the District Registrar from the orders of

Sub-Registrar refusing registration of a document. There is no doubt that under Section 71 of the Registration Act, the registering authority is duty bound to record reasons for refusal to register, but the fact remains, in the instant case, the registering authority did not refuse to register the document, but registered the document."

13. Thus the aforesaid section and the citation depict that the Sub-

Registrar has to record reasons when he refuses to register the

document presented before him for registration but such reasons have

to be recorded in Book No.2 maintained in his office and make an

endorsement that "registration refused" on the document and furnish a

copy of the reasons so recorded to the person executing or claiming

under the document, without payment and unnecessary delay.

14. In the instant case, admittedly the 5th respondent has mentioned

in Book No.2-Register the reasons for refusal to register the document

presented by the petitioners and also issued an endorsement dated

13.08.2022 under refusal order No.22/2019 that the registration was

refused. Further, the petitioners produced copy of Book No.2 Register

which shows that a copy was issued to the petitioners by the 5th

respondent. So in our considered view, the 5th respondent has

scrupulously followed the procedure contemplated under Section-71 of

the Registration Act. Therefore, we find no much force in the

contention of the appellants that the 5th respondent has not assigned

any reasons for refusal.

15. So far as the other contention of appellants that in spite of earlier

registered sale deed in favour of the 6th respondent and in spite of

embargo created under Section-22B, the Sub-Registrar cannot decide

the title of the parties and refuse the registration for the reason, the

earlier sale was only a conditional sale deed and since the 6th

respondent failed to fulfill the conditions in the sale deed, she cannot

lay any claim in respect of the subject property and therefore the Sub-

Registrar erred in refusing the registration is concerned, as rightly held

by learned single Judge, the issue relating to the validity of the earlier

sale deed cannot be decided by the 5th respondent. However, obliging

the Section-22B he can only refuse the registration of the subsequent

document i.e., partition deed. As observed by learned single Judge,

the parties have to agitate their rights before a competent Court.

16. Thus at the out-set we do not find any illegality or irregularity in

the order of learned single Judge. Accordingly, this writ appeal is

dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

_________________________ U.DURGA PRASAD RAO, J

__________________________ T. MALLIKARJUNA RAO, J

05.12.2022 krk

HON'BL SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

W.A.No.735 OF 2022

05th December, 2022

krk