Jharkhand High Court
Prabhash Kumar Shah vs (A) Anupama Jaiswal on 6 December, 2023
THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.231 of 2016
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1. Prabhash Kumar Shah, S/o Late Radhe Shyam Shah,
2. Smt. Radha Devi, w/o Prabhash Kumar Shah
Both by faith Hindu Resident of Gaddi Mohalla, Panchgarhi,
Bazar,P.O.-Katrasgarh,P.S.-Katras,District Dhanbad(Jharkhand)
.... .... .... Appellants/Defendants
Versus
1. (a) Anupama Jaiswal, w/o Late Ganga Pd. Bhagat
(b) Smt. Mithu Jaiswal, D/o Late Ganga Pd. Bhagat, w/o
Janardan Bhagat
2. Ajay Kumar Jaiswal S/o Late Ganga Prasad Bhagat
3. Samir Kumar Jaiswal, s/o Late Ganga Prasad Bhagat
4. Abhishek Jaiswal s/o Late Ganga Prasad Bhagat
All by faith Hindu, resident of Gandhi Chowk, Rajbari road,
P.O.-Katras Bazar, P.S. Katras, Dist. Dhanbad
.... .... ....Plaintiffs/Respondents
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. Kundan Kumar Ambastha, Adv.
For the Respondents : Mr. A.K. Sahani, Adv.
Mr. Vikesh Kumar, Adv.
Mr. Ajit Kumar, Adv.
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JUDGMENT
C.A.V On 13/09/2023 Pronounce on 06 / 12 /2023
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Heard learned counsel for both the parties.
2. The Original Title Suit No.157 of 1996 was instituted by one
Ganga Prasad Bhagat @ Jaiswal(since deceased) along with his
three sons namely Ajay Kumar Jaiswal, Sameer Kumar Jaiswal
and Abhishek Jaiswal seeking following reliefs:-
(a) For a decree that the two sale deeds dated
16.09.1996 (registered on 17/09/96 at the office of
Registrar of Assurance of Kolkata) executed by
plaintiff no.1 in favour of defendant nos.1 & 2 are
adjudged to be void and for an order for the same
to be delivered up and cancelled, and for sending a
copy of the decree to the Registrar of Assurance,
Kolkata.
(b) For a decree for confirmation of possession of the
plaintiff and proforma defendants or recovery of
possession if necessary.
(c) For a decree for permanent injunction restraining
the defendant nos.1 & 2 including their men,
agents, servants etc. from entering into the lands in
suit from raising any construction or further
construction in or over the suit lands.
3. Brief facts of the case of the plaintiffs as pleaded in the
plaint is that one Jageshwar Bhagat of Katras owned and
possessed some agricultural land at Mouza Katras including plot
Nos.328, 329, 340 and 341, while in peaceful possession thereof the
said Jageshwar Bhagat gifted some of the land in the name of
Tulsi Bhagatain, Ram Lakhan Bhagat, Ram Chandra Prasad
Bhagat and Ganga Prasad Bhagat vide registered Deed of gift
No.8164 dated 16.07.1943 and put them in possession thereof.
Tulsi Bhagatain was only daughter and legal heir of Jageshwar
Bhagat and another donee are the sons of Tulsi Bhagatain. Tulsi
Bhagatain died 10 years ago leaving three sons namely Ramlagan
Bhagat, Ramchandra Bhagat and Ganga Prasad Bhagat who
inherited the property left by their mother. Tulsi Bhagatin while in
peaceful possession of the aforesaid land divided the same and
the land which was described in scheduled of the plaint fell into
the exclusive share of Ganga Prasad Bhagat and his family, who
came in possession thereof. Two sons of Ganga Prasad Bhagat
namely Ajay Kumar Jaiswal and Samir Kumar Jaiswal have been
carrying their business and other son Abhishek Kumar Jaiswal
has been studying in Odisha. All the lands and business belong to
the family of Ganga Prasad Bhagat which have been blended in
joint family property and are being held and possessed by the
plaintiffs. Ganga Prasad Bhagat father of Ajay Kumar Jaiswal,
Samir Kumar Jaiswal and Abhishek Jaiswal did not have any
knowledge of English or Bengali and he can write in Hindi only.
He is the man of weak intellect and the entire joint family
property is managed by Ajay Kumar Jaiswal and Samir Kumar
Jaiswal. Defendant No.1 is a rich and influential businessman of
Katras, who took Ganga Prasad Bhagat to Kolkata for his
treatment and got two sale deeds executed there on payment of
consideration amount of Rs.13,20,000/-(Rs. Thirteen Lakhs and
twenty thousands) but at the time of execution of alleged deeds,
Ganga Prasad Bhagat was not in sound health position and at the
same time there was serious family dispute and disturbance in the
family. It is alleged that the defendants/appellants taking
advantage of vulnerable condition of Ganga Prasad Bhagat and
pretending his treatment at Kolkata got executed two sale deeds
Nos.6333 and 6334 dated 16.09.1996 registered on 17.09.1996 by
Registrar Assurance, Kolkata. The alleged two above sale deeds
were not executed voluntarily by Ganga Prasad Bhagat and no
consideration amount was ever paid to him. The contents of the
sale deeds were also not read over and explained to the vendor in
Hindi. The plaintiffs also came to know after obtaining certified
copies of two sale deeds that total consideration amount was
entered only Rs.1,98,000/- (Rs. One lakh ninety eight thousand).
One sale deed was executed in favour of defendant No.1 Prabhash
Kumar Saha and another in favour of his wife namely Radha Devi
who are appellant Nos.1 and 2 respectively. Both the aforesaid
sale deeds are totally void under the law as per provision of
section 30 (2) of the Indian Registration Act which has been
deleted by the Bihar Amendment Act, 1991 and Section 28 of
Registration Act has also been replaced.
4. The defendants/appellants' case is that the land of plot
No.328 of Mauza Katras was not the subject matter of deed of gift
dated 16.07.1945 but Tulsi Bhagatain being the only legal heir of
her father inherited the said plot after death of Jageshwar Bhagat.
During the lifetime of Tulsi Bhagatain her three sons namely
Ganga Prasad Bhagat, Ramchandra Bhagat and Ramlakan Bhagat,
partition all these lands along with other lands including plot
No.328 and Ganga Prasad Bhagat was exclusively allotted Plot
Nos.327, 328, 329, 340 and 341 total area 3 acres and 14 decimals.
Thus by virtue of the said partition Ganga Prasad Bhagat became
the absolute and exclusive owner of these lands from the date of
said partition and hence it is false to say by the plaintiffs that he
and his brother inherited the interest in the gifted property of plot
No.328 after death of his father. Rather as per partition among
brothers of Ganga Prasad Bhagat dated 14.06.1974 the said
property came under exclusive possession of Ganga Prasad
Bhagat, the land and business of their sons never blended into
joint family property. The defendants purchased the suit land by
virtue of two registered sale deeds dated 17.09.1996 from Ganga
Prasad Bhagat on payment of full consideration amount and
acquired perfect right title and possession over the land in
question and it is false to say that Ganga Prasad Bhagat was a
man of weak intellect and was not of sound health at the time of
execution of sale deed, rather true facts is that said Ganga Prasad
Bhagat himself made proposal to sale the suit land in month of
September, 1996 @ Rs. 3,000/- per decimal. The defendants agreed
to purchase the same and advance money of Rs.11,000/- each for
two sale deeds was paid to Ganga Prasad Bhagat then he executed
the agreement for sale on 14.09.1996 and thereafter these two sale
deeds dated 16.09.1996 were executed and registered on
17.09.1996 and consideration amount was paid through cheque
bearing cheque No.SB/AP-290609 dated 17.09.1996 and SB/AP-
290591 dated 17.09.1996 of State Bank of Bikaner and Jaipur at
Katrasgarh Branch and said cheques were en-cashed by Ganga
Prasad Bhagat on 20.09.1996 and out of the amount, four fixed
deposit @ Rs.50,000/- each were made by him and his three sons
and his wife were made nominees in fixed deposit. It is further
alleged that after registration of two sale deeds, the said Ganga
Prasad Bhagat delivered the possessions of land in question to the
defendants in presence of other plaintiffs and the defendants have
constructed the boundary wall, room and fixed gate over the said
land as such defendants have got valid right, title, ownership and
possession over the suit land by virtue of sale deeds and have
been coming into peaceful possession within the knowledge of
plaintiffs. Hence the suit of plaintiffs is liable to be dismissed.
5. On the basis of pleadings of the parties, the learned trial
court has settled following issues for adjudication:-
(i) Is the suit maintainable in its present form?
(ii) Is there any cause of action arose for the
present suit?
(iii) Is the suit barred by law of limitation?
(iv) Is the suit barred by the principles of estoppel,
waiver and acquiescence?
(v) Whether the suit land property was the joint
family property of Ganga Prasad Bhagat and
his three sons?
(vi) Whether the two suit sale deeds Nos.6333 and
6334 executed on 16.09.1996 and registered on
17.09.1996 at the office of registrar of assurance
Kolkata are void and for want of jurisdiction
under Indian Registration Act?
(vii) Whether the aforesaid two sale deeds are void
having been taken by Ganga Prasad Bhagat by
means of fraud, manipulation and without
payment of consideration money fraudulently?
(viii) To what relieved or relieves, the plaintiffs are
found entitled to?
6. The learned trial court has taken issue Nos.5, 6 and 7 as
primary issues and interconnected with each other for
adjudication simultaneously and after considering oral as well as
documentary evidence adduced by the parties has decided issue
Nos.5 and 6 in favour of plaintiffs and issue No.7 against the
plaintiffs and in favour of the defendants. Accordingly, it was
held that the suit scheduled property belong to Ganga Prasad
Bhagat and his sons which were sold by two sale-deeds in
question by Ganga Prasad Bhagat executed on 16.09.1996 and
registered on 17.09.1996 at Registrar Assurance, Kolkata in
contravention of Sections 28 and 30 the Registration Act, 1908-
(Bihar Amendment) Act, 1991 are void but the aforesaid sale
deeds were found not to be affected by fraud or misrepresentation
and without consideration. Hence the suit was decreed in favour
of the plaintiffs and against the defendants.
7. Being aggrieved and dissatisfied against the judgment and
decree of learned trial court, Title Appeal No.84 of 2012 was
preferred by the appellants/plaintiffs. The learned appellate court
observed that the registration (Bihar Amendment) Act which is
applicable in the state of Bihar, it oust the jurisdiction of alleged
two Sale Deed Nos.3666 and 3664 to be presented for registration
before Registrar Assurance, Kolkata. The learned Appellate Court
relying upon the decision of Hon'ble Calcutta High Court in the
case of Rumi Sein and Ors. Vs. Sanjay Sureka & Ors. reported in
(2011) 0 Supreme (Cul) 853, wherein it was held that "the omission
of Section 30(2) of the Indian Registration Act, 1908 as applicable
to the State of Bihar would only effect the authority of that state"
therefore, the registration of these two sale deed Nos.6333 and
6334 dated 17.09.1996 when there is office of Sub-Registrar,
Dhanbad, the registration of sale deeds cannot be held to be valid
and genuine after passing of Registration (Bihar Amendment) Act,
1991. There was no cogent explanation on the part of the learned
counsel of the defendants/appellants as to why sale deeds were
executed and registered at Kolkata when there was an office of
Sub-Registrar in Dhanbad.
8. The learned appellate court below also took into notice that
both the registered sale deed Nos.6333 and 6334 were later on
presented before Sub-Registrar, Dhanbad deficit and required
stamp duty as per the rule and norms of the State was also
deposited. The appellate court has recorded specific findings that
both the registered sale deeds registered on 17.09.19696 at the
office Registrar Assurance, Kolkata were void ab initio and in-
operative in view of passing Registration (Bihar Amendment) Act,
1991, hence, confer no right title interest and possession over the
suit land to the defendants/appellants. The learned appellate
court also observed that the execution of both sale deeds have not
been challenged by the plaintiffs/respondents rather execution
was admitted but the way in which execution and registration of
these two documents are done, it was against the principle of law
and does affect the legal rights of plaintiffs/respondents and also
invalid in view of provision under section 54 of Transfer of
Property Act. Accordingly, the appeal filed by the appellants was
dismissed on contest and impugned judgment and decree was
upheld and confirmed.
9. Being aggrieved and dissatisfied with the appellate
judgment and decree , present second appeal has been preferred
by appellants wherein the substantial question of law to be
decided in this appeal has been formulated as under:-
Whether the courts below were right in
decreeing plaintiff's suit considering the fact that
Registration (Bihar Amendment) Act, 1991 will
prevail over the Indian Registration Act or not?
Whether the judgment of the appellate
court below is perverse and is in teeth of
violation of well settled principles which is again
discussed by the Hon'ble Supreme Court in the
case of the State of Rajasthan and Ors. Vs. Shiv
Dayal and Anr. reported in (2019) 8 SCC 637?
10. Learned counsel for the appellants assailing concurrent
finings of learned trial court and learned First Appellate Court has
extraneously argued that both the courts below have
misinterpreted the provision of Article 254 of Constitution of
India in perspective of provisions of Indian Registration Act, 1908.
On the date of presentation of sale deed before Registrar
Assurance, Kolkata for registration he was guided by provision of
Indian Registration Act, 1908 not by the Amendment of State
Legislature. It is settled principle of law that any amendment
made by State Legislature in respect of subject matter falling in
concurrent list of Constitution of India cannot bound the
provisions of Central Act. It is further submitted that learned
court below has recorded specific findings that sale deeds were
not vitiated due to fraud, under influence, misrepresentation or
any other grounds which makes the transaction void or voidable.
Simply because sale deeds were executed in proper manner by
receiving valuable consideration money and also presented before
Sub-Registrar, Dhanbad and required stamp duty as per norms of
State Government, Bihar, the sale deeds cannot be treated as void-
ab-initio or liable to be cancelled.
Learned counsel for the appellants has placed reliance upon
the following reported judgments:-
(i) State of Rajasthan and Ors. Vs. Shiv Dayal and Anr.
reported in (2019) 8 SCC 637
(ii) Gati Cargo Management Service vs. SBL Industries
Ltd. reported in (2014) 0 Supreme (Del) 1519,
(iii) Ashok Kumar Vs. State of Bihar and Anr. reported in
(2022) 6 BLJ 1
11. Per-Contra, Mr. A.K. Sahani, Learned senior counsel for the
respondents has refuted the aforesaid contentions raised on behalf
of the appellants and submitted that there are concurrent finding
of facts and laws of the courts below which could not be interfered
lightly. It is further submitted that both sale deeds Nos.6333 and
6334 executed by the original plaintiff have been declared void
and were cancelled and possession of the plaintiffs/respondents
have been confirmed as well as permanent injunction has also
been granted through the decree of both the courts below. It is
further submitted that the registration of sale deeds at Registrar
Assurance, Kolkata in respect of property situated in
Ranchi/Bihar, after amendment in the Indian Registration Act by
Bihar (Amendment Act), 1991 is void in terms of section 28 and 30
of the Registration Act. Elaborating his argument, learned counsel
has further submitted that section 28 of Indian Registration Act,
1908 says that every document mentioned in Section 17 sub
section (1)(a)(b)(c)(d) and (e), sub-section 2 of section 17, in so far
as such documents effects immovable property, and section 18
clause (a),(b),(c) and (cc) shall be presented for registration in the
office of sub registrar within whose sub district, the whole or
some portion of the property to which such documents relates is
situate. Similarly, section 30 of the Indian Registration Act, 1908
provides that any registrar may in his indiscretion receive and
register any document which might by registered by any Sub
Registrar subordinate to him. Sub clause (2) of section 30 of the
Indian Registration, Act says that Registrar of a district in which a
presidency town is included and the Registrar of Delhi district
may receive and register any document referred to in section 28 of
Indian Registration Act without regard to the situation of any part
of India of the property to which the document relates. It is further
argued that as per Bihar(Amendment) Act, 1991, the provision of
section 30(2) in the Parent Central Act has been deleted after
receiving assent from President of India. Therefore, in respect of
property situated in State of Bihar after amendment, no sale deed
can be executed in any presidency town or in Delhi. Both learned
courts below have recorded concurrent findings in this regard. It
is also contended that merely by depositing the stamp duty
required in the State of Bihar by the appellants before Registrar
Office, Dhanbad is not sufficient to validate the transaction of sale.
Therefore, there is no illegality or infirmity in the judgment and
decree passed by both courts below and this appeal has no merits,
which is liable to be dismissed with cost.
12. In view of the above arguments and substantial questions of
law involved in this appeal, I deem it appropriate to discuss the
relevant provisions of the Indian Registration Act and the Bihar
(Amendment Act), 1991 at the relevant time of execution of sale
deed dated 16.09.1996 and their registration on 17.09.1996 at the
office of Registrar Assurance, Kolkata.
At the relevant time, sections 28 and 30 of Indian
Registration Act, 1908 as applicable to the State of Bihar read as
under:
"Section-28. Place for registering documents
relating to land. Save as in this Part otherwise
provided every document mentioned in clauses
(a), (b), (c), (d) and (e) of sub-section 1 and sub-
section (2) of section 17 insofar as such
documents affect immovable property and in
clauses (a), (b), (c) and (cc) of section 18 shall be
presented for registration in the office of the Sub-
Registrar within whose sub-district or district
the whole of the property to which such
document relates is situated in the State of Bihar.
"Section-30.Registration by Registrars in certain
cases. -(1) Any Registrar may in his discretion
receive and register any document which might be
registered by any Sub-Registrar subordinate to
him.
(2)The registrar of a district in which a
presidency town is included and the registrar of
the Delhi district may receive and registrar any
documents referred to in section 28 without
regard to the situation in any part of India of the
property to which the document relates"
By virtue of the Registration (Bihar Amendment) Act, 1991
enacted by the legislature of the State of Bihar, the Act as
applicable to the State of Bihar was amended and provision of
sub-section 2 of section 30 of the Act was omitted w.e.f.,
08.08.1991.
13. Other provisions applicable in this case are Sections 66 and
67 of Indian Registration Act, 1908 which are produced bellows:-
"Section 66. Procedure after registration of
documents relating to land - (1) On registering
any non-testamentary document relating to
immovable property, the Registrar shall forward
a memorandum of such document to each Sub-
Registrar subordinate to himself in whose sub-
district any part of the property is situate.
(2) The Registrar shall also forward a copy of
each document, together with a copy of the map
or plan (if any) mentioned in Section 21, to every
other Registrar in whose district any part of such
property is situate.
(3) Such Registrar on receiving any such copy
shall file it in his Book No. 1, and shall also send
a memorandum of the copy to each of the Sub
Registrars subordinate to him within whose sub-
district any part of the property is situate.
(4) Every Sub-Registrar receiving any
memorandum under this section shall file it in his
Book No. 1.
Section 67. Procedure after registration under
Section 30, subsection (2).-
On any document being registered under section
30, sub -section (2), a copy of such document and
of the endorsements and certificate thereon shall
be forwarded to every Registrar within whose
district any part of the property to which the
instrument relates is situate, and the Registrar
receiving such copy shall follow the procedure
prescribed for him in Section 66, sub-section (1)."
14. In the given situation of this case, the question arises as to
whether the existing law-Registration Act, 1908 would prevail
despite the enactment of the Registration (Bihar Amendment) Act,
1991 can only be resolved with reference to Article 254 of
Constitution of India. The Registration Act, 1908 occupies the filed
following under Entry 6 of the concurrent list, thus, by virtue of
article 246(2) of the Constitution of India, the parliament as well as
the State legislature would have the power to legislate in respect
of the subject matter. Article 254 of Constitution of India is
reproduced below.
"Article 254. Inconsistency between laws made by
Parliament and laws made by the Legislatures of
States:-
(1) If any provision of a law made by the
Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any
provision of an existing law with respect to one
of the matters enumerated in the Concurrent List,
then, subject to the provisions of clause ( 2 ), the
law made by Parliament, whether passed before
or after the law made by the Legislature of such
State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature
of the State shall, to the extent of the repugnancy,
be void
(2) Where a law made by the Legislature of a
State with respect to one of the matters
enumerated in the concurrent List contains any
provision repugnant to the provisions of an
earlier law made by Parliament or an existing
law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it
has been reserved for the consideration of the
President and has received his assent, prevail in
that State: Provided that nothing in this clause
shall prevent Parliament from enacting at any
time any law with respect to the same matter
including a law adding to, amending, varying or
repealing the law so made by the Legislature of
the State.
15. Now, It would be appropriate to discuss leading judgments
of some High Courts and Hon'ble Supreme Court relevant to the
questions involved in this case:-
16. In the case of Gati Cargo Management Service vs. SBL
Industries Ltd.(supra), wherein principal question involved was
as whether the registration of sale deed relating to a property
situated in Bihar, with the office of Sub Registrar, Mumbai would
be valid?
After apprising the relevant provisions of Indian
Registration Act, Registration (Amendment Act), 1991 and article
254 of Constitution of India, the High Court of Delhi held as
under:-
"24. By virtue of Article 254(1) of the Constitution,
in the event of any conflict of laws enacted by a
State Legislature and by the Parliament in respect
of matters listed in the concurrent list, the
legislation as enacted by the Parliament would
prevail. In a situation, where a State Legislation
has obtained the President's assent, the same
would prevail in that State. Although, in the
present case, there are no two different enactments,
however, the principles that are enunciated in
Article 254 of the Constitution of India would be
applicable. Thus, in my view, the Registration Act,
1908 as amended by the Registration (Bihar
Amendment) Act, 1991, would prevail over the
existing law (i.e pre-constitutional legislation) as
applicable to the State of Bihar. However, it is
relevant to note that the same does not imply that
the law as amended by the Bihar Legislature
would have extraterritorial application. The last
four words of Article 254(2) of the Constitution of
India - "prevail in that State" clearly restrict the
applicability of the amendment to the state of
Bihar. That being so, the Registration of the sale
deeds in question by the registering authorities in
Mumbai by virtue of Section 30(2) of the Act are
not flawed.
25. It is apparent from the above that the
registration authorities in the State of
Maharashtra were duly empowered to register the
documents in accordance with the Central
Legislation-the Act. There is no dispute that
Section 30 of the Act as applicable to the State of
Maharashtra included Sub-section (2).
Accordingly, the act of the registering authorities
in Mumbai, in registering a document pertaining to
the subject property situated at Ranchi cannot be
faulted. The limited question that needs to be
addressed is whether the deletion of Section 30(2)
of the Act as applicable to Bihar by the Bihar
Legislature would have the effect of voiding the
registration effected by the registering authorities
at Mumbai.
26. The learned counsel for the applicants had
drawn my attention to the amendments to Section
28 of the Act as applicable to the territory of
Pondicherry, which were carried out by virtue of
the Pondicherry Act 5 of 1999 w.e.f. 04.05.1999.
Section 28 as amended by the Pondicherry Act 5 of
1999 reads as under : - "28. Place for registering
documents relating to land.- Save as in this Part
otherwise provided,- (a) every document mentioned
in clauses (a), (b), (c), (d) and (e) of sub-section (1)
and sub-section (2) of section 17, in so far as such
document affects immovable property and in
clauses (a), (b), (c) and (cc) of section 18 shall be
presented for registration in the office of a Sub-
Registrar within whose sub-district the whole or
some portion of the property to which such
document relates is situate in the Union Territory
of Pondicherry; and any document registered
outside the Union Territory of Pondicherry in
contravention of the provisions of clause (a) shall
be deemed to be null and void.
"27. It was pointed out that the amendment to
Section 28 brought about by the Bihar Legislature
did not include a clause similar to clause (b) of
Section 28 of the Act as introduced by Pondicherry
Act 5 of 1999. According to the applicants this
indicated that it was not the intention of the Bihar
Legislature to void any registrations in respect to
property situated at Bihar, which were effected by
the authorities in the erstwhile presidency towns
and Delhi. It is settled law that the legislature
expresses its intent through the language of the
statute and accordingly, the language of a statute
must be interpreted to discover the intention of the
Legislature. In the present circumstances, one is
hard pressed to find any other intention of the
Bihar Legislature in deleting Section 30(2) of the
Act, except to provide that registering documents
other than in a manner as expressed by Section 28
of the Act was not available. However, that in my
view would not be the same as expressing a
legislative intent to void registrations of all
documents that are effected, by virtue of section
30(2) of the Act, by Registrars of the districts in
which the erstwhile Presidency-towns are located
or by the Registrar of Delhi.
28. It is relevant to note that although, the
Registration (Bihar Amendment) Act, 1991 omitted
Sub-section 2 of Section 30 from the Act. No
attendant change was brought in Section 66 and 67
of the said Act which read as under : - "66.
Procedure after registration of documents relating
to land - (1) On registering any non-testamentary
document relating to immovable property, the
Registrar shall forward a memorandum of such
document to each Sub-Registrar subordinate to
himself in whose sub-district any part of the
property is situate. (2) The Registrar shall also
forward a copy of each document, together with a
copy of the map or plan (if any) mentioned in
Section 21, to every other Registrar in whose
district any part of such property is situate. (3)
Such Registrar on receiving any such copy shall file
it in his Book No. 1, and shall also send a
memorandum of the copy of the Sub Registrars
subordinate to him within whose sub-district any
part of the property is situate. (4) Every Sub-
Registrar receiving any memorandum under this
section shall file it in his Book No. 1. Section 67.
Procedure after registration under Section 30,
subsection (2).- On any document being registered
under section 30, sub -section (2), a copy of such
document and of the endorsements and certificate
thereon shall be forwarded to every Registrar
within district any part of the property to which
the instrument relates is situate, and the Registrar
receiving such copy shall follow the procedure
prescribed for him in Section 66, sub-section (1)."
29. A plain reading of the aforesaid provisions
clearly indicate that in the event a document was
registered under Section 30(2) of the Act by a
Registrar, a copy of same would be required to be
forwarded to the Registrar in whose district the
immovable property is situated. Section 66(1) of
the Act mandates the Registrar to forward the
memorandum of the document received by him to
each Sub-Registrar subordinate to him in whose
sub-district any part of the property is situated. In
the event the legislative intent was to disregard
any document that was registered by a Registrar of
the district in which the erstwhile Presidency
towns are located or by the Registrar of Delhi then
the provisions of Section 67 of the Act would also
have been omitted. In this regard it is relevant to
note that the 'The Registration and Other Related
Laws (Amendment) Act, 2001 enacted by the
Parliament, which finally omitted section 30(2) of
the Registration Act, 1908 also deleted section 67
of the said Act. Accordingly, in my view, the
Registration effected by the registering authority
at Mumbai cannot be cancelled on account of the
amendment brought about by the Registration
(Bihar Amendment) Act, 1991.
30. The Calcutta High Court in the case of Rumi
Sein (supra) has also upheld the registrations
effected outside the State of West Bengal even
though Section 30(2) of the Act had been deleted by
the West Bengal Legislature. The West Bengal
Legislature had enacted the West Bengal Act 17 of
1996. By virtue of Section 3 of the said Act,
Subsection (2) of Section 30 of the Act was omitted
from the Act as applicable to the State of West
Bengal. In the case of Rumi Sein (supra), a
controversy arose with reference to two deeds of
conveyance relating to the property situated in
West Bengal which were registered in June 1999, at
Mumbai. The Calcutta High Court considered the
controversy in the following manner : - "There is a
further technical objection to the power of
attorney taken by the plaintiffs. They say that
Section 28 of the Registration Act, as is relevant in
the context, provides that a document affecting
immovable property shall be presented for
registration in the office of a sub registrar within
whose sub-district the whole or some portion of
the property to which such document relates is
situate. The plaintiffs refer to Section 30 of the Act
and the effect of such provision following its
amendment. Prior to the relevant amendment of
Section 30 of the Act, sub-section (2) thereof
permitted, inter alia, the registrar of a district in
which a presidency town was included to receive
and register any document referred to in Section 28
without regard to the situation in any part of
India of the property to which the document
related. Sub-section (2) was omitted from Section
30 of the Act by a West Bengal amendment that
came into effect in 1997. Subsequently, there was a
Central amendment that altogether removed
Section 30(2) from the statute. The plaintiffs
suggest that upon the West Bengal amendment
coming into effect in 1997, no document affecting
any immovable property in West Bengal could
have been received or registered by any registrar in
Mumbai. Prima facie, such argument is not
acceptable. Upon the West Bengal amendment
coming onto effect, no registrar of a district in
West Bengal in which a presidency town was
included could have received or registered a
document affecting any immovable property
irrespective of where the property was situate. But
the registrar in Mumbai was not subject to this
amendment and, notwithstanding the West Bengal
amendment, the registrar in Mumbai continued to
be governed by Section 30(2) of the Registration
Act till it was obliterated in 2001. Since the two
Mumbai documents were executed in 1999,
notwithstanding the West Bengal amendment,
there does not appear to have been any infirmity in
the Mumbai registrar receiving and registering the
same."
17. Recently in the case of Ashok Kumar Vs. State of Bihar and
Anr. reported in (2022) 6 BLJ 1 Hon'ble Patna High Court
reiterating the principle of law in Gati Cargo Management
Services (supra) has held as under:-
"14. In the aforesaid context, this Court deems it fit
and proper to refer to the Government of Bihar
notifications dated 18.07.2002 and 22.08.2002,
whereby and whereunder provision has been made
for deposit of differential amount of stamp duty
with regard to those lands which have been
registered outside the State of Bihar. The petitioner
has brought on record proof of deposit of the
differential amount of a sum of Rs. 1,82,500/-,
which has also been duly accepted and to the said
effect certificate has been issued by the District
Sub-Registrar, Patna vide certificate dated
29.10.2017.
15. With regard to the third ground, on which the
petitioner has been non-suited vide the impugned
order dated 28.02.2004, this Court finds that
though on the date of registration of the sale deed
in favour of the petitioner i.e. on 27.12.2001,
Section 30(2) of the Indian Registration Act had
been omitted by the Central Amendment Act,
published in the gazette on 24.09.2001, however, the
office of the Inspector General of Registration and
Controller of Stamps, Maharashtra State, Pune
vide letter dated 04.04.2002, in reference to the
validity of sale deed in question, executed on
27.12.2001 at Mumbai, has clarified that it has
issued an Order, whereby the Government of
Maharashtra has given effect to "The registration
and other related laws (Amendment) Act, 2001",
published by the Central Government vide Bill No.
48/2001 dated 24.9.2001, with effect from
01.01.2002, hence Section 30(2) of the Indian
Registration Act was valid till 31.12.2001 in the
presidency town of Mumbai. In such view of the
matter, this Court finds that the registration of the
sale deed in question at Bombay on 27.12.2001 i.e.
prior to 01.01.2002, which is the cut off date, is
legal and valid. As far as amendment of Section 28
of the Indian Registration Act by the Bihar Act 6 of
1991, with effect from 08.08.1991, is concerned, the
same provides for registration of documents
relating to immovable property by presentation of
the same for registration in the office of the Sub-
Registrar within whose subdistrict or district, the
whole of the property is situated to which such
documents relates as far as the State of Bihar is
concerned, nonetheless, this Court finds that the
same is contrary to the original Section 28 of the
Indian Registration Act, 1908, which starts with a
non -obstante clause i.e. "save as in this part
otherwise provided", meaning thereby that the
same is subject to the provisions contained in
Section 30(1) of the Indian Registration Act which
provides that- "Any Registrar may in his
discretion receive and register any document which
might be registered by any Sub-Registrar
subordinate to him", thus the expression "Any
Registrar" would mean all the Registrars and,
moreover, at that point of time i.e. on 27.12.2001,
on which date the sale deed was registered, as
mentioned herein above, Section 30(2) was also in
force, which empowers any Registrar of a district
including a presidency town to receive and register
any document referred in Section 28 without regard
to the situation in any part of India of the property
to which the document relates. The aforesaid
amendment in Section 28 of the Indian
Registration Act by the Bihar Act 6 of 1991, to the
extent is inconsistent with the law made by the
Parliament, is repugnant, in terms of Article 254 of
the Constitution of India, thus this Court finds
that there is no infirmity as far as execution of the
sale deed dated 27.12.2001 is concerned, hence the
same is held to be legal and valid. Consequently,
the grounds taken by the learned Collector, Patna
in the impugned order dated 28.02.2004, to non-suit
the petitioner is held to be unfounded and illegal."
18. In the case of State of Rajasthan & Ors. Vs Shiv Dayal & Anr.
(supra) Hon'ble Apex Court has held as under:-
"Though the concurrent finding of fact is
usually binding on high court while hearing second
appeal, this rule of law is subject to certain
exception. Where concurrent finding of fact is
recorded de-horse the pleading, or is based on no
evidence or misreading the material documentary
evidence, or is recorded against any provision of
law, or the decisions is one which no judge acting
judicially could reasonably have reached, such
grounds will constitute substantial question of
law within the meaning of section 100 CPC."
19. In view of aforesaid discussion of relevant laws involved in
this case as well as guidelines of judicial pronouncements, I arrive
at definite conclusion that in the instant case both court below
have committed serious error of law while interpreting the
provisions of Indian Registration Act, 1908 in the light of
Registration (Bihar Amendment) Act, 1991 as per provision of
Article 254 of Constitution of India and declared the subject sale
deeds as void ab initio. The findings recorded by both the courts
below clearly suggests that the execution of sale deeds were not
vitiated by any fraud, misrepresentation, undue influence,
coercion or any other reason making the transactions void or
voidable under law. The declaration of sale deeds to be void
merely on the ground that the same were registered by the office
of the Registrar Assurance at Kolkata is not warranted under law.
Therefore, the very vital approach of the courts below regarding
the above main issue does not satisfy the constitutional mandate
and suffers from perversity.
20. In view of the above discussion and reasons, the concurrent
findings and judgments and decree of both the courts below is
hereby set aside and the suit of the plaintiff /respondent is
dismissed.
21. In the circumstances, both parties shall bear their own costs.
22. Accordingly, pending I.A. No. 6508 of 2020, I.A. No.1454 of
2021 and I.A. No.5786 of 2023 are disposed off.
(Pradeep Kumar Srivastava, J.)
Pappu/A.F.R.-
