Smt. P.C. Padmamba vs Channaveeramma R
2022 Latest Caselaw 5406 Kant

                           1
                                                       R
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25th DAY OF MARCH 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

             R.S.A. No.5 OF 2017(DEC/INJ)
            C/w. R.S.A. No.6 OF 2017 (POS)

In R.S.A. No.5/2017:
BETWEEN:

       SMT.P.C.PADMAMBA,
       AGED ABOUT 76 YEARS,
       W/O LATE Y.CHIKKANNA,
       RESIDING AT No.298,
       3 'B' MAIN ROAD,
       SUBHASH NAGAR, MYSURU.
                                   ... APPELLANT
(BY SRI. KRISHNAMURTHY.G. HASYAGAR, ADVOCATE)

AND:

1.     CHANNAVEERAMMA R.,
       AGED ABOUT 63YEARS,
       D/O LATE RUDRAIAH,
       WORKING AS ASSISTANT MISTRESS,

2.     MISS.R.BAGIRATHAMMA,
       AGED ABOUT 61 YEARS,
       D/O LATE RUDRAIAH,
       BOTH ARE RESIDENTS OF
       D.No.42, RAJENDRANAGARA,
       MYSURU - 570 007.           ... RESPONDENTS

(SERVICE OF NOTICE TO R-1 AND R-2 IS HELD SUFFICIENT
VIDE ORDER DATED:19.12.2019)
                            2



      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.08.2016
PASSED IN R.A. No.976/2009 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, MYSURU, ALLOWING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE
DATED:25.10.1999 PASSED IN O.S. No.1114/1989 ON THE
FILE OF THE III ADDITIONAL I CIVIL JUDGE, JR.DN., MYSORE.

In R.S.A. No.6/2017:
BETWEEN:

       SMT.P.C.PADMAMBA,
       AGED ABOUT 76 YEARS,
       W/O LATE Y.CHIKKANNA,
       RESIDING AT No.298,
       3 'B' MAIN ROAD,
       SUBHASH NAGAR,
       MYSURU-570 001.
                                  ... APPELLANT
(BY SRI. KRISHNAMURTHY.G. HASYAGAR, ADVOCATE)

AND:

1.     CHANNAVEERAMMA.R.,
       AGED ABOUT 63YEARS,
       D/O LATE RUDRAIAH,
       WORKING AS ASSISTANT MISTRESS,

2.     MISS.R.BAGIRATHAMMA,
       AGED ABOUT 61 YEARS,
       D/O LATE RUDRAIAH,

       BOTH ARE RESIDENTS OF
       D.No.42, RAJENDRANAGARA,
       NGO COLONY,
       MYSURU - 570 007.

3.     THE KARNATAKA HOUSING BOARD,
       9TH MAIN, SWIMMING POOL ROAD,
       SARASWATHIPURAM
                             3



     MYSURU - 570 001.
     REPRESENTED BY ITS
     EXECUTIVE ENGINEER.              ... RESPONDENTS

(SERVICE OF NOTICE TO R-1 AND R-2 IS HELD SUFFICIENT
  VIDE ORDER DATED:19.12.2019;
 BY SMT. PUSHPAKANTHA, ADVOCATE FOR R-3)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:29.08.2016
PASSED IN R.A. No.983/2010 [OLD No.887/2010] ON THE
FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU,
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 06.09.2010 PASSED IN O.S. No.461/1999 ON
THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE,
MYSURU.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

1. The facts leading to the filing of these appeals are

as follows:

2. On 15.02.1982, R.Chennaveeramma and

R.Bhagirathamma--daughters of C.Rudraiah filed a suit

seeking for a decree of injunction to restrain Y.Chikkanna

from interfering with their possession over the house

property bearing Door No.42, situated at N.G.O's Colony,

Rajendra Nagar, Mysuru.

3. It was stated that the suit house property had been

allotted to their father Rudraiah on 01.02.1967 and all the

municipal records stood in his name. It was stated that

Rudraiah had passed away on 06.01.1982 and during his

lifetime, he had executed a registered Will dated

20.11.1973 (registered on 23.11.1973) bequeathing the

house in their favour and they had thus succeeded to the

property. They stated that they were in continuous

possession and enjoyment of the house property and as

the defendant was contending that he had purchased the

suit property and had come near the suit property and

tried to interfere with their possession, they were

constrained to file the suit.

4. This suit was resisted by Chikkanna stating that

Rudraiah had been allotted with the site by the Karnataka

Housing Board under a Hire-Purchase Agreement, but he

was not in a position to pay the installments and in

addition, he had decided to leave Mysuru and return to

his native place and he had therefore decided to sell the

suit house in favour of the defendant. He stated that

Rudraiah had executed a sale deed on 03.05.1979 in his

favour for a total sale consideration of Rs.22,000/-.

5. According to him, as per the terms of the sale deed,

he had paid a sum of Rs.3,612=77 to the Karnataka

Housing Board on behalf of Rudraiah, which was the

entire balance due to the Board. He stated that he had

also paid a sum of Rs.6,800/- to Rudraiah in the presence

of the witnesses and Rudraiah had agreed to receive the

balance consideration at the time of the registration of

the sale deed.

6. Chikkanna, however, stated that since Rudraiah

failed to ensure registration of the sale deed, he had

presented the document for registration, but the Sub-

Registrarhad refused to register the sale deed and he was

therefore constrained to prefer an appeal to the District

Registrar, who by an order dated 23.06.1981, directed

the registration of the said sale deed and accordingly, the

sale deed was registered on 27.06.1981.

7. Chikkanna also stated that thereafter, he had issued

a legal notice on 09.08.1981 to Rudraiah calling upon him

to receive the balance sale consideration of Rs.11,587=23

and to hand-over the vacant possession to him andto

secure the necessary documents from the Karnataka

Housing Board. He stated that after obtaining the sale

deed, he had got the Khata registered in his name, and

he was entitled to be in possession of the house property.

8. He stated that Rudraiah had died on 06.01.1982 and

that his daughters who were not residing with him in the

suit house, subsequently, in connivance with Rudraiah's

son, began to stake a claim that they were the legatees

under the registered Will dated 20.11.1973 (registered on

23.11.1973). Chikkanna stated that he was not admitting

the genuineness, execution and validity of the Will and

the plaintiffs were put to strict proof of the same. It was

also stated that even if the Will was duly proved, the

plaintiffs could not have derived any title under the will,

since Rudraiah had himself sold the property during his

lifetime. He also stated that in the light of a registered

deed of conveyance executed in his favour, the execution

of the Will or the payment of taxes was of no

consequence.

9. It was also stated that after the Khata was

registered in his name, he had applied to the Karnataka

Housing Board for execution of the requisite documents in

his favour and the said claim was still pending and he had

also learnt that the plaintiffs had approached this Court

by way of a writ petition and had obtained a stay order.

He, therefore, sought for dismissal of the suit.

10. It is to be stated here that during the pendency of

the suit, the plaintiffs made an application for amendment

of the plaint under Order VI Rule 17 of the Code of Civil

Procedure, 1908 in I.A. No.5 on 24.06.1988 seeking to

incorporate the prayer of the declaration that they were

the owners of the suit property and for a declaration that

the alleged sale deed dated 03.05.1979 said to have been

executed by their father was null and void. This

application was rejected by the Trial, as against which,

the plaintiffs preferred a Civil Revision Petition No.2687 of

1994 to this Court, which came to be allowed on

23.02.1999.

11. It may be pertinent to state here that while allowing

the amendment, this Court did not state that the

amendment would be effective only from the date of the

order and that it would not relate back to the filing of the

suit. Thus, by way of the amendment, at the time of

institution of the suit itself, the plaintiffs are deemed to

have sought for a declaration that they were the owners

of the suit property and that the sale deed obtained by

the defendant from Rudraiah dated 03.05.1979 was null

and void. The defendant filed an additional written

statement denying the entitlement of the plaintiffs to

make the said claim.

12. The Trial Court after considering the evidence

adduced before it concluded that the plaintiffs had proved

that they were in possession of the suit property and their

possession was interfered with by the defendant. The

Trial Court, however, held that the plaintiffs had been

unable to prove that the sale deed dated 03.05.1979

executed by Rudraiah in favour of the defendant was void

and was not binding on them. The Trial Court,

accordingly, decreed the suit in part and while refusing

the prayer of the plaintiffs for a declaration that they

were the owners and the sale deed was null and void, it

proceeded to grant them a decree restraining the

defendant from interfering with their possession. Liberty

was, however, reserved to evict them in accordance with

law. The plaintiffs, being aggrieved, preferred an appeal.

13. At that stage, pursuant to the liberty granted by the

Trial Court to evict the plaintiffs in accordance with law,

Chikkanna proceeded to file O.S. No.461 of 1999 seeking

for possession. The Trial Court, in this suit, after contest,

concluded that Chikkanna had established that he was the

owner of the suit property and was therefore entitled for

possession. The Trial Court also held that the suit was not

barred by limitation. The Trial court, accordingly, decreed

the suit filed by Chikkanna for possession.

14. As against the refusal to declare that they were the

owners of the house property and that the sale deed

obtained by Chikkanna was null and void in O.S. No.1114

of 1989, Chennaveeramma and Bhagirathamma had

already preferred R.A. No.976 of 2009 and was pending

before the Appellate Court.

15. As against the decree for possession, granted in

favour of Chikkanna in O.S. No.461 of 1999,

Chennaveeramma and Bhagirathamma preferred R.A.

No.983 of 2010.

16. The Appellate Court consolidated both the appeals

and after hearing, by a common judgment, concluded

that the dismissal of the suit seeking for declaration was

not justified and it proceeded to decree the suit filed by

Chennaveeramma and Bhagirathamma in its entirety and

declared them to be the owners in possession of the suit

property. It also declared that the sale deed obtained by

Chikkanna pursuant to the order of the District Registrar,

Mysuru, in R.A. No.3/1979-80 was null and void.

17. The Appellate Court also set aside the decree of

possession granted in favour of Chikkanna and dismissed

his suit filed by him for recovering possession from

Chennaveeramma and Bhagirathamma.

18. It is against this common judgment and decree,

these two second appeals have been preferred.

19. R.S.A. No.5 of 2017 arises out of O.S. No.1114 of

1989 filed by the daughters of Rudraiah, while R.S.A.

No.6 of 2017 arises out of O.S.No.461 of 1999 which was

filed by Chikkanna.

20. Sri.Krishnamurthy G.Hasyagar, learned counsel

appearing for the appellant, put forth the following

contentions:

(a) Once the sale deed had been registered and the

registration was not challenged by Rudraiah, the

sale deed could not have been invalidated by the

Appellate Court.

(b) Since the daughters of Rudraiah had challenged the

order directing the sale deed to be registered by

filing a writ petition but had thereafter chosen to

withdraw same, they had also accepted the

conveyance and as a necessary consequence, the

suit filed for declaration that the sale deed was null

and void, could not be maintained.

(c) The prayer for cancellation of the sale deed, which

had been registered on 27.06.1981, was made in

the suit only by way of an amendment(I.A.

No.5)and that tooin the year 1988 and this prayer

was thus clearly time-barred. He submitted that,

even if the amendment was allowed in the year

1999, the very claim having been made beyond the

prescribed period and being time-barred, could not

have been entertained.

(d) The non-payment of the balance sale consideration

did not, in any way, invalidate the sale deed since

the sale deed had been duly registered in

accordance with law.

(e) The judgment of the Appellate Court was vitiated

since the application filed for production of

additional evidence was not decided along with the

appeal.

(f) He relied upon the following decisions:

Sl.No.            Case Law             For the proposition
(i)       State of Rajasthan That the application for

vs. T.N.Sahani and additional evidence should others, [(2001) 10 have been decided along SCC 619] with the appeal.

(T.N.Sahani);

(ii)      Sri.Venkatakrishna That the consideration of
          Bhat vs. State of the            application    under
          Karnataka           and Order XLI Rule 27 CPC
          others,         [Writ before hearing the appeal
          Petition                   would be improper.
          No.12605/2011
          (GM-CPC)           D.D.
          27.03.2013]
          (Sri.Venkatakrishna
          Bhat);

(iii)     Dahiben             vs. That once the document
          Arvindbhai                 is executed and thereafter

Kalyanji Bhanusali registered, the sale would (D) through L.Rs. be complete, and the title and others, would pass to the [(2020) 16 SCC transferee under the 366] (Dahiben); transaction and non-

payment of a part of the sale price would not affect the validity of the sale.

(iv) Devikarani Roerich That the failure of the vs. M/s.K.T. executant to appear Plantations Pvt. before the registering Ltd. [ILR 1994 officer could be KAR 1788] constructively treated as (Devikarani denial of execution.

Roerich);

21. I have considered the submissions of the learned

counsel and have also perused the entire records

including the original Trial Court records.

22. The following facts are not in serious dispute and

are admitted by Chikkanna:

a] Chikkanna claimed that Rudraiah, the owner of

the suit property, had executed a sale deed conveying the

suit property in his favour on 03.05.1979 for a sum of

Rs.22,000/- and he had paid a sum of Rs.6,800/- to

Rudraiah as advance and Rudraiah had agreed to receive

the balance sale consideration at the time of registration

of the sale deed.

b] Rudraiah, the executant, did not come forward

to get the sale deed registered and hence Chikkanna

presented the sale deed for registration on 04.09.1979.

On the sale deed being presented, in view of the non-

appearance of Rudraiah, the Sub-Registrar issued a

summons to Rudraiah whereupon Rudraiah appeared

before the Sub-Registrar on 18.09.1979. On enquiry by

the Sub-Registrar, Rudraiah admitted the execution of the

document but refused to sign the endorsement and

refused to give a statement. The Sub-Registrar,

therefore, on 25.09.1979, took the view that the attitude

of Rudraiah Tanta mounted to denial of execution and

refused to register the sale deed under Section 35 of the

Registration Act, 1908 (read with Rule XI of the Rules).

c] As against the refusal to register, Chikkanna

made an application under Section 73 of the Registration

Act to the District Registrar. An Order was passed on this

application on 13.03.1981 but thereafter Chikkanna had

filed a review petition and requested for restoration of the

case. The District Registrar acceded to the said request

and restored the case and fixed the matter for hearing on

26.05.1981.

d] Rudraiah, in these proceedings, remained absent

and was placed exparte. Chikkanna examined the two

attestors to the sale deed--the scribe of the sale deed

apart from examining himself. He stated that Rudraiah

had signed the document and had also received

Rs.6,800/- towards the sale consideration. The attestors

also stated that Rudraiah had signed the document and

received Rs.6,800/- towards sale consideration. The

District Registrar, thereafter, by his order dated

23.06.1981, took the view that Rudraiah had executed

the sale deed and in the exercise of the powers vested in

him under Section 75(1) of the Registration Act, ordered

for registration of the sale deed.

e] The sale deed was then re-presented before the

Sub-Registrar on 27.06.1981 and the sale deed was

registered on the same day.

f] Thus, the admitted case of Chikkanna was that

the sale deed which had been signed by Rudraiah was

presented for execution by Chikkanna and thereafter

Rudraiah was summoned by the Sub-Registrar and

Rudraiah appeared and admitted the execution of the sale

deed but refused to sign the endorsement and to give a

statement, and the Sub-Registrar, therefore, refused to

register the document on the ground of denial of

execution.

g] Thereafter, Chikkanna approached the District

Registrar against the refusal of registration and the

District Registrar after conducting an enquiry (in the

absence of Rudraiah, who was placed exparté) ordered

the Sub-Registrar to register the document and

accordingly the sale deed was registered.

23. The Appellate Court has taken the view that as on

the day the sale deed was registered, Rudraiah did not

possess title to convey the same to Chikkanna. It has

been noticed that the title as on that day was with the

Karnataka Housing Board and Rudraiah was in fact yet to

pay the amount due to the Board. The Appellate Court

has also found that, as per the sale deed executed by the

Housing Board to the daughters of Rudraiah, it is they

who are stated to have paid the outstanding amounts due

to the Housing Board and after the completion of the

lease-cum-sale period, resulting in the Housing Board

conveying title to them, and it was thus the daughters of

Rudraiah who had acquired the title from the Housing

Board.

24. It is not in dispute that Rudraiah was yet to acquire

absolute title over the house property when he had

executed the title and thus, this view of the Appellate

Court that the title could not have passed to Chikkanna

on the basis of such a sale deed, cannot be found fault

with.

25. It is, no doubt, true that after the death of

Chikkanna, the Housing Board had executed a sale deed

in favour of Rudraiah's daughters by virtue of them being

his legal heirs and an argument was thus made that the

conveyance would enure to Chikkanna by virtue of

Section 43 of the Transfer of Property Act, 1882.

26. It will have to be stated here that Chikkanna cannot

seek benefit available under Section 43 because under

Section 43 of the Transfer of Property Act1, it is only if a

person fraudulently or erroneously represents that he is

authorised to transfer the immovable property and

transfers it for consideration, the purchaser would get the

benefit of any interest that the transferor may acquire

subsequently.

27. Admittedly, in the present case, Chikkanna himself

pleaded in his written statement that Rudraiah had been

allotted the house by the Housing Board and he was

unable to pay the installments and that was the reason

for him to sell the house. Thus, the fact that Rudraiah had

yet to acquire title over the house property by paying the

balance due to the Housing Board was known to

Chikkanna and was accepted by him. It, therefore, follows

Section 43. Transfer by unauthorised person who subsequently acquires interest in property transferred.--Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

that it was not the case of Chikkanna that a fraudulent or

erroneous representation had been made by Rudraiah to

him at the time of transfer.

28. In fact, the sale deed dated 03.05.1979 itself

contains a recital that Rudraiah was allotted the house by

the Housing Board under a lease-cum-sale basis and he

was selling the land for his personal needs, one of which

was to clear the dues to the Housing Board which was to

the tune of Rs.5,000/-.

29. There is also a further recital in the sale deed that

Chikkanna had paid a sum of Rs.6,800/- as advance to

Rudraiah and this was required to be utilised by Rudraiah

to repay the outstanding dues to the Housing Board and

thereafter register the sale deed. Thus, one of the

essential conditions of the sale deed was that Rudraiah

was required to repay the outstanding dues to the

Housing Board and thereafter register the sale deed and,

at the time of registration, he would be receiving the

balance sale consideration of Rs.15,200/-.

30. Chikkanna, in his examination-in-chief, has stated

that he had paid a sum of Rs.3,612=77 to the Housing

Board on 20.08.1979 in the name of Rudraiah and he

produced the receipt for making the said payment. This

indicates that Rudraiah had not repaid the outstanding

dues to the Housing Board to entitle him to a transfer of

title from the Housing Board.

31. It is thus clear that it was not the case of Chikkanna

that a fraudulent or erroneous representation had been

made by Rudraiah that he was authorised to transfer the

immovable property. On the other hand, it was

represented to Chikkanna that the house had been

allotted to Rudraiah under a Lease-cum-sale agreement

and there were still outstanding sums liable to be paid to

the Housing Board and thereby the title was still with the

Housing Board.

32. The intent behind enacting Section 43 of the

Transfer of Property Act is to essentially protect the

interests of the transferee when the transferor misleads

him and transfers the property knowing fully well that he

had no authority to transfer. To ensure that the transferor

does not get any benefit by virtue of a subsequent

acquisition of rights over the transfer and with a view to

keep him bound by his earlier contract with the

transferee, Section 43 has been enacted. Section 43

ensures that the transferee will acquire rights over the

subject matter of the transfer, even though he had not

acquired any rights at the time of transfer, upon the

transferor acquiring an interest after the subject matter of

transfer. Since, admittedly, Rudraiah did not mislead

Chikkanna regarding his entitlement over the house

property, the benefit available under Section 43 of the

Transfer of Property Act would not be available to

Chikkanna.

33. The Appellate Court was therefore justified in

concluding that Rudraiah had no title to convey the house

on 03.05.1979 and the basis of Chikkanna's claim of

acquiring title was itself untenable, notwithstanding the

registration of the sale deed.

34. Though the view of the Appellate Court is legal and

proper and requires affirmation, in my view, the rather

crucial and important role of the buyer and seller in the

matter of registration of a sale deed in respect of an

immovable property, would also have to be expounded in

detail.

35. Section 55 of the Transfer of Property Act

enumerates the right and liabilities of the Buyer and

Seller in cases where there is no specific agreement in

that regard. Under Section 55(1)(d) of the Transfer of

Property Act2, a seller, on payment or tender of the

Section 55. Rights and liabilities of buyer and seller.--In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:

amount due in respect of the price, is bound to execute a

proper conveyance of the property when the buyer

tenders it to him for execution at a proper time and place.

36. Thus, in law, the deed of conveyance is required to

be executed by the seller as and when the payment of the

amount due in respect of the price is made or tendered to

him and when the document is tendered to him for

execution. In other words, the law does not require the

buyer to execute the deed of conveyance and it is only

the seller who is required to execute the deed of

conveyance.

37. The liability of the seller does not, however, come to

end on the mere execution of the deed of conveyance

after the receipt of the sale price, because the transfer of

(1) The seller is bound--

xxxx

(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;

an immovable property can be achieved only by way of a

registered instrument.

38. The registration of a document under the

Registration Act, 1908 envisages three stages. The first

stage is the time of presentation of a document, which is

governed by the provisions of Part IV of the said Act. The

second stage is the place of registration, which is

governed by the provisions of Part V of the said Act and

the third stage is the presenting of documents for

registration, which is governed by the provisions of Part

VI of the said Act. While Section 32(a) of the Registration

Act3, stipulates the persons who can present the

Section 32. Persons to present documents for registration.--Except in the cases mentioned in sections31, 88 and 89, every document to be registered under this Act, whether such registration be compulsoryor optional, shall be presented at the proper registration- office,--

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree ororder, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

documents and states that the person executing the

document or claiming under the same can present the

document. Section 34 provides for the enquiry to be

conducted by the registering officer, before registration of

the document. The said Section categorically states that

no document shall be registered unless the persons

executing the document (or representatives, assign or

agents, with which we are not concerned in this case)

appear before the Registering Officer within the time

allowed for presentation under Sections 23, 24, 25 and 26

of the Act. Thus, though S. 32 of the Act provides for

presentation of a document by the person executing the

document or claiming under the same, under S. 34 of the

Act, personal appearance of the persons executing the

document before the registering officer is a must4.

Section 34. Enquiry before registration by registering officer.--(1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorised asaforesaid, appear before the registering officer within the time allowed for presentation under sections 23,24, 25 and 26:

39. The only exceptions to this personal appearance of

the executant is in the case of registration of Wills

(Section 41), Deposit of wills (Section 43), Proceedings

on the death of depositor of wills (Section 45), Power of

Inspector-General to superintend registration offices

(Section 69), Order by Registrar to register (Section 75),

Direction of the Court to register (Section 77),

Registration of Documents executed by Government

Officers (Section 88) and Copies of certain orders, which

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear,the Registrar, in cases where the delay in appearing does not exceed four months, may direct that onpayment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine,if any, payable under section 25, the document may be registered.

(2) Appearances under sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon--

(a) enquire whether or not such document was executed by the persons by whom it purports tohave been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that theyhave executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of theright of such person so to appear.

(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders.

are required to be sent to the Registering Officers for

filing (Section 89). It can be discerned from these

exceptions that in those specified instances, the persons

presenting the documents are under no legal obligation to

execute or admit the execution of the documents.

40. On the personal appearance of the executant, the

registering officer is required to enquire upon three

aspects. Firstly, whether the document is executed by the

persons by whom it purports to have been executed.

Secondly, whether the registering officer is satisfied about

the identity of the persons who have appeared before him

and claim that they have executed the document. Thirdly,

if the presentation is by a representative, assign or agent,

he is required to satisfy himself that such a person has a

right to appear.

41. In the case on hand, the document was not

presented by a representative, assign or agent and hence

the third aspect envisaged under Section 34 of the

Registration Act would not be applicable.

42. Thus, under Section 34 of the Registration Act, the

Registering Officer, on the personal appearance of the

person executing the document before him, firstly, is

required to enquire whether the document was indeed

executed by the person who asserts that he has executed

the document and secondly, he is required to satisfy

himself as to the identity of the person who has appeared

before him. The enquiry, thus, contemplated under

Section 34 is limited only to these two aspects and for

conducting such an enquiry, unquestionably, the personal

appearance of the person executing the document is an

absolute must.

43. If a person executing the document does not

personally appear before the registering officer, then,

obviously, the Registering Officer cannot conduct the

prescribed enquiry regarding "admission of execution"

and "the identity", and he cannot therefore proceed to the

next step i.e., the registration of the document.

44. Section 35(1)(a) of the Registration Act5 then deals

with the next step in the process of registration. It states

that if all the persons executing the document appear

personally before the registering officer and if he is

satisfied with their identity and that they are the persons

35. Procedure on admission and denial of execution respectively.--(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or

(b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or

(c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61 inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3) (a) If any person by whom the document purports to be executed denies its execution, or

(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:

Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.

who have executed the document and they also admit the

execution of the document, he is obliged to register the

document as directed in Sections 58 to 61of the

Registration Act.

45. Once again, the statute pointedly emphasizes the

personal appearance of the executant before the

registering officer and satisfying the registering officer of

his identity followed by an admission of the execution of

the document presented for registration.

46. Thus, a combined reading of Section 34 and Section

35 of the Registration Act leaves no room for any doubt

that a document cannot be registered unless the

executant personally appears and thereafter establishes

his identity to the registering officer and finally admits the

execution of the document before the registering officer.

47. It may also be noted here that Section 35(1)(b) of

the Registration Act covers the situation where the person

appearing for registration is the representative or assign

or agent of the person executing the document, in which

case, the admission of the execution is to be made by

those persons, subject to them satisfying the registering

officer of their identity and their right to appear on behalf

of the executant.

48. Section 35(1)(c) of the Registration Act deals with a

situation where the executant is dead in which event a

provision is made for the representative or the assign of

the dead to appear and admit the execution of the

document.

49. The underlying objective of Sections 34 and 35 of

the Registration Act is plain and unambiguous, which is,

that the executant of a document is bound to appear

personally. Obviously, this personal appearance can only

be voluntary as the admission of execution has to be

voluntary.

50. Section 35(2) of the Registration Act empowers the

Registering officer to examine anyone present in his office

to satisfy himself as to the identity of the persons who

have appeared before him and represent to him that they

are the persons whom they claim to be. This sub-section

also states that he may examine anyone present for any

other purpose provided under the Act.

51. Section 35(3) of the Registration Act provides for

the registering officer to refuse registration (a) if the

person executing the document denies its education or

(b) if the person appearing before him is a minor, lunatic

or an idiot, or (c) if the person appearing before him is

the representative, assign of the executant, who is dead

who appears and denies its execution.

52. A combined reading of Sections 34 and 35 of the

Registration Act would therefore clearly indicate that the

personal appearance of the executant and his admission

of execution is the most vital part of the registration. The

only power conferred on the registering officer when the

document is presented for registration is to enquire

whether the document has been executed and to enquire

and satisfy himself regarding the identity of the person

appearing before him.

53. Of course, this power stands enlarged in case the

presentation of the document is by a representative,

assign or agent, whereby a registering officer can enquire

regarding the right of such persons to appear, with which

however, we are not concerned in this case.

54. It is to be noticed here that if a person executing

the document does not appear before the registering

officer to present the document and admits its execution,

the Registering officer cannot be held to have the power

to summon the executant to satisfy himself as to whether

the document was indeed executed by the executant or

not. The fact that Section 35(2) specifies that the

registering officer is empowered to examine anyone

present in his office to satisfy himself regarding the

identity of the person who has appeared before him to

present the document is a clear pointer to the fact that

only a limited power of ensuring and satisfying himself

about the identity of the person appearing before him and

presenting the document has been conferred on the

Registering Officer.

55. If, however, it is to be held that the Registering

Officer has the power to summon an executant and

enquire from him as to whether he had in fact executed

the document or not, that would essentially mean that

the registering officer was being clothed with the power to

enforce the registration of a document in the same

manner as is available to a Civil Court. That is, obviously,

impermissible and amounts to conferring the powers of a

Civil Court to enforce a contract on the registering officer.

56. It is, no doubt, true that the person presenting the

document for registration or claiming under any

document, may request the Registering officer to secure

the presence of any person whose presence is necessary

or testimony is necessary for the registration of the

document under Section 36 of the Registration Act.

However, this power cannot be held to mean that power

is available to summon an executant to appear before

him in order to conduct an enquiry and determine

whether the document has been executed or not.

57. It is to be stated here that the power conferred on

the registering officer under the Registration Act is

fundamentally to enable him to satisfy himself about the

identity of the person who has presented the document

and enquire with him as to whether he has executed the

document so presented by him. This limited power to

enquire into certain specified things cannot be enlarged to

bring within its ambit the power to enquire and determine

whether the document was executed by the executant by

examining the witnesses, scribe etc.

58. It is to be kept in mind that an executant of a

document is required to voluntarily appear and admit

execution of the document. This voluntary act is a

reflection of the acceptance of a concluded contract. The

requirement of appearing voluntarily to accept the

conclusion of a contract cannot be substituted by use of

"power to summon" available in a Registering officer to

force the appearance of an executant to ascertain the

execution and admission of the document i.e., the record

of the conclusion of the contract.

59. If, for example, the executant appears on being

summoned and denies the execution of the document and

the registering officer thereafter goes on to hold an

enquiry and determines that the document was executed

and is therefore required to be registered, he would be

basically granting a decree of specific performance, which

is wholly beyond his jurisdiction.

60. It is always to be kept in mind that the whole object

of getting a document registered, especially a sale deed

of an immovable property which is a compulsorily

registrable document, is to ensure that there is a record

of a concluded contract between a seller and a buyer.

61. If a seller, for instance, admits the execution of the

document but states that he is yet to be paid the entire

consideration or that there is some other term of the

contract which is yet to be fulfilled or that he is having

second thoughts about concluding the transaction, the

registering officer using his powers available under

Section 36 of the Registration Act cannot conduct an

enquiry and determine whether there is a concluded

contract. A registering officer on the mere admission of

execution of the sale deed by an executant who has been

summoned cannot order its registration.

62. The registration of a sale deed is the final act

required for transfer of ownership of an immovable

property and this final act is not a mere formality that can

be left to the discretion of the registering officer. A

registering officer has a limited role to play in the

registration of the document and conferring judicial

powers on him would lead to serious and disastrous

consequences, especially in this age and time when prices

of immovable properties have seen an exponential

increase.

63. In a case relating to the sale of an immovable

property, such as this very case, if a purchaser presents a

signed deed of conveyance for registration and thereafter

demands the Registering Officer to summon the

executant to conduct an enquiry regarding the execution

of the document, that would virtually amount to the

creation of a scenario where the office of the Registering

Officer is converted into a Civil Court, which is clearly

impermissible and fraught with danger.

64. Indeed, if this position were to be accepted to be

the true legal position, in a case where the executant

does not appear despite the summons, the Registering

officer can nevertheless proceed to hold an enquiry

regarding the execution of the document and record a

finding that the document has been executed and ought

to be registered. This would most definitely be beyond the

scope of the powers of the Registering Officer.

65. It is also to be noted here that in this case, the

Registering Officer has actually recorded a finding that

Rudraiah had admitted execution but was evading the

registration of the document by refusing to sign the

endorsement and to make a statement. This finding is

fundamentally an inference based on Rudraiah's non-

appearance voluntarily and his refusal to sign the

endorsement on being summoned. It is not clear as to

what was the enquiry conducted by the Sub-Registrar on

the appearance of Rudraiah and in whose presence an

enquiry was conducted. In fact, to accept only the order

of the registering officer as proof regarding admission of

execution of a person who has been summoned by him,

would not only be a risky proposition but would also be

susceptible to various kinds of malpractices. The question

as to whether the statement of the executant, who had

been summoned, was voluntary or was under compulsion

cannot be left to the discretion and judgment of the

Registering Officer. These kinds of anomalous situations

which are likely to arise if an executant is allowed to be

summoned to enquire into the admission of execution of

the document, indicate the dangers that may visit the

registration of a document and which could be easily

exploited by unscrupulous persons in connivance with

registering officers, which is to be avoided at all costs.

66. The net result of this discussion is that, in the case

of a sale of an immovable property, even if a purchaser

were to present the document for registration in the

absence of the executant (seller), the registering officer

does not possess the power to summon the executant in

order to satisfy himself as to whether the executant

(seller)had executed the document and whether he

admits the execution of the document. In the event, an

executant does not appear personally and voluntarily to

present and admit execution of the sale deed, the only

option available to the buyer would be to approach the

Civil Court and seek for enforcement of the contract of

sale of the immovable property.

67. In this case, though the registering officer refused

to register the sale deed on the ground of denial of

execution, the District Registrar, on an application made

to him under Section 73 of the Registration Act, has

proceeded to issue a notice to Rudraiah and since

according to the District Registrar, Rudraiah did not

appear, he has proceeded to place Rudraiah exparté. The

District Registrar has thereafter gone on to hold a trial by

examining the witnesses to the sale deed, the scribe of

the sale deed and the purchaser, and has gone on to

record a finding that Rudraiah had indeed executed the

sale deed and the sale deed was therefore required to be

registered. Thus, the District Registrar has virtually acted

like a Civil Court and enforced the contract by rendering a

judicial decision regarding the execution of the sale deed

and its consequential necessity of registration.

68. As already held above, under Section 35(1) of the

Registration Act, only if a person appears personally and

admits execution of a document, the registering officer

can register the document. If an executant appears

before the registering officer and denies the execution of

the document, under Section 35(3)(a)of the Registration

Act, he is legally obliged to refuse to register the

document. In both such cases, however, the voluntary

and personal appearance of the executant is an absolute

must.

69. It is only if an executant appears voluntarily and

personally and denies the execution of the document,

would the remedy contemplated under Section 73of the

Registration Act be available.

70. If an executant does not appear voluntarily to either

admit or deny execution of the document, the remedy

available under Section 73 of the Registration Act would

not be available.

71. If an executant is summoned by the registering

officer and on being summoned, the executant denies the

execution of the document and the officer refuses to

register the document, the remedy provided under

Section 73 of the Registration Act would not be available.

72. The consequences of permitting a contrary course of

action would be quite dangerous, as could be seen in this

very case.

73. Admittedly, Chikkanna--the purchaser was yet to

pay the agreed balance sale consideration of Rs.15,200/-

though he claimed that a sale deed had been executed by

Rudraiah. In fact, Chikkanna even after the registration of

the sale, pursuant to the order of the Registrar, issued a

legal notice calling upon Rudraiah to receive the balance

sale consideration and hand over possession. Thus,

though the purchaser himself admitted that the sale

transaction was yet to be concluded, at least in terms of

receipt of the sale consideration, by the intervention of

the order of the District Registrar, the sale transaction

has been concluded and the sale deed has been

registered.

74. This essentially means that the Registrar has

enforced a contract which had only been partly performed

and some of the admitted terms of the contract were yet

to be fulfilled. Furthermore, a sale deed executed by a

person, who had no title over the property as on the date

of the presentation of the sale deed, has been ordered to

be registered, thereby purporting to convey the title to

the buyer. This is, in fact, a power which is not available

or conferred on a Civil Court even under the provisions of

the Specific Relief Act. This is, thus obviously, beyond the

purview of the Registration Act itself and the resultant

registration of a document would have to be necessarily a

complete nullity in the eye of law.

75. Since, the registration of the sale deed was a

complete nullity in law, the same can have no significance

at all and would also confer no rights. In fact, such a null

and void act, even if validated by consent of parties would

not transform it into a legal act. It is settled law that an

act, which is nullity, does not have to be impugned by

way of a suit.

76. A few other situations may also be considered in this

context:

77. In a given case, if an executant appears either

voluntarily or on being summoned and states that he has

executed the document on the promise that he would be

paid the balance sale consideration and that he is yet to

be paid the balance sale consideration, the question

would arise whether the registering officer possesses the

power to conduct an enquiry and determine whether any

money was still due to the seller and thereafter, order it

to be paid by the buyer.

78. Carrying this analogy further, suppose, thereafter

on such determination, the buyer refuses to pay, can the

registration of the document be refused on that score,

despite the fact that execution of the document was

admitted.

79. As a corollary, suppose in a case where the seller

appears and admits execution of the document but

refuses to sign the endorsement on the ground that some

money is still due to him and the registering officer holds

an enquiry and determines that certain sums are due to

the seller and calls upon the buyer to pay the outstanding

sum and the buyer refuses to pay the sum so ordered,

whether the registering officer can refuse the registration

on this ground despite the admission of the execution of

the document.

80. These illustrations are being made only to highlight

the implied limitations of the powers conferred on the

registering officer and the District Registrar in the matter

relating to registration of sale deeds of immovable

properties, when the seller does not appear voluntarily to

admit the execution of the sale deed and the

consequential complications that may arise in myriad

ways.

81. It will therefore have to be held that if an executant

does not appear voluntarily and does not admit execution

of a sale deed relating to an immovable property, the

registering officer cannot summon the executant to

ascertain whether the sale deed was indeed executed or

not. In fact, in such cases, it would be a case of an invalid

presentation of the sale deed and such an invalidly

presented sale deed cannot be ordered to be registered.

82. By the same analogy, the remedy contemplated

under Section 73 of the Registration Act to the Registrar

would be unavailable and even if such a remedy is

invoked, the Registrar cannot hold an enquiry to

determine whether the executant admitted the execution

of the sale deed and order its registration.

83. The judgment of the Apex Court in Dahibhen's

case relied upon by the learned counsel for the appellant,

to contend that once the sale deed is registered, the sale

would be complete and the title would pass on to the

transferee cannot really apply to the facts and

circumstances of the present case.

84. In that case, the executant i.e., the seller had

admittedly appeared before the registering officer

voluntarily and had also executed the sale deed

notwithstanding the fact that a part of the sale

consideration was yet to be paid and had been promised

to be paid through cheques, which subsequently turned

out to be bogus cheques. In the context of that case and

having regard to the fact that the sale of an immoveable

property can be made even on payment of a part of the

sale price with the promise to pay the remaining at a later

date, the Hon'ble Supreme Court held that the

registration of the sale deed would complete the

conveyance and non-payment of the sale consideration

would not invalidate the sale.

85. In fact, the Hon'ble Apex Court has held that to

constitute a "sale", the parties must intend to transfer the

ownership of the property, on the agreement to pay the

price either in praesenti, or in future. The intention is to

be gathered from the recitals of the sale deed, the

conduct of the parties, and the evidence on record. As

noticed above, in the present case, the evidence on

record clearly indicates that Rudraiah was to be paid

Rs.15,200/- as on the date it was presented for

registration. It is, therefore, clear that as the terms of

the sale were not adhered to and Rudraiah by his absence

indicated his unwillingness to sell his house and yet the

sale deed has been compulsorily ordered to be registered

by the Registrar, would go against the dicta laid down in

that judgment. The aforesaid decision would therefore not

assist the appellant.

86. The decision relied upon by the learned counsel in

Devikarani Roerich would also be of no consequence

since the said decision only states that the non-

appearance of a person could be constructively treated as

the denial of execution. In the instant case, on being

summoned, Rudraiah did appear before the Registering

officer and is stated to have admitted the execution but

he however refused to sign the endorsement that was

required to be made as per Section 58 of the Registration

Act. It is thus clear that the aforesaid decision would have

no bearing on this case.

87. The argument of the learned counsel that the suit

was barred by limitation since an amendment was

granted only in the year 1999 and therefore, the suit was

to be dismissed as being time-barred, cannot also be

accepted.

88. It has to be stated here that the application in I.A.

No.5 seeking for amendment had been rejected by an

order dated 27.06.1994 by the Trial Court. This Court,

however, in Civil Revision Petition No.2687 of 1994set

aside the said order and allowed the application for

amendment. This order granting amendment did not

specify that the amendment would be effective only from

the date of the order. As a consequence, the amendment

would relate back to the filing of the suit and since the

suit had been filed within three years of the registration

of the sale deed, the suit would be within time.

89. Furthermore, in view of the fact that the

amendment was granted after hearing the appellant and

the appellant has accepted the said order, the plea of

limitation cannot be raised by the appellant.

90. The argument that the plaintiffs had filed a writ

petition challenging the order of compulsory registration

but had withdrawn it and therefore, the registration of the

document had become final, cannot also be accepted.

91. As already held above, the registration of the sale

deed in this case is a nullity in the eye of law and

therefore requirement of there being a challenge to it,

would not arise at all. Further, even if a challenge had

been made and was withdrawn, that withdrawal of the

challenge would not transform an act that was a nullity

into a valid and legal act which binds the petitioners. The

challenge in the writ petition was to the order of the

Registrar directing registration and since it has been held

that the registration done pursuant to the said order was

a nullity, the withdrawal of the writ petition would be of

no consequence.

92. The final argument of the learned counsel for the

appellant that the application for production of additional

evidence could not be considered prior to the disposal of

the appeal cannot also be accepted. The plaintiffs by the

said application had merely produced the sale deed

executed in their favour by the Housing Board and the tax

paid receipts in respect of the said property and also

certain other related municipal records. These documents

were in no way necessary for the pronouncement of the

judgment by the Appellate Court and they merely were

proof of certain subsequent events, which did not have a

real bearing on the decision of the Appellate Court. It is

only if these documents were the reasons for allowing the

appeal, the argument advanced by the learned counsel

would be of some relevance.

93. As stated above, the Appellate Court has allowed

the appeal solely on the ground that the outstanding dues

to the Housing Board had also not been paid by Rudraiah,

thus he had no title to the property when the sale deed

was executed and also that the balance consideration had

not been paid to Rudraiah.

94. For all the reasons stated above, in my view, no

question of law, much less, a substantial question of law

arises for consideration in these appeals. The appeals are

accordingly dismissed.

Sd/-

JUDGE

CT:SN RK/-