G. Rajendra Prasad vs State Of Kerala
2023 Latest Caselaw 8328 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
                        WP(C) NO. 23912 OF 2023
PETITIONER:

          G. RAJENDRA PRASAD
          AGED 57 YEARS
          S/O. GANGADHARAN PILLAI, THUNDIL VEETTIL, PATHIYOOR
          KIZHAKKU MURI, PATHIYOOR VILLAGE, KEERIKKAD P.O,
          ALAPPUZHA DISTRICT,, PIN - 690508

          BY ADVS.
          B.RENJITHKUMAR
          CLARA SHERIN FRANCIS

RESPONDENTS:

    1     STATE OF KERALA
          REP. BY ITS SECRETARY, DEPARTMENT OF REGISTRATION
          GOVERNMENT OF KERALA, THIRUVANANTHAPURAM DISTRICT, PIN
          - 695001

    2     THE DISTRICT COLLECTOR
          ALAPPUZHA DISTRICT,, PIN - 688001

    3     THE DISTRICT REGISTRAR
          REGISTRATION COMPLEX, NEAR IRON BRIDGE, ALAPPUZHA,, PIN
          - 688011

    4     THE SUB REGISTRAR
          OFFICE OF THE SUB REGISTRAR, KAREELAKULANGARA P.O,
          ALAPPUZHA DISTRICT,, PIN - 690578


OTHER PRESENT:

          SMT. DEEPA V (GP)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.23912/2023                       -2-

                                  JUDGMENT

The petitioner has approached this Court being aggrieved by the fact that the

4th respondent has refused to register a document, presented in respect of property

obtained by the petitioner through Ext.P1 document executed on 27.08.2005.

Ext.P1 is a sale deed executed by the mother of the petitioner and registered as sale

deed No.1249/05 of the SRO, Kareelakulangara transferring 1.28 Ares of property

in Block No.21 in Re.Sy.No.566/4 of Pathiyoor Village in favour of the petitioner. In

Ext.P1 there is a condition that the petitioner should pay a sum of Rs.15,000/- to

one Sasidharan Pillai (brother of the petitioner) within ten years from 27.08.2005.

It is the case of the petitioner that even on the date of execution of Ext.P1 sale deed,

the whereabouts of the aforesaid Sasidharan Pillai were not known and presently

for nearly 30 years, the whereabouts of the aforesaid Sasidharan Pillai are not

known. It is submitted that the petitioner is intending to sell the land for the

purpose of settling various liabilities and in the light of the fact that the

whereabouts of the aforesaid Sasidharan Pillai are not known for nearly 30 years,

the condition in Ext.P1 requiring the petitioner to pay a sum of Rs.15,000/- to him

is practically unworkable and unimplementable. It is submitted that going by the

provisions of Section 108 of the Indian Evidence Act, persons whose whereabouts

are not known for more than 7 years are presumed to be dead and that presumption

may be applied to the facts of this case.

2. The learned Government Pleader on instructions would submit that it

was after noticing the condition in Ext.P1 that there is a requirement that the

petitioner shall pay sum of Rs.15,000/- to his brother Sasidharan Pillai that the Sub

Registrar had refused the registration of the document.

3. Having heard the learned counsel appearing for the petitioner and the

learned Government Pleader for official respondents, I am of the view that

petitioner is entitled to succeed. Ext.P1 document was executed on 27-08-2005. It is

a sale deed. It is true that the vendor has imposed a condition requiring the

petitioner to pay a sum of Rs.15,000/- to his brother Sasidharan Pillai. According to

the petitioner the whereabouts of Sasidharan Pillai were not known at the time of

execution of Ext.P1 and is still unknown, it would be inequitable an unjust if the

petitioner is to be permitted to transact the property covered by Ext.P1 only after

making the payment of the aforesaid sum of Rs.15,000/- to the aforesaid

Sasidharan Pillai. As pointed out by the petitioner the said recital in Ext.P1 appears

to be incapable of execution at this distance of time. Therefore, this writ petition is

allowed and the 4th respondent is directed to register any document presented in

respect of the property covered by Ext.P1 subject to compliance with usual

formalities and without being in any manner affected by the condition in Ext.P1

that the petitioner had to pay a sum of Rs.15,000/- to Sasidharan Pillai within 10

years from the date of execution of that document.

Writ petition is ordered as above.

Sd/-

GOPINATH P.

JUDGE DK/AMG

APPENDIX OF WP(C) 23912/2023

PETITIONER EXHIBITS

Exhibit-P1 TRUE COPY OF THE SALE DEED NO. 1249/05 OF SUB REGISTRAR OFFICE, KAREELAKULANGARA EXECUTED BY THE MOTHER OF THE MOTHER OF THE PETITIONER ON 27.8.2005

Exhibit-P2 TRUE COPY OF THE REQUEST SUBMITTED TO THE RESPONDENTS 3 & 4 DATED 19.7.2023