Constitution Of India) vs The State Of Odisha
2025 Latest Caselaw 8449 Ori

Citation : 2025 Latest Caselaw 8449 Ori
Judgement Date : 19 September, 2025

Orissa High Court

Constitution Of India) vs The State Of Odisha on 19 September, 2025

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                          W.P.(C) No.21222 of 2025
                    (In the matter of an application under Articles 226 and 227 of the
                  Constitution of India)
                   Santosh Kumar Mahakud                     ....                 Petitioner
                                                 -versus-
                   The State of Odisha, represented ....                   Opposite Parties
                   through its Secretary, Department of
                   Revenue and Disaster Management,
                   Odisha, Bhubaneswar and another

                  Appeared in this case:-
                         For Petitioner           :           Mr. Budhiram Das, Advocate

                   For Opposite Parties           :                          Mr. T. Kumar,
                                                            Learned Addl. Standing Counsel
                   CORAM:
                   JUSTICE A.C. BEHERA
                                           JUDGMENT

Date of hearing : 19.09.2025 / date of judgment : 19.09.2025

A.C. Behera, J. This writ petition under Articles 226 and 227 of the Constitution of

India, 1950 has been filed by the petitioner praying for directing the Sub-

Registrar, Khaira (Opposite Party No.2) to receive and register the deed

for sale of the petitioner, because, the Opposite Party No.2 orally refused

to receive the deed for sale(original of Annexure-1) of the petitioner for

its registration expressing that, petitioner being one of the co-owner of

the properties covered under that deed for sale cannot transfer/alienate

his undivided interest in the said properties without the consent of his co-

owners.

2. Heard from the learned counsel for the petitioner and the learned

Additional Standing Counsel for the State.

3. The law concerning oral refusal by the Sub-Registrar to receive the

deed for sale for registration on the ground of alienation made by the

vendor of the deed without the consent of his co-owners has already been

clarified in the ratio of the following decisions:-

(i) In a case between North East Infrastructure Private Limited and others vrs. The State of Andhra Prpadesh and others : reported in 2025(2) Civ. C.C.-220(Andhra Pradresh) that, the Sub-Registrar cannot orally refuse to receive the document and would consider the fitness of it for registration or otherwise. Section 71 of the Registration Act, 1908 empowers the Registration Authorities to receive a document which is presented for registration and process the same, and thereafter, either register such sale deed or any other document or pass a refusal order.

(ii) In a case between Damodar Mishra vrs. State of Odisha and others decided in W.P.(C) No.4340 of 2025 on dated 03.04.2025 that, "As per Section 44 of the T.P. Act.

1882, a co-sharer/co-owner has his/her inherent right to alienate his/her share/interest in the Joint and Undivided properties to the extent of his/her share. Therefore, even there will be any sale of specific portion of land in the joint and undivided properties by one co-owner of the same indicating boundaries thereof, still then, the said transfer/sell

would be deemed as a transfer of share of the vendor in the said joint and undivided property.

Any executive instruction or circular issued by any authority including Government contrary to the statutory law envisaged under Section 44 of the T.P. Act, 1882 restricting a co-owner/co-sharer to alienate his/her undivided share/interest in the joint and undivided property shall be deemed as non-est. Because, executive instructions and circulars have no applicability where statutory law governs the field."

4. So, by applying the above clarified propositions of law enunciated

in the ratio of the aforesaid decisions to this matter at hand, it is held that,

the Sub-Registrar, Khaira (Opposite Party No.2) should not have refused

orally to receive the deed for sale presented by the petitioner for

registration and also should not have refused to register the said deed on

the ground of alienation of his share/interest in the joint and undivided

properties without the consent of his co-owners.

Because, as per Section 44 of the T.P. Act, 1882, he(petitioner) has

his inherent right under law to sell his undivided share in his joint and

undivided properties without the consent of his co-owners.

5. For which, by applying the above propositions of law in this matter

at hand, it is felt proper to dispose of this writ petition finally directing

the Sub-Registrar, Khaira (Opposite Party No.2) as follows :-

The Sub-Registrar, Khaira (Opposite Party No.2) is directed to

receive the deed for sale, if presented by the petitioner for its registration

annexing the certified copy of this judgment concerning the alienation of

his undivided interest/share in the properties covered in that deed without

indicating the boundaries thereof even without the consent of his co-

sharers(co-owners) and the Sub-Registrar, Khaira (Opposite Party No.2)

shall act upon the same according to The Indian Registration Act, 1908

and The Orissa Registration Rules, 1988.

If registered, after registration of the said sale deed, the Sub-

Registrar, Khaira (Opposite Party No.2) shall return that sale deed to the

petitioner within three days of its registration after complying all the

formalities thereof as per the Rule 100 of The Orissa Registration Rules,

1988 and Notification No.2915 dated 02.08.2017 of I.G.R. of Odisha.