reported in / published in http://judis.nic.in/judis_andhra/filename=9885
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
W.P.No.20683 of 2012 and W.P.No.2192 of 2013
30-4-2013
W.P.No.20683 of 2012
Gaddam Laxmaiah and others .. Petitioners
The Commissioner and Inspector General,Registration and Stamps Department,
M.J. Road, Hyderabad and others
.. Respondents
Counsel for petitioners : Sri Srinivas Polavarapu
Counsel for respondent Nos.1 & 2 : Government Pleader for Revenue
Counsel for respondent Nos.3 to 5 : Sri Avinash Desai
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. MANU/AP/0656/2012 - W.P.No.25686/2011, dt. 10-7-2012
2. 2009(7) SCC 363
3. (2012) 1 SCC 656
4. 2006(6) ALT 523 (FB)
5. MANU/SC/1267/2010 = 2012(3) ALT 50 (SC)
6. 2012(4) ALD 411
7. 2009(6) ALT 220
8. AIR 1939 P.C. 47
9. AIR 1945 P.C. 48
10. AIR 1957 S.C. 907
11. AIR 1963 S.C. 946
12. 1992(4) SCC 711
13. (2002) 3 SCC 533
14. 1992 Supp(1) SCC 323
W.P.No.20683 of 2012 and W.P.No.2192 of 2013
Date : 30-4-2013
W.P.No.20683 of 2012
Between :
Gaddam Laxmaiah and others .. Petitioners
And
The Commissioner and Inspector General,
Registration and Stamps Department,
M.J. Road, Hyderabad and others .. Respondents
Counsel for petitioners : Sri Srinivas Polavarapu
Counsel for respondent Nos.1 & 2 : Government Pleader for Revenue
Counsel for respondent Nos.3 to 5 : Sri Avinash Desai
COMMON ORDER:
These Writ Petitions raise questions as to
whether unilateral cancellation
of Development Agreement-cum-General Power of Attorney (GPA) and registration thereof under the Registration Act, 1908 (for short "the Registration Act") are permissible in law.
The brief facts leading to the filing of this Writ Petition are stated
hereunder:
The petitioners are owners of 11088 sq. yards of land in Sy.Nos.1 to 4 of
Seetharampur village, Thokatta, Secunderabad Cantonment.
They entered into two
Development Agreements-cum-GPAs dated 21-2-2005 and 23-11-2005 with respondent
No.3. Respondent Nos.4 and 5 are the partners of respondent No.3-firm.
Under
the said two documents, the petitioners entrusted the development of the extents
admeasuring 2741 and 2128 sq. yards, respectively, and respondent No.3 has
undertaken to construct independent deluxe duplex type of houses by investing
its monies and in consideration thereof the petitioners agreed to share the
constructed area in the ratio of 46% : 54% between them respectively.
The
petitioners have also nominated respondent Nos.4 and 5 as their GPAs to
facilitate respondent No.3 to deal with its share of 54% of the constructed
houses.
The petitioners alleged that subsequent to the execution of the two
documents referred to above, respondent Nos.4 and 5 have acted against the
interests of the petitioners, forcing them to execute documents for cancelling
the two registered documents.
By separate, but identical orders passed on 23-6-
2012, respondent No.2 has refused to register the said two documents.
Questioning the same, the petitioners filed the present Writ Petitions.
As the reasons for refusal to register the documents in both the cases are
identical, it is sufficient if the refusal order in one case is reproduced,
which is as under:
"This document styled as G.P.A. previously registered as Development Agreement-cum-GPA was kept pending for scrutiny after admission of execution by the executants.
As per C & IG (R&S), A.P., Hyderabad, vide Circular Memo
No.G1/Can/4028/2010, dated 31-3-2010 G.P.A. refusal regn.
Where the agent has
himself an interest in the property which forms the subject matter of the
agency, the agency cannot, in absence of an express contract.
Hence section 202
of Indian Contract Act 1972 prevents termination of G.P.A. which involves the
interest of the Agent.
No Registering officer shall register a deed of
Revocation/Cancellation of General Power of Attorney coupled with previously registered documents of Agreements of sale to safeguard the interest of the agent/vendee.
In case if any such deeds of Revocation/Cancellation of General
Power of Attorney combined with Agreement of sale/Development agreement is presented for Registration the registering officers are directed to refuse the document for Registration."
Even though appeals lie to the District Registrar against the refusal orders
under Section 72 of the Act, as the refusal is based on the Circular issued by
the superior authority, namely, Commissioner of Inspector General (Registration
& Stamps), A.P., Hyderabad, the petitioners filed these Writ Petitions
questioning the refusal orders as well as the Circular Memo dated 31-3-2012
which formed the basis for refusal of registration.
At the hearing, Sri Srinivas Polavarapu, learned counsel for the
petitioners, submitted that the impugned orders of refusal are unsustainable in
law as the reasons on which the documents were refused to be registered are not
envisaged by the provisions of the Registration Act.
The learned counsel
further submitted that the reasoning of respondent No.2 that the Development
Agreements have created interest and therefore the same cannot be cancelled
unilaterally, suffers from a patent error as the documents in question comprise
two parts, namely, G.P.A. part and the Development Agreement part, which by
themselves do not create any interest in respondent Nos.3 to 5, that what is
sought to be cancelled is the G.P.A. part of the documents and that therefore
Section 202 of the Indian Contract Act, 1872 (for short "the Contract Act") has
no application.
The learned Counsel further argued that the Registration Act
does not bar registration of deeds unilaterally cancelling the earlier
registered deeds except in cases of deeds of conveyance on sale and that the two
documents with regard to which the petitioners executed the cancellation deeds,
do not answer the description of "conveyance on sale".
The learned counsel representing Sri S. Niranjan Reddy, learned counsel
for respondent Nos.3 to 5, while opposing the above contentions, submitted that
the issue raised in these Writ Petitions is no longer res integra in view of the
Judgment of the learned single Judge of this Court in M/s. Vasudeva Realtors
Pvt. Ltd. Vs. The Government of Andhra Pradesh, represented by its Principal
Secretary, Revenue (Registration-I) Department, Hyderabad1.
The learned counsel
submitted that in the said Judgment, the learned Judge considered the documents
which are identical to that in the present Writ Petitions and held that such
documents shall be treated as conveyances on sale under Rule 26(i)(k)(i) of the
A.P. Rules under the Registration Act.
I have carefully considered the respective submissions of the learned
counsel for the parties and perused the record.
The transfer of property from one person to another is governed by
different statutory enactments.
While the Indian Contract Act, 1872, the
Specific Relief Act, 1963 and the Transfer of Property Act, 1882 (for short "the
Transfer of Property Act") are substantive laws governing transfer of property,
the Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp
Act, 1899 (for short "the Stamp Act"), are the procedural or adjutant laws which
also govern the transactions involving transfer of immovable property.
Section
17 of the Registration Act specifies deeds of conveyances which are compulsorily
registrable.
Section 49 thereof mandates that no document which requires
registration under Section 17 or by any provisions of the Transfer of Property
Act, shall affect any immovable property comprised therein, or confer any power
to adopt, or be received as evidence of any transaction affecting such property
or conferring such power, unless it has been registered.
Section 5 of the
Transfer of Property Act defined "transfer of property" as an act by which a
living person conveys property in present or in future, to one or more living
persons, or to himself and one or more living persons, and to "transfer
property" is to perform such act.
Different modes of transfer of property have
been envisaged by the Transfer of Property Act, such as, sale, lease, mortgage
and gifts.
Section 54 thereof, which defined "sale", however, made it very
clear that a contract for the sale of immovable property does not by itself
create any interest or charge on such property.
Section 2(10) of the Stamp Act defined "conveyance" as under:
"Conveyance" includes any instrument by which property whether movable or
immovable is transferred on sale from one person to another".
Part VI of the Registration Act deals with Presentation of documents for
registration.
Part XI of the Registration Act envisaged Duties and Powers of
the Registering officers.
Under Section 34, subject to the provisions contained
in Part VI and Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be
registered unless the person executing such document, or their representatives,
assigns or agents authorized, appear before the Registering officer within the
time allowed for presentation under Sections 23, 24, 25 and 26.
Under Section
35, if all the persons executing the document appear personally before the
Registering officer and are personally known to him, or if he is otherwise
satisfied that they are the persons they represent themselves to be, and if they
all admit the execution of the document, or, if in the case of any person
appearing by a representative, assign or agent, such representative, assign or
agent admits the execution, or 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 envisaged
in Sections 58 to 61.
However, under sub-section (3)(a) of Section 35, the
Registering Officer, inter alia, shall refuse to register the document if any
person by whom the document purports to be executed, denies its execution.
Under Section 71, every Sub-Registrar refusing to register a document except on
the ground that the property to which it relates is not situate within his sub-
district, shall make an order of refusal and record his reasons for such order
in Book No.2 and endorse the words "registration refused" on the document.
Under Section 72, an aggrieved person can file an appeal before the Registrar
against such orders of the Registering officer.
On a consideration of the above discussed provisions of the Transfer of Property
Act, Registration Act and the Stamp Act,
it is evident that transfer of property
necessarily involves conveyance and such conveyance requires payment of stamp
duty and some of the deeds of conveyance require compulsory registration.
Dealing with the object of the Registration Act,
the Supreme Court in Suraj Lamp
& Industries (P) Ltd. Vs. State of Haryana(1) 2
held, at paras 15 to 18, as
under:
"The Registration Act, 1908 was enacted with the intention of providing
orderliness, discipline and public notice in regard to transactions relating to
immovable property and protection from fraud and forgery of documents of
transfer. This is achieved by requiring compulsory registration of certain
types of documents and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides that any document
(other than testamentary instruments) which purports or operates to create,
declare, assign, limit or extinguish whether in present or in future 'any right,
title or interest' whether vested or contingent of the value of Rs.100 and
upwards to or in immovable property.
Section 49 of the Act provides that no document required by Section 17 to
be registered shall, affect any immovable property comprised therein or received
as evidence of any transaction affected such property, unless it has been
registered. Registration of a document gives notice to the world that such a
document has been executed.
Registration provides safety and security to transactions relating to
immovable property, even if the document is lost or destroyed. It gives
publicity and public exposure to documents thereby preventing forgeries and
frauds in regard to transactions and execution of documents. Registration
provides information to people who may deal with a property, as to the nature
and extent of the rights which persons may have, affecting that property. In
other words, it enables people to find out whether any particular property with
which they are concerned, has been subjected to any legal obligation or
liability and who is or are the persons(s) presently having right, title, and
interest in the property. It gives solemnity of form and perpetuate documents
which are of legal importance or relevance by recording them, where people may
see the record and enquire and ascertain what the particulars are and as far as
land is concerned what obligations exist with regard to them. It ensures that
every person dealing with immovable property can rely with confidence upon the
statements contained in the registers (maintained under the said Act) as a full
and complete account of all transactions by which the title to the property may
be affected and secure extracts/copies duly confined".
In Suraj Lamps & Industries (P) Ltd. Vs. State of Haryana (2)3 the Supreme
Court while dealing with the legal nature of the
General Power of Attorney held
that the power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property; that the power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding
on the grantor as if done by him and that even an irrevocable attorney does not have the effect of transferring title in respect of the property to the grantee.
The question whether a document purporting to cancel a registered sale deed can be unilaterally registered by the vendor, was referred to a Full Bench of this Court in Yanala Malleshwari Vs. Ananthula Sayamma4.
By a majority of 2
: 1, the question was answered in the affirmative and the majority has taken the
view that as there is no power under the Registration Act for registration of
the document, the only remedy available to the aggrieved party is to file a
civil suit for appropriate relief.
However, this view was not approved by the
Apex Court in Thota Ganga Laxmi Vs. Government of Andhra Pradesh5 wherein the
Apex Court while reversing an order of this Court passed following the Judgment
in Yanala Malleshwari (4-supra) held that once a property is transferred by a
registered sale deed, the title passes to the buyer and he becomes the owner of
the property; that if the vendor wants to subsequently get the sale deed
cancelled, he has to only file a civil suit for cancellation; and that by no
stretch of imagination, can a cancellation deed be executed or registered for
the said purpose.
It is apt to note that before the Judgment in Thota Ganga Laxmi (5-supra) was rendered by the Supreme Court, the State Government of Andhra Pradesh has amended Rule 26(i) of the A.P. Rules under the Registration Act by adding sub-
rule (k)(i), which reads as follows:
"The registering officer shall ensure at the time of presentation for
registration of cancellation deeds of previously registered deed of conveyances
on sale before him that such cancellation deeds are executed by all the
executant and claimant parties to the previously registered conveyance on sale
and that such cancellation deed is accompanied by a declaration showing mutual
consent or orders of a competent Civil or High Court or State or Central
Government annulling the transaction contained in the previously registered deed
of conveyance on sale;
Provided that the registering officer shall dispense with the execution of
cancellation deeds by executant and claimant parties to the previously
registered deeds of conveyances on sale before him if the cancellation deed is
executed by a Civil Judge or a Government Officer competent to execute
Government orders declaring the properties contained in the previously
registered conveyance on sale to be Government or Assigned or Endowment or
properties not registerable by any provision of law."
Indeed, this rule was also considered by the Supreme Court in Thota Ganga
Lakshmi (5-supra).
If the present cases had related to registration of deeds of cancellation
of sale deeds, there would have been no need for further discussion and the
cases would have been straightaway dismissed confirming the orders of respondent
No.2 refusing to register the documents.
But however, they relate to
cancelling the purported Development Agreements-cum-GPAs. While dealing with a
case relating to refusal to register an agreement of sale-cum-GPA, a learned
single Judge of this Court in Mir Khader Ali Khan Vs. District Registrar, Ranga
Reddy District6
has drawn a distinction between registration of deeds cancelling
transactions of transfer of title and those cancelling the powers of attorney
and
held that in the light of the amendment to Rule 26(i)(k)(i), while the deeds
unilaterally executed purporting to cancel registered transactions of transfer
of title cannot be registered, however, held that
as the execution of power of
attorney in respect of a property would not lead to a transaction of transfer of title in respect of the property, it is always the prerogative of the principal to withdraw the authorization;
that an agent cannot derive any independent
rights under such agreements and that the same can be unilaterally cancelled and such documents registered.
In T. Viswanadham and others Vs. Commissioner (Registration & Stamps),
Hyderabad and others7, the learned Judge held that even if a G.P.A. coupled with
interest which cannot be unilaterally cancelled is executed and registered, the
aggrieved person has to avail appropriate remedy and that registration of such a
document is not in violation of Rule 26(i)(k) of the Rules.
A few months after disposal of Mir Khader Ali Khan (6-supra),
the case in M/s.
Vasudeva Realtors Pvt. Ltd. (1-supra) came to be disposed of by the same learned
Judge.
The said case presented similar facts except to the extent that the Sub-
Registrar has registered the cancellation deed in that case and the Developer-
GPA approached this Court feeling aggrieved by such registration. While dealing
with Rule 26(i)(k)(i) of the Rules, the learned Judge held that while a cursory
reading of the said Rule gives an impression that the same covers deeds of
cancellation of sale deeds only, the use of expression "conveyance" in the
circumstances that warranted making of the said rule would lead to a conclusion
that it applies not only to cancellation of the sale deeds pure and simple, but
also to the transactions having the ingredients and characteristics of a sale.
The learned Judge has applied the test as to
whether the document which is
sought to be cancelled conferred any final rights in respect of the property and that if the answer is 'yes' the registration of such document would be prohibited by the same analogy of Rule 26(i)(k)(i).
With due respect to the learned Judge, I am unable to convince myself to
concur with the said view. As noted hereinbefore, the Registration Act being
one of the procedural or adjutant laws governing the transfer/conveyance of
properties, its predominant object is to provide orderliness, discipline and
public notice in regard to transactions relating to immovable properties and
protection from fraud and forgery of documents of transfer.
As held by the
Supreme Court in Suraj Lamps & Industries (P) Ltd. (3-supra), mere registration
of a document will not by itself take away the rights of the parties which otherwise cannot be taken away under substantive laws governing the transaction in question.
In the instant case, if the Development Agreements-cum-GPAs have created any rights in respondent No.3, mere registration of their cancellation would not nullify the same.
The only advantage that the petitioners may gain by
registration of the documents proposed by them is that the bar under Section 49 of the Registration Act will not operate in respect of those documents.
This
being the true position in law, I do not see any reason to expand the scope of
the provisions of Rule 26(i)(k) beyond the plain and unambiguous language of the
said provision.
The phraseology "previously registered deed of conveyance on
sale" employed in the said sub-rule is worth noticeable.
While all sales of
immovable properties constitute conveyances, the converse is not true. There
may be transactions such as gifts, mortgages, leases etc., which fall under the
definition "conveyance".
While every conveyance passes title to the person in
whose favour the conveyance deed is executed, the rule making authority
consciously limited the operation of sub-rule (k)(i) of Rule 26(i) of the Rules
only to the deeds of "conveyance on sale".
If it really intended that this sub-
rule must apply to all transactions involving conveyance, there was no reason
for the rule making authority to cut-down on the amplitude of the definition of
the phrase "conveyance" by only referring to "conveyance on sale". It would
have simply used the unqualified phrase "conveyance".
The golden rule of statutory interpretation is that when the words of a
statute are clear, plain or unambiguous i.e., they are reasonably susceptible to
only one meaning, the Courts are bound to give effect to that meaning
irrespective of the consequences. (See: Pakala Narayanaswami Vs. Emperor8,
Emperor Vs. Benoarilal Sarma9, Kanailal Sur Vs. Paramnidhi Sadhu Khan10, State
of Uttar Pradesh Vs. Vijay Anand Maharaj11 and Nelson Motis Vs. Union of
India12). In Padma Sundara Rao (dead) and others Vs. State of T.N. and
others13, a Constitution Bench of the Supreme Court, while dealing with the
doctrine of casus omissus held as under:
"....It is well-settled principle of law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is an
edict of the legislature. The language employed in a statute is the
determinative factor of legislative intent. The first and primary rule of
construction is that the intention of the legislation must be found in the words
used by the legislature itself. The question is not what may be supposed and
has been intended but what has been said. "Statutes should be construed not as
theorems of Euclid, Judge Learned Hand said, "but words must be construed with
some imagination of the purposes which lie behind them (See: Lenigh Valley Coal
Co. v. Yensavage(218 FR 547)."
In Union of India and another Vs. Deoki Nandan Aggarwal14, the Supreme
Court held that the Court cannot add words to a statute or read words into it
which are not there and that assuming that there is a defect or omission in the
words used by the Legislature, the Court would not go to its aid to correct or
make up the deficiency. The Apex Court held that the Courts shall decide what
law is and not what it should be. I do not intend to multiply the authorities
on this aspect.
In the face of the clear and unambiguous language of Rule 26(i)(k)(i) of
the Rules, no documents other than deeds of conveyance on sale can be brought
within its purview.
Irrespective of the recitals of the documents in question,
they are still in the nature of agreements, which by no means pass title in the
property. Unless and until a Development Agreement matures into a deed of sale,
title will not be created in the buyer in view of the statutory bar created by
Section 54 of the Transfer of Property Act. The documents in question therefore
are not embraced by the provisions of Rule 26(i)(k)(i) of the Rules.
As this
view of mine is in conflict with the Judgment in M/s. Vasudeva Realtors Pvt.
Ltd. (1-supra), it is appropriate that this issue is settled by a Division
Bench.
For the above mentioned reasons, the cases are referred to a Division
Bench.
The Registry shall accordingly do the needful.
________________________
Justice C.V. Nagarjuna Reddy
Date : 30-4-2013
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
W.P.No.20683 of 2012 and W.P.No.2192 of 2013
30-4-2013
W.P.No.20683 of 2012
Gaddam Laxmaiah and others .. Petitioners
The Commissioner and Inspector General,Registration and Stamps Department,
M.J. Road, Hyderabad and others
.. Respondents
Counsel for petitioners : Sri Srinivas Polavarapu
Counsel for respondent Nos.1 & 2 : Government Pleader for Revenue
Counsel for respondent Nos.3 to 5 : Sri Avinash Desai
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. MANU/AP/0656/2012 - W.P.No.25686/2011, dt. 10-7-2012
2. 2009(7) SCC 363
3. (2012) 1 SCC 656
4. 2006(6) ALT 523 (FB)
5. MANU/SC/1267/2010 = 2012(3) ALT 50 (SC)
6. 2012(4) ALD 411
7. 2009(6) ALT 220
8. AIR 1939 P.C. 47
9. AIR 1945 P.C. 48
10. AIR 1957 S.C. 907
11. AIR 1963 S.C. 946
12. 1992(4) SCC 711
13. (2002) 3 SCC 533
14. 1992 Supp(1) SCC 323
W.P.No.20683 of 2012 and W.P.No.2192 of 2013
Date : 30-4-2013
W.P.No.20683 of 2012
Between :
Gaddam Laxmaiah and others .. Petitioners
And
The Commissioner and Inspector General,
Registration and Stamps Department,
M.J. Road, Hyderabad and others .. Respondents
Counsel for petitioners : Sri Srinivas Polavarapu
Counsel for respondent Nos.1 & 2 : Government Pleader for Revenue
Counsel for respondent Nos.3 to 5 : Sri Avinash Desai
COMMON ORDER:
These Writ Petitions raise questions as to
whether unilateral cancellation
of Development Agreement-cum-General Power of Attorney (GPA) and registration thereof under the Registration Act, 1908 (for short "the Registration Act") are permissible in law.
The brief facts leading to the filing of this Writ Petition are stated
hereunder:
The petitioners are owners of 11088 sq. yards of land in Sy.Nos.1 to 4 of
Seetharampur village, Thokatta, Secunderabad Cantonment.
They entered into two
Development Agreements-cum-GPAs dated 21-2-2005 and 23-11-2005 with respondent
No.3. Respondent Nos.4 and 5 are the partners of respondent No.3-firm.
Under
the said two documents, the petitioners entrusted the development of the extents
admeasuring 2741 and 2128 sq. yards, respectively, and respondent No.3 has
undertaken to construct independent deluxe duplex type of houses by investing
its monies and in consideration thereof the petitioners agreed to share the
constructed area in the ratio of 46% : 54% between them respectively.
The
petitioners have also nominated respondent Nos.4 and 5 as their GPAs to
facilitate respondent No.3 to deal with its share of 54% of the constructed
houses.
The petitioners alleged that subsequent to the execution of the two
documents referred to above, respondent Nos.4 and 5 have acted against the
interests of the petitioners, forcing them to execute documents for cancelling
the two registered documents.
By separate, but identical orders passed on 23-6-
2012, respondent No.2 has refused to register the said two documents.
Questioning the same, the petitioners filed the present Writ Petitions.
As the reasons for refusal to register the documents in both the cases are
identical, it is sufficient if the refusal order in one case is reproduced,
which is as under:
"This document styled as G.P.A. previously registered as Development Agreement-cum-GPA was kept pending for scrutiny after admission of execution by the executants.
As per C & IG (R&S), A.P., Hyderabad, vide Circular Memo
No.G1/Can/4028/2010, dated 31-3-2010 G.P.A. refusal regn.
Where the agent has
himself an interest in the property which forms the subject matter of the
agency, the agency cannot, in absence of an express contract.
Hence section 202
of Indian Contract Act 1972 prevents termination of G.P.A. which involves the
interest of the Agent.
No Registering officer shall register a deed of
Revocation/Cancellation of General Power of Attorney coupled with previously registered documents of Agreements of sale to safeguard the interest of the agent/vendee.
In case if any such deeds of Revocation/Cancellation of General
Power of Attorney combined with Agreement of sale/Development agreement is presented for Registration the registering officers are directed to refuse the document for Registration."
Even though appeals lie to the District Registrar against the refusal orders
under Section 72 of the Act, as the refusal is based on the Circular issued by
the superior authority, namely, Commissioner of Inspector General (Registration
& Stamps), A.P., Hyderabad, the petitioners filed these Writ Petitions
questioning the refusal orders as well as the Circular Memo dated 31-3-2012
which formed the basis for refusal of registration.
At the hearing, Sri Srinivas Polavarapu, learned counsel for the
petitioners, submitted that the impugned orders of refusal are unsustainable in
law as the reasons on which the documents were refused to be registered are not
envisaged by the provisions of the Registration Act.
The learned counsel
further submitted that the reasoning of respondent No.2 that the Development
Agreements have created interest and therefore the same cannot be cancelled
unilaterally, suffers from a patent error as the documents in question comprise
two parts, namely, G.P.A. part and the Development Agreement part, which by
themselves do not create any interest in respondent Nos.3 to 5, that what is
sought to be cancelled is the G.P.A. part of the documents and that therefore
Section 202 of the Indian Contract Act, 1872 (for short "the Contract Act") has
no application.
The learned Counsel further argued that the Registration Act
does not bar registration of deeds unilaterally cancelling the earlier
registered deeds except in cases of deeds of conveyance on sale and that the two
documents with regard to which the petitioners executed the cancellation deeds,
do not answer the description of "conveyance on sale".
The learned counsel representing Sri S. Niranjan Reddy, learned counsel
for respondent Nos.3 to 5, while opposing the above contentions, submitted that
the issue raised in these Writ Petitions is no longer res integra in view of the
Judgment of the learned single Judge of this Court in M/s. Vasudeva Realtors
Pvt. Ltd. Vs. The Government of Andhra Pradesh, represented by its Principal
Secretary, Revenue (Registration-I) Department, Hyderabad1.
The learned counsel
submitted that in the said Judgment, the learned Judge considered the documents
which are identical to that in the present Writ Petitions and held that such
documents shall be treated as conveyances on sale under Rule 26(i)(k)(i) of the
A.P. Rules under the Registration Act.
I have carefully considered the respective submissions of the learned
counsel for the parties and perused the record.
The transfer of property from one person to another is governed by
different statutory enactments.
While the Indian Contract Act, 1872, the
Specific Relief Act, 1963 and the Transfer of Property Act, 1882 (for short "the
Transfer of Property Act") are substantive laws governing transfer of property,
the Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp
Act, 1899 (for short "the Stamp Act"), are the procedural or adjutant laws which
also govern the transactions involving transfer of immovable property.
Section
17 of the Registration Act specifies deeds of conveyances which are compulsorily
registrable.
Section 49 thereof mandates that no document which requires
registration under Section 17 or by any provisions of the Transfer of Property
Act, shall affect any immovable property comprised therein, or confer any power
to adopt, or be received as evidence of any transaction affecting such property
or conferring such power, unless it has been registered.
Section 5 of the
Transfer of Property Act defined "transfer of property" as an act by which a
living person conveys property in present or in future, to one or more living
persons, or to himself and one or more living persons, and to "transfer
property" is to perform such act.
Different modes of transfer of property have
been envisaged by the Transfer of Property Act, such as, sale, lease, mortgage
and gifts.
Section 54 thereof, which defined "sale", however, made it very
clear that a contract for the sale of immovable property does not by itself
create any interest or charge on such property.
Section 2(10) of the Stamp Act defined "conveyance" as under:
"Conveyance" includes any instrument by which property whether movable or
immovable is transferred on sale from one person to another".
Part VI of the Registration Act deals with Presentation of documents for
registration.
Part XI of the Registration Act envisaged Duties and Powers of
the Registering officers.
Under Section 34, subject to the provisions contained
in Part VI and Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be
registered unless the person executing such document, or their representatives,
assigns or agents authorized, appear before the Registering officer within the
time allowed for presentation under Sections 23, 24, 25 and 26.
Under Section
35, if all the persons executing the document appear personally before the
Registering officer and are personally known to him, or if he is otherwise
satisfied that they are the persons they represent themselves to be, and if they
all admit the execution of the document, or, if in the case of any person
appearing by a representative, assign or agent, such representative, assign or
agent admits the execution, or 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 envisaged
in Sections 58 to 61.
However, under sub-section (3)(a) of Section 35, the
Registering Officer, inter alia, shall refuse to register the document if any
person by whom the document purports to be executed, denies its execution.
Under Section 71, every Sub-Registrar refusing to register a document except on
the ground that the property to which it relates is not situate within his sub-
district, shall make an order of refusal and record his reasons for such order
in Book No.2 and endorse the words "registration refused" on the document.
Under Section 72, an aggrieved person can file an appeal before the Registrar
against such orders of the Registering officer.
On a consideration of the above discussed provisions of the Transfer of Property
Act, Registration Act and the Stamp Act,
it is evident that transfer of property
necessarily involves conveyance and such conveyance requires payment of stamp
duty and some of the deeds of conveyance require compulsory registration.
Dealing with the object of the Registration Act,
the Supreme Court in Suraj Lamp
& Industries (P) Ltd. Vs. State of Haryana(1) 2
held, at paras 15 to 18, as
under:
"The Registration Act, 1908 was enacted with the intention of providing
orderliness, discipline and public notice in regard to transactions relating to
immovable property and protection from fraud and forgery of documents of
transfer. This is achieved by requiring compulsory registration of certain
types of documents and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides that any document
(other than testamentary instruments) which purports or operates to create,
declare, assign, limit or extinguish whether in present or in future 'any right,
title or interest' whether vested or contingent of the value of Rs.100 and
upwards to or in immovable property.
Section 49 of the Act provides that no document required by Section 17 to
be registered shall, affect any immovable property comprised therein or received
as evidence of any transaction affected such property, unless it has been
registered. Registration of a document gives notice to the world that such a
document has been executed.
Registration provides safety and security to transactions relating to
immovable property, even if the document is lost or destroyed. It gives
publicity and public exposure to documents thereby preventing forgeries and
frauds in regard to transactions and execution of documents. Registration
provides information to people who may deal with a property, as to the nature
and extent of the rights which persons may have, affecting that property. In
other words, it enables people to find out whether any particular property with
which they are concerned, has been subjected to any legal obligation or
liability and who is or are the persons(s) presently having right, title, and
interest in the property. It gives solemnity of form and perpetuate documents
which are of legal importance or relevance by recording them, where people may
see the record and enquire and ascertain what the particulars are and as far as
land is concerned what obligations exist with regard to them. It ensures that
every person dealing with immovable property can rely with confidence upon the
statements contained in the registers (maintained under the said Act) as a full
and complete account of all transactions by which the title to the property may
be affected and secure extracts/copies duly confined".
In Suraj Lamps & Industries (P) Ltd. Vs. State of Haryana (2)3 the Supreme
Court while dealing with the legal nature of the
General Power of Attorney held
that the power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property; that the power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding
on the grantor as if done by him and that even an irrevocable attorney does not have the effect of transferring title in respect of the property to the grantee.
The question whether a document purporting to cancel a registered sale deed can be unilaterally registered by the vendor, was referred to a Full Bench of this Court in Yanala Malleshwari Vs. Ananthula Sayamma4.
By a majority of 2
: 1, the question was answered in the affirmative and the majority has taken the
view that as there is no power under the Registration Act for registration of
the document, the only remedy available to the aggrieved party is to file a
civil suit for appropriate relief.
However, this view was not approved by the
Apex Court in Thota Ganga Laxmi Vs. Government of Andhra Pradesh5 wherein the
Apex Court while reversing an order of this Court passed following the Judgment
in Yanala Malleshwari (4-supra) held that once a property is transferred by a
registered sale deed, the title passes to the buyer and he becomes the owner of
the property; that if the vendor wants to subsequently get the sale deed
cancelled, he has to only file a civil suit for cancellation; and that by no
stretch of imagination, can a cancellation deed be executed or registered for
the said purpose.
It is apt to note that before the Judgment in Thota Ganga Laxmi (5-supra) was rendered by the Supreme Court, the State Government of Andhra Pradesh has amended Rule 26(i) of the A.P. Rules under the Registration Act by adding sub-
rule (k)(i), which reads as follows:
"The registering officer shall ensure at the time of presentation for
registration of cancellation deeds of previously registered deed of conveyances
on sale before him that such cancellation deeds are executed by all the
executant and claimant parties to the previously registered conveyance on sale
and that such cancellation deed is accompanied by a declaration showing mutual
consent or orders of a competent Civil or High Court or State or Central
Government annulling the transaction contained in the previously registered deed
of conveyance on sale;
Provided that the registering officer shall dispense with the execution of
cancellation deeds by executant and claimant parties to the previously
registered deeds of conveyances on sale before him if the cancellation deed is
executed by a Civil Judge or a Government Officer competent to execute
Government orders declaring the properties contained in the previously
registered conveyance on sale to be Government or Assigned or Endowment or
properties not registerable by any provision of law."
Indeed, this rule was also considered by the Supreme Court in Thota Ganga
Lakshmi (5-supra).
If the present cases had related to registration of deeds of cancellation
of sale deeds, there would have been no need for further discussion and the
cases would have been straightaway dismissed confirming the orders of respondent
No.2 refusing to register the documents.
But however, they relate to
cancelling the purported Development Agreements-cum-GPAs. While dealing with a
case relating to refusal to register an agreement of sale-cum-GPA, a learned
single Judge of this Court in Mir Khader Ali Khan Vs. District Registrar, Ranga
Reddy District6
has drawn a distinction between registration of deeds cancelling
transactions of transfer of title and those cancelling the powers of attorney
and
held that in the light of the amendment to Rule 26(i)(k)(i), while the deeds
unilaterally executed purporting to cancel registered transactions of transfer
of title cannot be registered, however, held that
as the execution of power of
attorney in respect of a property would not lead to a transaction of transfer of title in respect of the property, it is always the prerogative of the principal to withdraw the authorization;
that an agent cannot derive any independent
rights under such agreements and that the same can be unilaterally cancelled and such documents registered.
In T. Viswanadham and others Vs. Commissioner (Registration & Stamps),
Hyderabad and others7, the learned Judge held that even if a G.P.A. coupled with
interest which cannot be unilaterally cancelled is executed and registered, the
aggrieved person has to avail appropriate remedy and that registration of such a
document is not in violation of Rule 26(i)(k) of the Rules.
A few months after disposal of Mir Khader Ali Khan (6-supra),
the case in M/s.
Vasudeva Realtors Pvt. Ltd. (1-supra) came to be disposed of by the same learned
Judge.
The said case presented similar facts except to the extent that the Sub-
Registrar has registered the cancellation deed in that case and the Developer-
GPA approached this Court feeling aggrieved by such registration. While dealing
with Rule 26(i)(k)(i) of the Rules, the learned Judge held that while a cursory
reading of the said Rule gives an impression that the same covers deeds of
cancellation of sale deeds only, the use of expression "conveyance" in the
circumstances that warranted making of the said rule would lead to a conclusion
that it applies not only to cancellation of the sale deeds pure and simple, but
also to the transactions having the ingredients and characteristics of a sale.
The learned Judge has applied the test as to
whether the document which is
sought to be cancelled conferred any final rights in respect of the property and that if the answer is 'yes' the registration of such document would be prohibited by the same analogy of Rule 26(i)(k)(i).
With due respect to the learned Judge, I am unable to convince myself to
concur with the said view. As noted hereinbefore, the Registration Act being
one of the procedural or adjutant laws governing the transfer/conveyance of
properties, its predominant object is to provide orderliness, discipline and
public notice in regard to transactions relating to immovable properties and
protection from fraud and forgery of documents of transfer.
As held by the
Supreme Court in Suraj Lamps & Industries (P) Ltd. (3-supra), mere registration
of a document will not by itself take away the rights of the parties which otherwise cannot be taken away under substantive laws governing the transaction in question.
In the instant case, if the Development Agreements-cum-GPAs have created any rights in respondent No.3, mere registration of their cancellation would not nullify the same.
The only advantage that the petitioners may gain by
registration of the documents proposed by them is that the bar under Section 49 of the Registration Act will not operate in respect of those documents.
This
being the true position in law, I do not see any reason to expand the scope of
the provisions of Rule 26(i)(k) beyond the plain and unambiguous language of the
said provision.
The phraseology "previously registered deed of conveyance on
sale" employed in the said sub-rule is worth noticeable.
While all sales of
immovable properties constitute conveyances, the converse is not true. There
may be transactions such as gifts, mortgages, leases etc., which fall under the
definition "conveyance".
While every conveyance passes title to the person in
whose favour the conveyance deed is executed, the rule making authority
consciously limited the operation of sub-rule (k)(i) of Rule 26(i) of the Rules
only to the deeds of "conveyance on sale".
If it really intended that this sub-
rule must apply to all transactions involving conveyance, there was no reason
for the rule making authority to cut-down on the amplitude of the definition of
the phrase "conveyance" by only referring to "conveyance on sale". It would
have simply used the unqualified phrase "conveyance".
The golden rule of statutory interpretation is that when the words of a
statute are clear, plain or unambiguous i.e., they are reasonably susceptible to
only one meaning, the Courts are bound to give effect to that meaning
irrespective of the consequences. (See: Pakala Narayanaswami Vs. Emperor8,
Emperor Vs. Benoarilal Sarma9, Kanailal Sur Vs. Paramnidhi Sadhu Khan10, State
of Uttar Pradesh Vs. Vijay Anand Maharaj11 and Nelson Motis Vs. Union of
India12). In Padma Sundara Rao (dead) and others Vs. State of T.N. and
others13, a Constitution Bench of the Supreme Court, while dealing with the
doctrine of casus omissus held as under:
"....It is well-settled principle of law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is an
edict of the legislature. The language employed in a statute is the
determinative factor of legislative intent. The first and primary rule of
construction is that the intention of the legislation must be found in the words
used by the legislature itself. The question is not what may be supposed and
has been intended but what has been said. "Statutes should be construed not as
theorems of Euclid, Judge Learned Hand said, "but words must be construed with
some imagination of the purposes which lie behind them (See: Lenigh Valley Coal
Co. v. Yensavage(218 FR 547)."
In Union of India and another Vs. Deoki Nandan Aggarwal14, the Supreme
Court held that the Court cannot add words to a statute or read words into it
which are not there and that assuming that there is a defect or omission in the
words used by the Legislature, the Court would not go to its aid to correct or
make up the deficiency. The Apex Court held that the Courts shall decide what
law is and not what it should be. I do not intend to multiply the authorities
on this aspect.
In the face of the clear and unambiguous language of Rule 26(i)(k)(i) of
the Rules, no documents other than deeds of conveyance on sale can be brought
within its purview.
Irrespective of the recitals of the documents in question,
they are still in the nature of agreements, which by no means pass title in the
property. Unless and until a Development Agreement matures into a deed of sale,
title will not be created in the buyer in view of the statutory bar created by
Section 54 of the Transfer of Property Act. The documents in question therefore
are not embraced by the provisions of Rule 26(i)(k)(i) of the Rules.
As this
view of mine is in conflict with the Judgment in M/s. Vasudeva Realtors Pvt.
Ltd. (1-supra), it is appropriate that this issue is settled by a Division
Bench.
For the above mentioned reasons, the cases are referred to a Division
Bench.
The Registry shall accordingly do the needful.
________________________
Justice C.V. Nagarjuna Reddy
Date : 30-4-2013
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