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Judgment
1 .Petitioner has purchased a portion of property namely house situate at Karan Nagar, belonging to the person of respondent No. 3 claiming to
be the owner of the share of the house which she has parted with by virtue of a sale deed purported to have been executed on 3061982 for a
consideration of Rs 42,500/. It is further stipulated that an amount of Rs 27,500/ have been paid out of consideration to the respondent No. 3 and
the remaining amount of Rs 15,000/ was to be paid at the time of registration. It is further pleaded that the petitioner presented the deed for
registration before respondent No. 2 within the statutory period, prescribed therefore. Respondent No. 3 (seller) did not appear before
respondent No. 2 and eventually respondent No. 2 declined to admit the document for registration. Accordingly, on 30101982, an order came to
be passed by the respondent no.2. Aggrieved by the said, order, the petitioner preferred an appeal before respondent No. 1 i.e Registrar of
Registration, Srinagar and the said appeal came to be registered as appeal No. 276 of 1982. Notices were issued to respondents in the said
notice. Respondent No. 3 appeared before respondent No. 1 i.e appellate authority and admitted the execution of the document. She, however,
stated that there is still an outstanding of Rs 2,500/ due to her from the appellant and prayed that the petitioner be directed to pay the said amount
to her.
2.Petitioner has also averred that attention of respondent No. 1 i.e. District and Sessions Judge, Srinagar (Registrar of Registration) was invited to
the provisions of the Registration Act, Rules made thereunder and particularly to Rule 40 and the judgment passed by this Court reported as JKLR
19T6page430. Despite legal position that the Registrar had no jurisdiction to direct a party to pay the remaining consideration amount, at the time
of registration, but even then the learned Registrar Srinagar passed the impugned order on 1421983, directing the respondent No. 2 to admit the
document to registration. The order impugned 1421983 reads as under:
........therefore, this appeal is accepted, the order under appeal is set aside and it is ordered that in case the appellant shall deposit a sum of Rs
2500/ in the court of learned SubRegistrar, Srinagar or shall pay this amount to the Respondent, then the document shall be admitted to registration
by the concerned registration authority in accordance with law. The document alongwith a copy of this order shall be delivered to the appellant for
presenting the same for registration before the concerned registration authority within the period prescribed under law. The file shall be consigned
to records.
3.The document seems to have been presented as per directions of the appellate court before the SubRegistrar (Respondent No. 2) who
recorded/made endothersement on 1431983 which reads:
Amount has not been deposited. Till the amount is not deposited in the court as per direction of the learned Registrar, the document can not be
admitted forregistration.
Sd/
SubRegistrar 14031983"".
Aggrieved of both the orders, one passed by appellate court i.e respondent No. 1 (Registrar under Registration Act Viz. District and Sessions
Judge, Srinagar) dated 1421983 and the other passed by SubRegistrar, Srinagar dated 1431983, the petitioner has approached this court by filing
the present writ asking for a writ of certiorari for quashing order dated 1421983 passed by respondent No. 1 and order dated 1431983 passed
by respondent No. 2 in so far as they made the payment of alleged consideration amount as a condition precedent to the registration of the
document, and further prays for a writ of mandamus, directing the respondents 1 and 2 to admit the document to registration without any
precondition.
5 .Respondents were summoned. They have appeared and filed their counter. The sum and substance of the counter filed by respondent No. 3 is
that she has admitted the execution of sale deed on the condition that the remaining consideration will be paid at the time of registration. Person of
the petitioner was not having money to part with, so he in order to gain time, had presented the deed before the SubRegistrar without her
knowledge and without her being summoned, got the deed endothersed as refused and filed appeal thereon before the Registrars. The Registrar
summoned her, she appeared before him and stated the fact of petitioner being in arrears of consideration and on that condition the appeal was
allowed and the petitioner was asked by respondent No. 2 to deposit the remaining consideration as envisaged by the terms of the sale deed. It is
further averred that after the SubRegistrar declined to admit the document for registration on 1431983, there was a legal remedy available to the
petitioner which he has not availed and, as such, he can not approach the writ court for redressal of his grievances. There is no counter filed by
other respondents.
I have heard learned counsel for the parties at length and perused the records.
7.The controversy which has been projected in the writ petition is of a short compass and requires consideration/decision on the point whether
SubRegistrar or Registrar has a power to refuse admission of document for registration on the pretext that the consideration amount mentioned in
the sale deed or in the document is wanted or is in arrears ?
A close scrutiny of the provisions of Section 35 J and K Registration Act, it is laid down as under:
Procedure on admission and denial of execution respectively: (l)(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 persons 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 direction in section 58 to 61, inclusive.
(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, and 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 refuse to register the document as to the person so denying, appearing or dead;
9.So this provision is prescribed for SubRegistrar, when the document is presented before him for registration. Further more under section 58 of
the Registration Act, procedure for admitting 4he document to registration is given. It is envisaged therein that besides writing the date, hour and
place of presentation as required under section 52 of the Registration Act, the Registering officer shall obtain signatures of every person admitting
the execution of the document and if the document has been admitted by a representative or assign or an agent of any person, the signature and
addition of such representative, assign or agent. As regards payment of consideration, it is specifically provided under the provisions of subsection
(1 )(c) of Section 58, which reads :
58(1 )(c) Any payment of money or delivery of goods made in the presence of the registering officer in reference tome execution of the document,
and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
10.So the SubRegistrar is required to make a mention while admitting a document to registration regarding the admission for having received the
consideration or part of consideration or any consideration received in his presence. It is not provided in the proviso that the SubRegistrar or for
that purpose the Registrar shall insist the purchaser to deposit the remaining part of the consideration which is stipulated as per terms of the sale
deed or the document, to be delivered at the time of registration of the document, so much so, it is envisaged under section 58(2) that:
If any person admitting the execution of a document refuses to endotherse the same, the registering officer shall nevertheless register it, but shall at
the same time endotherse a note of such refusal."" 11 .So it means that the Registering Officer has to register the document, once the same is being
admitted to have been executed by the seller. He may refuse to endotherse the same before the SubRegistrar, but even then the document is to be
admitted to registration, because the person executing the same has admitted the execution of the document before the SubRegistrar. However,
Registering Officer has been left with the option, as per law, that he shall make an endothersement made by the executant. Thus the procedure
which is prescribed under the provisions of the Registration Act do not show that the Registrar or SubRegistrar has the powers under the Act to
ask for payment of arrears of consideration as a condition precedent for such registration. A case of like nature had come up for consideration
before their lordships way back in 1969, which is reported as AIR 1969 Mysore 360, and their Lordship while considering the only point which
was agitated before them and was the only point for consideration viz.
Whether a District Registrar while disposing of an appeal under section 72 of the Registration Act has the power to mipose such a condition r The
condition imposed in the said case (supra) reads:
In the result, I uphold the condition of the petitioner and I order that the SubRegistrar may register the document provided he (the petitioner)pays
the balance of Rs 15,000/ to the respondents"".
This was disputed whether the Registrar has powers to impose such a condition. While dealing with such controversy, their lordship have
observed that:
.........The relevant section is Section 75 of which SubSS(l) and (2) have a direct bearing on the question now before us. Those subsections read:
75(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the
document to be registered.
(2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same
and thereupon shall so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60.
13.So these provisions read with section 58 of the J and K Registration Act as enumerated hereinabove in the foregoing paras of the judgment
make it abundantly clear that the Registering Officer under the Act has no power to endotherse payment of any consideration as a condition
precedent for registration of the document. Where money is paid in presence of the Registering Officer, he is responders the fact on the document
at the time of registration as envisaged under subsection (1) of Section 58 of the Registration Act. The question whether a statement contained in
the document regarding payment of consideration is or is not true, is also not a matter for the Registering Officer to examine and decide. Their
lordships of the Mysore High Court, while delivering the judgment (supra) have observed:
The appellate authority can not, of course, in the ordinary circumstances, and in the absence of special provision in the relevant statute, have wider
powers than the original authority in the matter of examining and deciding facts or questions of fact. Normally, the appellate authority can either do
itself or direct the original authority to do what under the law the original authority ought to have or should have done.
...........the appellate authority, upon being satisfied as to the execution and the requirement of law referred to in section 74(b), is bound to order
registration. Once that order is passed, it is for the original authority, the Sub Registrar, to follow the procedure prescribed in Sections 58,59,60 to
the extent applicable in the changed circumstances."" It was held by the said court that the District Registrars while disposing of the appeal under
section 72 had no power or jurisdiction to direct the payment of any sum of money, as a condition precedent for getting the document registered.
This is the position of law.
Now as regards rules which have been framed under Section 69 by the Inspector General Registration to carry out the purpose of the Act, I do
find that under Rule 40 of the Rules which reads:
Denial of receipt of consideration: If any person admit the execution of a document presented for registration, but deny the receipt in whole or part
of the consideration recited therein, registration shall not be refused because of such denial, but a note of the denial shall be made in the
endothersement required by section 58'T
So the rule position envisaged under Rule 40 of the Rules issued under section 69 of the Registration Act also, is in consonance with the statutory
provisions of the Act. Even the Rules don't show anywhere that the Registration of a document is to be refused by SubRegistrar on the count that
the consideration amount recited in the deed has not been paid in total or has been paid only in part.
Controversy seems to have been joined previously also before this court by different petitioners and at one occasion, controversy seems to
have been decided by a single bench which is reported as JKLR 1976page 30, wherein his lordship Justice Mian JalaludDin, as his lordship then
was, has held that payment of outstanding consideration is not a condition for admitting a document to registration, if the execution of the document
is admitted.
Even at one occasion, a reference seems to have been made by one of the Judges of this court (Justice Sethi.J) who had raised certain doubts
regarding the judgment passed by his Lordship Justice JalaludDin in the case titled Haji Habibullah versus Registrar and others reported as 1976
JKLR 430 (supra). Said reference seems to have been examined in detail by a Division Bench of this court in Writ petition No. 179 of 1983 titled
Ghulam Mohammad and others Vs. Registrar of Registration and others. Their lordships of the Division Bench after examining the provisions of the
Registration Act have answered the questions formulated in the said reference, which read:
i) Whether payment of consideration in part or whole is a condition for registration of a document under section 35 of the Registration Act?
ii) Would the admission of execution of a document by the executant include within its fold an undertaking by the person who by its terms and
conditions is obliged to pay the outstanding consideration at the time of the registration of the document, and in the event of nonpayment of
consideration, can the Registering Officer enforce the recovery and payment of the same
(iii) Whether it is against public policy that a document is required to be registered without payment balance consideration which was liable to be
paid at the time of the registration ?
Their lordship after examining all the three issues have answered that provisions of section 35 of the Registration Act casts statutory obligation on
the Registering Officer to register a document which is presented before him for registration.
As I have already pointed out as to what are the parameters within which a document is to be admitted to registration, as per section 35 of the
Act which is enumerated in section 35( 1 )(a)(b)(c) are fulfilled and it is only under subsection 3(a)(b)(c) of Section 35 that would statutorily
compel the registering officer to refuse registration of a document, as already enumerated by this court. Section 35 of the Registration Act does not
make the payment of consideration as a condition for registration of a document nor does it make nonpayment of consideration a ground for
refusal to register a document. The only condition before the SubRegistrar or the Registrar for admission of a document to registration is execution.
If the Registrar or the SubRegistrar is satisfied that the document has been executed and same is being accepted by the person executing it or by
his assign or by his legal heirs, it is to be registered. So there is no bar under section 72 of the Registration Act, as enumerated hereinabove and
discussed and analysed.
17.Under section 72 of the Registration Act, Registrar is having no powers or jurisdiction to direct payment of any sum which is shown as
consideration in the document, as a condition precedent, for getting the document registered. It has been fully concluded by the Division Bench
also that as per statute or the law, the appellate authority can himself register a document or direct its registration per original authority i.e.
SubRegistrar, but neither of them can issue any direction which is not supported by the provisions of the Registration Act. If consideration is not
paid in full or in part, but execution of the document is admitted and the amount of consideration as fixed in the document also is admitted,
registering authority or the appellate authority under the Registration Act has no powers to issue orders for compelling the person who is obliged to
pay the consideration, to make payment. It can not equally refuse registration on the ground. So their lordships of the Division Bench (supra) have
also come to the conclusion and have concluded that Registering Officer can refuse registration only if section 35 of the Registration Act authorises
him to do so. As already analysed, nonpayment of consideration is no ground for refusal of registration under section 35 of the Act. At the most, it
only enjoins upon the Registering Officer to make an endothersement of nonpayment of consideration and thereafter register the document, if the
execution of the same is admitted. Their lordships have also analysed that execution of the document and payment of consideration amount are two
different incidents. If the execution of a document is admitted, it would cast a duty on the registering officer to admit the document for registration.
Nonpayment of consideration in full or in part would oblige the registering officer to make endothersement in that regard in the document and
thereafter proceed to register the document, if the execution of the document is admitted.
18.Thus, it has been concluded that after joint reading of section 35, 58 and Rule 40 of the Registration Rules made under the Act, make it
abundantly clear that when the execution of the document is admitted, nonpayment of consideration is riot a ground for refusing the registration nor
is payment of balance consideration a condition precedent for registering the document. The Registering authority has only to make an
endothersement for payment or nonpayment and nothing more If consideration is made in part or whole, only endothersement is to be made. So
their lordships have returned a finding that Haji Habibullah's case reported in 1976 JKLR 430 is correctly decided and does not warrant any
reconsideration,
As regards third question, as to whether any public policy is involved if the document is registered without payment of balance consideration
which was liable to be paid at the time of registration is a matter to be considered by the legislature, as has been rightly observed by their lordships
in the Division Bench Judgment (supra). The legislature in its wisdom has not made payment of consideration as a condition for registration of a
document and its nonpayment as a ground for refusal to register the document. Nonpayment of consideration would not effect the general public. It
is a matter between the contracting parties. The courts have to interpret law as it stands. Therefore, their lordships have held :
........In our opinion public at large is not effected by the provisions of sections 35, 58 of the Registration Act or the Rule 40 of the Rules framed
under the Act.
20.So in the light of the conclusions arrived at and the above discussions and in the light of the fact that the matter has already been decided by a
Single Judge as well as by a Division Bench of this court, the point is no more resintegra and the order imposing condition/ direction to be given by
the Registrar or the SubRegistrar about payment of consideration at the time of registration of the document is contrary to the law and is not
substantiated by any provision of law. The petition is accordingly allowed and it is held that the District Registrar under Registration Act
(respondent No. 1) while disposing of the appeal No. 276 of 1982 on 1421983 had no power or jurisdiction to order payment of arrears of Rs
2500/ as a condition precedent for admission of document to registration by the SubRegistrar and the SubRegistrar had also no jurisdiction in
making the endothersement on 1431983 that till amount is not deposited in the court, as per direction of the learned Registrar, document can not
be admitted to registration, as same is against the statute and the law. The orders impugned are accordingly quashed.
21 .Now from the endothersement, it seems that the document as per appellate court decision dated 1421983 has been presented for registration
on 1431993 i.e. within the statutory period from of order of appellate court. By issuance of a writ of mandamus, SubRegistrar is directed that he
shall admit the document to registration without asking the petitioner to deposit the outstanding amount of consideration before the document is
admitted to registration There shall be no order as to costs. File be consigned to records.