A.M. Mir, J.
1. A short legal point which emerges out of the proceedings is as to whether or not for every mode of transfer of Immovable property, a separate permission in terms of 2nd proviso of Section 3 of the J&K; Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 hereinafter called 'the Act' is required to be obtained.
2. The respondent No. 1 who is the attorney holder of some migrants applied for permission in terms of Section 3 of the Act before the competent authority. The permission was not granted within the stipulated period of 15 days.
3. The attorney of the land owner, executed a deed of relinquishment in favour of the petitioner and produced same for registration. The Sub-Registrar Srinagar refused registration of the document on the plea that the relinquishment deed was executed as a substitute and in disguise of a sale deed just for the purpose of saving court fee and stamp duty. However, during the course of proceedings before the Sub-Registrar he conducted an enquiry as to whether an application before the competent authority was genuinely made and as to whether umbrella of deeming provision was available in terms of proviso to Section 3 of the Act. He came to the conclusion that the attorney holder was entitled to the benefit of the deeming provision.
4. Aggrieved of the order of refusal dated 24.7.2000, an appeal was filed before Registrar Srinagar who set-aside the order and held that the parties could not be compelled or forced to execute a document of definite kind. However, very intricate point was raised by the Registrar that the application moved before the competent authority was for the execution of a sale and that the benefit of deeming provision could not cover the deed of relinquishment. The Registrar as such directed the petitioner to seek fresh permission. That part of the order of the Registrar dated 28.11.2000 is called in question before this Court.
5. Adverting to the question formulated towards the introductory clause of this order. I deem it proper to reproduce second proviso of Section 3 of the Act wherefrom the friction of law of deeming provision arises. It reads as under: 'Provided further that the permission to alienate shall be deemed to have been granted, is an application seeking permission for alienation of such property is not decided by the prescribed authority within fifteen days from the date of receipt of such application.'
6. On a birds eye view, it becomes clear that permission should be obtained for alienation of immovable property. In Websters Dictionary, the expression alienation has been described as 'giving up of the control of the title of property from one person to the other.'
7. The expression alienation has been defined by the Section 2(a) of the Act as under:
'Alienation means sale, gift, mortgage with possession or exchange but shall not include gift in favour of an heir.'
8. Alienation as reflected by the above definition must be an positive act of transfer of property from seller to the buyer. Alienation for the purpose of the 'Act' means the same factum of transfer. Gifts and sales are recognised as modes of transfer, so is the mortgage with possession or exchange.
9. Here in the present case, all what has been done, is that the title of the teller has been relinquished and in this behalf a relinquishment deed has been executed. Every mode of transfer may have its different trappings. Relinquishment may not be fool proof mode of transfer, but it is for the buyer to be circumspect and notice the note of caution which the famous maxim 'Caveat Emptor' sounds for the transferees.
10. The intention of Section 3 must be read in such a way so as to accomplish the object of the Act. The object has been out-lined in its preamble which postulates that the Act provides for Preservation, Protection and Restraint on Distress Sales of the immovable property of the migrants. Once an application for alienation of the property was made, in the event the permission having been with held, the same under the proviso will be deemed to exist for the alienation including relinquishment. The migrant in the present case does not complain of distress or of any transgression of his rights. He seems to have no objection. I do not agree with the finding of the learned Registrar that for every mode of transfer a separate permission is required to be obtained.
11. In that view of the matter, I find that the learned Registrar has not taken the requirement of the proviso into consideration. That being the position, I allow the petition and direct the Sub-Registrar, Srinagar to register the deed on the strength of his own finding that permission to the alienation of the property will be deemed to have been granted.