Judgment:
ORDER
L. Narasimha Reddy, J.
1. The petitioner prays for a writ of certiorari, to call for the records connected with the orders, dated 14.11.1994, 7.10.1995 and 12.11.1997, passed by respondent Nos. 4, 3 and 2, respectively, and to quash the same, as being illegal, arbitrary, without jurisdiction, and contrary to the provisions of A.P. Record of Rights Act, 1971.
2. The 1st petitioner is the wife and 2nd petitioner is the son of late Kishta Reddy. The 1st respondent, Parvath Reddy, and Kishta Reddy are said to be brothers. Kishta Reddy died, leaving behind him, the petitioners as his legal representatives. The family held vast extents of agricultural lands, and a partition is said to have taken place between the brothers.
3. The 1st respondent filed an application before the Mandal Revenue Officer, Balrmoor Mandal, the 4th respondent herein, with a prayer to validate an unregistered deed of partition, dated 14.2.1968, in respect of an extent of Acs.7-00 in Sy. No. 27 of Balamoor village. He claimed that though he became absolute owner of that land, the relevant entries in the revenue records are made in favour of the petitioners herein. He accordingly prayed for validation of the unregistered partition deed, dated 14.2.1968, under Section 5-A of the A.P. Rights in Land and Pattadar Pass Book Act, 1971 (for short 'the Act').
4. The 4th respondent issued a notice to the petitioners, and through his order dated, 14.11.1994, not only validated the document, but declared that the 1st respondent is the rightful owner of Acs.7-00 of land in Sy. No. 27. Petitioners filed an appeal, under Sub-section (5) of Section 5 of the Act, before the Revenue Divisional Officer, Nagerkurnool, the 3rd respondent. The appeal was dismissed by an order, dated 7.10.1995. Thereupon, the petitioners filed a revision, under Section 9 of the Act, before the 2nd respondent. The revision was also rejected, through order dated 12.11.1997.
5. Sri K.Mahipathi Rao, learned Counsel for the petitioners, submits that the order passed by the 4th respondent, validating an unregistered partition deed and declaring the 1st respondent, as the rightful owner of the property, is without jurisdiction and contrary to Section 5-A of the Act and the Rules made thereunder. He contends that Section 5-A cannot be invoked to validate a deed of partition, since no transfer as such, takes place under it. He places reliance upon the judgment of the Supreme Court in V.N. Sarin v. Ajit Kumar Poplai : [1966]1SCR349 and the judgment of a Division Bench of the Delhi High Court, in Smt. Chanderwati v. Lakhmi Chand and Ors. : AIR1988Delhi13 . Learned Counsel further submits that even where a document is otherwise capable of being validated under Section 5-A of the Act, the Recording Authority under the Act, cannot undertake such an exercise, if there is dispute between the parties. In support of this contention, he places reliance upon the judgments of this Court, in B. Pushpamma v. Joint Collector, R.R. District : 2005(1)ALD260 and V. Krishnaiah and Ors. v. Joint Collector, Mahaboobnagar : 2007(3)ALD391 . He contends that the 2nd respondent has traveled, beyond the scope of the proceedings before her, and in a way, misused the statutory power conferred on her, by directing reopening of the proceedings under the A.P. Land Reforms (COAH) Act, 1973.
6. Sri S.Laxma Reddy, learned Counsel for the legal representatives of the 1st respondent, on the other hand, submits that even under a partition, alienation of property takes place, and in that view of the matter, no illegality can be said to have crept into the order passed by the 4th respondent. He relied upon the judgments of the Supreme Court in Kuppuswami Chettiiar v. A.S.P.A. Armugam Chettiar : [1967]1SCR275 , Kale and Ors. v. Deputy Director of Consolidation and Ors. : [1976]3SCR202 , and Sunil Suddharthbhai v. Commissioner of Income Tax, Ahmedabad : [1985]156ITR509(SC) . He submits that under the deed of partition in question, the land of Acs.7-00 was allotted to the 1st respondent, and the effort by initiating the present set of proceedings, was only to get the record straight. He submits that if the petitioners felt aggrieved by the various orders passed by respondents 2 to 4, the only remedy available is to file a suit, as provided for under Sub-section (2) of Section 8 of the Act.
7. Learned Government Pleader for Revenue has advanced arguments, on the same lines.
8. The 1st respondent submitted an application before the 4th respondent, with a prayer to validate an unregistered deed of partition, dated 14.2.1968. After issuing notice to the petitioners, the 4th respondent passed an order, validating the document and declaring that the 1st respondent is the owner of Acs.7-00 of land in Sy. No. 27 of Balmoor village. The appeal and revision preferred by the petitioners before respondents 3 and 2, respectively, were rejected.
9. Section 5-A of the Act empowers the Mandal Revenue Officer to validate the transfer, or alienation of land, subject to certain conditions. It is necessary to extract the said provision:
5-A. Regularisation of certain alienations or other transfers of lands:
(1) Notwithstanding anything contained in this Act, the Transfer of Property Act, 1882, the Registration Act, 1908, or any other law for the time being in force, where a person is an occupant by virtue of an alienation or transfer made or effected otherwise than by registered document, the alienee or the transferee may, within such period as may be prescribed, apply to the Mandal Revenue Officer for a certificate declaring that such alienation or transfer is valid.
(2) On receipt of such application, the Mandal Revenue Officer shall after making such enquiry as may be prescribed require the alienee or the transferee to deposit in the office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty that would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908 as fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed:
Provided that the Mandal Revenue Officer shall not require the alienee or the transferee to deposit the amount under this sub-section unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977. (3) Nothing contained in Sub-section (1) and Sub-section (2) shall be deemed to validate any alienation where such alienation is in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
(4) The Mandal Revenue Officer on deposit of an amount specified in Sub-section (2) shall issue a certificate to the alienee or the transferee declaring that the alienation or transfer is valid from the date of issue of certificate and such certificate shall, notwithstanding anything in the Registration Act, 1908 be evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him.
(5) The recording authority, shall on the production of the certificate issued under Sub-section (2) make any entry in the pass book to the effect that the person whose name has been recorded as an occupant is the owner of the property.
10. Inasmuch as the document, which is sought to be validated, is a deed of partition, a basic question arises as to whether an alienation, or transfer, would take place under such a document. The reason is that Section 5-A does not deal with any such type of transactions.
11. Sri S. Laxma Reddy, learned Counsel, had strenuously contended that the type of rights that accrue under a deed of partition, can certainly be validated under Section 5-A of the Act.
12. The very fact that the Transfer of Property Act was mentioned in Section 5-A of the Act, gives an indication that the transfers or alienations mentioned under that provision, are those covered by the Transfer of Property Act. As is well known, the said Act deals with five categories of transfers, viz; sale, mortgage, lease, gift and exchange. Alienation, in a way, is a term, which explains a part of the transaction of transfer, and some times, it may even be employed as a synonym. It cannot be construed as connoting referring to any transaction, different from a transfer covered by the Transfer of Property Act. Be that as it may, the nature of rights that accrue to individuals, in a partition, cannot be equated to transfer. The reason is that even before the partition has taken place, the partner or the co-parcener, as the case may be, did possess rights in the property, but in an undefined form, and the process of partition only brings about the delineation of the respective shares. In V.N. Sarin's case : [1966]1SCR349 , the Supreme Court had an occasion to deal with the same question. The judgments of the various High Courts differ in their view, on this aspect. It was ultimately held that no transfer as such takes place, under a partition. A Division Bench of the Delhi High Court in Smt. Chanderwati's case : AIR1988Delhi13 , took the same view. On behalf of respondents, it is contended that since the parties to a partition acquire absolute rights vis--vis the shares in the joint property, the process of transfer of title takes place.
13. In Kuppuswami Chettiiar's case : [1967]1SCR275 , the Supreme Court was dealing with a release deed, and not with any partition. There again, a distinction was drawn between the release in favour of another limited owner, on the one hand, and a release in favour of a stranger, altogether. It was held that in the latter transaction alone, transfer of ownership takes place.
14. In Kale's case : [1976]3SCR202 , the subject matter was the admissibility of an unregistered deed of family settlement. It was held that though an oral family arrangement does not need registration, an arrangement, which is reduced to writing, must be registered. The ratio of that case has no relevance to the facts of the present case. Sunil Suddharthbhai's case : [1985]156ITR509(SC) dealt with the consequences of the contribution of shares in a company by a partner to a firm. Dealing with that situation, the Supreme Court observed as under:
In its general sense the expression 'transfer of property' connotes the passing of rights in the property from one person to another. In one case there may be a passing of the entire bundle of rights from the transferor to the transferee. In another case, the transfer may consist of one of the estates only out of all the estates comprising the totality of rights in the property. In a third case, there may be a reduction of the exclusive interest in the totality of rights of the original owner into a joint or shared interest with other persons. An exclusive interest in property is a larger interest than a share in that property. To the extent to which the exclusive interest is reduced to a shared interest it would seem that there is a transfer of interest. Thus, when a partner brings in his personal asset into a partnership firm as his contribution to its capital, an asset which originally was subject to the entire ownership of the partner becomes now subject to the rights of other partners in it.
It has to be noted that the other partners did not have any limited right vis-- vis the shares held with another partner, in a different company, before they came to be transferred to the firm, towards his capital. It brought about creation of rights, vis--vis a property in favour of the total strangers. It is difficult to apply this principle to the consequences of a partition. Therefore, it is difficult to accept that a deed of partition can be dealt with under Section 5-A of the Act.
15. Assuming that there was no impediment for the 4th respondent, to entertain an application under Section 5-A of the Act, even in respect of an unregistered partition deed, it needs to be seen as to whether the 1st respondent made out a case for grant of the relief thereunder. A perusal of the order passed by the 4th respondent discloses that he did not go through the full facts of the case. The service of notice virtually was treated as a formality and the contentions advanced on behalf of the petitioners were not taken into account, at all. Firstly, the person, who was a party to the deed, was not alive, and it was sought to be enforced against the legal representatives. Secondly, when the very genuinety of the document was disputed, the 4th respondent ought not to have taken upon himself, the functions of adjudication, into the merits of the matter. It is not as if the 1st respondent did not have any remedy. In view of the serious dispute as to the genuinety of the document, he ought to have canvassed the remedies before a civil court.
The inadequacy of Section 5-A of the Act, to deal with contentious issues, was pointed out by this Court, in B. Pushpamma's case : AIR1988Delhi13 and V. Krishnaiah's case : 2007(3)ALD391 . The subject matter in B. Pushpamma's case : 2005(1)ALD260 was also a deed of partition. It was held by this Court that the rights flowing out of a deed of partition, cannot constitute the subject matter of proceedings under Section 5-A of the Act. It was pointed out that such a situation would be taken care of, under Section 4 of the Act. Para -7 of the said judgment reads as under:
As per Sub-section (1) of Section 5-A of the Act, where a person is an occupant by virtue of alienation or transfer made or effected otherwise than by registered document, such alienee or transferee may apply to the Mandal Revenue Officer for certificate declaring that such alienation or transfer is valid. In the case of partition deed, there is no such alienation or transfer, but only adjustment of rights among joint owners and co-sharers with the property. Further under Section 4 of the Act, any person acquiring property, inter alia, by partition has to apply to the Mandal Revenue Officer seeking amendment of record of rights. For example, if the property is originally shown in the record of rights as belonging to the father, after death of the father, his sons have to apply under Sections 4 and 5 of the Act for amendment of the record of rights, if there is a partition between them. Therefore, the orders of the Mandal Revenue Officer as well as the Revenue Divisional Officer suffer from misdirection in law.
16. The nature of powers that can be exercised under Section 5 of the Act, particularly when there is serious dispute as to the genuinety of the document, was discussed in V. Krishnaiah's case : 2007(3)ALD391 . Paragraphs 15, 19 and 20 of the said judgment are relevant, and they are extracted, for ready reference:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the provisions of the Specific Relief Act. From the point of view of procedure, various hurdles, which a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A. The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
19. The extent of power conferred on the Recording Authority is very limited. Under Section 10 of the Act, it is restricted to the one, for summoning and enforcing the attendance of a person, requiring the discovery and production of documents, and any other matter which may be prescribed; obviously, under the Rules. Rule 28 of the Rules confers the powers of a civil Court on the Recording Authority, only for the purpose of entering upon and inspecting any land or taking measurements thereof. Barring this, there do not exist any attributes of a civil court, to the Recording Officer.
20. There are other important indicators to point out that the scope of enquiry under Section 5-A and the relevant rules is limited and restricted. Take for instance, a case where the alleged transferor or alienor flatly denies the execution of the document, in relation to the transaction, which is sought to be regularized, or where he takes the plea of limitation. Once the execution of the document is disputed, its genuinity can be decided only after a trial and by applying the principles enunciated in the Evidence Act. If a plea of limitation is raised, necessary issue has to be framed, and a finding thereon has to be recorded. With the limited nature of powers conferred upon a Recording Authority, such a stupendous task becomes almost impossible, for the Recording Authority.
From this, it becomes clear that the 4th respondent did not have the power to entertain an application for validation of an unregistered partition deed. Apart from validating the document, the 4th respondent proceeded to declare the 1st respondent herein, as the absolute owner of land in an extent of Acs.7-00 in Sy. No. 27. Even where the 4th respondent had power to validate a document, his functions cease with the validation. The question of granting any declaratory relief, does not arise. It is purely in the realm of the civil courts, to grant the declaratory relief under the provisions of the Specific Relief Act. The Recording Authority, under Section 5-A of the Act, must not concern himself as to the nature of rights that flow from a document validated by him. Therefore, the 4th respondent committed an illegality in declaring that the 1st respondent is the absolute owner of the land, mentioned above.
17. While dealing with the revision filed by the petitioners, the 2nd respondent had undertaken verification of the proceedings under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, as well as the validity of the surrender made by the petitioners. A perusal of the order passed by the 2nd respondent discloses that she had grossly misused the powers conferred on her, and in a way, tried to victimise and harass the petitioners. This Court issued a notice to her, to explain as to why necessary observation be not made by this Court, as regards the manner in which she exercises power in this set of proceedings. The record is not clear as to whether the notice was properly served upon her. Suffice it to say that the 2nd respondent totally exceeded her jurisdiction in directing reopening of the proceedings in relation to the declaration submitted by the petitioners, under the Land Ceiling Act, while dismissing the revision. The order smacks arbitrariness and reflects an imbalanced approach, on the part of the 2nd respondent.
18. For the foregoing reasons, the writ petition is allowed, and the impugned proceedings are quashed. It is, however, made clear that it shall be open to the legal representatives of the 1st respondent, to work out their remedies in a civil court, or through other methods known to law. There shall be no order as to costs.