G. Sivarajan, J.
1. The 2nd respondent herein had executed a sale deed (Ext. P7) in favour of thepetitioner on 1.4.2001 conveying superstructure with lease hold rights in respect of anextent of 13.33 cents in old survey No. 76/4A (resurvey No. 19.20.584, 585) andanother extent of 29 cents in survey No. 58/5 (resurvey No. 19.20.585, 586 and 587)both of Kasaba Village, Kozhikode Taluk in Kozhikode District. The said documentwas produced before the 1st respondent for registration. The grievance of the petitioneris that the 1st respondent has issued an objection slip dt. 15.6.2001 (Ext. P8) statingthat on inspection of the document (Ext. P7) it is revealed that the property describedin the document 18 cents comprised in resurvey 19.20.585 is Kallaipuzha and 2 centsin survey No. 586 is road and 79 cents in survey No. 587 is river puramboke asrecorded in the registers maintained by the 1st respondent. The petitioner was directedto produce evidence regarding the possession of the said properties by the 2ndrespondent obtained from the revenue authorities. It is also stated that the power ofattorney executed by the 2nd respondent for execution of Ext. P1 sale deed mustsatisfy the requirement of Section 33 of the Registration Act.
2. According to the petitioner, the 1st respondent was not justified in requiring thepetitioner to produce possession certificate in respect of the property which is soughtto be conveyed. It is also stated that the 1st respondent has no authority under theRegistration Act to enquire into the title or possession over the property sought to beconveyed as per the document and that under Section 35 of the said At the 1st respondentis bound to register the document if the conditions stipulated in the said sections arecomplied with. According to the petitioner, Ext. P7 document satisfies all therequirements of the Registration Act and therefore the 1st respondent cannot refusethe registration of the said document for reasons other than what is provided underSections 21, 23, 28, 32, 35 and 74 of the said Act.
3. A statement is filed on behalf of the 1st respondent. The statement relies ona circular dt. 12.2.2001 issued by the Inspector General of Registration,Thiruvananthapuram. It is stated therein that difficulties and loss of money had beenexperienced by the public on account of registration of documents without verifyingactual title of the executants of the documents and also without verifying theencumbrances, if any, in respect of the properties sought to be transferred. In theabove circumstances directions are issued to the registering authorities to verify theprior documents to satisfy the right of the executants of the document over the propertysought to be transferred at the time of registration. It was also provided that if thedocument is executed through a power of attorney of a title holder, the said power ofattorney must also be verified to satisfy as to whether the power of attorney dulyauthorises the transfer of the property in question. It also provides that if any doubtarises regarding any of the matters mentioned above, the same must be intimated tothe petitioner in writing and that the document shall be executed only after clearingsuch doubts. In the light of the said circular the stand of the 1st respondent is thatsince there is a doubt with regard to the title and possession of the property which issought to be transferred as per Ext. P7 document, the petitioner was intimated thesaid doubt as per Ext. P8 communication and he was asked to produce the possessioncertificate obtained from the competent authorities.
4. I have heard Sir. K.P. Balasubramanyan, learned counsel appearing for thepetitioner and the learned Government Pleader, appearing for the 1st respondent. The2nd respondent, being the executor of Ext. P7 document, is only a formal party andhence notice is not issued to the said respondent. The counsel for the petitionersubmits that Ext. P7 document executed by the 2nd respondent and presented beforethe 1st respondent for registration satisfied all the requirements of the RegistrationAct and therefore, the 1st respondent was bound to register the said document withoutany verification either with regard to title or with regard to possession of the propertysought to be conveyed by the said document. He further submitted that under theprovisions of the Registration Act, 1908, the 1st respondent can verify only the mattersspecified in Sections. 21, 23, 28, 32, 35 and 74 of the said Act and that once the saidrequirements are satisfied the 1st respondent is bound under Section 35 of the Act toregister the document. The counsel also submitted that the petitioner will produce theoriginal of the power of attorney executed by the 2nd respondent and registered beforeregistration authorities of the State of Tamil Nadu before the 1st respondent whichwill satisfy the requirement of Section 33 of the Act mentioned above. The counsel tookme to the provisions of the Registration Act mentioned above and also to the decisionsin Nalla Goundar v. Krishnaswami Naicker (AIR 1945 Madras 465); Krishna v.State of Punjab (AIR 1986 Punjab & Haryana 328) and also Ram Lakhan v. PanditRaghunandan (AIR 1989 Patna 144). The counsel submitted that the 1st respondentwas not justified in directing the petitioner to produce the possession certificate inrespect of the property conveyed and that he was bound to register Ext. P7 documentwithout any further delay. The learned Government Pleader appearing for therespondent submitted that the Inspector General of Registration, Thiruvananthapuramhad issued the circular mentioned above only in view of the difficulties and loss ofmoney experienced by the general public on account of the registration of documentsby the registering authorities without any proper verification regarding the title,possession and also the encumbrances, if any, in respect of the property sought to beconveyed by the document presented for registration and that the said circularspecifically directs the registering authorities to verify the prior documents in respectof the property and to satisfy that the executant has got title to the said property. TheGovt. Pleader also submits that if the document is to be registered by the power ofattorney, the said power of attorney must satisfy the requirements of Section 33 of theRegistration Act.
5. In order to appreciate the rival contentions it is necessary to refer to therelevant provisions of the Registration Act, 1908. Part III of the Act, Sections 17 to 22deals with the registerable documents, Part IV of Sections 23 to 27 deals with the time ofpresentation. Part V, Sections 28 to 31 deals with the place of registration. Part VI, Sections 32 to 35 deals with the presentation of documents for registration. Part XI Sections 51 to 70 ofthe Act deals with duties and powers of registering officers and Part XII Sections 71 to 77 deals with the refusal to register. Other parts are not referred to for the reason thatthe said parts have no relevant for the purpose of this case.
6. Section 17 deals with the documents of which registration is compulsory. There isno dispute that Ext. P7 documents is compulsorily registerable. Section 21 of the Act providesthat non-testamentary documents relating to immovable property shall not be acceptedfor registration unless it contains a description of such property sufficient to identifythe same. Section 23 of the Act provides the subject to the provisions contained in Sections 24, 25 & 26 no document other than a will shall be accepted for registration unlesspresented for the purpose to the proper officer within four months from the date of itsexecution. Section 28 provides that every document mentioned in Section 17, Sub-section (1), Clauses(a), (b), (c), (d) and (e), thereof shall be presented for registration in the office of aSub Registrar within whose sub district the whole or some portion of the property towhich such documents relates is situated. Section 32 provides that, except in the casementioned in Sections 31, 88 and 89 every document to be registered under this Act, whethersuch registration be compulsory or optional, shall be presented at the proper registrationoffice:-
(a) by some person executing or clamining under the same, or, in the case of a copy of adecree or order, clamining under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorised by power-ofattorney executed and authenticated in manner hereinafter mentioned.
Section 33 provides that, for the purposes of Section 32, the power-of-attorney mentioned inClauses (a) to (c) alone shall be recognised. Clause (a) provides that, if the principleat the time of executing the power-of-attorney resides in any part of India in whichthis Act, is for the time being in force, a power-of-attorney executed before andauthenticated by the Registrar or Sub-Registrar within whose district or sub-districtthe principal resides. Clauses (b) and (c) are not relevant for this purpose. Section 34 dealswith enquiry before registration by registering officer. It provides that subject to theprovisions contained in Part VI and Sections 41, 43, 45, 69, 75, 77, 88 and 89, no documentshall be registered under this Act, unless the persons executing such document, ortheir representatives, assigns or agents authorised as aforesaid, appear before theregistering officer within the time allowed for presentation under Sections 23, 24, 25 and 26.There are exceptions also. Section 35 deals with the procedure on admission and denial ofexecution. Sub-section 1(a) provides that, if all the persons executing the document appearpersonally before the registering officer and are personally known to him or if he beotherwise satisfied that they are the persons they present themselves to be, and if theyall admit the execution of the document, or (b) if in the case of any person appearingby a representative, assign or agent, such representative assign or agent admits theexecution, etc. the registering officer shall register the document as directed in Sections 58 to 61, inclusive. Sub-section (2) provides that the Registering Officer may, in order tosatisfy himself that the persons appearing before him are the persons they themselvesto be, or for any other purpose contemplated by this Act, examine any one present inhis office. Sub-section (3) provides that if any person by whom the document purports tobe executed denies its execution, or if any person appears to the registering officer tobe a minor, an idiot or a lunatic, or if any person by whom the document purports to beexecuted is dead, and his representative or assign denies its execution, the RegisteringOfficer shall refuse to register the documents as to the persons so denying, appearingor dead. Section 51 of the Act deals with the Register books to be kept in the severaloffices. In all registration offices the following books shall be maintained:
Book 1. Register of non testamentary documents relating to immovable property.
Book 2. Record of reasons of refusal to register.
Book 3. Register of wills and authorities to adopt; and
Book 4. Miscellaneous Register.
Sections 52 to 67 deals with the duties and procedure of the registering officers, which hasno bearing on the issue involved in this case. Section 68 provides that, every Sub-Registrarshall perform the duties of his office under the superintendence and control of theRegistrar in whose district the officer of such Sub-Registrar is situate and every Registrarshall have authority to issue any order consistent with this Act which he considersnecessary in respect of any act or omission of any Sub-Registrar subordinate to himor in respect of the rectification of any error regarding the book or the office in whichany document has been registered. Similarly, Section 69 gives the general power ofsuperintendence and to make rules to the Inspector General of Registration with regardto the mattes specified therein. Section 71 provides that, every Sub-Registrar refusing toregister a document, except on the ground that property, to which it relates is notsituate within his sub district, shall make an order of refusal and record his reasons forsuch order in his Book No. 2 endorse the words 'registration refused' on the document,and on application made by any person executing or claiming under the documentshall without payment and unnecessary delay, give him a copy of reasons so recordedand no registering officer shall accept for registration a document so endorsed unlessand until, under the provisions hereinafter contained the document is directed to beregistered. Section 72 provides for an appeal against an order passed under Section 71. Againstan order of refusal passed by the Registrar under Section 72, a suit is also provided.
7. As already noted the objection slip issued by the 1st respondent only showsthat the 1st respondent has got some doubt with regard to the ownership and possessionof the executant of Ext. P7 document over the property. I have already referred tothe relevant provisions of the Registration Act regarding registration of documentspresented before the 1st respondent. There is nothing in the aforesaid provisionsempowering the 1st respondent to satisfy the title, possession or encumbrances inrespect of the property with respect to which registration is sought for. The 1strespondent can raise a doubt with regard to the title and possession of the propertyonly if the statute under which he is functioning authorises to do so. In the absence ofany such authorisation, the 1st respondent was not justified in directing the parties toobtain a possession certificate from the competent authority to clear the doubt regardingthe title and possession of the property and to register the document. Of course, if theregistering authority refuses to register the document, the petitioner has got a remedyby way of appeal before the Registrar as provided under Section 72 and a right of suitagainst the order of the Registrar under Section 77 of the Act. Since the question raised inthis case relates to the interpretation of the provisions of the Registration Act as to therequirement of compliance of the objection slip (Ext. P8) and further in view of thecircular No. R.R. 3.4058, dt. 12.2.2001 issued by the Inspector General of Registration,Thiruvananthapuram requiring such documents, no useful purpose will be served bydirecting the petitioner to file any appeal before the Registrar under Section 72 of the Act.
8. I may also refer to the decisions relied on by the counsel for the petitioner. ADivision Bench of the Madras High Court in Nalla Goundar v. Krishnaswami Naicker(AIR (32) 1945 Madras 465) considered the provisions of Clause (b) of Section 74 of theRegistration Act and held that the requirements of the law for the time being mentionedin Clause 3 of Section 74 of the Registration Act must be the Law relating to the registrationwhich entail the Registrar to refuse registration if not complied with and further it doesnot entitle the Registrar to refuse registration on any other grounds. A learned SinelJudge of the Punjab & Haryana High Court in Krishna v. State of Punjab (AIR 1986Punjab & Haryana 328) considered the power of the Registrar to refuse registrationin the context of the provisions of Sections 69, 74, 21, 23, 25, 28, 32 & 35 of the RegistrationAct. It was held that the provisions of the Registration Act is a complete code byitself and the power of the Registrars and Sub Registrars are clearly defined anddemarcated. It was also held that the Inspector General of Registration under Section 69can only excise general superintendence over all the Registrars under the Act andmake rules consistent with the provisions of the Act, providing for the matters mentionedtherein. It is also stated that Sections 21, 23, 28, 32, 35 and 74 authorise the Sub Registrarto refuse registration if the documents arenot properly executed or presented or thesubject matter of the document lay beyond his territorial jurisdiction and that nothing inthe Act authorised either the State Government or the Registrar to instruct the SubRegistrars not to register a document, where the State Government and the Registrarin turn, instructed the Sub Registrar not to register sale deeds or lease deeds in respectof properties belonging to religious/charitable institutions. The decision further heldthat the above instructions are ultra vires their powers and the Sub Registrar wasdirected to register the lease deed in that case. A Division Bench of the Patna HighCourt in Bihar Deed Writers Association and Ors. v. State of Bihar and Ors. (AIR 1989Patna 144) considered the provisions of Sections 52 and 68 of Registration Act, where it isheld as follows:-
'In our view, if a document otherwise complying with the statutory requirements andformalities is presented for registration, the registering authority is bound to register it. It is notfor the registering authority to enquire and ascertain the title to its own satisfaction. Under theprovisions of the T.P. Act, 1888, if the transferor does not have any title or has an imperfect titleto the property, the transferee on transfer will either get no title or he will get an imperfect title.This will be to the prejudice of the transferee and is not of any concern to the registeringauthority.'
9. The legal position with regard to the title to the property that is being conveyedby the document under registration is clearly stated by the Division Bench of thePatna High Court in the passage extracted above. It is in those circumstances, theRegistration Act did not make any provision authorising the registering authority tosatisfy about the title of the executants of the document before registration. Theregistering authority is bound to register a document presented for registration onbeing satisfied of the compliance of the provisions of the Registration Act alreadyreferred to in this judgment. Regarding the circular issued by the Inspector General ofRegistration to the registering authorities, Section 69(i) clearly provides that the InspectorGeneral shall exercise a general superintendence over all the registration offices inthe territories under the State Government, and shall have the power from time to timeto make rules consistent with this Act. The decision of the Punjab and Haryana HighCourt mentioned above has also clearly held that the Government or the InspectorGeneral of Registration has no power or authority to issue any direction to thesubordinates functioning under the Act restraining or restricting them from registeringdocuments pertaining to the transfer of immovable properties inconsistent with theprovisions of the Act. As already noted, there is no provision in the Registration Actenabling the Sub Registrar to satisfy himself as to the title of the executant of thedocument presented for registration as a condition for grant of registration. The circularwhich confers such a power on the Sub Registrar is inconsistent with the provisions ofthe Act which has got the effect of interfering with the power vested in the SubRegistrars to register documents which satisfies the requirements of the Act is issuedwithout jurisdiction and is not binding on the Sub Registrar. In the above circumstances,I am of the opinion that the 1st respondent was not justified in requiring the petitionerto produce a possession certificate obtained from the competent authority with regardto the possession of the property by the executor i.e., the 2nd respondent.
10. Coming to the next requirement in the objection slip (Ext. P8) regarding thepower of attorney, Section 33 of the Act dealing with the power of attorney recognisablefor the purpose of Section 32 states that if the principal at the time of executing the powerof attorney resides in any part of India in which this Act, is for the time being in force,a power of attorney executed before and authenticated by the Registrar or Sub Registrarwithin whose district or sub district the principal resides will be recognised for thepurpose of Section 32 with regard to the presentation of documents for registration bypower of attorney. As already stated, the counsel for the petitioner submits that the2nd respondent is a resident of Tamil Nadu State and that it had executed a power ofattorney for presentation of Ext. P7 document before the 1st respondent for registrationand the same was registered in the registering office having jurisdiction over the placewhere the executant is residing and that the petitioner will produce the original of thesaid document before the 1st respondent. If the petitioner produces the original ofpower of attorney executed by the 2nd respondent and registered in the Sub RegistryOffice having jurisdiction over the place where the 2nd respondent is residing in TamilNadu, the same will be recognised and accepted as contemplated under Section 33 of theAct. In the above circumstances, I hold that it is not necessary for the petitioner toproduce any possession certificate as sought for by the 1st respondent in Ext. P8objection slip. However, the petitioner has to produce the original of the power ofattorney executed by the 2nd respondent and registered in the Sub-Registry Officehaving jurisdiction over the place where the executant resides authorising thepresentation of Ext. P7 document for registration before the 1st respondent. If thepetitioner complies with the above and if the other requirements of the RegistrationAct are satisfied, the 1st respondent will register Ext. P1 document immediately thereafter.
11. This Original Petition is allowed as above.