Law Web: Whether purchaser of immovable property must remain present before sub-registrar at the time of registration of sale deed?

The main dispute involved in this appeal concerns the

question of necessity of presence of a purchaser of immovable

property before the authority under the Registration Act, 1908 at

the time of effecting registration of a deed of conveyance.

The case has been decided in favour of the plaintiff on the

ground that the buyer was not present at the time of

registration of sale deed. There is evidence to the effect that the

second defendant (Manchegowda) had not come to the office of

the SubRegistrar at the time of execution of the sale deed. But

as per law as it stood at the material point of time, there was no

necessity of presence of purchaser at the Registration Office

during the registration of sale deed. The deed was executed by

Madegowda and that aspect has not been disputed. The deed in

question does not fall within Sections 31, 88 and 89 of the

Registration Act. Section 32 of the said Act does not require

presence of both parties to a deed of sale when the same is

presented for registration. In such circumstances, we do not

find any reason to interfere with the judgment of the High

Court.

(NonReportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2010

H.P.Puttaswamy Vs Thimmamma & Ors.

Author: ANIRUDDHA BOSE,J.

Dated: 24th January, 2020.

The main dispute involved in this appeal concerns the

question of necessity of presence of a purchaser of immovable

property before the authority under the Registration Act, 1908 at

the time of effecting registration of a deed of conveyance. In the

suit, out of which this appeal arises, the plaintiff claimed

declaration of himself as the lawful owner in possession of the

suit property. The plaintiff is the appellant before us. This suit

was instituted on 31st March 1989 and was registered as Original

Suit No.132 of 1989 in the Court of Civil Judge (Junior Division)

Malavalli. The plaintiff also claimed permanent injunction

against the defendants restraining them from interfering with his

peaceful possession of the suit property and enjoyment thereof.

The property in question comprises of approximately 4500 square

ft. of land in a village by the name of Hittanahalli Koppalu in

Malavallu Taluk in the State of Karnataka. Originally, this

property bore site No.21 which was subsequently numbered 23.

The plaintiff’s case before the Trial court was that this property

was allotted to one Gende Veeregowdana Nathegowda under a

village shifting scheme. In the suit, the plaintiff contended that

he had come in possession of the subject property initially as a

tenant and subsequently as the purchaser thereof. He has run a

case before the Trial Court that he has been in possession of the

suit property for about twenty years prior to filing of the suit.

Respondent Nos. 7 to 9 in this appeal derived their interest in the

property through one Madegowda (since deceased), son of the

original allottee Gende Veeregowdana Nathegowda. In the suit,

these three respondents were defendant Nos.1(a), 1(b) and 1(c).

Their predecessor, Madegowda was originally impleaded as

defendant No.1. The Respondent Nos. 1 to 6 are legal

representatives of one Manchegowda (since deceased), who

contested the claim of ownership of the plaintiff over the subjectproperty.

Said Manchegowda was impleaded as the second

defendant in the suit. On his demise, respondent Nos.1 to 6 were

substituted as defendant Nos.2(a) to 2(f). They have disputed

plaintiff’s possession of the suit property. They claim to be actual

owners of the property through their predecessor.

2. There have been litigations in the past over the same

property among the same set of parties or their predecessors.

Madegowda had instituted a suit for declaration and permanent

injunction against Manchegowda. The earlier suit registered as

O.S. No.675 of 1971, was instituted in the Court of Munsiff at

Mandya in the year 1971 (subsequently renumbered as O.S. No.

61/1974) in the Court of Munsiff, Malavalli. Madegowda had

impleaded the plaintiff and Manchegowda as defendants in the

said suit. Complaint of Madegowda in that suit was disturbance

of his possession. After contest at different levels of the judicial

hierarchy, that suit was ultimately dismissed on 23rd March,

1989 at the instance of the plaintiff Madegowda only. The order

of dismissal was made on as it appears from paragraph 4 of the

plaint of the suit from which the present proceeding originates

records:“

For objection if any objection filed. Heard Sri

N.G., C.S.S. K.S.S. The defts. 2 right as a

tenant shall not be affected by disposes of the

suit as per memo filed by plff.

Suit is dismissed without cost.”

(quoted verbatim from the paper book)

3. In the present proceeding, basis of the plaintiff’s claim was

an agreement for sale executed on 10th April, 1981 between the

plaintiff and Madegowda in respect of the same property, which

was followed by execution of a deed of sale on 28th May 1981. We

must point out here that the date of execution of sale deed in

favour of the plaintiff has been referred to in the Trial Court

judgment in some places as 21st May 1981. But that factor does

not have any major impact on the outcome of the case as both

these dates are subsequent to the date on which sale is claimed

to have been executed by Madegowda (since deceased) in favour

of Manchegowda (since deceased). That is the source of dispute in

the subject suit. We shall, however, treat 28th May 1981 as the

date of registration of the said deed as in course of submission,

that was the date referred to by the learned counsel for the

appellant. The subject suit was contested by the two sets of

defendants, being legal representatives of said Madegowda (the

first set) and the legal representatives of Manchegowda (the

second set). First set of defendants disputed genuineness of the

sale deed of 28th May 1981 which formed foundation of the

plaintiff’s claim. Plea was taken by the second set of defendants

that the original owner, on 21st April, 1981, had executed a deed

of sale in favour of Manchegowda (since deceased). This set of

defendants have also disputed title of Madegowda over the suit

property. It has been contended on their behalf that the Village

Panchayat had cancelled the allotment to Gende Veeregowdana

Nathegowda and had resolved to issue grant certificate in respect

of the same site on 15th November, 1963 in favour of

Manchegowda and the latter was put in possession thereof.

4. This stand of the second set of defendants was not accepted

by the Trial Court and the First Appellate Court. The Trial Court

sustained the plaintiff’s case primarily on the ground that the

sale deed through which legal representatives of Manchegowda

staked their claim over the property was not genuine. The Trial

Court found that the original defendant No.2 i.e. Manchegowda,

as a purchaser was not present at the time of execution of the

sale deed before the Sub Registrar and on that count the

aforesaid finding was rendered. Otherwise, the execution of the

deed in favour of Manchegowda, as claimed, was prior in point of

time (on 21st April 1981). The Trial Court proceeded on the basis

that the sale deed through which the plaintiff claimed to be the

owner of the property was valid. We find from the judgment of the

Trial Court that the plaintiff had proved the sale deed in course of

the trial. The claim of cancellation of the allotment of the suit

property in favour of Madegowda’s predecessor and subsequent

allotment in favour of Manchegowda was not believed by Trial

Court and the First Appellate Court. The second set of

defendants were unsuccessful before the First Appellate Court.

The First Appellate Court on the whole accepted the reasoning of

the Trial Court. In the appeal filed by the legal representatives of

Manchegowda under Section 100 of the Code of Civil Procedure,

1908, the High Court found the sale deed dated 21st April, 1981

to be valid relying on Sections 32, 34 and 36 of the Registration

Act, 1908 read with Rule 41 and 71, Karnataka Registration Rule

1965. The High Court observed and held:“

14.A combined reading of the above sections

of the Registration Act and the Rules

mentioned above makes it clear that the

presence of the purchaser is not required

when the document is presented for

registration before the SubRegistrar.

The Trial Court has failed to take note of the

aforesaid provision of law of the Registration

Act and has erred in holding that merely

because the defendant was not present the

sale deed in his favour cannot be taken as

valid in law. The said conclusion reached is

contrary to the above mentioned provisions of

the Registration Act and the Rules. As such,

the said finding cannot be sustained in law.

15.Once the sale deed in favour of the

defendant is held to be valid in law and the

said sale deed Ex.D1 being executed earlier

in point of time by the vendor Manchegowda,

the question of the said vendor Manchegowda

retaining any interest in the suit property will

not arise and, as such, he could not have

once again sold the very same property on a

later date i.e. 28.5.1981 in favour of the

plaintiff. Therefore, the substantial question

of law raised is answered in the negative.”

5. On the question of possession of the suit property asserted

by the second set of defendants, however, the High Court held:“

Coming to the possession aspect of the case,

though the learned counsel for the appellants

referred to the evidence of D.W.4 to submit

that the plaintiff was thrown out of the suit

property by the police and the panchayat

members, yet the evidence of the said witness

will have to be assessed in the light of the

other evidence on record and more

particularly, the evidence of the plaintiff

himself. The plaintiff, in the course of his

evidence, has denied all the suggestions put

to him and has reiterated that he has been in

possession of the suit property from a very

long time and right from the agreement of

sale. Considering the overall evidence placed

on record, the trial court has held that the

possession has been with as plaintiff and the

lower appellate court also concurred with the

trial court. As such, the said finding, being a

concurrent finding of fact of the courts below

and also not appearing to be either a perverse

finding of a finding based on no evidence, in

so far as the conclusion reached by the trial

court as regards the plaintiff being in

possession of the suit property is concerned,

the said finding requires no interference.”

6. So far as the provisions of Registration Act, 1908 is

concerned, the law requires presentation of the document to be

registered at the proper registration office by following categories

of persons:“

32. Persons to present documents for

registration.—Except in the cases

mentioned in [Sections 31, 88 and 89],

every document to be registered under

this Act, whether such registration be

compulsory or optional, shall be

presented at the proper registration

office,(

a) by some person executing or claiming

under the same, or, in the case of a copy

of a decree or order, claiming under the

decree or order, or

(b) by the representative or assign of such

a person, or

representative or assign, duly authorised

by power of attorney executed and

authenticated in manner hereinafter

mentioned.”

7. The plaintiff has not disputed that the vendor or seller i.e.

Madegowda had executed the document (first sale deed) and we

do not find any doubt expressed over his presence before the

Registering Authority. No case has been made out either that

the deed of conveyance carried any collateral obligation on the

part of the purchaser, in this case being Manchegowda (since

deceased). The plaintiff has not made out a case of acquiring

title under the principle of part performance as incorporated in

Section 53 (A) of the Transfer of Property Act, 1882. No pleading

to that effect in the plaint has been made out.

8. We find from the judgment of the Trial Court and the First

Appellate Court that the respective parties had led evidence of

execution and subsequent registration of the deeds but the first

two courts did not reject the contention of the second set of

defendants that there was no execution by Madegowda (since

deceased) of the deed of sale to Manchegowda (since deceased).