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MOHD.HANIF versus ABDUL WAHID & ORS.

High Court of Rajasthan

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MOHD.HANIF v ABDUL WAHID & ORS. - CSA Case No. 348 of 2006 [2007] RD-RJ 1152 (1 March 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

****

JUDGMENT

(1)- Mohd. Hanif Vs. Smt. Rehamat and Ors.

(S.B.Civil Second Appeal No.347/2006)

(2)- Mohd. Hanif Vs. Abdul Wahid and Ors.

(S.B.Civil Second Appeal No.348/2006)

(3)- Mohd. Hanif Vs. Mohd. Nadeem and Ors.

(S.B.Civil Second Appeal No.349/2006)

(4)- Mohd. Hanif Vs. Mohd. Imran and Ors.

(S.B.Civil Second Appeal No.350/2006)

(5)- Mohd. Hanif Vs. Mohd. Aabid and Ors.

(S.B.Civil Second Appeal No.354/2006)

(6)- Mohd. Hanif Vs. Mohd. Yusuf and Ors.

(S.B.Civil Second Appeal No.355/2006)

(7)- Mohd. Hanif Vs. Mohd. Wasim and Ors.

(S.B.Civil Second Appeal No.356/2006)

(8)- Mohd. Hanif Vs. Smt. Roshan Aara and Ors.

(S.B.Civil Second Appeal No.357/2006)

(9)- Mohd. Hanif Vs. Mohd. Shahbaj and Ors.

(S.B.Civil Second Appeal No.358/2006)

(10)- Mohd. Hanif Vs. Smt. Shamim Bono and Ors.

(S.B.Civil Second Appeal No.359/2006)

(11)- Mohd. Hanif Vs. Abdul Kayum and Ors.

(S.B.Civil Second Appeal No.351/2006)

DATE OF JUDGMENT :::: 01.03.2007

PRESENT

HON'BLE MR. PRAKASH TATIA, J.

Mr. R.Chauhan, for the appellant.

Mr. Abdul Salam)

Mr. Abdul Sattar) for the respondent No.1

Mr. S.L. Thanvi, for the respondents No.4 to 6.

****

BY THE COURT:

REPORTABLE

Heard learned counsel for the parties.

These appeals involved common questions of fact and law and are being decided by a common judgment.

Brief facts of the case are that it is admitted case of appellant Mohd. Hanif that he executed a power of attorney in favour of his sons Mohd. Ali,

Mohd. Rashid and Mohd. Rafiq on 12.10.1995 by which the power of attorney holders got the right to execute the sale deeds on behalf of their father for the land of

Khasara No. 43 measuring 30 Bigha 16 Biswa. The said power of attorney holders executed 16 sale deeds on 2.11.2002 in favour of different purchasers. The sale deeds were presented before Sub-Registrar (II), Jodhpur for registration by the power of attorney holders. The

Sub-Registrar on the ground that the Principal has informed the Sub-Registrar that he has cancelled the power of attorney dated 12.10.1995 on 18.3.2002, therefore, the sale deeds have been presented by unauthorized persons and therefore, the sale deeds cannot be registered. The Sub-Registrar by order dated 6.11.2002 refused the registration after recording this fact of cancellation of power of attorney by the

Principal, appellant Mohd. Hanif.

The order of Sub-Registrar dated 6.11.2002, refusing the registration of the sale deed, was challenged by preferring appeal before the District

Collector, Jodhpur, who upheld the order of the Sub-

Registrar by order dated 17.7.2004. The plaintiff- respondent No.1 filed a suit seeking direction for registration of the document under Section 77 of the

Registration Act, 1908 on the ground that the Sub-

Registrar had no jurisdiction to refuse the registration.

According to the plaintiff as per Section 39, the Registering Officer cannot examine the validity of the document presented for registration and Registering

Officer has no right to refuse the registration when it purports to have been duly signed by the executant and presented by the authorized person. In case of doubt, the identity of the person and to find out whether the person mentioned in the deed is the same person or not, he may hold enquiry. But once it is found that the person named in the deed himself or is a authorized person by the executant, the Registering Officer had no option but to register the document. In the trial court, Principal Mohd. Hanif gave his statement and submitted that he executed the power of attorney in favour of the respondents No. 4, 5 and 6 and Mohd.

Jabid and further admitted that they are his sons and are residing in the same house, in which the said Mohd.

Hanif is residing. Plaintiff Mohd. Hanif further stated that he sent a notice cancelling power of attorney dated 18.3.2002 by post under the certificate of posting to the power of attorney holders.

The trial court held that the Registering

Authority had no jurisdiction to refuse the registration of document and directed the Registering

Authority to register the documents. The judgment and decree of the trial court dated 12.5.2006 was challenged by preferring appeal in all cases. All these appeals were dismissed by the first appellate court by separate judgments and decrees dated 29.7.2006. Hence, these second appeals.

Learned counsel for the appellant vehemently submitted that the Principal himself informed the

Registering Authority about cancellation of power of attorney before the sale deeds executed by the plaintiff's sons on his behalf as his power of attorney, the Registering Authority had no jurisdiction to register the document presented by the said persons as power of attorney holders became unauthorized persons for executing and presenting the documents for registration on behalf of Principal. In view of the above, the Registering Authority as well as Appellate

Authority, the District Collector rightly refused the registration of the document. Learned counsel for the appellant also submitted that the State Government was not impleaded as party in the suit and therefore, the suit was not maintainable. It is also submitted that in these suits, certified copies of the orders of the

District Collector were not produced by the plaintiff and therefore, for want of certified copies of the orders, which were under challenge in the suits, the suits could not have been decreed.

Learned counsel for the respondent No.1 in all these appeals vehemently submitted that the jurisdiction of the Registering Authority in a matter of Registration of document presented before him is limited to the extent permissible by the Rules framed under the Rajasthan Registration Rules, 1955 (for short 'the Rules of 1955' hereinafter). To the extent, it has been specifically provided in Rule 39 of the Rules of 1955 that the registration of the document shall not be refused on the ground that the property referred in the document is not belonging to the executant.

Exception has been made by inserting proviso under sub- rule (1) of Rule 39 of the Rules of 1955, it has been provided that the Registering Officer shall not register the document unless he satisfied himself that the property does not belong to the Government or any

Local Body. The Registering Authority has been bound down to not to refuse the registration of the documents on the ground that the instrument infringed the rights of third persons not parties to the transaction; that the transaction was fraudulent; that the executant was not agreed to certain conditions of the document; that the executant was not acquainted with the conditions of the documents; that the executant declared that he had been deceived into executing the document.

I considered the submissions of learned counsel for the parties and perused the record also.

Rule 39 of the Rules of 1955 is relevant, which is reproduced as under :-

"Rule 39: Registering Officers not concerned with validity of documents.- Registering

Officers should bear in mind that they are in no way concerned with the validity of documents to them for registration and that it would be wrong for them to refuse to register on any such grounds as under :-

(1)- that the executant was dealing with property not belonging to him: [Provided that the registering officer shall not register the document unless he is satisfied himself that the property does not belong to the Government or any local body.]

(2)- that the instrument infringed the rights of third persons not parties to the transaction;

(3)-that the transaction was fraudulent[XXX].

(4)- that the executant had not agreed to certain conditions of the document;

(5)- that the executant was not acquainted with the conditions of the document;

(6)- that the executant declared that he had been deceived into executing; and

(7)- that the executant is blind and cannot count.

These and such like are matters for decision, if necessary, by competent courts of law, and registering officers, as such, have nothing to do with them. If the document be presented in a proper manner, by a competent person, at the proper office, within the time allowed by law, and if the registering officer be satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effects. But the registering officer shall make a note of such objections of the kinds mentioned in grounds (1) to (7) above, as may be brought to his notice in the endorsement required by section 58."

A bare perusal of said rule makes it clear that the Registering Authority cannot refuse the registration of the document on the grounds mentioned above. It is worthwhile to mention that after sub- rules, it is clearly mentioned that in the matters covered by sub-rules (1) to (7), if any decision is needed then that decision can be given only by the competent courts of law and Registering Officers, as such, have nothing to do with them. It is also provided very specifically that if the document has been presented in the proper manner, by a competent person, at the proper office, within the time allowed by law, and if the Registering Officer be satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the

Registering Officer is bound to register the document without regard to its possible effects. However, the

Registering Officer is required to put a note of objections of the kinds mentioned in grounds (1) to (7) of Rule 39. Therefore, in the present case from the order of the Registering Officer or from the order of

Collector, it is not coming out that the registration was refused on the ground that the person, who is presenting the document with power of attorney is not a person named in the power of attorney and obvious reason is that there is no dispute about identity of the person, who presented the document. There is admitted fact that the document was presented by a person, who had power of attorney. The question that the power of attorney was cancelled, was not enquired by the Registering Officer before refusing the registration. Whether such an enquiry could have been done by the Registering Officer is not arising in this case because of the reason that here in this case the Registering Officer accepted the contention of the executant Principal that he has cancelled the power of attorney on 18.3.2002 without holding any enquiry.

Be that as it may, in the suits the fact of cancellation of power of attorney has been denied. The

Principal tried to prove this fact by producing the copy of the notice of cancellation of power of attorney and also produced the certificate of post under which the said notice was sent to the power of attorney, who are none else then sons of the executant himself and who admittedly were residing in the same house and the

Principal in his statement in the court below admitted that he himself has no personal knowledge that whether the power of attorneys, in-fact, were delivered that notice for cancellation of power of attorney or not.

The relevant time for consideration of the authority of the persons was the time when the document was executed and presented for registration and a power of attorney if would have been cancelled before presentation of the document before Sub-Registrar in the knowledge of the power of attorney then that presentation could not have been by authorized person.

In the present case since these issues have not been in fact seriously contested by the parties and only suit was contested on the question of law that is about the power of Sub-Registrar in refusing the registration of document, therefore, all these issues can be gone into in case when the suit for cancellation of deeds are filed by the Principal on the ground that the vendee has not acquired right, title or interest in the property because of the fact that the power of attorney was cancelled by him prior in time to execution of the sale deeds or before presentation of the sale deeds for registration by power of attorneys and that cancellation of power of attorney is in the knowledge of the power of attorney. Once the power of attorney gets the information of cancellation of power of attorney by any means and from any source, he ceases to be power of attorney and cannot act on behalf of his

Principal. At this juncture, it will be worthwhile to mention that in a suit under Section 77 of the

Registration Act, 1908, the scope is limited and relief in the form of decree directing the officers to register the document can be claimed and the effect of execution of the document and its registration is irrelevant.

It is settled law that mere registration of the document in favour of one itself cannot entitle the said persons to claim right, title or interest in the property which the vendor had not or the person who had executed sale deed had no authority to execute or get the document registered.

So far as contention of learned counsel for the appellant that the certified copies of the orders of the District Collector were not submitted by the plaintiff in these cases is of no consequence because of the reason that the photocopy of the order of the

District Collector was submitted in the cases and in some of the cases certified copies were filed by the plaintiff.

In the facts of the case if the State

Government was not impleaded as party because of the special character of the Registering Authority, the suit of the plaintiff cannot be dismissed.

Particularly, in view of the fact that the question of non-joinder of the necessary party was not a issue before the courts below.

In view of the above discussion, all these appeals are dismissed.

(PRAKASH TATIA), J. rm


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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