PAVAKKAL NOBLE JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) In India, particularly Kerala, land scams are in the increase. Bogus pattas, sale deeds executed by persons other than the actual owners of the property, grabbing of government property etc. have been coming to light frequently during the last few years. It has been proved to be extremely difficult to contain this menace. The imbroglio of Munnar lands, which continues to vex the executive indefinitely, is the classic example on point. Legislatures of many States, including the State of Kerala, have brought in amendments to the Registration Act to counter this menace by insisting on photographs and thumb impressions of both the sellers and purchasers in the sale deeds presented for registration. It is in this backdrop that courts are experiencing another malpractice in the real estate sector, in the form of sellers getting deeds of cancellation of the sales registered on some pretext or other, some of them years after the execution of the sale deeds, creating a serious situation for bona fide purchasers having to inhabit the corridors of civil courts for years to get such illegal cancellation deeds, got registered taking advantage of the loopholes in the Registration Acts and Rules, annulled by due process of law, which prima facie would go to show that even when the registering authority knows that the former vendor has no authority to execute the same, they are compelled to register the same. Going by the cases coming up before the High Court itself, not to mention those before the lower courts, cases of registration of such cancellation deeds and requests for change of mutation of land records on the basis of such illegal cancellation deeds, are on the increase, forcing courts to take a second look at the legal position as to whether registering officers should refuse to register such deeds of cancellation of sale deeds. At least two High Courts have considered this very question and have come up with differing opinions on this question and in one of them, different judges of the same bench of a High Court considering this vexing question, have come up with differing opinions. The very same question has come up for decision of this Court in these two cases. Needless to say, the question is of considerable public importance also, which prompted me to get the assistance of an amicus curiae in resolving the issue posed before me, despite the fact that competent counsel are appearing on both sides, so that I can get an unbiased view as well.

(2.) Before going into the questions involved, I shall briefly note the facts of the two cases before me as presented in the writ petitions. In W.P.(C). No. 34367/09, the 4th respondent, who is none other than the uncle of the petitioner, executed and got registered Ext. P1 sale deed dated 9-1-1996 assigning the properties described in the schedule to the said deed in favour of the petitioner. After more than 13 years of execution of the sale deed, the 4th respondent executed and got registered Ext. P3 cancellation deed dated 1-8-2009, cancelling Ext. P1 sale deed, on the ground that the petitioner has not paid the balance sale consideration agreed upon, although in Ext P1 sale deed he had acknowledged receipt of the full sale consideration mentioned therein, that too after suffering an injunction order in O.S. No. 84/2009 filed before the Munsiff's Court, Kuthuparamba, by the petitioner, against interfering with the peaceful enjoyment of the property by the petitioner. The petitioner is challenging the registration of Ext. P1 deed of cancellation of sale deed on the ground that the 3rd respondent-registering officer ought not to have registered the same under law. In W.P.(C). No. 37150/09, the 3rd respondent executed and got registered Ext P1 sale deed on 28-10- 2008 and got Ext P2 cancellation deed dated 24-11-2009 registered, on the grounds that the petitioner has not paid the sale consideration and the property has not been given possession of, to the petitioner, although in Ext. P1 sale deed it has been specifically admitted by the 3rd respondent to the contrary. The action of the 2nd respondent- registering officer in registering the cancellation deed is assailed on the ground that, by registering Ext.P2 cancellation deed the registering officer is practically reversing or removing Ext.P1 sale deed, for which he has no power, since he has become functus officio on registration of Ext. P1 sale deed.

(3.) Elaborate arguments have been advanced by counsel on both sides and the amicus curiae. I have considered the same in detail. As I have already indicated, the question to be answered in these writ petitions is as to whether the registering officer, under the Registration Act, 1908, has powers to and is duty bound to refuse to register a deed of cancellation cancelling a sale deed. I shall straight away proceed to consider the issues involved without narrating the arguments of counsel separately.