KARAPPARA ESTATE Vs. SUB REGISTRAR

JUDGEMENT

(1.) The petitioner is a partnership firm having a coffee and cardamom estate with an extent of 541.29 acres of land. This original petition is filed by the Power of Attorney Holder of the firm. The land in question belonged to the Cochin State and by Ext. P1 document No. 44 of 1054 M.E., the Cochin Sarkar made a transfer by lease of the rights over this land to one Robert Hodges Pierce and Douglas Stewart. The rights over the land vested in the petitioner by successive assignments and court decrees. The present owners came into ownership and possession of the property as per a decree in O.S. 237 of 1975 on the file of the Sub Court, Palakkad and they formed themselves into a partnership. The petitioner decided to assign the rights in the property. Permission was also obtained from the District Court, Palakkad to sell the minor's share over the property. The petitioner entered into an agreement with one Dr. P. V. Majeed and others for the sale of the property and the last date fixed under the agreement is 31-3-1994. The petitioner wanted to have the documents registered in the office of the first respondent. He informed the petitioner orally that the Divisional Forest Officer Nemmara has instructed him not to register the documents unless a No Objection Certificate is issued by him. By Ext. P4 letter dated 19-1-1994, the petitioner wrote the Sub Registrar stating that he is bound to register the documents as he is duty bound to do so under the Registration Act when a document is properly presented to him. By Ext. P5 the first respondent Sub Registrar informed the petitioner that the matter is referred to the District Registrar (General) Palakkad. As the date of execution of the document is fast approaching the petitioner filed this original petition to declare that the first respondent is bound to register the document of sale of the landed property when the document is presented for registration without insistence of production of a No Objection Certificate from the second respondent and other consequential reliefs. According to the petitioner the right he obtained under Ext. P1 and subsequent assignments is transferable and hereditable and that the first respondent is bound to discharge his public duty under S.34 of the Registration Act. It is further contended by the petitioner that in Ext. P1 itself there is a provision that every transfer of land obtained under it to be registered under the provisions of the Cochin Regulation.1 of 1049 M.E. which was the corresponding provision prevalent in the State. On these grounds the petitioner has prayed for a direction to the first respondent. The second respondent District Forest Officer has filed a statement. In the statement it is said that the land leased under Ext. P1 continues to be the absolute property of the Government and as such the lessee has no right to sell the property. He got information that some lessees are attempting to sell the leasehold forest land as a whole or in parts and he requested all the Sub Registrars in Palakkad District not to register such transactions of Government land as per letter dated 9-3-1988. It is further said that if the area is fragmented or otherwise sold to outsiders without the consent of the department, it will create problems for the protection of natural tree growth and other valuable species available in the lease area as well as in the surrounding reserved forest area. According to him the lessees have no right to sell the leasehold land according to their will and convenience. It is further said that the petitioner is only a lessee and the lease is granted reserving the right over all running water beyond the quantity necessary for the working and upkeep of the estate. It is further said that by judgment of the Supreme Court in C.A. 4109 of 1984 it has been confirmed that the State is eligible to get seigniorage value for the timber allowed to be collected from such leased out lands including those planted by the lessees. According to him as the land belongs to the Government, the petitioner is not entitled to transfer the right and accordingly he prohibited the first respondent Sub Registrar from registering any sale deeds in respect of the property.

(2.) In the original petition, the petitioner is claiming certain rights over the property and the second respondent in his statement has denied the rights claimed by the petitioner. But it is not necessary for this court to go into the inter se right of the grantees under Ext. P1 vis a vis the Government, The only question involved in this original petition is as to whether the petitioner is entitled to transfer whatever rights obtained under Ext. P1 and the first respondent can refuse registration of the sale. It is a fundamental principle of law of property that a person is entitled to transfer his right or interest over immoveable property. By Ext. P1 lease deed No. 44 of 1044 certain rights were created in favour of the original grantees which by successive assignments and court decrees have now vested in the petitioner. By Ext. P1 certain rights have been given to the grantee, and the recitals in Ext. P1 deed itself shows that the right granted therein is assignable. The first paragraph of Ext. P1 itself says that the Government give and grant on lease the tract of forest land mentioned therein to M/s. Robert Hodges Pierce and his "heirs assigns, for ever subject to conditions and stipulations herein after contained". Para.2 provides that the aforesaid two persons their heirs and assigns shall hold and enjoy the land free of rent for three years and the rent also is fixed for subsequent periods. Para.7 also gives the right to the original grantee as also their heirs and assigns. Para.8 of Ext. P1 is very significant which provides "any and every transfer of the land given and granted under the terms of this lease shall be registered under S.14 of Regulation.1 of 1049 M.E. of His Highness Government within four months from the date of transfer". This provision clearly indicate that the grantor under Ext. P1 intended that the right granted under Ext. P1 is alienable. Even without a special provision, the right over the land is transferable unless it is prohibited under law. But in this case there is a specific provision in Ext. P1 itself which would clearly indicate that the right is transferable. The last clause in Ext. P1, Clause's also gives power to His Highness the right to resume any portion of the land comprised in the grant on certain conditions from the original grantee, their heirs and assigns. Thus Ext. P1 document clearly indicate that whatever right is created under Ext. P1 is alienable, and that the respondents cannot prohibit the transfer of the rights over the land. The stand taken by the second respondent that the land belongs to the Government and that if the fragmentation is allowed, it will affect the upkeep of the forest, is not a ground for refusing registration of a document. As I stated earlier, it is not necessary for me to determine the inter se right between the Government and the grantee under Ext. P1. But whatever rights which the grantee obtained under Ext. P1 is transferable and the respondents are not entitled to prohibit the same. The transferees will be entitled to the rights, disabilities and obligations contained under Ext. P1. No provision of law was shown to me by which the respondents arc entitled to object to the transfer of the rights which the petitioner obtained by assignment of Ext. P1. Accordingly the petitioner is entitled to have the document of sale of the petitioner's right under Ext. P1 over the land registered in accordance with the provisions of the Registration Act.