STATE OF RAJASTHAN Vs. BHERON

JUDGEMENT

(1.) THIS is a reference from the Collector, Chittorgarh under section 82 of the Rajasthan Land Revenue Act, 1956 to the effect that in file No. 12 of 1963 of Tehsil Gangrar, Bheru, Hazari, Chhoga, Beera and Gopi sons of Kalu Balai residents or village Ruppura have mortgaged their holdings Khasra Nos. 10/1 consisting of 1 bigha and 2 biswas in village Soniana to one Ghansilal Devilal under a mortgage deed for Rs. 145/- executed on 24-10-50. The Patwari got the mutation registered and without getting it attested by the Revenue Inspector got it sanctioned from the Panchayat concerned. The mortgage deed was not registered. It therefore deserves to be impounded and that as the Panchayat had no authority to sanction that [mutation,, the sanction to cancel the mutation may be accorded. THIS case was heard in the presence of the Government Advocate Shri B. K. Parikh and Shri Ramchandra Vyas on behalf of the petitioner. The Government advocate conceded that vide Government order No. F. 8 (195) Rev. /b/57 dated 11-9-57 the State Government in exercise of their power under section 260 of the Rajasthan Land Revenue Act, 1956 have conferred powers on the village Panchayat under section 135 sub-section 1 and 2 to sanction mutations of undisputed and disputed nature and to that extent the order of the Panchayat was not questionable. Therefore, to this extent the reference by the Collector, Chittorgarh is clearly baseless. It only shows that the Collector, Chittorgarh who made this reference was not conversant with the Government Notification, conferring the power of sanctioning mutation in all cases on the Panchayats in which the land was situated. There is no doubt that the Patwari while putting up the mutation for sanction before Panchayat should have seen to it that the papers passed through the Land Records Inspector. THIS was merely an irregularity on the part of the Patwari for which he may be cautioned in the future, but that does not vitiate the sanction accorded by the Panchayat on the mutation proceedings.

(2.) WITH regard to the other aspect of the reference that the mortgage deed was for the value of Rs. 155/- and thus it should have been made by a registered instrument and as the mortgage was not made by one it was ineffective and illegal. The Government Advocate supported this part of the reference from the Collector Chittorgarh. The counsel for the respondent gave no reply on this point. The only question, therefore, for determination before me is whether an agricultural holding is to be transferred by registered instrument or need only a mutation is sufficient for transfer of an interest party. There is no doubt that the present mortgage was a transfer of an interest in an immovable property of the value of Rs. 100/- and above and since a non-testamentary instrument had been drawn up between the parties, it required to be registered under section 17 of the Indian Registration Act. 1908. The only effect of this non-registration of a document which is required to be compulsory registered is given in Section 49 of the Indian Registration Act. If a document is not registered, the Act says, that it will not affect any immovable property nor be received as evidence of any transaction affecting such property unless it is registered. But a proviso to the same section further says that such unregistered document may be received as evidence in a suit for specific performance of the contract under the Specific Relief Act, 1877 or as evidence of a part performance of the contract for the purposes of Section 53a of the Transfer of the Property Act, 1882 or as evidence of any collateral transaction not required to be effected by a registered instrument. The effect of non-registration in this case would be that the property in question would not be affected, but the parties to the contract or mortgage are bound by that contract of the mortgage though unregistered i. e. a mortgagor can enforce the contract and if the mortgagee has gone into the possession as a result of the contract In writing it can hold the possession against the mortgagor undisturbed under sec. 53a of the Transfer of Property Act. Again at the time of mutation the attesting authority sanctioning mutation has only to see that for the purposes of Record of Rights, possession has actually passed from the transferor to the transferee or that the parties have agreed before the attesting officer that possession has passed or the parties have agreed in a registered document that the possession has passed. If anyone of these three conditions are satisfied the authority sanctioning mutation will not refuse mutation. This is laid down in Rule 133 of the Rajasthan Land Revenue (Land Records Rules) 1957. The above provision is absolutely clear to show that as far as the land record is concerned registration of an instrument transferring any interest in a holding of agricultural land of the value of Rs. 100/-and above does not require to be registered, once the possession has been given by the transferor to the transferee. A transaction of the nature referred to above would operate as a contract to mortgage the land,, but both the parties. , the mortgagor and the mortgagee, would be bound by the contract although a third party who has further entered into a transaction by a registered instrument with consideration and without notice of the contract would however be not bound by it. The mortgagor as stated above can always successfully file a suit for specific performance of the contract and the mortgagee once having entered into the possession of the property in part performance of the contract can retain the possession. The mortgagor would be debarred from enforcing against the mortgagee any right in respect of such property under section 53-A of the Transfer of Property Act. Thus under the law it is necessary for the parties who execute a document for the transfer of an agricultural holding of the value of Rs. 100/- and above to get such instrument registered, but if the possession has been delivered to the transferee by the transferor then it is not open for the Revenue Officer charged with the function of attesting mutation to refuse mutation or to insist upon the instrument of transfer being registered. It should leave the parties to the respective remedies in cases of dispute. The only thing that the Revenue Officer has to do is to record the factum of possession as a result of transfer in the record of rights in favour of the transferee after the parties have attested the transfer as mentioned in the mutation register.