2010 ALL MR (Cri) 2569
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. KARNIK, J.
Mrs. Ashwini Ashok Kshirsagar Vs. State Of Maharashtra
Criminal Application No.821 of 2010
5th March, 2010
Petitioner Counsel: Ms. CHANDANA SALGAONKAR RADIA
Respondent Counsel: Mr. Y. S. SHINDE
Criminal P.C. (1973), S.438 - Registration Act (1908), S.34 - Anticipatory bail - Registration of sale-deed - Powers of Registrar - Title of transferor - S.34 of the Act does not require nor does it empower the Sub-Registrar to enquire into the tile and to satisfy himself about the title of the transferor - Held, if all other requirements of registration prescribed by the Act and the Rules are complied with, the Sub-Registrar cannot refuse the registration of a document only on the ground that the title of the transferor, in his opinion, is defective, or that the name of transferor is not shown as owner in the revenue records. AIR 1923 PC 114 - Ref. to. (Paras 5, 6)
Kanhaiyalal Vs. National Bank of India, AIR 1923 PC 114 [Para 7]
2. By this application, applicant seeks pre-arrest bail in connection with C.R. No.152 of 2009 registered at Lonavla Police Station for an alleged offence punishable u/Ss.420, 467, 468, 469, 471 r/w. section 34 of the IPC.
3. Applicant is a Government servant posted as a Sub-Registrar in charge of registration Sub-District of Taluka Maval. A FIR was lodged against the applicant at Lonavla Police Station on 15th October, 2009 by Mr. Satish Shetty, a social worker and an office bearer of "Bhrashtachar Nirmulan Samiti". The graveman of the allegation against the applicant is that the applicant was registering the sale deeds without proper verification and in collusion with the vendors. It was alleged that the uncultivable lands belonging to the government were sold by various persons posing themselves to be the owners thereof and the applicant registered such sale deeds without proper verification of ownership and without even checking the 7/12 extracts (revenue of records). The Sub-Registrar ought not to have registered the sale deeds as the lands did not belong to the transferors and she ought to have verified, atleast prima facie, whether the transferors were real owners of the lands transferred.
4. Section 34 of The Registration Act, 1908 (for short "the Act") requires the registering officer to make an enquiry as provided therein before registration of a document. Sub-section (1) of section 34 says that no document shall be registered under the Act unless the persons executing the document, or their representatives, assigns or agents authorised (under section 33) appear before the registering office within the time allowed for presentation under sections 23, 24, 25 and 26 of the Act. Sub-section (3) of section 34 of the Act provides that registering officer shall (a) enquire whether or not the document was executed by the persons by whom it purports to have been executed (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. A bare perusal of section 34 would indicate that the registering officer is not required to verify the title of the transferor i.e to say he is not required to ascertain whether the transferor is the owner of the property sought to be transferred under the deed presented to him for registration. The normal rule of "Caveat emptor" applies in every transaction of sale and requires the buyer to beware. The buyer has to enquire about the title of the property and satisfy himself about the vendor's title.
5. Learned APP submitted that the 7/12 extracts of the lands which were transferred showed the words "Akari Pad" in the occupant's column which indicate that the lands belonged to the Government. Sub-Registrar ought to have verified the 7/12 extracts (revenue records) and should have refused the registration of the sale deeds. Selling the government lands amounted to a fraud on the government and by registering the sale deeds without verification of revenue records the applicant has committed an offence. It is settled principle of law that entries in the revenue records (7/12 extracts in case of agricultural lands and property register cards in case of urban lands) are made for fiscal purposes. They do not confer nor take away the title. Entries in the 7/12 extracts, though may have some presumptive value under the Maharashtra Land Revenue Code, are not by themselves proof of title nor do they confer title. Therefore, the mere fact that the properties were shown as "Akari Pad" that by itself was not the proof that the government was the owner of the lands. Even assuming that the government was the owner of the lands, as I have already indicated earlier section 34 of the Act does not require nor does it empower the Sub-Registrar to enquire into the title and to satisfy himself about the title of the transferor. Under the Act the Sub-Registrar is not required, nay not entitled, to ask the transferor to produce 7/12 extracts, property register extract or the like showing the transferor to be the owner of the property. If he refuses registration of a document on the ground that the revenue records do not show the name of the transferor as the owner he would be exceeding his powers under the Act. If all other requirements of registration prescribed by the Act and the Rules are complied with, the Sub-Registrar cannot refuse the registration of a document only on the ground that the title of the transferor, in his opinion, is defective, or that the name of transferor is not shown as owner in the revenue records.
6. Part XII of the Registration Act is titled as "of refusal to register" and contains sections 71 to 77. None of the sections 71 to 77 of the Act confer any power on the Sub-Registrar to refuse registration of a sale-deed or any other instrument of transfer on the ground that he is not satisfied about the title or ownership of the transferor. Learned APP was unable to point out any provision in the Act or any Rules framed thereunder empowering the Sub-Registrar to refuse registration of a sale deed or any other deed of transfer on the ground that the Sub-Registrar is not satisfied about the title of the owner. He was also unable to point out any provision which authorises the Sub-Registrar even to enquire about the title of the transferor. Learned APP was also unable to point out any illegality committed by the Sub-Registrar by effecting registration of the sale deeds without verifying the title of the transferor.
7. Learned APP referred to a decision of the Privy Council in Kanhaiyalal Vs. National Bank of India, AIR 1923 PC 114. In my view, the case is based on entirely different facts and has no application to the facts of the present case.
8. Prima facie, no offence is disclosed to have been committed by the applicant merely by registering the sale deeds without verifying the title of the transferor. Indeed, she would have committed an illegality by refusing to register the sale deeds on the ground that she was not satisfied about the title of the transferor. In the circumstances, applicant is entitled to pre-arrest bail.
O R D E R
In the event applicant is arrested in connection with C.R. No.152 of 2009 of Lonavla Police Station, she shall be released on bail on her executing P.R. Bond of Rs.5,000/- with one surety of the like amount.