- (1.) This is a writ petition at the instance of the petitioner assailing the order dated 7.11.2014 passed by the opposite party No. 3 and the order in confirmation of the same by the appellate authority vide order dated 2.12.2014 in denying registration of sale deed submitted by the petitioner. Facts involved in the writ petition is that the father of the petitioner was a recorded tenant having 7/16th interest in respect of the land under Khata No. 138, Mouza-Gangapur, Tahasil-Salipur. After death of her father, the petitioner being the sole legal heir succeeded to the property entirely. Record-of-right was published in the name of the petitioner in Mutation Case No. 2507 of 2013 indicating her share as 7/16th of the plots mentioned there under. It is submitted by the petitioner that in an attempt to clear the hand loans incurred by the petitioner for her daughter's marriage as well as meeting with the medical expenses for herself gynecological disorder wanted to sale her property. In the process, a sale deed to the extent of share belonging to the petitioner was conducted between the petitioner and one Goutam Charan Sahoo on 7.11.2014 and the same was presented for registration before opposite party No. 3. The registration of the sale deed was denied holding that the sale deed presented for registration contravenes Section 22-A of the Registration Act, 1908 (hereinafter for short "the Act") inasmuch as the vendor-petitioner does not have the consent of the other recorded co-sharers of the property. Being aggrieved by such action of the registering authority, the petitioner approached this Court in W.P.(C) No. 21898 of 2014 and this Court being satisfied the availability of an alternate remedy under Section 72 of the Act, did not entertain the writ petition. Following the observation of this Court in the above writ petition, the petitioner approached the appellate authority which is ultimately dismissed by his order dated 7.12.2014. The petitioner assailed the order passed by the opposite party No. 3 as well as the order in appeal passed by the opposite party No. 2 on the premises that there was no infraction of the provision contained under Section 22-A of the Act. The opposite parties referred to hereinabove have misconstrued the mandate of Sections 21 and 22 of the Indian Registration Act read with Rule 23 and 24 of the Orissa Registration Rules, 1988 (hereinafter for short "the Rule") requiring description of the property in the sale deed sought to be alienated. Petitioner contended that the description of the property in the sale deed as appearing is mandate of the law in the case of sale deed on the basis of a record-of-right. The description of the property contained the name of the village, khata number, plot number, classification of land and area noted in the record-of-right and the local name, if any. Petitioner contended that she had satisfied the requirements of Rules 23 and 24 of the Rule. Petitioner further contended that following provisions under Section 8 of the Transfer of Property Act, the vendor is capable of transferring of her interest in the property. In the present case, the petitioner having sold her entire share, there was no infraction of the provisions contained in Section 8 of the Transfer of Property Act and both the authorities have erroneously rejected the registration of the sale deed. It is on these premises, the petitioner sought for setting aside the impugned orders vide Annexures-3 and 4 passed by opposite party Nos. 3 and 2 respectively.
(2.) Per contra, on their appearance, the opposite party Nos. 1 and 2 i.e. the State Authorities referring to counter submitted that the denial of the registration is based on the premises of violation of provisions contained in Section 22-A of the Registration (Orissa Amendment) Act, as well as Section 21 of the Act read with Rules 24(2) and (3) of the Orissa Registration Rules framed there under. The opposite parties contended that following Section 21 of the Act, a vendor is required to properly identify with mouza, khata number, plot number, area and four boundaries in case of part plots as provided in the Rule 24(2) of the Orissa Registration Rules. It is next contended by the opposite parties that in absence of a valid partition between the parties there is no possibility of identifying the plots. Therefore, there is no compliance of the requirements of Section 21 of the Act as well as Rule 24 of the Rules. The attempt of the petitioner is also opposed to Section 44 of the Transfer of Property Act. Referring to a decision rendered in the case of Udayanath Sahu v. Ratnakar Bej and Ors., 1967 AIR(Ori) 139, it is submitted that there is no illegality committed by the opposite party Nos. 2 and 3 and their action is well supported by the decision referred to above. It is, on these premises, the opposite parties sought for dismissal of the writ petition.
(3.) Before proceeding to decide the matter on merit, it is necessary to look into the statutory provisions as contained in the Registration Act, Orissa Registration Rules as well as Transfer of Property Act, which are quoted hereunder: Sections 21 and 22-A of the Registration Act, 1908. Secs. 21: Description of property and maps or plans: (1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. (2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered. (3) Other houses and lands shall be described by their name, if any, and as being in the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey. (4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts. Section 22-A of the Registration (Odisha Amendment) Act, 2013 Sec. 22-A: (1) The registering officer shall refuse to register:-- (a) Any instrument relating to the transfer of immovable properties by way of sale, gift, mortgage, exchange or lease: Authority (i) belonging to the State Government, or the Local (ii) belonging to any religious institution to which the Odisha Hindu Religious Endowment Act, 1951 is applicable. (iii) belonging to or recorded in the name of Lord Jagannath, Puri (iv) donated for Bhoodan Yagna and vested in the Odisha Bhoodan Yagna Samiti established under Section 3 of the Odisha Bhoodan and Gramdan Act, 1970. (v) belonging to Wakfs which are under the supervision of the Odisha Wakf Board established under the Wakf Act, 1995 unless a sanction in this regard, issued by the competent authority as provided under the relevant Act or in absence of any such authority, an authority so authorized by the State Government for this purpose, is produced before the registering officer; Explanation--(a) For the purpose of this section Local Authority means any Municipal Corporation, Municipality, Notified Area Council Zilla Parisad, Grama Panchayat, Urban Development Authority and Planning Authority or any Local Self Government constituted under any law for the time being in force. (b) the instrument relating to cancellation of sale deeds without the consent of the person claiming under the said sale deed; and (c) any instrument relating to transfer of immovable property, the alienation or transfer of which is prohibited under any State or the Central Act. (2) Notwithstanding anything contained in this Act, the registering officer shall not register any document presented to him for registration unless the transferor produce the record of rights for the satisfaction of the registering officer such transferor has right, title and interest over the property so transferred. Explanation-For the purpose of this Sub-section 'record of rights' means the record of rights as defined under the Odisha Survey and Settlement Act, 1958. From the reading of above provisions and the narrations made by the parties as well as the documents filed herein clearly demonstrate that the petitioner has supplied the contingencies as required under Section 21(1) as well as 22-A(c)(2) of the Registration Act and in view of clear identification on the share of the property belong to the petitioner, there is absolutely no requirement of the consent of other co-sharers. The opposite parties failed to appreciate that there is absolutely no other co-sharer in respect of the property sold particularly in view of clear indication of the State opposite parties in the Record-of- Right itself. Rules 23 and 24 of the Orissa Registration Rules, 1988. Rule 23. Territorial Division- The description of the "territorial division" required by Section 21 of the Act shall, as far as practicable, give the following particulars: (a) The registration districts, sub-districts, Tahasil and Thana; (b) Any well known division such as Pragana, Bisa Mostha and Mouza; (c) The village, Hamlet or suburb in which the property referred to in a registrable document is situated; (d) revenue district , if they are different from Registration District. Rule 24. Description of property by reference- (1) If the property is described in a supplementary document by specific reference to an instrument which has been already registered or of which a true copy has been filed under Section 65 of 66 in the office in which the document is presented for registration and if that document contains the particulars required by the rules in force, the description need not be repeated in a supplementary document. (2) In the case of villages where survey and settlement operations are complete and final record-of-right issued, the description of property shall contain all the details as described in the record-of-rights, viz. Village Number, Khata Number, Plot Number, classification of land and the area noted in the record-of-rights and the local names, if any, used. (3) In case of part-plots, the four boundaries shall be furnished. Thus from the pleadings available in the present case and perusal of Record-of-Right it clearly satisfies the mandates of Rule-23 as well as Rule 24 of the Registration Rules, 1988 and both the forums have failed to appreciate this appeal of law. From the pleadings available in the present case and perusal of Record-of-Right, it clearly satisfies the mandates of Rule 23 as well as well Rule 24 of the Registration Rules, 1988 and both the forums have failed to appreciate this aspect of law. Rule-25: Conditions of admissibility: Every document, on being tendered for registration shall be examined by the Registering Officer in regard to the following points. i. that it has been presented at the Proper Office (Sections 28, 29 and 30); ii. that it bears the proper stamp or is exempted from or is not liable to stamp duty; iii. that it is in a language deemed to be commonly used in the district, or is accompanied by a true translation into such a language and a true copy (Section 19); iv. that in case of any interlineation, blank erasure or alternation, Section 20 and Rule 22 have been complied with; v. that if the document is non-testamentary and relates to immovable property, the description thereof is sufficient (Section 21); vi. that if the document is non-testamentary and contains a map or plan, it is accompanied by the prescribed number of true copies of the map or plan (Section 21(4); vii. that if the document is non-testamentary and relates to lands or houses, the description of which is governed by rule made under Section 22, Sub-section (1), the lands or houses are described according to that rule (Section 22); viii. that if the document is not a will, it has been presented within the proper time (Sections 23 to 26); ix. that, the document has been presented by the person authorised in that behalf (Section 32 or Section 40); x. that the presentant has affixed his passport size photograph and fingerprints to the document (Section 32-A) xi. that the pass-port size photograph and finger prints of each buyer and seller, in case of sale of immovable property has been affixed to the document." Sections 8 and 44 of the Transfer of Property Act, 1982: Sec. 8. Operation of transfer.--Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities there for (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. Sec. 44. Transfer by one co-owner.--Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.";