- (1.) in this writ petition a simple question seems to have been blown out of proportion, to be in proportion to the subject-matter of the sale deed. The petitioners seek to restrain the second respondent from proceeding with an appeal filed before him by the first respondent, apparently under Section 72 of the Registration Act, 1908 ('the act' for short). The petitioners also seek the quashing of an order made by the second respondent on 25-5-1993 whereby the first respondent held that he had competence to entertain and consider the said appeal. Another order sought to be quashed is dated 22-/-1993 (annexure-ac), though the order of the said date states that the second respondent has reserved his orders on i.as.l, 2 and 3 filed before him to be pronounced on 28-/-93. The writ petition was presented on 26-/-93 and 28-/-93 after hearing the learned counsel for the petitioner and the first respondent, Rule was issued and an interim order was made staying further proceedings before the second respondent. A direction was also issued to post the writ petition for disposal during the week commencing 30th august, 1993. The interim order states that the first respondent has already filed a suit o.s. 122 of 1992 wherein the main relief sought is for a direction that the sale deed dated 16-2-92 executed by the first petitioner herein in favour of the first respondent is valid and binding on her and that the suit seems to be not a simple suit for permanent injunction. A few more reasons are given for making the interim order. Now that the matter has been heard at length, the efficacy of the said interim order would not survive.
(2.) the first petitioner and her husband late Dr. Roerichowned a considerable extent of an estate near Bangalore known as thataguni estate. A portion of the estate belonging to the husband of the first petitioner was sold to the first respondent on 2/-3-91. However, there is some portion seems to have been left out of the said sale deed measuring about 92.17 acres with which the present dispute is not concerned. According to the first respondent there was an agreement entered into between the first petitioner and the first respondent wherein the first petitioner agreed to sell the portion of the estate belonging to her also to the first respondent for a sum of Rs. 93.12 lakhs. The first respondent asserts that the first petitioner obtained no objection certificate from the income-tax department and thereafter on 16-2-92 the sale deed was signed. On /-3-92 it was presented by the managing director of the first respondent before -the sub- registrar. The first petitioner however did not appear to complete the sale deed and there is some dispute as to what happened thereafter regarding the action taken to have the sub-registrar going to the first petitioner's residence in response to an alleged request made on behalf of the first petitioner. The fact remains that the sub-registrar did not make any order though he received the registration fee and put a seal on the alleged sale deed. Therefore, on 8-6-92 writ petition No. 17932 of 1992 was filed by the first respondent against the sub-registrar only seeking a writ of mandamus to the sub-registrar to register the document. In the meanwhile an application under Section 36 of the act seems to have been filed on 11-6-92 before the sub-registrar to enforce the attendance of the first petitioner and according to the petitioners this application was not pursued by the first respondent. However, the fact remains that on 15-6-92 the first respondent filed a suit before the city civil court, Bangalore, seeking a simple injunction but this suit was withdrawn as the same was filed in a court which had no jurisdiction. Thereafter, another suit was filed on 19-6-92 in the court of civil judge, Bangalore district, Bangalore, as per o.s. No. 122 of 1992. This suit requires to be remembered throughout these proceedings and it has a bearing on the contentions raised before me. The present petitioners were impleaded as defendants 1 and 2 and subsequently one devdas also came on record as a third defendant. The plaint refers to an agreement between the parties, the signing of the sale deed by the first petitioner, her refusal to attend the registration and asserts that the possession of the property in question has been handed over to the first respondent and that the entire consideration has been paid. The plaint says that the attitude and the way in which the first defendant has been used by the second defendant indicates that there is a danger to the rights of the first respondent herein and therefore it was necessary for the first respondent/plaintiff to seek for the declaration of title. In para 17 it is stated that the plaintiff sought for the relief of declaration which is not capable of valuation and the revenue assessment for the property was Rs. 1,584/-, therefore the suit was valued at Rs. 50,100/- and a court fee was paid accordingly. I may note here itself that in a suit for specific performance court fee shall have to be paid under Section 40 of the Karnataka Court Fees and Suits Valuation Act, 1958 and in the case of a contract of sale, court fee shall be payable by computing it on the amount of the consideration; therefore, in the instant case, if the suit was to be for the specific performance court-fee should have been computed on the sale consideration of Rs. 89.50 lakhs, being the consideration referred in the alleged sale deed dated 16-2-92; if so the court fee payable on the plaint would have been a few lakhs of rupees. The plaint seeks the following reliefs: "(a) declare that the sale deed dated 16-2-92 executed by the defendant mme. Devikarani roerich in favour of the plaintiff company is valid and binding on her; (b) issue permanent injunction restraining the defendants from transferring the schedule property to any trust, society or any other person in any manner or create charge, lien, encumbrances, etc., on the schedule property; (c) issue permanent injunction restraining the defendants, their men, agents, servants or any one claiming through or under them from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property; (d) direct the defendants to pay cost of the suit and grant such other further reliefs as are just under the circumstances of the case in the interests of justice.".
(3.) on 30th july, 1992 the sub-registrar made anendorsement (Annexure-P) refusing to register the document and stated that: "as the executing party has failed to appear within the prescribed time limit the registration of the sale deed dated 16-2-92 is refused under Rule 171(viii) of k.r. rules, 1965 read with Section 35 of the Registration Act, 1908". On 28-8-92 the first respondent herein filed an appeal before the district registrar invoking Section 72 of the act. In the appeal memo it is stated that sale deed was presented for registration but the executant did not turn up and thereafter a requisition letter was submitted by the first petitioner herein through her representative requesting sub-registrar to go to the residence of the first petitioner for completing the registration formalities. Since the first petitioner was residing outside the jurisdiction of the sub-registrar in question a commission was issued to the local sub-registrar and when the said commissioner went to hotel ashok, where the first petitioner was ill and was not in a position to meet anybody and therefore the commissioner returned. Thereafter a petition was filed under Section 36 of the act on 11-6-92 before the sub-registrar requesting him to issue summons to the first petitioner herein to complete the registration. However, no summons was issued by the sub-registrar; instead the sub-registrar refused to register the document against which an appellate jurisdiction was invoked against the refusal to register the document (vide paras 4 and 5 of the annexure-o, the appeal memo). The appeal memo states that the sub- registrar was bound to issue to the summons as sought for by the first respondent and the first respondent sought the following reliefs: "wherefore the appellant prays that this Hon'ble authority may be pleased to call for the entire records in proceedings, refusal 1/92-93, from the office of the 2nd respondent and set aside the order dated 30-/-92 passed by the 2nd respondent in proceedings, refusal 1/92-93, and direct the 2nd respondent to register the sale deed dated 16-/-92 executed by the 1st respondent in favour of the appellant in the interest of Justice and equity.";