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PETITIONER: MRS.  MARY JOYCE POONACHA V.

       Vs.

RESPONDENT: M/S.  K.T. PLANTATIONS PVT.  LTD. & ORS.(K RAMASWAMY &N. VEN

DATE OF JUDGMENT20/01/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 SCC  Supl.  (2) 459 JT 1995 (2)   540  1995 SCALE  (2)26

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   Leave granted. 2.   We  have  heard the counsel on either side  at  length. This  appeal by special leave arises from the order  of  the Division  Bench  of  the  High  Court  of  Karnataka,  dated 22.6.1994 made in W.A.No. 2667/ 93. 3.   The facts relevant for the disposal of this appeal  are as under: One Devika Rani had allegedly executed an agreement on  July 30,  1991 and supplemental agreement on September 2 1,  1991 respectively  to sell 223 acres of land in Tataguni  Estates on  the  outskirts of Bangalore City.  It had  been  claimed that  in  furtherance thereof she had executed a  sale  deed said  to  be on 16.2.1992 but the same was  not  registered. Respondent  No. 1 filed O.S.No. 122/92 in the court of  City Civil  Judge, Bangalore Rural for declaration that the  said sale  deed dt. 16.2.92 executed by Mrs. Devika Rani  Roerich in  its  favour was valid and binding on her  and  also  for mandatory  injunction  restraining  her  from  creating  any encumbrances  on the said property or from  transferring  it and for a further perpetual injunction restraining her  from interfering  with  his alleged possession and  enjoyment  of that  property.  Devika Rani filed her written statement  on 2.7.1992  whereby she denied the execution of the sale  deed and the agreements to sell in favour of the respondent No. 1 and  of  the  passing of consideration  under  them.   Thus, according  to  the  defendant,  she  did  not  execute   any agreement to sell or any sale deed in favour of the  respon- dent  No.1 in respect of the suit schedule property and  the same is bogus and vitiated by fraud and misrepresentation. 4.Respondent No. 1 has been consistently making efforts  and attempts  to  grab the property of the defendant  and  their earlier  suit  No. O.S.3692/92 which was filed in  the  City Civil Court at Bangalore was withdrawn by them.  The present suit had been filed with an additional relief of declaration

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also.   Evidently, the plaintiff was filing speculative  and false  suits so as to somehow coerce the defendant  to  sell away  her estate to the plaintiff.  This defendant  had  not executed  any agreement or supplementary agreement  to  sell nor  had made any application to the Income Tax  Authorities nor  had  she executed an absolute sale  deed.   The  entire agreement  of  sale and sale deed arc nothing but  sham  and bogus  and  a collusive job of K.T.  Bhagath,  the  Managing Director  of  the  K.T.Plantations  and  R.Devdas  and  Jude Devdas.   The  agreements  to sell and  deed  of  sale  were vitiated by fraud and were 542 unenforceable in die eye of law.  This defendant  reiterated that she has not handed over possession of the suit schedule property to respondent No. 1 and that she was in  possession and enjoyment of the suit schedule property as its  absolute owner  thereof.  In support thereof, she has raised  several contentions which are not relevant for the disposal of  this appeal. 5.  The  Sub-Registrar,  Kengeri in  his  endorsement  dated 30.7.92  refused  to register the document,  the  sale-deed. This situation led respondent No. 1 to file an appeal before the  District Registrar within thirty days on 28.8.92.  When the Registrar was proceeding to hear the appeal to  register the  document,  the  appellant sought for  stay  of  further proceedings  in  view  of the pendency of the  suit  but  he declined  to  stay the proceedings.  Now it is  an  admitted fact  that  Devika Rani died  subsequently.   The  appellant filed  W.P.No.  22677/93 in the High Court and  the  learned Single Judge by his order dated 23.9.93 dismissed the  same. On  appeal, as stated earlier, the Division Bench  dismissed the Writ Appeal.  Thus, this appeal by special leave. 6.The  only question that arises in this appeal  is  whether the  Dist.   Registrar  was right  in  proceeding  with  the hearing  of the appeal and whether the High Court was  right in  declining  to stay the proceedings before  the  District Registrar.   On  a consideration of the  facts  and  circum- stances  of  the  case, we are of the  view  that  both  the District  Registrar  committed a palpable error  of  law  in proceeding  with  the matter and the High Court  was  unjus- tified in refusing to interfere. 7.   Section  34(3)  of  the Registration  Act,  1908,  (for short, ’the Act’), empowers the Registrar when a document is presented for registration to enquire and satisfy himself on certain matters.  Section 34(3) reads:               "34(3)  The registering officer  shall  there-               upon-               (a)  enquire whether or not such 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 satisfy himself  of               the  right  of such so to  appear."  (emphasis               supplied) 8.Sub-Registrar is required to satisfy himself with the  due execution of the document/deed said to have been executed by Devika Rani since she herself was not present at the time of registration of the document.  Consequently, the appeal came to be filed.  It was within his power that before proceeding to  register  the  alleged  conveyance  said  to  have  been executed  by Devika Rani to satisfy himself whether  or  not she  executed it and whether or not the person presented  on

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her  behalf was authorised to have it registered on her  be- half  He was also empowered to summon her to  appear  before him  before proceeding to register the document.  Under  the circumstances  he refused to register the  document.   Under ss.72 and 73, of the Act, undoubtedly, the existence of the, power  of  the, Register to proceed- with the  peal  is  not disputed and cannot be disputed.  But the question is of the propri- 543 etary    and    justness   of   the    exercise    of    the power.   Whether he was right in his exercise of  discretion to  proceed  with  the hearing of  the  appeal.   As  stated earlier, when the executant has denied the execution of  the alleged  sale  deed and passing of the consideration  as  on 2.7.92  and the dispute when was pending trial in the  civil suit  filed  by the alleged vendee  itself  The  appropriate course  should  have  been that the  Registrar  should  have stayed  his  hands  and directed  the  plaintiff  to  obtain appropriate  direction  from the Civil Court  or  a  decree. When  the,  appellant approached the High  Court,  the  High Court  also should have directed the Civil Judge to  dispose of  the  suit.   Then the Registrar should  have  heard  the appeal.  Instead, the High Court dismissed the Writ Petition and  Writ Appeal.  Therefore, the orders of the  High  Court arc  set aside.  There shall be a direction to the  District Registrar  not  to proceed further with the hearing  of  the matter till the civil suit is disposed of The trial court is directed to dispose of the suit as expeditiously as possible within a period of one year from today.  Depending upon  the result  in  the  suit, the  District  Registrar  shall  take further action. 9.   It  is true  as rightly contended by Shri  R.F.Nariman, the learned senior counsel,   that   by  operation  of   the prohibition  contained in s.49 of the Act  the  unregistered impugned document effecting the immovable property cannot be looked  into.  Since the suit is not against an order  under sec.77 of the Act, lifting of the bar provided by sec. 78(3) will  not  come to the aid of the plaintiff.   It  indicates that  when execution of sale deed is in controversy  and  is subject matter of a suit, s.77(3) lifts the bar of s.49  and enables the court to look into the document for adjudicating the controversy. In these circumstances we direct the  trial court to look into the document only for the limited purpose of finding out whether Devika Rani had executed the impugned sale  deed alleged to have been executed by her and not  for any  other  purpose.  Status quo as on date  of  suit  shall continue till the suit is disposed of. 10.  The   appeal  is  accordingly  allowed  but,   in   the circumstances, without costs. 545