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S.47 Indian Registration Act Most Misused Law, Retrospective Effect Of Registered Sale Deed Requires Cumulative Analysis Of All Evidence: Madras HC
Upasana Sajeev
23 April 2022 12:30 PM IST
The Madras High Court has recently held that while dealing with the aspect of "retrospective effect" under the Indian Registration Act, the courts shall not go by retrospective operations in simpliciter, as stated in the said Section, but consider all the attentive circumstances. These may relate to the purchase of stamp paper and the evidence of description, if any, presence of...
The Madras High Court has recently held that while dealing with the aspect of "retrospective effect" under the Indian Registration Act, the courts shall not go by retrospective operations in simpliciter, as stated in the said Section, but consider all the attentive circumstances. These may relate to the purchase of stamp paper and the evidence of description, if any, presence of the executant and whether the executant, namely, the seller is a party defendant in the suit.
Only on a cumulative analysis of all attentive circumstances, a decision is to be rendered not by general presumption as stated by the provision alone, the bench of Justice Teekaa Raman observed.
It added,
"I find that the provision under Section 47 r/w 23 of the Indian Registration Act is one of the most misused provision by the general public. In the said Section 'retrospective effect' has been given, once registration is taken place. When such matters have been dealt with by the lower Court, the lower Court shall not simply go by retrospective operations in simpliciter, as stated in the said Section, but however has to consider all the attentive circumstances."
The Court was dealing with a second appeal filed by one Arjunan seeking a declaration of title and a permanent injunction against the respondent Arunachalam, father of the original owner.
Background
The appellant plaintiff purchased the suit property from the son of the defendant Perumal by sale deed dated 10.02.2006. However, the said Perumal did not come for registration despite the best efforts, and hence the document was refused for registration on the ground of the absence of the executor hence the plaintiff preferred a departmental appeal, and on appeal being allowed the sale deed was registered on 28.06.2006.
The defendant is the father of the common vendor and a sale deed was executed in his favor on 06.01.2006 and the same was registered on 13.02.2006.
The appellants contended that the defendant, after coming to know about the execution of the sale deed in favour of plaintiff, ante-dated the sale deed in his favor to make it seem that the sale deed was executed on 06.02.2006.
Under Section 47 read with 23 of the Registration Act, when the date of execution and the date of registration are different, the document takes effect from the date of execution. In the present case, both the parties were seeking protection under the above provision.
The court was satisfied with respect to the existence of the sale deeds and their execution. The point for consideration was which sale deed was prior in time.
Looking into the facts of the present case, the court pondered why the common vendor was not made a party to the suit. Further, the plaintiff executed the sale deed only after one and a half months and there was no proper explanation given as to the delay. Even when the vendor Perumal failed to appear for registration, the plaintiff did not issue any legal notice calling upon him to come and cooperate for registration as any prudent man would do. No independent witnesses were examined to substantiate the reason stated by the plaintiff for presenting the sale deed for registration after delay.
The plaintiff had also deposed before the court that he came to know about the registration of property with respect to the defendant, 20 days after execution of his sale deed. Even then, the plaintiff did not give any police complaint or issued any legal notice. These acts caused serious doubt about the conduct of the plaintiff.
Further, there was no evidence to show that the document has been presented on the said date as stated in the plaint. The fact remained that it was only after registering the sale deed with respect to the defendant that the plaintiff's sale deed was presented for registration. Thus, the burden of proof was upon the plaintiff which he could not discharge.
On the other hand, looking into the sale deeds of the defendants, it was found that the stamp papers were purchased on 06.01.2006 and the execution was completed on the same day and was presented for registration on 13.02.2006.
The court also opined that the non-issuance of any legal notice nor any police complaint by the plaintiff against his vendor and non-impleading of the vendor as a party defendant along with the cogent evidence put forward by the defendant make it clear that the plaintiff was merely trying to use the principle of Retrospective Operation under the Registration Act for his benefit.
Case Title: Arjunan v. Arunachalam
Case No: S.A No. 359 of 2012
