Case Law Details

Case Name : Soma Saha Sen Vs State of West Bengal & Ors. (Calcutta High Court)
Appeal Number : W.P. 5455(W) of 2017
Date of Judgement/Order : 23/03/2017
Related Assessment Year :
Courts : All High Courts (3631) Calcutta High Court (147)

In the instant case, the husband of the petitioner is seeking to transfer flats in a multistoried building which was under his management as a developer of the said property and, therefore, I am of the opinion that there is no embargo upon the petitioner’s husband (who is an under-trial prisoner) to execute sale deeds for transfer of such flats to the intending purchasers on account of his incarceration if he is otherwise entitled to do so in law. It may also be apposite to refer to Section 79(2)(j) of the West Bengal Correctional Services Act, 1992, as argued by Ms. Sengupta, which, inter alia, provides that a prisoner is entitled to enjoy his fundamental rights enshrined in Chapter III of the Constitution of India until and unless the said rights cannot be enjoyed due to such incarceration. Right to carry on trade and profession including right to convey property in course of such business is an essential fundamental right enshrined under Article 19(i)(g) of the Constitution of India and the same do not stand eclipsed by the continuing incarceration of a prisoner. Hence, I am of the opinion that incarceration of the husband of the petitioner shall not disentitle him from executing sale deeds to convey flats in favour of intending purchasers in accordance with law.

Full text of High Court Judgment is as follows :

Order was dictated in open Court on 16th March, 2017. However, due to some irregularities in the order, the matter was placed for further hearing today.

Petitioner has approached this Court seeking direction upon the respondent authorities to permit her husband, who is in incarceration, to execute and register sale deeds in favour of various intending purchasers.

Mr. Subhabrata Datta, learned advocate appearing for the State-respondents submits that there is no embargo to permit the husband of the petitioner to execute the sale deeds under the West Bengal Jail Code or the West Bengal Correctional Services Act, 1992. However, the registration of the documents requires to be done on commission. Ms. Arunima Lala Sengupta, learned advocate appearing for the petitioner submits that the proviso to Section 31 of the Registration Act, 1908 empowers the registering officer, in the event special cause is shown, to attend the residence of any person for the purpose of presentation of document for registration. It is further submitted that Section 79(2)(j) of the West Bengal Correctional Services Act, 1992 also does not put an embargo on the fundamental rights of a prisoner enshrined in Chapter III of the Constitution save and except when the said rights become incapable of enjoyment as an incident of confinement.

I have considered the submissions of the parties in the light of the following provisions of law. Paragraph 654D of the West Bengal Jail Code, inter alia, reads as follows:-

654D. Every prisoner whether convicted or under-trial shall be allowed to sign a power of attorney or other documents in connection with the case against him or the management of his property or family affairs and his signature shall be attested by the Jailor or Deputy Jailor unless such officer has reasons to suspect that the transaction is malafide, illegal or contrary to any order of a court of Law.”

Table

Sections 28 and 31 of the Registration Act, 1908 read as follows:-

S.28. Place for registering documents relating to land. – Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clauses (a), (b), (c), (d) and (e), section 17, sub-section (2), insofar as such document affects immovable property and section 18, clauses (a), (b), (c) and (cc), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

S.31. Registration or acceptance for deposit at private residence. – In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit.

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.”

It is evident from the said provisions that a prisoner is entitled to sign documents while in custody for the management of his property or family affairs. Such signature is, however, required to be duly attested by the Jailor or Deputy Jailor, as the case may be.

In the instant case, the husband of the petitioner is seeking to transfer flats in a multistoried building which was under his management as a developer of the said property and, therefore, I am of the opinion that there is no embargo upon the petitioner’s husband (who is an under-trial prisoner) to execute sale deeds for transfer of such flats to the intending purchasers on account of his incarceration if he is otherwise entitled to do so in law. It may also be apposite to refer to Section 79(2)(j) of the West Bengal Correctional Services Act, 1992, as argued by Ms. Sengupta, which, inter alia, provides that a prisoner is entitled to enjoy his fundamental rights enshrined in Chapter III of the Constitution of India until and unless the said rights cannot be enjoyed due to such incarceration. Right to carry on trade and profession including right to convey property in course of such business is an essential fundamental right enshrined under Article 19(i)(g) of the Constitution of India and the same do not stand eclipsed by the continuing incarceration of a prisoner. Hence, I am of the opinion that incarceration of the husband of the petitioner shall not disentitle him from executing sale deeds to convey flats in favour of intending purchasers in accordance with law.

With regard to the registration of the said instruments it may be pertinent to note that the sale deeds must be presented by the person or his representative or assign in terms of Section 28 of the Registration Act, 1908 at the office of the appropriate registering authority. However, the registering officer may on special cause being shown attend the residence of any person desiring to present a document or to deposit a will for registration and accept such document or will for the purpose of registration. When a prisoner is incarcerated in a correctional home, it is to be deemed that the prisoner is temporarily residing in the said correctional home. In view of such fact the residence of the prisoner for the purpose of the proviso to the aforesaid Section shall be construed to be in the precincts of the correctional home. Hence, if the registering authority is approached on behalf of the prisoner for registering a document which he is otherwise entitled to execute, it shall ordinarily be the duty of the said authority to hold a commission inside the precincts of the correctional home for effecting presentation of the instrument for registration in terms of Section 32 of the said Act.

It may be pertinent to mention that the practice of holding of commission in the correctional home is not alien to the West Bengal Correctional Services Act, 1992. In fact, Section 78 of the said Act permits commission for examining prisoners as witnesses inside the correctional home when the prisoner cannot be brought to the Court for such purpose or is incarcerating in a jail outside the State of West Bengal.

In view of the aforesaid discussion, I direct that the prisoner, that is the husband of the petitioner, or his representative shall be at liberty to make application before the Director General, Correctional Services, West Bengal namely, the respondent no.3 herein for execution of the sale deeds in favour of the intending purchasers in terms of Paragraph 654D of the West Bengal Jail Code and also before the appropriate registering authority for presentation and/or acceptance of such instrument for registration by way of holding commission on a date which may be fixed by the said registering authority in consultation with the respondent no.3 herein within the precincts of the correctional home where the prisoner is presently housed in terms of proviso to Section 31 of the Registration Act,

1908. In the event any application, as aforesaid, is made before the appropriate authorities they shall consider the same in the light of the directions given in this order and take necessary steps as promptly as possible but not later than 30 days from the date of making of such application and in accordance with law.

With the aforesaid directions, the writ petition is disposed of.

There shall be no order as to costs.

Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.

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