It is common knowledge that both the seller & the purchaser of an immovable property approach the scribe for drafting a sale deed/agreement. The scribe takes a cursory look at the documents (usually photostats) brought by both the parties and upon their joint instructions draft the agreement/ lease/transfer deed. If the deed is registrable, he assists in presentation of the deed in the office of the concerned registrar and helps both parties to complete the requisite formalities.

A question arises whether the scribe is under a bounden duty and legal obligation to examine all the documents brought by the parties and after being satisfied with the title of the property and the genuineness of the documents, he should proceed with the drafting & documentation of the deed?

It is well known that the scribes are usually not lawyers but are practically well abreast with the drafting the deeds and the procedures/ formalities for the registration of the deed. It is true that the scribes do understand the property documents but it is undisputable that they are neither legal experts nor experts in investigation of the genuineness of the parties to the document or the title deeds shown to them. Sometimes, the parties to the deed bring the typed document or sometimes their advocates bring the deed and instruct the scribe for due presentation. In reality, the role of the scribe is limited.

Uninfluenced by the said stark realities, stated above, the Karnataka High Court very recently in the case of Shekhar and State of Karnataka & Anr. (Criminal Petition No.9546 of 2024) has refused to quash a criminal case registered against a deed writer/scribe accused of writing an agreement for the sale of a land based on a general power attorney (GPA) which was allegedly forged.

Before delving into the controversy in hand, it would be trite to reproduce the definition of " Deed Writer" Under the Karnataka Registration (Deed Writers' Licence) Rules, 1979, which reads as under:

1. Deed Writer" means a person engaged in the profession of preparing or writing deeds for registration, which includes the work of conveyancing, investigation of title, preparation of draft deed and engrossing deed on stamp paper;

It was argued by the scribe before the High Court that he had verified the documents and had accordingly written the deed. However, the complainant submitted that the role of the scribe is not limited to just writing the deed but to thoroughly investigate the title & documents referred to in the deed. The Court observed thus:

"Therefore, the petitioner, the deed writer, ought to have looked into the documents produced before him, as the statute enjoins a duty to be performed by him."

The Court referred to Rule 2 and observed thus:
Rule 2(i) which defines who is a deed writer defines him to be a person engaged in the profession of preparing or writing deeds for registration which includes the work of conveyancing, investigation of title, preparation of draft deed and engrossing deed on stamp paper. Therefore, it cannot be said that the petitioner who is a licensed deed writer, in terms of the Rules he has no duty to look into all the papers, as his duty includes conveyancing and investigation of title.

Dismissing the petition filed by the scribe, the Court observed thus:
"Merely because he is a deed writer, the proceedings against him cannot be quashed, as the offence of forgery and using forged document to be genuine and criminal breach of trust by the petitioner are prima facie met. Therefore, these are matters where investigation would be required".

If someone alleges fraud, it takes decades for the hierarchy of Courts to decide the genuineness of the documents referred to in the deed, then how can a scribe, who is dignified typist/peshkar/clerk competent to investigate the title & veracity of the documents referred to?

It would be trite to refer toShailendra Kumar vs District Registrar(Indian Registration Act)1998(4)AWC396wherein it was pleaded by the petitioner before the Allahabad High Court that the deed writer only scribes the deeds as narrated & explained by the executor and his function is like that of a typewriter and therefore he cannot be held guilty of any mistake of an illegal act of the executor. The Court analysed the whole procedure of the preparation of a deed by the deed writer & observed thus:

8. .......Unless a deed writer understands the whole intention of the vendor, it is not expected that he will write/type sale deed. He also by and large firstly prepares a draft, consults the vendor and vendee and then prepares a final draft which is being presented by the vendor before the Registration Authority for its Registration.

It is commonly seen that the deed writers are made a scapegoat for the errors, omissions and mistakes particularly in case of fraudulentDeeds. It would be apropos to refer to the Latin doctrine of 'Lex non Cogit Ad impossibilia' which means that the law does not compel a man to do anything vain or impossible or to do something which he cannot possibly perform. In short, law does not compel the doing of impossibilities. Here, the word "lex" literally means a system of law, "non" means does not, "cogit" means to compel, "ad" means to, and "impossibilia" means impossible. It thus means a Court does not compel or forces someone to do the thing which is impossible.

This maxim is one of the important pillars of doctrine of necessity which along with another maxim "Impotentia excusat legam" propagates that when law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over it, then the law in general will excuse him.

If we apply these lagal maxims to the duty cast upon the deed writers as per the applicable rules and the recent Karnataka High Court judgment, it is evident that the Court has not interpreted the Rules in consonance with these established maxims. To illustrate with simple examples, if a vendor has a death certificate and a legal heir certificate and has approached the deed writer for execution of sale deed in favour of a vendee on the basis of these documents, the rules mandate the deed writer to investigate the true & correct facts.

Would the deed writer practically go to investigate the correctness of the certificates and under which legal power can he do so? If a will was executed in Mumbai and the deed writer is drafting a sale deed in Delhi, how can he ascertain that the impugned will is the testator's last will. He has no legal authority nor power under any law to visit the other Government Offices for ascertaining the veracity of the documents/ papers given to him by the parties to the deed. Since the deed writer cannot be expected to do the impossible task, he cannot be prosecuted for the wrongful/ fraudulent acts of the parties to the deed.

With due respect to the hon'ble Bench of the Karnataka High Court, such a hyper technical view has a very dampening impact on the working of the scribes. It is incumbent that the said judgment be refrred for due reconsideration by a larger bench.

Written By: Inder Chand Jain
Ph no: 8279945021, Email:inderjain2007@rediffmail.com