Madras High Court
Ammasi Kutti vs S.Manoharan on 30 April, 2021
W.A.No.1989 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.No.1989 of 2019
and
C.M.P.No.22624 of 2019
1.Ammasi Kutti,
S/o.Angappa Gounder.
2.Smt.Kannammal,
W/o.Ammasi Kutti.
Both are residing at
No.1/34, Malayappalayam,
Olakoil Village, Gobichettipalayam Taluk,
Erode District. ... Appellants
Vs
1.S.Manoharan,
S/o.Suriyanarayanan,
No.1/9, Malayappalayam,
Olakoil Village,
Gobichettipalayam Taluk,
Erode District.
2.The District Registrar,
Tiruppur Registration District,
Tiruppur.
3.The Sub Registrar,
Kunnathur, Avinashi Taluk,
Triuppur District.
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4.Murugayammal,
W/o.Rasappa Gounder,
No.2/11, Pattampalayam,
Avinashi Taluk,
Tiruppur District.
5.Komarayal,
W/o.Velusamy,
Olakoil Village,
Gobichettipalayam Taluk,
Erode District.
6.Marathal,
W/o.Palanisamy,
No.2/59, Komarapalayam,
Chockkanur Village,
Avinashi Taluk, Tiruppur District.
7.Lakshmi @ Vijayalakshmi,
W/o.Late.Ramasamy,
No.266, Rattaiyankurrai,
Andipalayam Village,
Gobichettipalayam,
Erode District.
8.P.R.Subramanian,
S/o.Late.Rasappa Gounder,
Sakkilan Thottam, Pattampalayam Village,
Tiruppur District.
9.P.S.Kandasamy,
S/o.P.R.Subramanian,
Sakkilan Thottam, Pattampalayam Village,
Tiruppur District.
10.Smt.Gowri,
W/o.Gurusamy,
Kattupalayam, Sokkanur Village,
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Tiruppur District.
11.Baby @ Palaniammal,
W/o.Eswaramoorthy,
Valasupalayam,
Karunampathi Post 641666
Perumanallur Via, Avinashi Taluk,
Coimbatore District. ... Respondents
PRAYER : Appeal against the order passed in W.P.No.2230/2016 dated
29.03.2019.
For Appellant : Mr.S.Parathasarathy
For Respondents : Mr.A.K.Kumarasamy
Senior Counsel
for Mr.S.Kaithamalai Kumaran (for R1)
Mr.T.M.Pappiah (for R2 & R3)
Special Government Pleader
Mr.P.Parthikannan (for R6 & R7)
JUDGMENT
(Judgment of the Court was delivered by N.KIRUBAKARAN, J)
The appeal has been preferred by the appellants who got the
sale registered in their favour on 04.07.2002, purchasing the entire extent
of land comprised in old Survey No.167 and 169 and new Survey
No.294/4, 295/5, 295/6 to an extent of 1.50 acres located in Olalakoil
Kovil Village, Gobichettipalayam Taluk, Erode District from one
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Mr.P.R.Subramaniyan, S/o.Rasappa Gounder. The property originally
belonged to Mr.Rasappa Gounder and he died interstate on 04.09.2001,
leaving behind Mr.P.R.Subramanian/8th respondent, Ms.Komarayal/5th
respondent, Ms.Marathal/6th respondent & Lakshmi @ Vijayalakshmi/7th
respondent.
2.When things stand so, the widow/4th respondent and
daughters/respondents 5, 6 & 7 executed a sale deed on 27.10.2015 in
favour of the 1st respondent/writ petitioner. When the sale deed was
presented for registration before the official respondents, the 3rd
respondent refused to register the sale deed by issuing memo dated
09.11.2015. The said order was challenged before the 2nd
respondent/District Registrar who by way of an order dated 01.12.2015
rejected the appeal on the ground that Mr.P.R.Subramaniyan, already
sold the entire extent of property to the appellants and therefore, the
document cannot be registered. The said order was challenged before the
learned single Judge. On contest, the learned single Judge allowed the
Writ Petition, holding that the Registering Authorities has got no power
and passed a cryptic order. The said order is being challenged before this
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Court.
3.Mr.S.Parthasarathy, learned counsel appearing on behalf of
the appellant submit that he has purchased the property as early as on
04.07.2002 and he has been in possession and enjoyment of the property.
Having known all these facts, the widow and the sisters kept quiet for
more than 13 years and subsequently, attempted to sell away the property
to the 1st respondent/original writ petitioner and that was rightly
prevented by the 2nd and 3rd respondent by refusing to register the said
document.
4.However, Mr.A.K.Kumarasamy, learned senior counsel
appearing for the 1st respondent would submit that the registration
authorities has got no power to make enquiry with regard to the title of
the property and they cannot refuse the registration on the ground that the
property was already conveyed or sold. He would rely upon the Rule 55
of the Tamil Nadu Registration Rules to contend that the scope of
enquiry to be conducted by the registering authority is only confined to
five grounds which have been enumerated therein and beyond that the
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registration authority has got no power to refuse the registration on the
ground that the property was already sold or there is no title to the
executants. He also relied upon two judgments of the learned single
Judges of this Court in W.P.(MD).No.14610 of 2014 dated 27.06.2014
and W.P.(MD).No.11426 of 2018 dated 02.07.2018. In those cases,
when similar issue were raised, the learned Judges quashed the orders
and directed the registration authorities to register the documents.
5.Mr.T.M.Pappaiah, leaned Special Government Pleader would
submit that only to prevent the fraudulent deeds especially, sale deeds
being executed by strangers to knock away the property of innocent
owners, a circular has been issued by the Inspector General of
Registration on 25.04.2012, directing the registering authorities to
conduct enquiry before the registration by calling upon the parties to
produce the original deeds in respect of which is sought to the registered.
He also relied upon the Division Bench judgment of this Court in
W.A.No.229 of 2018 dated 17.07.2019 in P.Rukumani and 4 others Vs.
Amuthavalli and 5 others in which the Division Bench of this Court
categorically held that if there is any disputes about the rights of the
parties involved, the only appropriate remedy for the parties is to
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W.A.No.1989 of 2019
approach the civil Court by way of civil suit. By relying upon the said
judgment, he has justified not only the circular issued by the Inspector
General of Registration but also justified the action of the respondent.
He would further submit that the intention of the Government is to
prevent the fraudulent transactions and safeguard the rights of the owners
of the property.
6.Mr.A.K.Kumarasamy, learned senior counsel would submit
that registration is necessary even though he has to work out his remedy
before the civil Court. He would submit that already a sale consideration
was paid to R4 to R7 and therefore, the 1st respondent has already
become the owner of the property. When the 1st respondent has already
become the owner of the property, he has got a right to register the sale
deed. Moreover, he would submit that when he has already paid the sale
consideration his right has to be protected.
7.This Court in aware of very many fraudulent deeds,
especially sale deeds being registered and knocking away the property of
innocent owners behind their back, in view of the sky rocketing of real
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W.A.No.1989 of 2019
estate prices. Many offences are being committed day in and day out
involving the properties and that is the reason why the Tamil Nadu
Government has constituted Special Court for land grabbing cases and
formed a Special team for land grabbing Cell. Though the said
constitution has been struck down by this Court, the matter has been still
pending before the Hon’ble Supreme Court. The Government took note
of all these developments and only thereafter, the land grabbing special
Cell has been formed as huge amount of time is taken to decide the
matter before the civil Court and only pursuant to the same, the circular
dated 25.04.2012 has been issued by the Inspector General of
Registration. Paragraph 3 of the said circular is extracted as follows:
“However, it is brought to my knowledge that documents
are being registered without proper verification of title
deeds and other original relevant documents which leads
to fraudulent registration”
8.Only to safeguard the public interest and to prevent bogus or
fraudulent registration of the documents, the following instructions have
been given by the authorities:
"(A) In respect of deeds involving transfer of immovable
property, such as sale, gift, settlement, exchange or
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W.A.No.1989 of 2019
creating charge over the property such as Mortgage or
Power of Attorney, the registering officer should insist
presentation of previous original deed/deeds by which the
executants acquired right over the said property before
registering the document and then verify the previous
documents to satisfy himself that the executants have right
over the property.
(B) In case previous document are not available as the
property may be ancestral, the executants should produce
revenue records such as Patta copy issued by the Revenue
Department and tax receipt in original along with
attested/notarized Xerox copies to prove that the properties
are owned by them. The Registering Officer should verify
the original and return them to the party concerned and
preserve the attested Xerox copy as part of the document
by scanning and numbering it.
(C) In case the previous original document is lost, the party
should produce certified copy of the document, copy of
complaints recorded in Police Station and copy of
advertisement published in local dailies regarding loss of
documents. In such case, the party has to produce
Patta/property tax receipt in original.
(i)In case if the property is Government land/poramboke
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land or belonging to religious institution as per revenue
records/other records and the party has not produce any
patta to prove his right the Registering officer should
return the document with check slip stating the facts.
(ii)In the above mentioned case if the party produces patta,
then the Registering Officer should keep the document
pending for ascertaining the facts and genuineness of patta
from concerned department/revenue officials.
(iii) In case of cancellation of settlement deed if the settlor
is unable to produce the original settlement deed as it may
be with settlee then the settlor should produce certified
copy of the settlement deed. The Registering Officer, after
verifying the certified copy for identity, then register the
cancellation deed without insisting for original deed."
9.One of the instructions given by the Inspector General of
Registration is directing the registration authorities to insist on
presentation of the previous original deeds/sale deeds by which the
executant acquired right over the property before registering the
document. If anybody intends to purchase the property definitely
he/she/they should verify whether the person has got a right over the
property and has got title by having registered documents in his/her/their
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favour. If the purchaser is not interested for various other reasons to
verify the original documents that is the vendors, the registering
authorities has got every right to insist upon the executant to produce the
previous original deeds through which he acquired the property. The
intention is only to prevent the bogus sale deeds being registered and to
safe guard the public interest viz., the rights of the property owners. The
bonafide intention in issuing the circular dated 25.04.2012 should be
appreciated as it has been done only in the public interest.
10.Following the said circular only, 2nd and 3rd respondents
registering authorities refused to register the document presented by the
1st respondent having been executed by respondents 4 to 7. The
authorities took note of the fact that the property was already sold by the
son of Mr.Rasappa Gounder/8th respondent to the appellants as early as
on 2002. There is no document produced before this Court to show that
neither the 1st respondent nor the respondents 4 to 7 have been enjoying
the property right from the date of death of Mr.Rasappa Gounder as early
as on 14.09.2001. From the year 2002 onwards the appellants are in
possession of the property and have been enjoying for more than 12
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years. By that time they would have perpetrated the title by way of
adverse possession.
11.Having slept over the matter like a Rip van winckle, the
respondents 4 to 7 suddenly woke up from their deep slumber and tried
to execute the sale deed in favour of the 1st respondent, alleging certain
right over the property and claiming that the entire property was
fraudulently sold by the 8th respondent to the appellants. The only proper
remedy in this case of defrauding or selling away the property or the
share of the respondents 4 to 7 stealthily, the appropriate remedy is only
to go for cancellation of sale deed executed by the 8th respondent in
favour of the appellants or to go for partition. The said remedy is only
available to respondents 4 to 7 and not to the 1st respondent who is the
stranger to the property, even though he is said to have invested his
money. If he has invested the money in the property, it is his own
invitation as he has not acted as a prudent purchaser. He has not verified
the original title deed or Encumbrance Certificate of the properties which
is sought to be purchased by him. That itself would go to show that he is
not a bonafide purchaser and he is only interested in purchasing the
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litigation for which he has to be blamed.
12.The Division Bench of this Court rightly held that Article
226 cannot be invoked when the civil rights of the parties over the
property have to be decided and the proper course is only go before the
civil court. This Court respectfully admits the said reasoning given by
the Division Bench of this Court.
13.The memo issued by the 2nd respondent refusing the
registration of the document produced by the appellant/1st respondent on
the ground that the property was already sold may not be in correct
position. What should have been done by the 2nd respondent is to refuse
the registration on the ground that the original title deeds were not
produced. In any event, the rejection is rightly done, but on a wrong
reasoning and therefore, this Court approves the rejection and deems it as
if it has been rejected for non production of original title deed by the
executants at the time of registration of the property.
14.No doubt, Rule 55 contemplates only a few existencies.
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Rule 55 is extracted as follows.
“55.It forms no part of a registering officer's duty to
enquire into the validity of a document brought to him for
registration or to attend to any written or verbal protest
against the registration of a document based on the ground
that the executing party had no right to execute the
document; but, he is bound to consider objections raised
on any of the grounds stated below:-
(a)that the parites appearing or about to appear before
him are not the person they profess to be;
(b)that the document is forged;
(c)that the person appearing as a representative, assign or
agent, has no right to apper in that capacity;
(d)that the executing party is not realy dead, as alleged byt
heparty applying for registratio; or
(e)that the executing party is a minor or an idiot or a
lunatic”
15.Whether this Court can be a generator of litigation,
especially when fraudulent transactions are getting a legal colour by
passing orders? If a document is sought to be registered without
production of the original title deeds, definitely it will lead to registration
of FIR by invoking criminal jurisdiction and multiplicity of proceedings
before the civil Courts. The aim of the Court is only to see that the
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litigations are prevented and the property owners are not unnecessarily
harassed and that is the exact reason behind the issuance of circular dated
25.04.2012 by the Inspector General of Registration in the State of the
Tamil Nadu. The said circular was necessarily issued by taking note the
following number of cases fraudulently registered:
ANNEXURE – I
U Section pending cases as on 20/10/2017 Under Circular 67
Based on IGR Order No. C.No.52338/C1/2011 Circular 67 dated
03.11.2011
S.No. Zone Petitions Enquiry Pending Petitions
Recevied Conducte Cases Rejected
d&
Orders
passed
1 Salem 1055 671 0 384
3 Coimbatore 630 481 3 146
4 Madurai 2696 892 44 1760
5 Vellore 499 256 0 243
6 Thanjavur 334 127 96 237
7 Chennai 3923 913 2839 171
8 Tirunelveli 1669 1215 454 1072
9 Trichy 1445 333 10 1102
TOTAL 12839 5406 3446 5185
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ANNEXURE – II
U Section Particulars under Circular 68 (2) order passed from
21.10.2017 to 16.09.2019
Based on IGR Order No. C.No.41530/U1/2017 Dated 08/11/2011
S.No. Zone Petitions Enquiry Pending Petitions
Recevied Conducte Cases Rejected
d&
Orders
passed
4 Madurai 1042 731 165 156
5 Vellore 322 244 35 43
7 Chennai 2107 436 1629 42
8 Tirunelveli 622 228 394 174
9 Trichy 599 198 333 69
TOTAL 6182 2617 3259 500
16.After coming to know about the number of fraudulent deeds
being registered, artificially creating encumbrance over the properties of
third parties by land sharks or land grabbers, the circular dated
25.04.2012 was rightly issued and therefore, the circular dated
25.04.2012 is being upheld by this Court as it is only prevent the
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registration of bogus documents and also to safeguard the interest of the
public and their properties.
17.No doubt, the circular dated 25.04.2012 is in the nature of
executive instruction which needs to be incorporated in Rules. It is
expected that the Government would incorporate the circular dated
25.04.2012 in the Registration Rules by way of an amendment, so that
the circular would get a statutory backing and on a later date, it would
not be found fault with.
18.Therefore, the State Government is to frame appropriate
Rules incorporating the circular dated 25.04.2012 within a period of six
(6) months from the date of receipt of a copy of this order and file a
compliance report before this Court.
19.The only remedy open to the 1st respondent either to request
the vendors viz., R4 to R7 to approach the civil Court either for
cancellation of sale deed dated 04.07.2002 or for partition of the property
making all the necessary parties as defendants in the Suit or by filing a
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civil suit for recovery of money which he is said to have paid to R4 to
R7. While defending the case, the appellants have got every right to
defend by pleading adverse possession and also limitation. Therefore,
the order passed by the learned single Judge is liable to be set aside and
the memo refusing to register the sale deed in favour of the 1 st
respondent dated 09.11.2015 is upheld for the reason that the executants
of the sale deed in favour of the 1st respondent has not produced the
parent title deed, as confirmed by the 2nd respondent by order dated
01.12.2015.
20.Accordingly, the Appeal is allowed. No costs.
Consequently, connected Miscellaneous Petition is also closed.
For reporting compliance, call the matter after six months.
(N.K.K.,J) (P.V.,J)
30.04.2021
sai
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W.A.No.1989 of 2019
To
1.The District Registrar,
Tiruppur Registration District,
Tiruppur.
2.The Sub Registrar,
Kunnathur, Avinashi Taluk,
Triuppur District.
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W.A.No.1989 of 2019
N.KIRUBAKARAN, J.
and
P.VELMURUGAN, J.
sai
W.A.No.1989 of 2019
Dated : 30.04.2021
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