Madras High Court
T.Chinnamanyakar @ Bangarusamy vs The Inspector General Of ... on 29 July, 2021
W.P.(MD).No.12888 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
W.P.(MD).No.12888 of 2021
and
W.M.P.(MD).No.9966 of 2021
T.Chinnamanyakar @ Bangarusamy ...Petitioner
Vs.
1.The Inspector General of Registration,
Registration, Department,
No.100, Santhome High Road,
Chennai – 600 028.
2.The District Registrar (Administration),
Registration Department,
Periyakulam, Theni,
Theni District.
3.The Sub Registrar,
O/o. The Sub Registrar Office,
Registration Department,
Aundipatty,
Theni District. ... Respondents
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records relating to
the order passed by the 3rd respondent in his proceedings in refusal check slip
1/16
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W.P.(MD).No.12888 of 2021
in RFL/Aundipatti/1/2021,dated 14-07-2021 and quash the same as illegal
and consequently to direct the 3rd respondent to register and release the sale
deed, dated 06-07-2021, presented on 13-07-2021, within the period that may
be stipulated by this Court.
For Petitioner : Mr.C.Venkatesh Kumar
For Respondents : Mr.M.Lingadurai
Government Advocate
ORDER
This writ petition has been filed for the issuance of a Writ of
Certiorarified Mandamus, calling for the records relating to the order passed
by the 3rd respondent in his proceedings in refusal check slip in
RFL/Aundipatti/1/2021,dated 14-07-2021 and quash the same as illegal and
consequently to direct the 3rd respondent to register and release the sale deed,
dated 06-07-2021, presented on 13-07-2021, within the period that may be
stipulated by this Court.
2.Heard the learned counsel for the petitioner and the learned
Government Advocate appearing for the respondents.
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W.P.(MD).No.12888 of 2021
3.The case of the petitioner is that the land comprised in Survey No.
259 to an extent of 2 Acres 72 cents and in S.No. 262 to an extent of 4 Acres
68 Cents totally to an extent of 7 Acres 40 Cents situated at Kovilpatty
Village, Aundipatty Sub Division, Periyakulam, Registration District, Theni
District, originally belonged to one Mr.R.J. Sundaraja Iyyangar. He executed
a registered sale deed in Document No.7433/1960 in favour the petitioner and
one Rangaswamy Naicker on 22.09.1960, as such, they are in joint possession
and enjoyment of the above said property. Whilso, one Duraiswamy, who
created the forged document in respect of S.No.262 to an extent of 4 Acres 68
Cents, registered the same in favour of his son viz., D. Pichaimani vide
Doc.No.3371 of 2014, dated 16.07.2014. Thereafter, another forged
document was created by the wife of the abovesaid Duraisamy viz.,
Jothiammal and his two sons viz., Velmurugan and Muthuvel in respect of
S.No. 259 to an extent of 2 Acres 72 Cents and they registered the same in
favour of D.Pichaimani vide Doc.No.4310 of 2016 dated 08.09.2016. Later,
the said Pichaimani executed a forged sale deed in favor of his wife Viz.,
Ramya in respect of S. No. 259 and 262 to an extent of 2 Acres 72 Cents and
4 Acres 68 Cents totally to an extent of 7 Acres 40 Cents vide Doc.No.1119
of 2017 dated 14.03.2017.
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W.P.(MD).No.12888 of 2021
4.The further case of the petitioner is that he made a representation to
the 2nd respondent, on 16.04.2018 to cancel the forged documents created
vide Doc.Nos.3371/2014, 4310/2016 and 1119/2017. After conducting full-
fledged enquiry by hearing both the parties, the 2nd respondent by his
proceedings dated 13.08.2018 has declared that the documents executed vide
Doc.Nos.3371/2014, 4310/2016 and 1119/2017 are fraudulent documents and
necessary entries have also been made in the Index of the Encumbrance
Certificate (EC), as such, the said subject matter of property is free from any
encumbrance on the strength of the proceedings of the 2 nd respondent in
Na.Ka.No.1512/E2/2018, dated 13.08.2018.
5. It is further stated that thereafter, the petitioner presented the
settlement deed in favour of his wife viz., Kamuthai in respect of the property
in S.No.262 to an extent of 2 Acres 34 Cents before the 3rd respondent Sub
Registrar Office on 13.07.2021, for execution, it has been returned vide
Impugned Refusal Check Slip, dated 14.07.2021 stating that the petitioner
has to get cancellation of the earlier documents registered vide Doc.Nos
3371/2014, 4310/2016 and 1119/2017 by approaching the Civil Court and re-
submit the settlement deed for registration. Hence, this Writ Petition.
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W.P.(MD).No.12888 of 2021
6.The learned counsel for the petitioner would state that once the order
is passed by the 2nd respondent declaring that the documents executed vide
Doc.Nos.3371/2014, 4310/2016 and 1119/2017 are fraudulent documents and
necessary entries have also been made in Index of the Encumbrance
Certificate (EC), the petitioner need not approach the Civil Court to cancel
the forged documents. The order passed by the second respondent, dated
13.08.2018 has become final and the same has not been put to challenge on
appeal. The said position was reiterated by this Court in the case of
J.Jayaniithaa Vs. Inspector General of Registration and others reported in
2021 (1) CTC 839 wherein it has been held that in the event of transaction
held as fraudulent by the competent authority, the party should not be driven
to the Civil Court to cancel the document and the proper course stipulated is
that entry has to be made in the Encumbrance Certificate reversing the earlier
entry at the time when the fraudulent transaction was registered. Thus, he
would pray for setting aside the impugned order. In support of his
contentions, he would rely on the decisions of this Court made in W.P.18721
of 2020 etc., batch, dated 15.12.2020 & W.P.(MD)No.10177 of 2021, dated
17.06.2021, and submitted that in similar circumstances, this Court has
granted the relief to the petitioners therein.
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W.P.(MD).No.12888 of 2021
7.The learned Government Advocate appearing for the respondents
submitted that the Hon'ble Supreme Court has held that the Registration
Department does not have the power to cancel any document and the same
has been followed by the Circular issued by the Inspector General of
Registration informing all the concerned Sub Registrars that such
cancellation of a registered document should not be done. Thus, he would
state that the impugned order does not require interference by this Court
Court.
8.Heard the learned counsel for the petitioner as well as the learned
Government Advocate for the respondents.
9. It is relevant to extra below the paragraphs 10 to 15 of the order
passed by this Court in W.P.(MD)No.10177 of 2021, dated 17.06.2021 relied
on by the learned counsel for the petitioner.
“7. The learned counsel appearing for the
petitioner submitted that the order passed by the
second respondent, dated 30.04.2019, has become
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W.P.(MD).No.12888 of 2021
final and the same has not been put to challenge
by the fifth respondent. The learned counsel by
bringing to the notice of this Court the Judgment
passed in the case of J.Jayaniithaa Vs. Inspector
General of Registration and others reported in
[2021 (1) CTC 839], submitted that where a
transaction has been held to be fraudulent, a party
should not be driven to a Civil Court to cancel the
document and proper entry has to be made in the
Encumbrance Certificate reversing the earlier
entry that was made place at the time when the
fraudulent transaction was registered.
8. The learned Government Advocate
(Civil) appearing on behalf of the official
respondents submitted that the petitioner was
insisting for the cancellation of the earlier sale
deed executed in favour of the fifth respondent
and such request made by the petitioner is
un~sustainable since the Hon-ble Supreme Court
has held that the Registration Department does not
have the power to cancel any document and the
same has been followed up by the Circular issued
by the Inspector General of Registration
informing all the concerned Sub Registrars that
such cancellation of a registered document should
not be done. The learned counsel further
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W.P.(MD).No.12888 of 2021
submitted that the earlier transaction in favour of
the fifth respondent has been declared to be a
fraudulent transaction and the petitioner is also
permitted to deal with the subject property.
Therefore, he can always register the document
pertaining to the property. Apart from that, no
further relief can be granted to the petitioner by
the Registration Department.
9. This Court has carefully considered the
submissions made on either side and perused the
materials available on record.
10. The Registration Act, 1908, provides for
a mechanism to the concerned Authority to deal
with a complaint pertaining to a fraudulent
transaction. Once an Authority exercises such a
power and conducts an enquiry and ultimately,
finds that the entire transaction is fraudulent, such
an order passed by the Authority should get
reflected in the records. The Authority on the one
hand cannot state that he will declare a transaction
to be fraudulent and thereafter, he will send the
party to a Civil Court to cancel that document.
Declaring a transaction to be a fraudulent one,
virtually makes that document void in the eye of
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W.P.(MD).No.12888 of 2021
law. Once a document is void in the eye of law, it
is nonest and there is no necessity for a party to
unnecessarily spend his time in a Civil Court
seeking for cancellation of such a document. It
will be a wasteful exercise without any purpose.
11. In the present case, the second
respondent, after conducting an enquiry, has found
the transaction to be a fraudulent one and thereby,
the document executed in favour of the fifth
respondent has become nonest in the eye of law.
It is stated that this order has also become final.
Once such orders are passed, there is no
requirement to cancel the document and it is
enough if a necessary entry is made in the
Encumbrance Certificate itself reflecting the
proceedings of the concerned Authority declaring
the transaction to be a fraudulent one. Once such
an entry is made in the records, it automatically
reverses the earlier registration of the fraudulent
document. This procedure becomes even more
important, since the continuation of the early entry
made at the time when the transaction took place
and which has been subsequently declared to be
fraudulent, will virtually prevent the real owner of
the property to deal with his property. Therefore,
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W.P.(MD).No.12888 of 2021
in all such cases, once an order is passed by the
Authority declaring the transaction to be
fraudulent and it has become final, the same has to
be recorded in the relevant register and it must be
reflected in the Encumbrance Certificate. It is
brought to the notice of this Court that when the
circular was issued by the Inspector General of
Registration in Letter No.41530/U1/2017, dated
31.07.2018, Clause 6 (a) and (b) specifically
provides for such an entry being made and for
proper appreciation, the same is extracted
hereunder:-
6. Hence, all the District Registrars are
hereby directed to do the following:-
a) If fraudulent registration is proved, apart
from directing the Registering Officers to file
police complaints against the fraudsters, specific
orders to be passed directing the Registering
Officers for making entry in the relevant indexes
and also in the copies of documents. The entry in
index (ii) shall be made as “The registration of
document is found as fraudulent vide proceedings
of the District Registrar (Proceeding No. and
dated to be noted) due to ---------- (the findings to
be given briefly)”. The same note has to be made
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W.P.(MD).No.12888 of 2021
as a footnote in the relevant copies of documents
filed and to be signed by the Registering Officer.
If it is scanned document, then the note has to be
made in a separate white paper, signed by the
Registering Officer and to be linked to the main
document.
(b) District Registrars in his/her
proceedings should direct the Registering Officers
that no registration of documents should be done
based on the fraudulent document as declared by
the District Registrar. But, the genuine owner of
the property in question should be allowed to
proceed with further registration irrespective of
the occurrence of the fraudulent registration with
respect to the said property.”
12. It is clear from the above circular that
the order passed by the competent Authority
declaring a transaction to be a fraudulent one and
where such order has become final, necessary
entry has to be made in index. That apart, a foot
note must also be made in the relevant copies of
the documents. This safeguard is being given
only to ensure that an innocent third party should
be made aware that such an order has been passed
and that he is not misled to enter into a transaction
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W.P.(MD).No.12888 of 2021
with regard to a document, which has been held to
be a fraudulent one. This procedure will at least
save the time of the real owner of the property,
who need not unnecessarily knock the doors of a
Civil Court.
13. It is made clear that this procedure must
be scrupulously followed in all cases, where the
transaction has been declared to be a fraudulent
one by the competent Authority and such order
has become final. The Inspector General of
Registration shall refer to this order and issue a
circular to all the Sub Registrar Offices across
Tamil Nadu and direct them to strictly follow the
directions issued in the earlier circular dated
31.07.2018.
14. In view of the above, this Court is
inclined to interfere with the impugned
communication of the third respondent and
accordingly, the same is quashed. There shall be a
direction to the third respondent to take steps to
record the proceedings of the second respondent,
dated 30.04.2019 in the relevant books and the
same should be reflected in the Encumbrance
Certificate. This will effectively reverse the
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W.P.(MD).No.12888 of 2021
earlier entry that was made when the sale deed
was executed in favour of the fifth respondent and
which has been subsequently held to be a
fraudulent transaction. This process shall be
completed by the third respondent within a period
of two weeks from the date of receipt of a copy of
this order.
15. This Writ Petition stands allowed with
the above directions. No costs.”
10.In my considered opinion, the above decision is squarely applicable
to the facts of the present case. Accordingly, the impugned refusal check slip
dated 14.07.2021 of the third respondent is quashed. There shall be a
direction to the third respondent to take steps to record the proceedings of the
2nd respondent, dated 13.08.2018 in the relevant books and the same should
be reflected in the EC., within a period of four weeks from the date of receipt
of a copy of this order. Thereafter, it is for the petitioner to approach the
Sub-Registrar for execution of the settlement deed.
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W.P.(MD).No.12888 of 2021
11.This Writ Petition stands disposed of with the above directions. No
costs. Consequently, connected miscellaneous petition is closed.
29.07.2021
Internet : Yes/No
Index : Yes/No
TM/MPK
NOTE: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
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W.P.(MD).No.12888 of 2021
To
1.The Inspector General of Registration,
Registration, Department,
No.100, Santhome High Road,
Chennai – 600 028.
2.The District Registrar (Administration),
Registration Department,
Periyakulam, Theni,
Theni District.
3.The Sub Registrar,
O/o. The Sub Registrar Office,
Registration Department,
Aundipatty,
Theni District.
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W.P.(MD).No.12888 of 2021
J. NISHA BANU, J.
TM
Order made in
W.P.(MD).No.12888 of 2021
Dated:
29.07.2021
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