Madras High Court
B.Mahendran vs The Inspector General Of ... on 30 July, 2021
W.P.(MD).No.13147 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.07.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
W.P.(MD).No.13147 of 2021
and
W.M.P.(MD).No.10157 of 2021
B.Mahendran ... Petitioner
- Vs -
1.The Inspector General of Registration,
Registration Department,
NO.100, Santhome High Road,
Chennai- 600028.
2.The Deputy Inspector General of Registration,
Registration Department,
Trichy.
3.The District Registrar, (Administration),
Registration Department,
Trichy.
4.The Sub Registrar,
Sub-Registrar Office,
Thiruvarambor,
Trichy.
5.S.Kanniyan,
6. S.Kannaiyan
7.M.Mariyappan ... Respondents
1/14
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W.P.(MD).No.13147 of 2021
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 3rd Respondent impugned proceedings in
Moo.Mu.No.4816/A4/2021 dated 18.06.2021, pertaining to sale deed in
document No. 57/18, dated 04.01.2018 and the rectification deed in
document No.401/18, dated 25.01.2018 executed by the 6th Respondent
in favour of the 7th Respondent and the sale deed in document No.
522/18, dated 01.02.2018, executed by the 7th Respondent in favour of
the petitioner, registered on the file of the 4th Respondent and quash
the same as illegal and consequently directing the Respondent 1 to 4 to
remove the entry of the sale deed in document No. 57/ 18 dated
04.01.2018 and the rectification deed in document No. 401/18, dated
25.01.2018 and the sale deed in document No, 522/18 dated
01.02.2018 from the records within time frame that may be stipulated
by this Court.
For Petitioner : Mr.K.Mahendran
For Respondents : Mr.M.Lingadurai
Government Advocate
ORDER
This writ petition has been filed to quash the 3rd Respondent
impugned proceedings in Moo.Mu.No.4816/A4/2021 dated 18.06.2021,
pertaining to sale deed in document No. 57/18, dated 04.01.2018 and
the rectification deed in document No.401/18, dated 25.01.2018
executed by the 6th Respondent in favour of the 7th Respondent and the
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W.P.(MD).No.13147 of 2021
sale deed in document No. 522/18, dated 01.02.2018, executed by the
7th Respondent in favour of the petitioner, registered on the file of the
4th Respondent and consequently, directing the Respondent 1 to 4 to
remove the entry of the sale deed in document No. 57/ 18 dated
04.01.2018 and the rectification deed in document No. 401/18, dated
25.01.2018 and the sale deed in document No, 522/18 dated
01.02.2018 from the records within time frame that may be stipulated
by this Court.
2. The brief facts of the case are as follows:-
(i) The petitioner purchased the Plot No.149 in the approved
layout LPTT No.21/84 in Survey No.603, 604, 609, 611 ,613/1, 614 and
615/2 of Semangulam Village with in the Thiruvarambur Sub
Registration District, Thiruvarambur Taluk, Trichy District, from the 7th
Respondent, on a valuable consideration and the same has been
registered as document No. 522/18, before the 4th Respondent on
01.02.2018. The petitioner purchased the property after verification of
the sale deed in document No. 57/18 and the rectification deed in
document No.401/18, executed by the 6th respondent in favour of the 7th
Respondent and also the 6th Respondent purchased the above said
property from the General Power holder K.A.Kalik S/o. N.M.Kajamiyan
Rowther on 11.05.1984 and the same has been Registered as document
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W.P.(MD).No.13147 of 2021
No.1188/1984, before the 4th Respondent. Petitioner verified the
Encumbrance Certificate from 1980 to till the date of Registration and
nothing reflect in the Encumbrance Certificate, except the above said
documents. Therefore, petitioner was under impression that he is the
bonafide purchaser of the above said Plot and have every right to deal
with the above said Plot.
(ii) After purchase, during the month of March, 2018 with a view
to construct a house started an earth work in the vacant plot. At that
time, the 5th respondent came and prevented the petitioner to clear the
plot and informed that he is the owner of the plot and did not sold the
property to anybody else. Further, the 5th respondent gave a complaint
to the 4th Respondent stating that he is the real owner of the property
and the 6th respondent created a forged sale deed in document No.57/
18 and rectification deed in document No. 401/18 and sold the property
to the 7th respondent with the connivance of one Sekar and Ashok
Kumar. Again the 7th Respondent with the connivance of the 6th
Respondent, Sekar and Ashok Kumar sold the property to the petitioner
and the same has been registered in document No. 522/18. Further, the
5th Respondent requested the 4th Respondent to cancel the documents
executed by the 6th respondent to 7th respondent and 7th respondent to
the petitioner and also take criminal action against the forged persons.
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W.P.(MD).No.13147 of 2021
(iii) The 4th respondent after scrutinizing all the sale deeds came
to the conclusion that the 6th respondent is not a real Kanniyan and the
5th respondent is a genuine person. Further, the 6th respondent
impersonate himself as 5th respondent and executed a forged
document. Hence, the 4th respondent by proceedings dated 08.02.2018
requested the Superintendent of Police, Trichy, to take necessary action
against the said forged persons. After receiving letter from the 4th
respondent, the Superintendent of Police, Trichy, forwarded the same
to the Inspector of Police, District Crime Branch (Land Grabbing),
Tricy. Based on the complaint from the 5th respondent, a case in Crime
No.5 of 2019 was registered, for the alleged offences under Sections
419, 420, 465, 467, 468 and 471 of IPC., against the 6th and 7th
respondents, the witnesses Sekar and Ashok Kumar and against the
petitioner.
(iv) Thereafter, the petitioner approached the 5th respondent and
told him that once again the petitioner intended to purchase the
property on valuable sale consideration to avoid criminal case against
him and requested the 5th respondent to sell the same property to the
petitioner at the prevailing market rate. Accordingly, the petitioner
and the 5th respondent entered an agreement on 08.02.2021 and the
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W.P.(MD).No.13147 of 2021
petitioner paid a sum of Rs.16,00,000/-, as sale consideration and
handed over all the original documents to the petitioner. It has been
mentioned in the document that the petitioner have to cancel the
forged sale deed created by the 6th and 7th respondents. The Petitioner
and the 5th respondent gave a complaint on 24.03.2021 to the 3rd
respondent seeking cancellation of the forged documents executed by
the respondents 6 and 7.
(v). On receipt of the complaint, the 3rd respondent initiated
proceedings in Na.Ka.No.4816/A4/2021, dated 08.04.2021, sent a
notice to the petitioner, respondents 5 to 7 and conducted an enquiry
on 10.05.2021. Further, the 3rd respondent also directed the 4th
respondent to produce the relevant records on 10.05.2021. In the
mean time, the 3rd respondent received a letter from the 4th respondent
vide proceedings in Na.Ka.No.258/2021, dated 14.06.2021 stating that
the 4th respondent received a report from the Inspector of Police,
District Crime Branch (Land Grabbing), that the 6th respondent created
a forged document and directed the 4th respondent to cancel the above
said forged documents and permit the 5th respondent to execute a sale
deed to the proposed purchaser, to that extent the investigation officer
also give no objection.
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W.P.(MD).No.13147 of 2021
(vi). On 10.05.2021, the 3rd respondent conducted an enquiry.
On that day, the 5th respondent produced the relevant documents to
establish that the 5th respondent is the real owner of the property. The
enquiry notice sent to the respondents 6 and 7 returned as insufficient
address and no such person in the said address. The 3 rd respondent,
based on the relevant documents and the reports furnished by the
investigation authority came to the conclusion that the documents
executed by the respondents 6 and 7 are forged one and passed the
impugned proceedings in Moo.Mu.No.4816/A4/2021, dated 18.06.2021
and further he came to the conclusion that in view of the Circular
issued by the 1st respondent in his letter No.41530/U1/2017, dated
20.10.2017, he has no power to cancel the fraudulent documents and
directed to the petitioner to approach the concern civil Court for
seeking cancellation of the documents.
3. The learned counsel appearing for the petitioner 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
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W.P.(MD).No.13147 of 2021
Encumbrance Certificate reversing the earlier entry that was made
place at the time when the fraudulent transaction was registered.
4. The learned Government Advocate appearing on behalf of the
official respondents submitted that the petitioner and the 5th
respondent insisting for the cancellation of the earlier sale deed
executed and such request made by them 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 submitted that the earlier transaction 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.
5. This Court has carefully considered the submissions made on
either side and perused the materials available on record.
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W.P.(MD).No.13147 of 2021
6. 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
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.
7. In the present case, the third respondent, after conducting an
enquiry, has found the transaction to be a fraudulent one and thereby,
the document executed in favour of the petitioner 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
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W.P.(MD).No.13147 of 2021
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, 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
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W.P.(MD).No.13147 of 2021
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 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.”
8. 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
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W.P.(MD).No.13147 of 2021
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 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.
9. In view of the above, this Court is inclined to interfere with the
impugned proceedings of the third respondent, dated 18.06.2021 and
accordingly, the same is quashed. There shall be a direction to the
respondents 1 to 4 to remove the entry of the sale deed in document
No. 57/ 18, dated 04.01.2018 and the rectification deed in document
No. 401/18, dated 25.01.2018 and the sale deed in document No,
522/18 dated 01.02.2018 from the records. 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.
10. This Writ Petition stands allowed with the above directions.
No costs. Consequently, the connected miscellaneous petition is closed.
30.07.2021
Internet : Yes/No
Index : Yes/No
MPK
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.13147 of 2021
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.
To
1.The Inspector General of Registration,
Registration Department,
NO.100, Santhome High Road,
Chennai- 600028.
2.The Deputy Inspector General of Registration,
Registration Department,
Trichy.
3.The District Registrar, (Administration),
Registration Department,
Trichy.
4.The Sub Registrar,
Sub-Registrar Office,
Thiruvarambor,
Trichy.
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W.P.(MD).No.13147 of 2021
J. NISHA BANU, J.
MPK
Order made in
W.P.(MD).No.13147 of 2021
Dated:
30.07.2021
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