Madras High Court
S.R.M.Packiri Rajan vs The Inspector General Of ... on 17 June, 2021
W.P.(MD).No.10177 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.10177 of 2021
S.R.M.Packiri Rajan ...Petitioner
Vs.
1. The Inspector General of Registration,
Registration Department,
No.100, Santhome High Road, Chennai-600 028.
2. The Deputy Inspector General of Registration,
Registration Department, Thirumohur Road,
Othakadai, Madurai.
3. The District Registrar, (Administration),
Registration Department,
Collectorate Campus, Dindigul.
4. The Sub Registrar,
Sub-Registrar Office,
Kodaikanal, Dindigul District.
5. R.Deepa ... Respondents
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records of the third
respondent in O.Mu.No.53/Aa3/2021, dated 05.02.2021 pertaining to the sale
deed in Document No.1524/2017, dated 25.09.2017 in favour on one
R.Deepa registered on the file of the fourth respondent and quash the same as
illegal and consequently direct the official respondents herein to remove the
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W.P.(MD).No.10177 of 2021
entry of sale deed in Document No.1524/2017, dated 25.09.2017 from their
records within a time frame that may be stipulated by this Court.
For Petitioner : Mr.R.R.Kannan
For R-1 to R-4 : Mr.S.Shanmugavel
Government Advocate (Civil)
ORDER
This Writ Petition has been filed questioning the impugned
communication of the third respondent, dated 05.02.2021, wherein, the
representation made by the petitioner seeking for cancellation of an entry
made in the Encumbrance Certificate was rejected.
2. The case of the petitioner is that he is the absolute owner of
the subject property, by virtue of a registered partition deed, dated
22.02.1980. The further case of the petitioner is that a fraudulent document
came to be executed in favour of the fifth respondent by impersonation based
on a forged patta. The document was registered on the file of the fourth
respondent. This registration is said to have taken place even without
verifying the parent documents.
3. Immediately after the registration of the document, it came to
the knowledge of the petitioner. The petitioner made an application to the
third respondent to take action and to declare the transaction as a fraudulent
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W.P.(MD).No.10177 of 2021
transaction. The third respondent, passed an order on 26.03.2018, by
directing the petitioner to approach the concerned Civil Court, seeking for
cancellation of the document. Aggrieved by the same, the petitioner filed an
appeal before the second respondent and the second respondent passed an
order on 30.04.2019, declaring that the document executed in favour of the
fifth respondent is a fraudulent document.
4. On a careful reading of the order passed by the second
respondent dated 30.04.2019, it is found that the second respondent, on a
detailed analysis has held that the registration was based on a forged patta
and the entire transaction was a fraudulent one. The second respondent, in
spite of rendering such a finding, refused to cancel / recall the registration on
the ground that there is no such power vested with the Registration
Department and the same has been made clear through a Circular issued by
the Inspector General of Registration, dated 31.07.2018.
5. The petitioner, thereafter, was expecting the order passed by
the second respondent to be reflected in the Encumbrance Certificate, which
will effectively reverse the earlier fraudulent transaction. However, the
earlier entry made at the time when the fraudulent transaction had taken place
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W.P.(MD).No.10177 of 2021
continued in the Encumbrance Certificate and therefore, the petitioner made a
representation to the third respondent on 04.01.2021, seeking for removal of
the entry.
6. The third respondent, by virtue of the impugned
communication, dated 05.02.2021, informed the petitioner that the relief
sought for by the petitioner cannot be granted by virtue of a Circular of the
Inspector General of Registration. Aggrieved by the same, the present Writ
Petition has been filed before this Court seeking for appropriate directions.
7. The learned counsel appearing for the petitioner submitted
that the order passed by the second respondent, dated 30.04.2019, has
become 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.
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W.P.(MD).No.10177 of 2021
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 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
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W.P.(MD).No.10177 of 2021
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.
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.
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W.P.(MD).No.10177 of 2021
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 found as fraudulent
vide proceedings of the District Registrar (Proceeding
No. and dated to be noted) due to----------(the findings
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W.P.(MD).No.10177 of 2021
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.”
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 with regard to a document, which has been
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W.P.(MD).No.10177 of 2021
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 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
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W.P.(MD).No.10177 of 2021
of receipt of a copy of this order.
15. This Writ Petition stands allowed with the above directions.
No costs.
17.06.2021
Internet : Yes/No
Index : Yes/No
tsg
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.10177 of 2021
To
1. The Inspector General of Registration,
Registration Department,
No.100, Santhome High Road, Chennai-600 028.
2. The Deputy Inspector General of Registration,
Registration Department, Thirumohur Road,
Othakadai, Madurai.
3. The District Registrar, (Administration),
Registration Department,
Collectorate Campus, Dindigul.
4. The Sub Registrar,
Sub-Registrar Office,
Kodaikanal, Dindigul District.
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W.P.(MD).No.10177 of 2021
N.ANAND VENKATESH, J.
tsg
Order made in
W.P.(MD).No.10177 of 2021
Dated:
17.06.2021
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