Madras High Court

S.Gunasekar vs The Sub Registrar on 8 November, 2021

                                                                                           WP.No.23749 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 08.11.2021

                                                              CORAM

                                  THE HONOURABLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                                      WP.No.23749 of 2021

                     S.Gunasekar                                                ...       Petitioner
                                                                Vs

                     1.The Sub Registrar,
                       Sub Registrar Office,
                       Purasaiwalkam, Chennai
                     2.Inspector General of Registration,
                       Santhome High Road,
                       Chennai 600 028                                          ...       Respondents


                     Prayer :-
                                    Writ Petition is filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Certiorarified Mandamus calling for the records
                     relating to the impugned order “refusal check slip”, dated 17.09.2021 in
                     Ref.No.RFL/PURASAIVAKKAM/BOOK 2.10.2021 passed by the first
                     respondent in respect of the pending document P.No.89/2021 relating to the
                     sale of the property bearing Plot No.99, Old Door No.9, new door.38/1,
                     Ramakrishnan Street, Perambur, Chennai – 600 011, comprised in Old
                     R.S.No.461          Part,     New      Re-Survey     No.462/29       as    per     patta
                     S.No.461/60         of      Perambur   Village     block   No.024,    measuring       an

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                                                                                      WP.No.23749 of 2021

                     extent of 709 sq.ft. together with 4 feet passage from the street
                     to the property measuring 114.66 sq.ft. totally measuring 823.66 sq.ft.
                     executed by the vendor P.R.Jayanthi and quash the same and further
                     directing the first respondent to receive the pending document P.No.89 of
                     2021 and register the same in accordance with law.


                                   For Petitioner       :   Mr.R.Manickavel

                                   For Respondents      :   Mr.Yogesh Kannadasan,
                                                            Government Advocate


                                                            ORDER

This writ petition is filed to issue a Writ of Certiorarified

Mandamus calling for the records relating to the impugned order “refusal

check slip”, dated 17.09.2021 in Ref.No.RFL/PURASAIVAKKAM/BOOK

2.10.2021 passed by the first respondent in respect of the pending document

P.No.89/2021 relating to the sale of the property bearing Plot No.99, Old

Door No.9, new door.38/1, Ramakrishnan Street, Perambur, Chennai – 600

011, comprised in Old R.S.No.461 Part, New Re-Survey No.462/29 as per

patta S.No.461/60 of Perambur Village block No.024, measuring an extent

of 709 sq.ft. together with 4 feet passage from the street

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to the property measuring 114.66 sq.ft. totally measuring 823.66 sq.ft.

executed by the vendor P.R.Jayanthi and quash the same and further

directing the first respondent to receive the pending document P.No.89 of

2021 and register the same in accordance with law.

2. The petitioner has purchased the land and building bearing plot

No.99, old door No.9, new door No.38/1 situated at Ramakrishnan Street,

Perambur, Chennai in old RS.No.461 part, new re-survey No.462/29 as per

patta S.No.461/60 admeasuring 709 sq.ft. together with 4 feet passage

(hereinafter called as 'subject property') from one, Jayanthi for valid sale

consideration by the registered sale deed dated 20.07.2021 as pending

document No.P89 of 2021 on the file of the first respondent. The petitioner

along with his vendor presented the said sale deed for registration.

However, it was not registered and kept as pending document No.P89 of

2021. The first respondent refused to register the same and issued the

impugned check slip dated 02.10.2021.

3. On perusal of the records, revealed that the petitioner's vendor

had an issue with one, M.Arumugam with relates to the earlier sale

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agreement. The vendor of the petitioner borrowed a sum of Rs.20,00,000/-

from the said Arumugam on execution of agreement for sale with regards to

the subject property. On the strength of the agreement for sale, the said

Arumugam filed suit in CS.No.114 of 2017 and obtained exparte decree. On

the strength of the exparte decree, he also filed execution petition and

obtained sale deed in his favour. However, the petitioner's vendor filed an

application before this Court to set aside the exparte decree and it was set

aside and consequential sale deed executed in favour of the said Arumugam

is also cancelled. Now the said suit has been transferred to the file of the

City Civil Court and renumbered as OS.No.5616 of 2021 and it is pending

for adjudication. While being so, the petitioner purchased the subject

property from his vendor for valid sale consideration and presented the sale

deed for registration. However, the first respondent refused to register the

same for the reason that the suit is pending in respect of the same property.

4. The learned counsel for the petitioner relied upon the judgment

in the case of N.Ramayee Vs. The Sub Registrar, Registration

Department, Salem reported in 2020 (6) CTC 697 rendered by the Hon'ble

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Division Bench of this Court, which was also confirmed by the Hon'ble

Supreme Court of India in SLP.No.4844 of 2021 dated 05.04.2021.

Accordingly, it is settled principles of law that pending suit or prior

registered agreement of sale or mortgage deed is not a bar for registration of

sale deed or conveyance. In fact, the said Arumugam is well protected under

Section 52 of Transfer of Property Act and the benefit of lispendence.

Therefore, the vendor cannot be indefinitely restrained from transferring or

conveying the subject property due to the pendency of the civil suit.

5. It is also relevant to rely upon the judgment in the case of

Sanjay Verma Vs. Manik Roy & Others reported in 2006 (13) SCC 608,

wherein the Hon'ble Supreme Court of India held that mere pendency of a

suit does not prevent one of the parties from dealing with the property

constituting the subject matter of the suit. The Section only postulates a

condition that the alienation will in no manner affect the rights of the other

party under any decree which may be passed in the suit unless the property

was alienated with the permission of the Court.

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6. In the case of N.Ramayee Vs. The Sub Registrar, Registration

Department, Salem reported in 2020 (6) CTC 697, the Hon'ble Division

Bench of this Court held as follows:

“...37.Accordingly, we answer the reference as follows:

If an agreement for sale is registered in respect of immovable property, the same will not be a bar for the owner of the property to effect subsequent transfers in respect of the same property. The Registrar has no right to refuse to register the document, except the documents relating to immovable properties mentioned in Section 22-A of the Tamil Nadu Act and as contemplated under Rule 162 of the Registration Rules.

40.As already indicated, the purpose of registration is only to give a public notice. It is for the buyer or subsequent transferee to make reasonable enquiry. Doctrine of caveat emptor will also apply to every transfer.

It is for them to verify the title of the property by making reasonable enquiry. At any event, subsequent transfer will always be subject to the rights already created. Therefore, it cannot be said that merely because agreement for sale is registered without obtaining decree of declaration that such agreement is void, subsequent transfer is prohibited and

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cannot be registered. We hold that as discussed in our judgment, Registrar has no right to refuse to register the subsequent document on the basis that agreement of sale was already registered in respect of same property.” Accordingly, the Registrar has no right to refuse to register the document,

except the documents relating to immovable properties mentioned in

Section 22-A of the Tamil Nadu Act and as contemplated under Rule 162 of

the Registration Rules. The Hon'ble Supreme Court of India further held

that it cannot be said that merely because agreement for sale is registered

without obtaining decree of declaration that such agreement is void,

subsequent transfer is prohibited and cannot be registered.

7. Therefore, mere pendency of the suit is not an impediment for

the first respondent to register the sale deed. Admittedly, no interim order

was passed as against the first respondent to decline the registration of

document with regards to the subject property. When it being so, the

impugned order cannot be sustained and it is liable to be set aside.

Accordingly, the impugned order dated 17.09.2021 is set aside and the writ