Madras High Court
The Inspector General Of ... vs K.V.Jeyaraj on 12 November, 2021
W.A.(MD) Nos.162 & 176 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.A.(MD) Nos.162 & 176 of 2010
W.A.(MD) No.162 of 2010:
1.The Inspector General of Registration
No.120, Santhome High Road
Mandaveli, Chennai-28
2.The Registrar
Registration
Periyakulam
Theni District
3.The Sub Registrar
Office of the Sub Registrar
Registration
Markayan Kottai Road
Chinnamanur
Theni District ... Appellants
-vs-
K.V.Jeyaraj ... Respondent
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https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.162 & 176 of 2010
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.01.2010, passed in W.P.(MD) No.12278 of 2009, on the file of
this Court.
For Appellants : Mr.P.Subbaraj
Special Government Pleader
For Respondent : Died
W.A.(MD) No.176 of 2010:
Tamil Nadu Wakf Board
rep.by its Chief Executive Officer
No.1, Jaffar Syrang Street
Vallal Seethakadi Nagar
Chennai-1 ... Appellant
-vs-
1.K.V.Jeyaraj (Died)
2.The Inspector General of Registration
No.120, Santhome High Road
Mandaveli
Chennai-28
3.The Registrar
Registration
Periyakulam
Theni District
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W.A.(MD) Nos.162 & 176 of 2010
4.The Sub Registrar
Office of the Sub Registrar
Registration
Markayan Kottai Road
Chinnamanur
Theni District
5.J.Maragatham
6.J.Jeyarathi
7.Prabha
8.Prabhakaran ... Respondents
[R5 to R8 are impleaded as LRs of the
deceased R1 vide Court Order dated
06.08.2021 made in C.M.P.(MD) No.2334
of 2021 in W.A.(MD) No.176 of 2010]
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.01.2010, passed in W.P.(MD) No.12278 of 2009, on the file of
this Court.
For Appellant : Mr.A.Ajmal Khan, Standing Counsel
For Respondents : Mr.P.Subbaraj
Special Government Pleader for R2 to R4
Mr.T.Lajapathi Roy for R5 & R8
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W.A.(MD) Nos.162 & 176 of 2010
COMMON JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
One K.V.Jeyaraj approached this Court under Article 226 of the
Constitution of India seeking writ of mandamus directing the Inspector
General of Registration and his subordinates, more particularly, the Sub
Registrar, Chinnamanur, Theni District, to release the document
No.P200900045, dated 24.07.2009, which was captioned as “Gift Deed”
executed by him and his wife Maragatham in favour of their son Prabhakaran.
The said document was registered, but the original document was not
returned, presumably due to the objection raised by the Wakf Board claiming
title over the subject property.
2. The learned Single Judge of this Court, vide order dated
07.01.2010, has held that when a document is presented for registration, it is
the duty of the Registering Authority to register the same and there is no
power to withhold the document. However, this proposition of law has
undergone a sea change due to the amendment brought in the Registration
Act to one Section 22-A and also in view of Section 51 of the Waqf Act, 1995,
which was substituted with effect from 01.11.2013.
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W.A.(MD) Nos.162 & 176 of 2010
3. When aggrieved by the aforesaid order the Inspector General of
Registration preferred appeal in W.A.(MD) No.162 of 2010, the Tamil Nadu
Wakf Board obtained leave of this Court and preferred W.A.(MD) No.176 of
2010. The sum and substance of the grounds of the said writ appeal is that
the respondent Jeyaraj has no right or title over the property, which was
transferred under the Gift Deed dated 24.07.2009. The subject property
belongs to the Wakf Board and the proforma issued by the Wakf Board would
clearly show that the property covered under Registration No.238, Survey Nos.
54/5 and 54/6 at Ponmeni Village falling within the jurisdiction of the Sub
Registrar, Chinnamanur, is a declared wakf property and the wakf property
cannot be alienated without the consent of the Wakf Board. While so, by
misrepresenting that the dispute over the title in the property had already
been settled in O.S.No.919 of 1997, on the file of the District Munsif Court,
Madurai and in W.O.P.No.6 of 2002, on the file of the Principal Sub Court,
Madurai, the respondent / writ petitioner attempted to register the Gift Deed.
When the Wakf Board made an objection regarding alienation of the subject
property, the Registration Department has rightly withheld the document.
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W.A.(MD) Nos.162 & 176 of 2010
4. The learned Special Government Pleader appearing for the
appellant / Registration Department would submit that pursuant to the
insertion of Section 22-A of the Registration Act, 1908, which was notified on
05.02.2009 and came into effect on 20.10.2016, the Registrar has right to
refuse to register certain documents and under Clause (iii) to Sub-Section (1)
of Section 22-A, when a property belongs to wakfs, which are under the
superintendence of the Tamil Nadu Wakf Board, sanction from the competent
authority is required. Since the property, which is the subject matter of the
Gift Deed, belongs to the wakf and no sanction for alienation was obtained
from the Wakf Board, the very registration of the Gift Deed is non est in law
and therefore, the Sub Registrar, Chinnamanur, is right in withholding the
document.
5. Per contra, the learned counsel appearing for the respondent /
writ petitioner would submit that the amendment to the Registration Act and
the Waqf Act came into force subsequent to the registration of the Gift Deed
and furthermore, even the objection now made by the Wakf Board was not
informed to the writ petitioner to meet out the said objection.
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W.A.(MD) Nos.162 & 176 of 2010
6. When an identical issue came up for consideration before the
Division Bench of this Court in Sudha Ravi Kumar vs. The Special
Commissioner, H.R. & C.E. Department, reported in 2017 (3) CTC 135, the
Division Bench of this Court, after due consideration of the facts, which are
almost identical to the present case, has laid down the following directions:
“25. In view of the above discussions, all the writ
petitions are allowed and the impugned orders are set
aside with the following directions:
(i) The registering authority before
whom the document has been presented shall
cause service of notice on the parties to the
deeds and also to the objector / religious
institution, hold summary enquiry, hear the
parties and then either register or refuse to
register the document by passing an order
having regard to the relevant facts as
indicated above.
(ii) If the registering authority, refuses
to register any document by accepting the
objections raised under Section 22-A of the
Registration Act, the aggrieved may file a
statutory appeal under the Act.
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W.A.(MD) Nos.162 & 176 of 2010
(iii) If the objections raised under
Section 22-A of the Act by the religious
institution are rejected and the document is
registered, the remedy for the religious
institution is to either approach this Court by
way of a writ petition seeking cancellation of
the registration or for any other relief or to
approach the civil Court for declaration of the
title and for other consequential reliefs.
(iv) If the registering authority refuses
to register the document acting on the
objections raised by a religious institution
under Section 22-A of the Registration Act, the
parties to the deed will be at liberty to
straightaway approach the Civil Court for
declaration of title and other relief without
availing the opportunity for filing a statutory
appeal.
(v) We further direct that if the deed
has already been registered without there
being any objection by the religious institution
under Section 22-A of the Act, the document
shall be returned to the parties concerned
leaving it open for the religious institution to
approach either the High Court under Article
226 of the Constitution of India or the Civil
Court for appropriate relief as indicated above.
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W.A.(MD) Nos.162 & 176 of 2010
At any rate, the registering authority shall not
33 withhold the deed which has already been
registered.
(vi) Consequently the connected
miscellaneous petitions are closed.”
The above direction has been followed by this Court in the subsequent
litigations. The only difference in fact to the instant case is that there is a
reference about the earlier litigation regarding title over the property, however,
there is no document furnished by the respondent / writ petitioner either
before the Registering Authority or before the learned Single Judge or before
the Division Bench.
7. In such circumstances, this Court is of the opinion that the
appeals preferred by the Wakf Board and the Registration Department are
liable to be allowed and the order passed by the learned Single Judge is to be
set aside.
8. This Court found that pending writ appeals, the respondent /
writ petitioner died and his legal representatives were brought on record as
respondents 5 to 8 in W.A.(MD) No.176 of 2010. The dismissal of the writ
petition will not stand in the way of the legal representatives of the deceased
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W.A.(MD) Nos.162 & 176 of 2010
writ petitioner to approach the District Registrar, Theni District and to place
all the records pertaining to the title to the subject property and if such
representation is made, due notice be given to the Wakf Board and
appropriate orders shall be passed on merits and in accordance with law after
hearing both parties, within a reasonable time.
9. At this juncture, the learned Standing Counsel appearing for
the Tamil Nadu Wakf Board placed a submission that unscrupulous persons
try to register the properties of the Wakfs and other Religious Institutions by
suppressing the facts and create encumbrance over the properties. To avoid
such happenings in future, the proforma of the properties hold by the Wakfs
may be linked with the Registration Department so that the concerned
Registrar shall refuse to register the documents in respect of those properties.
10. This Court finds force in the above submission of the learned
Standing Counsel for the Wakf Board. Therefore, this Court suggests to the
Government that wherever there is a bar for registration of the document
under Section 22-A of the Registration Act, 1908 and the right conferred to the
Registering Authority to refuse registration of documents on the ground that
the property belongs to the State or the Local Body or to any other Religious
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W.A.(MD) Nos.162 & 176 of 2010
Institutions etc., such details may be made available to the concerned
Registration Department, so that registration of such properties by
suppression of facts can be avoided.
11. In fine, the writ appeals are allowed and the order dated
07.01.2010 in W.P.(MD) No.12278 of 2009 is set aside. Consequently, the writ
petition in W.P.(MD) No.12278 of 2009 is dismissed. No costs.
[S.V.N., J.] [G.J., J.]
12.11.2021
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Inspector General of Registration,
No.120, Santhome High Road,
Mandaveli, Chennai-28.
2.The Registrar,
Registration,
Periyakulam,
Theni District.
3.The Sub Registrar,
Office of the Sub Registrar,
Registration,
Markayan Kottai Road,
Chinnamanur, Theni District.
______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.162 & 176 of 2010
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
krk
W.A.(MD) Nos.162 & 176 of 2010
12.11.2021
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https://www.mhc.tn.gov.in/judis
