Madras High Court
Chinnaponnu vs The Joint Sub Registrar No on 15 November, 2021
W.P.No.31113 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.11.2021
CORAM
THE HONOURABLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.31113 of 2019
and
W.M.P.No.31236 of 2019
1. Chinnaponnu
2. Ganesan
3. Elumalai
4. Arumugam ... Petitioners
Vs
1. The Joint Sub Registrar No.1,
Villupuram.
2. Geetha
3. Baskar ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the 1 st
respondent in his proceedings relating to registration of the Document
bearing document No.3486/2019 dated 04.11.2019 on the file of the 1st
respondent and quash the same. (Prayer amended as per order dated
02.03.2020 made in W.M.P.No.34194/2019 in W.P.No.31113/2019)
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.31113 of 2019
For Petitioners : Mr.N.Suresh
For Respondents : Mr.Yoesh Kannadasan
Special Government Pleader (for R1)
: M/s.R.Poornima (for R2 & R3)
ORDER
This Writ Petition is filed to issue a Writ of Certiorari, calling for
the records of the 1st respondent in his proceedings relating to registration of
the Document bearing document No.3486 of 2019 dated 04.11.2019 on the
file of the 1st respondent and quash the same.
2. The case of the petitioners is that the they owned the properties
in Survey Dry Nos.91A/1C-0.12 cents, 91A/1D-0.14 cents, 91A/2B-0.12
cents, 91A/2C-0.10 cents and Wet S.No.223/3-0.18 cents, 223/4-0.09 cents,
223/5-0.01 cents, 226/-0.18 cents and 223/1-0.12 cents, situated at
Salamedu Village, Villupuram Taluk. They executed Power of Attorney
Deed in favour of the second respondent herein dated 13.07.1992, registered
vide Document No.51 of 1992 on the file of the first respondent herein. The
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W.P.No.31113 of 2019
said Power of Attorney Deed is not a power coupled with interest. It only
authorizes the second respondent to do certain acts on behalf of the
petitioners for the purpose of executing the sale deed, etc. Since the second
respondent acted against the interest of the petitioners, the petitioners
executed the cancellation of Power of Attorney Deed on 31.03.1993. It was
registered as Document No.33 of 1993 on the file of the first respondent.
However, it was challenged by the second respondent in O.S.No.31 of 2002
on the file of the District Munsif Court, Villupuram and decree was obtained
by the judgment and decree dated 05.08.2003. Though it was an ex-parte
decree, the set aside petition was filed along with delay, which was
dismissed. Therefore, again, the petitioners have executed another
cancellation deed on 27.03.2008, registered vide Document No.132 of 2008
on the file of the first respondent herein. It was not challenged by the second
respondent and it became valid and the second respondent herein has no
authority to deal with the subject properties on behalf of the petitioners
herein. However, the second respondent herein executed a sale deed in
favour of the third respondent who is none other than the own son of the
second respondent, after execution of cancellation of Power Attorney Deed
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W.P.No.31113 of 2019
dated 27.03.2008. The said sale deed was presented for registration on the
file of the first respondent herein. The said sale deed was kept pending as
Pending Document No.P4 of 2012. Therefore, the third respondent filed a
Writ Petition through his father before this Court in W.P.No.7346 of 2013
for a direction to direct the first respondent to return the sale deed dated
05.03.2012. This Court, by order dated 18.02.2016, in the said Writ
Petition, directed the first respondent to conduct enquiry by affording
opportunity of personal hearing to the petitioners as well as the second and
third respondents and pass appropriate orders within a period of six weeks
from the date of receipt of a copy of that order.
3. In the meanwhile, the petitioners also challenged the execution
of sale deed in O.S.No.308 of 2013 on the file of the Sub Court, Villupuram
and it is pending. While pending the said suit and while pending the
document for registration as Pending Document No.P4 of 2012 on the file
of the first respondent herein, the petitioners filed the presnet Writ Petition
initially for the prayer forbearing the first respondent from registering the
Pending Document No.P4 of 2012, dated 05.03.2012 executed by the
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W.P.No.31113 of 2019
second respondent in favour of the third respondent. After numbering the
present Writ Petition and before listing the matter for admission, the first
respondent registered the document in Document No.3486 of 2019, dated
04.11.2019 and released the same in favour of the third respondent.
Therefore, the petitioners filed a petition before this Court for amending the
prayer in the present Writ Petition challenging the proceedings relating to
the registration of the document bearing Document No.3486 of 2019 dated
04.11.2019 on the file of the first respondent herein.
4. The learned counsel for the petitioners submitted that
provisions under Section 34 of the Registration Act are mandatory for the
first respondent before registration of any document. It mandates that the
enquiry is to be conducted by the Registering Officer during the registration
process and the said provision provides a complete mode for enquiry before
the first respondent relating to registration of documents. Section 34(3)(c)
of the Registration Act provides that the Registering Officer will have to
enquire as to whether any person is appearing as an representative, assign or
agent and satisfy himself as to the right of such person and direct him to
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W.P.No.31113 of 2019
appear. For better appreciation, it is useful to extract Section 34(3)(c) of the
Registration Act, 1908, as follows:-
“34. Enquiry before registration by registering
officer:-....
(3) The registering officer shall thereupon - .....
(c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the right
of such person so to appear.”
5. Therefore, without following any procedures laid down in
Section 34 of the Registration Act. According to the petitioner, the first
respondent is violating the direction issued by this Court in W.P.No.7346 of
2013 dated 18.02.2016, the first respondent registered the sale deed, vide
Document No.3486 of 2019.
6. The learned counsel appearing for the respondents 2 and 3 by
filing counter affidavit, submitted that the petitioners unilaterally cancelled
the Power of Attorney executed in favour of the second respondent and as
such, it was challenged by way of suit in O.S.No.31 of 2002 as stated above
and the cancellation of Power of Attorney Deed was declared as null and
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W.P.No.31113 of 2019
void by the judgment and decree in the said suit, dated 05.08.2003 on the
file of the District Munsif Court Villupuram. It had become final, since their
application to set aside the ex-parte decree was dismissed. Again, the
petitioners executed another cancellation of Power of Attorney Deed and the
same was also registered on the file of the first respondent without the
knowledge of the second respondent herein. Therefore, the second
respondent executed the sale deed in favour of the third respondent as per
the Power of Attorney executed in favour of the second respondent. The
said sale deed was challenged by the petitioners in O.S.No.308 of 2013 on
the file of the Principal Sub Court, Villupuram and it is pending. The
petitioners also failed to obtain any interim injunction in the said
O.S.No.308 of 2013 and have approached this Court for the very same
relief. Therefore, the present Writ Petition is not maintainable and it is liable
to be dismissed.
7. The learned Special Government Pleader appearing for the first
respondent submitted that, as directed by this Court in W.P.No.7346 of 2013
dated 18.02.2016, the first respondent had registered vide Document
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W.P.No.31113 of 2019
No.3486 of 2019 dated 04.11.2019.
8. On a perusal of the records, it reveals that the petitioners filed a
suit in O.S.No.308 of 2013 on the file of the Principal Sub Court,
Villupuram District challenging the very execution of the sale deed itself by
the second respondent in favour of the third respondent, whereas, the
present Writ Petition has been filed with initial prayer to forbear the first
respondent from registering the Pending Document No.P4/2012 dated
05.03.2012. While pending the present Writ Petition, the first respondent
conducted enquiry as directed by this Court in W.P.No.7346 of 2013,
registered vide document No.3486 of 2019. Therefore, the petitioners
amended the prayer in the present Writ Petition challenging the registration
of the document bearing Document No.3486/2019 dated 04.11.2019. The
petitioners are the original owners and they executed Power of Attorney in
favour of the second respondent to deal with the subject property. However,
the petitioners do not want to continue the second respondent as their Power
Agent and cancelled the Power of Attorney executed in favour of the second
respondent. It was challenged and cancelled by the judgment and decree in
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W.P.No.31113 of 2019
O.S.No.31 of 2002. However, again the petitioners had cancelled the Power
of Attorney Deed, registered vide Document No.131 of 2008 dated
27.03.2008, there is no Power for the petitioners to execute the cancellation
of Power of Attorney. That apart, as directed by this Court in W.P.No.7346
of 2013, dated 18.02.2016, the first respondent issued summons dated
18.04.2016 to the petitioners to conduct enquiry for the enquiry to be held
on 29.04.2016. Thereafter, the first respondent failed to pass any order
except registration of sale deed dated 04.11.2019, vide Document No.3486
of 2019. Therefore, the impugned registration cannot be sustained and it is
liable to be set aside.
9. In view of the above discussion, the impugned order dated
04.11.2019 is hereby quashed. It is made clear that the first respondent is
directed to keep the sale deed dated 05.03.2012 as Pending Document
No.P4/2012 till the disposal of the suit filed by the petitioners in
O.S.No.308 of 2013 on the file of the Principal Sub Court, Villupuram.
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W.P.No.31113 of 2019
10. In the result, this Writ Petition is allowed. Consequently, the
connected Miscellaneous Petition is closed. No costs.
15.11.2021
kv
Index:Yes/No
To
The Joint Sub Registrar No.1,
Villupuram.
https://www.mhc.tn.gov.in/judis
W.P.No.31113 of 2019
G.K.ILANTHIRAIYAN, J.
kv
W.P.No.31113 of 2019
15.11.2021
https://www.mhc.tn.gov.in/judis
