Madras High Court
R.Govindaraj vs The Sub Registrar on 26 November, 2021
W.P.(MD)No.17602 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.11.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD)No.17602 of 2021
and
W.M.P.(MD)Nos.14499 and 14501 of 2021
R.Govindaraj ... Petitioner
vs.
1.The Sub Registrar,
Panpoli, Sengottai Taluk,
Tenkasi District.
2.Samsudeen Makkay ... Respondents
(R2 was impleaded vide order of this Court in W.M.P.(MD)No.15218 of
2021, dated 10.11.2021)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating the impugned check slip issued by the first respondent in
RFL/Panpoli/Book/2/5/2021, dated 20.07.2021 and quash the same as
illegal and consequently, to direct the first respondent to entertain
documents presented by the petitioner for registration and register the
same in accordance with law.
1/14
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W.P.(MD)No.17602 of 2021
For Petitioner :Mr.Ajmal Khan
for M/s.Ajmal Associates
For R1 :Mr.N.Satheesh Kumar
Additional Government Pleader
For R2 :Mr.M.Subash Babu
*****
ORDER
This Writ Petition has been filed in the nature of Certiorarified
Mandamus seeking interference with the check slip issued by the first
respondent/Sub Registrar, Panpoli, Shengottai Taluk, Tenkasi District, in
RFL/Panpoli/Book/2/5/2021, dated 20.07.2021 and to quash the same
and to issue a further direction to the first respondent to register the
document presented by the petitioner.
2.During the pendency of the Writ Petition, by a direction in
W.M.P.(MD)No.15218 of 2021, dated 10.11.2021, the second respondent
has been impladed as party to the Writ Petition.
3.Heard Mr.M.Ajmal Khan, learned Senior Counsel for the
petitioner, Mr.N.Satheesh Kumar, learned Additional Government
Pleader for the first respondent and Mr.M.Subash Babu, learned Counsel
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W.P.(MD)No.17602 of 2021
for the second respondent.
4.I hope that I do not enter into a discussion on the title of the
property. The property under dispute is situated at S.No.212/1,
measuring 1.70 acres, as stated by the learned Senior Counsel for the
petitioner and is S.No.212/2, measuring 1.28 acres, at
Kanakupillaivazhasai Village, Sengottai Taluk, Panpoli, Tenkasi District.
The Writ Petitioner claims that he had purchased the said property for
valuable consideration by a registered sale deed, dated 01.09.2017,
registered as Doc.No.1435/2017 on the file of the Sub Registrar, Panpoli,
who is the first respondent herein. Subsequently, the petitioner presented
a power of attorney document for registration. That power of attorney
document had been refused to be registered by the first respondent,
which has led to the filing of the present Writ Petition.
5.On the face of it, it can be seen that it is a case where, a direction
can be issued to the Sub Registrar to register the said power of attorney
document. However, there are further facts, which necessitate further
examination. The property under dispute was purchased by the petitioner
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W.P.(MD)No.17602 of 2021
herein from his vendor, who was facing a litigation. The said litigation
was a partition suit and separate division of the entire property was
sought. It was claimed in that particular suit that the vendor of the
petitioner herein was entitled only to an undivided 1/4th share in the said
property. It is obvious that the vendor of the petitioner herein, who is
entitled only 1/4 undivided share, pending suit, had however sold the
entire property to the petitioner herein.
6.That litigation was in O.S.No.54 of 2004, which was at that point
of time pending on the file of the IV Additional District Court,
Tirunelveli. The second respondent, who has been impleaded, is the
plaintiff in the said suit.
7.Let me not enter into any further discussion on the issues in that
particular suit. They are matters to be examined only by the concerned
Civil Court. The entire issues are purely between the vendor of the Writ
Petitioner and the second respondent.
8.Be that as it may, O.S.No.54 of 2004 proceeded in its normal
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W.P.(MD)No.17602 of 2021
manner and a preliminary decree was passed on 29.09.2016 in favour of
the second respondent. In that preliminary decree, again, the share of the
vendor of the Writ Petitioner was crystallised into an undivided 1/4th
share. This naturally meant that a final decree will have to be passed
demarcating the said 1/4 undivided share, which share alone the Court
had held was the entitlement of the vendor of the petitioner.
9.Questioning that particular preliminary decree, A.S.(MD)No.126
of 2018 had been filed and I am informed that the same is pending before
this Court. An order of interim stay was granted, but as is normal
indicating that final decree application can proceed, but an order should
not be passed. This would also indicate that a Commission can be
appointed to proceed further to demarcate the property and more
particularly, to demarcate the 1/4 undivided share, which alone is the
entitlement of the vendor of the petitioner herein.
10.At this stage, the petitioner had presented a power of attorney
document for registration and in the schedule to the said power of
attorney, the entire property had been shown. This document had been
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W.P.(MD)No.17602 of 2021
refused to be registered by the Sub Registrar by way of issuing, what is
commonly called, a check slip. In that particular check slip, he had also
stated that the vendor of the petitioner will get only an undivided 1/4th
share in accordance with the decree in O.S.No.54 of 2004.
11.Mr.M.Ajmal Khan, learned Senior Counsel for the petitioner
assailed this particular reasoning of the Sub Registrar, stating that a
document lawfully presented, if it is otherwise in order, if it is stamped in
accordance with the provisions of Indian Stamp Act, 1899, and if
registration charges are paid in accordance with the Registration Act,
1908, then the registration of such a document cannot be denied or
refused by the Sub Registrar. It is also stated by the learned Senior
Counsel that the Sub Registrar is not an authority to examine the title of
the petitioner's property and therefore, the reasoning that the petitioner
had only 1/4th share and therefore, the document should not be registered,
exceeds the jurisdiction and discretionary authority granted to the Sub
Registrar and the learned Senior Counsel insisted that a direction should
be given to register the document.
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12.The learned Senior Counsel also placed reliance on the
judgment of a Division Bench of this Court, in which, I was the Senior
Judge and reported in 2020 (6) CTC 697 in the case of N.Ramayee vs
Sub Registrar, Registration Department and another. The reference
before the Division Bench arose in the following manner:
13.There were instances, when agreements of sale had been
registered and in the teeth of existing registered agreements of sale, the
land owner presented either a sale deed or a further agreement of sale for
registration. A learned Single Judge of this Court had held that the only
option available to the land owner was to go before the Civil Court, get
the earlier registered agreement of sale cancelled and thereafter, present
another document for registration. However, a contrary view was also
opined by another learned Single Judge, who stated that an agreement of
sale does not create any right and therefore, cannot be a bar for
registration of a further document, lawfully presented for registration.
14.In the Division Bench, it was held that Section 104 of the
Transfer of Property Act, 1882, very specifically stated that an agreement
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of sale does not create any charge or interest in the property. The right of
an agreement holder is only with respect to the agreement and to
specifically enforce the terms of the agreement, since it is only an
executory contract and therefore has no right over the property. It was,
therefore, held that the registration of agreement of sale will not be a bar
for presenting a further document for registration. It was also mentioned
that unless a property comes under any of the restricted properties as
stated under 22A of the Registration Act, 1908, for instance, the
properties, which are Waqf properties, then the Sub Registrar can refuse
to register such properties. Placing reliance on that particular judgment,
Mr.M.Ajmal Khan, learned Senior Counsel for the petitioner stated that
the refusal of the first respondent to register the power of attorney should
be interfered with by this Court.
15.This position of law, as stated by Mr.M.Ajmal Khan, learned
Senior Counsel for the petitioner has been naturally disputed by
Mr.M.Subash Babu, learned Counsel for the second respondent. Learned
Counsel pointed out that a reading of the counter would show that the
share of the vendor of the petitioner will have to be examined in manner
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W.P.(MD)No.17602 of 2021
known to law by the Civil Court. The vendor of the petitioner had only
an undivided 1/4th share. Therefore, he cannot execute any document,
more particularly, a sale deed divesting even the share of the second
respondent to the petitioner herein, thereby, directly violating the right,
title and interest of the second respondent.
16.It is also stated by Mr.M.Subash Babu, learned Counsel that
under Section 72 of the Registration Act, 1908, the Sub Registrar can
enter into a discussion on the registrability of a particular document and
if at all, the Sub Registrar passes a particular order, the said order is
appealable in nature.
17.The dispute now reduces to whether the power of attorney can
be categorised as a document, which can be ignored and whether while
registering the power of attorney, a decree granting 1/4th undivided share
to the vendor of the petitioner can be ignored by the Sub Registrar or
whether the Sub Registrar can proceed further to register the power of
attorney.
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18.It is an admitted fact that the vendor of the Writ Petitioner
herein has been declared to be entitled only to an undivided 1/4th share.
The Court decree still stands. Passing of final decree alone has been
stayed. On the conclusion of the first appeal, the vendor of the petitioner
could even be declared to hold the entire lands or his share can be
restricted to 1/4th share. But, still, such a declaration or a decree is
passed in the first appeal, the rights of the second respondent will
necessarily have to be protected.
19.In the teeth of the pendency of the suit, when a transaction is
entered into by a party to the suit, naturally Section 52 of the Transfer of
Property Act, 1882, kicks into play, which provides that if a transaction is
done without the leave of the Court, then, the lawfulness of the said
transaction can be examined. There is no record to show that the vendor
of the petitioner had obtained a leave under Section 52 of the Transfer of
Property Act, 1882, before conveying the property to the Writ Petitioner
herein. The second respondent, as on date, has lawful share declared and
the share of the vendor of the petitioner has been restricted only to 1/4th
undivided share.
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20.Therefore, the facts of the judgment relied upon by Mr.M.Ajmal
Khan, learned Senior Counsel for the petitioner, wherein, it had been
held that an agreement of sale, very specifically under Section 104 of the
Transfer of Property Act, 1882, does not create a right or title or interest
or charge over the property, but, here a sale deed had been executed by
the vendor of the petitioner conveying the entire property in the teeth of
the claim that he is entitled to only 1/4th undivided share. The right of the
second respondent will necessarily have to be protected.
21.To that extent, I hold that the Sub Registrar is within his powers
to refuse to register the document and to invite the parties for an enquiry.
But, a perusal of the impugned order shows that such an order has not
been passed after examining either the Writ Petitioner in person or giving
an opportunity to the petitioner to putforth, as to why the document can
be registered. I would, therefore, direct the first respondent to issue
notice to the Writ Petitioner, issue notice to the second respondent herein,
hear their objections and thereafter, pass a detailed order with respect to
the refusal or otherwise of the document presented for registration. Let
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the principles of natural justice be followed. I am conscious that in the
course of this order, I have made observations to a large extent about the
registration of the document presented and the rights of the parties, but, I
am confident that these observations would not weigh on the mind of the
Sub Registrar, since these observations are only for the purpose of giving
a determination to the issues raised in the present Writ Petition and
certainly not on the title or rights of both the parties.
22.Therefore, let the Sub Registrar issue notice to the petitioner
and the second respondent, hear their objections and thereafter, pass an
order, which can be further tested in appeal in manner know to law by
either one of the two parties, which is the proper procedure envisaged
under the Registration Act, 1908.
23.Holding as above, the order impugned is set aside, but the Sub
Registrar is placed under an obligation to issue notice and re-examine the
entire issues once again on the basis of representations made by both
parties. Though the Writ Petition is allowed, I am not permitting
registration of the document, but directing further enquiry with respect to
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registration of the said document. This order certainly does not restrict
the Writ Petitioner from presenting a power of attorney for 1/4 th
undivided share and if such a document is presented, let the Sub
Registrar again take an independent decision with respect to the same
after putting both parties on notice.
24.With the above observations, this Writ Petition is allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
Index :Yes / No 26.11.2021
Internet :Yes
cmr
To
The Sub Registrar,
Panpoli, Sengottai Taluk,
Tenkasi District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17602 of 2021
C.V.KARTHIKEYAN, J.
cmr
Order made in
W.P.(MD)No.17602 of 2021
26.11.2021
https://www.mhc.tn.gov.in/judis
