Madras High Court
P.Manivasagam vs The Inspector General Of ... on 1 October, 2021
W.A.No.2474/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.2474 of 2021
and C.M.P.No15995 of 2021
1. P.Manivasagam
2. G.Maruthachalam .. Appellants/Petitioners
Vs.
1. The Inspector General of Registration,
Office of the Inspector General of Registration,
100, Santhome High Road,
Chennai-600 028.
2. The Sub Registrar,
Sulur, Coimbatore-641 402.
3. S.Sellpandi
Sub Registrar,
Sulur, Coimbatore-641 402.
4. Saranya S.Kumar
5. A.Duraisamy .. Respondents/Respondents
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 25.06.2021 passed in W.P.No.11651 of 2021.
***
For Appellants : Mr.K.Venkatesan
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For Respondents : Mr.C.Jayaprakash
State Government Counsel
JUDGMENT
(Judgment was delivered by Pushpa Sathyanarayana, J.)
The unsuccessful writ petitioners are the appellants laying
challenge to the order of the writ Court dated 25.06.2021 passed in
W.P.No.11651 of 2021, wherein and whereby, the direction sought for to
the first respondent to instruct the second respondent not to register any
kind of document in respect of the properties which are subject matter of
O.S.No.280 of 2021 on the file of the III Additional Subordinate Judge,
Coimbatore, was negatived.
2. The case of the appellants is that they formed a partnership firm
along with the fourth respondent and commenced business on
03.02.2015. In the course of their business, when they wanted to
develop a property as a layout, which was owned by the fifth respondent,
after advancing huge sums of money to him, they also inducted him in
the partnership firm. Alleging that the fourth and fifth respondents have
not accounted the advances received for the sale of the plots, the
appellants instituted a suit in O.S.No.280 of 2021 on the file of the III
Additional Subordinate Court, Coimbatore, seeking a direction to the third
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defendant therein, who is the fourth respondent herein, to dissolve the
partnership business carried on in the name and style of Sai.Saranya
Developers and Promoters for the suit property and to grant permanent
injunction restraining the third defendant from entertaining, registering,
creating encumber over the suit properties. In spite of the same, the
fourth respondent herein, the third defendant, has been receiving sale
consideration from the prospective buyers, which forced the appellants to
serve a notice on the first respondent herein marking copy to the second
respondent and other private respondents seeking, inter alia, to cancel
the sale deed executed by the fourth respondent. The alleged inaction on
the part of the official respondents culminated into the filing of the writ
petition seeking the above said relief and the dismissal of the same led to
the present appeal.
3. Heard the learned counsel appearing on behalf of the appellants
and the learned State Government Counsel and perused the materials
placed before this Court. In view of the order that we propose to pass, no
notice is ordered to the private respondents.
4. Admittedly, there is a dispute among the partners in the
partnership firm. The grounds raised by the learned counsel for the
appellants also make it amply clear that they are all matter for trial and
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the writ Court exercising the jurisdiction under Article 226 of the
Constitution cannot issue the directions, as sought for by the writ
petitioners - the appellants herein, to resolve such disputes in the
partnership firm. The appellants cannot invoke the writ jurisdiction,
merely adding the statutory authorities as parties and seeking a direction
to them not to discharge their statutory duties, without taking recourse
to the appropriate remedy under the Code of Civil Procedure, which the
appellant had rightly taken by filing the suit in O.S.No.280 of 2021, as
indicated in the narration of facts.
5. It is for the registering authorities to follow the law governing
the subject such as Registration Act and rules made thereon, including
the amendments made from time to time and also the guidelines and
circulars of the Department, which are in tune with the Statute and for
any failure, they have to subject themselves for appropriate action by the
Department, so also the statutory authorities.
6. This Court reminiscences of the ordinary rule in contract
jurisprudence “Caveat emptor". Applying the said maxim, it is
unequivocably clear that it is the bounden duty of the purchaser to make
all such necessary enquiries and to ascertain all the facts relating to the
property to be purchased prior to committing in any manner. Of-course,
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the fourth respondent is liable for her acts and deeds, if she breaches the
terms of the partnership deed, but the appellants cannot invoke the writ
jurisdiction to prevent her action.
7. Caveat emptor qui ignorare non debuit quod jus alienum emit. A
maxim meaning “let a purchaser beware; who ought not to be ignorant
that he is purchasing the rights of another”. As the maxim applies to the
title to the land which is sold, the purchaser is generally bound to view
the land and to enquire after and inspect the title deeds and is at peril if
he does not do so.
8. The learned State Government Counsel relied on the judgment
of a Coordinate Bench in N.Ramayee V. Sub-Registrar, Registration
Department, 2020 (6) CTC 697, wherein, the Division Bench was
tasked to settle the two directly contradictory views of this Court
expressed in N.Raju V. District Registrar, Trichy and another
[W.P.(MD)No.24429 of 2018, dated 07.03.2019] and Venkatamma
V. Sub-Registrar, Hosur and another [W.P.No.33601 of 2019,
dated 02.12.2019]. While answering the reference, our Co-ordinate
Bench made the following observations :
"45.[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
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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.
46.[38] It is also brought to our notice about the new
circular in No. 24011/C1/2020 dated 08.10.2020. It is the
contention of the learned Additional Advocate General that the
Registrar has power to regulate the registration in order to prevent
fraud and hence, the Registrar is having powers under the
Registration Act to regulate the registration and the right to refuse
the document and that such power is available under Section 71 of
the Registration Act. Such contention is not acceptable for the
simple reason that the circular bars transfer of property on the
ground that when a lease is already executed in respect of the
property, without expiry of the lease, transfer cannot be permitted
or without consent of lessee no registration is permissible. Further,
insisting a no objection from mortgagee before registration is also
against the very substantive provision of law. If any property is
sold with existing mortgage, the transferee steps into the shoes of
mortgagor. He has the right to redeem the property by paying the
mortgage money. Therefore in the name of regulating the
registration, any circular which is in the nature of violating the
substantive provision of law, which deals with the transfer of
property, then such circular cannot stand in the eye of law. If the
contention of learned Advocate General that without seeking
declaration and cancellation of the agreement of sale, subsequent
agreement or transaction cannot be registered, is accepted then
such restriction, in fact, infringes the very Constitutional right of
the citizen provided under Article 300 A of the Constitution.
47.[39] We are of the view that except as provided in the
Registration Act and any other statute, the Registrar has no power
to refuse to register a document. Though the object of the Act is to
prevent fraud, such occasion arises only where some private
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properties are notified under the Tamil Nadu Private Forest Act. In
such case, sale of such property without permission of the
Collector of the District is void. Only when such notification is
available in respect of any property, the Registrar can verify
whether the sanction of the Collector is obtained or not. Similarly,
whenever properties have been declared as forest land or elephant
corridor, etc., and the notification is available with the Registrar,
based on the above notification he can exercise power. Except the
above, the Registrar has no power to refuse to register the
document.
48.[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 cannot be registered. We hold that as discussed in
our judgement, 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
reference is answered. Post the writ petition in W.P.No.674 of
2020 before the learned single judge for disposal."
9. In such view of the matter, we are of the view that the writ
Court rightly directed the appellants to approach the Civil Court for
appropriate relief refusing to grant the relief sought for by the
appellants/writ petitioners stating that they cannot maintain a writ
petition.
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10. In the result, we do not find any merit in the appeal and this
writ appeal is, accordingly, dismissed as devoid of merit, upholding the
order impugned. No costs. Consequently, connected miscellaneous
petition is closed.
(P.S.N., J.) (K.R., J.)
01.10.2021
Index : Yes / No
Internet: Yes
gg
To
1. The Inspector General of Registration,
Office of the Inspector General of Registration,
100, Santhome High Road,
Chennai-600 028.
2. The Sub Registrar,
Sulur, Coimbatore-641 402.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
gg
W.A.No.2474 of 2021
01.10.2021
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