Madras High Court
S.Duraivel vs The Sub-Registrar on 5 October, 2021
W.P.No. 21479 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.10.2021
CORAM:
THE HON'BLE MRS. JUSTICE V. BHAVANI SUBBAROYAN
W.P.No.21479 of 2021
S.Duraivel ...Petitioner
Vs.
The Sub-Registrar,
Pollachi,
Coimbatore District. ...Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certioraified Mandamus, by calling for the
entire records pertaining to the impugned Refusal Check Slip issued by
the Respondent vide its proceedings in Refusal
Number:RFL/Pollachi/13/2021 dated 03.09.2021 and quash the same as
illegal and consequently to direct the Respondent to register the Release
Deed dated 16.08.2021 presented by the petitioner for registration
without insisting for the production of original document within the time
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W.P.No. 21479 of 2021
stipulation as prescribed by this Court.
For Petitioner : Mr.S.Kumar Sankar
For Mr.S.Balaji
For Respondents : Mr.V.Veluchamy
Government Advocate
ORDER
The grievance of the petitioner is that he has a share in the
property inherited from his father. According to him, the petitioner's
mother and his sister have decided to give their share of 2/3 to him by
way of executing a release deed in respect of the aforesaid property. In
fact, the original sale deed made between his father and one V.Sivakumar
was found missing and the said original sale deed was kept by his father.
The petitioner has hectic efforts to find out the same but all those ended
in vain and the petitioner's family are only keeping the xerox copy of the
sale deed. In the said circumstances, when the petitioner presented the
documents relating to the property for registration, the respondent has
been refused to register the same insisting upon the production of
original parent deed.
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W.P.No. 21479 of 2021
2. In one such attempt to register the document, the petitioner
presented a xerox copy of the sale deed relating to the aforesaid property
belonging to his father. However, the respondent/Sub Registrar has
refused to register the said document by the impugned refusal
No.RFL/Pollachi/13/2021, dated 03.09.2021. The refusal of the
respondent is only on the basis of the fact that the parental document has
not been produced for perusal of the Authority.
3. On enquiry, the petitioner was informed that the Inspector
General of Registration, Chennai, had issued a circular dated 15.09.2010,
which requires the production of original title deeds to the Authority
concerned for the purpose of registration. However, according to the
petitioner, this Court has consistently held that the Registering Authority
cannot insist on production of original title deeds as a matter of
precondition for registration of the documents. According to the Courts,
such pre-condition is not provided in the statute.
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W.P.No. 21479 of 2021
4. Mr.S.Kumar Sankar, who has entered appearance on behalf of
the petitioner, would reiterate the above facts and also would drew the
attention of this Court to three decisions of this Court, which read as
under:-
(i) 2011-2-L.W.648 (K.S. Vijayendran v. The Inspector General
of Registration, Chennai, and others). The observation of the learned
Single Judge of this Court reads as under:-
"10. None of the provisions of the Act or the Rules
contemplate the Registrar to require the party
appearing before him for presenting document to
produce the original title deeds relating to the
property so as to satisfy himself about the
ownership of the executant in respect of the
property sought to be executed."
(ii) 2015 Online SCC Mad 5868, Lakshmi Ammal v. The Sub
Registrar, Office of the Sub Registrar, Villivakkam, Chennai and
Others.
In the above case also, the learned Single Judge of this Court has
clearly held that insistence on production of original title deeds through
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W.P.No. 21479 of 2021
the circular dated 25.11.2012 was found to be not having any statutory
force, in view of the absence of any provision in the Act. The
observation of the learned Single Judge is extracted hereunder:-
“4........... Further, the petitioner also
produced the encumbrance certificate from 1987
till date showing nil encumbrance. When the
petitioner insisted upon a written order, the
impugned order was passed by relying upon a
circular issued by the Inspector General of
Registration, dated 25.11.2012 and stated that
since the petitioner did not produce the original
sale deed, dated 07.09.2011, the settlement deed
cannot be admitted for registration. Challenging
the same, the present Writ Petition has been
filed. ............10.For the reasons stated above, I
am of the considered view that the impugned
order of the first respondent dated 05.09.2012 is
liable to be set aside and accordingly, set aside
and the writ petition stands allowed. The first
respondent is directed to register the deed of
release on presentation by the petitioner in
respect of the property in question. He is
directed to register the document on the date of
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W.P.No. 21479 of 2021
presentation without making the parties to run
from pillar to post. He is also directed to do so
on receipt of the order copy from this Court or
on production of the same. No order as to costs.
Consequently, connected miscellaneous petition
is closed.”
(iii) 2018 Online SCC Mad 3898, C.Moorthy v. The Sub
Registrar, Aruppukottai. In the above decision, yet another learned
Single Judge of this Court has clearly held as under:-
“6.The learned Counsel for the respondent
fairly conceded that the legal position reiterated
by this Court in several judgments have not been
followed and that the Registering Officer in 5/12
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2020 this case has no authority to return the
document for production of original document of
title based on the circular, as the same circular
was earlier considered by this Court in the
judgment cited by the learned Counsel for the
petitioner. As held by this Court earlier, there is
no provision in the Registration Act, 1908 of the
Tamil Nadu Registration Rules, 1983, which
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W.P.No. 21479 of 2021
confers power to the Registering Officers to
insist production of original parental document.
The Executive orders cannot be issued contrary
to Rules framed in exercise of power conferred
any statute. In this case production of parent
document is not possible without redemption of
mortgage.”
5. The learned counsel therefore would submit that the issue as to
whether the original title deeds should be produced for registration by the
party concerned or whether the Registering Authority can insist on
production of original title deeds as a pre-condition for registration is no
more res-integra.
6. Mr.V.Veluchamy, learned Government Advocate, who has
entered appearance on behalf of the respondent would submit that
recently a learned single Judge of this Court in W.P.(MD) No.16768 of
2020, dated 26.11.2020, had taken a different view and he has produced a
copy of the unreported order of the learned single Judge. He would rely
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W.P.No. 21479 of 2021
upon the paragraph Nos.8 and 9 of the said order, which are extracted
hereunder:-
“8.This Court has already considered
the issue in W.P. (MD) No.2657 of 2020,
wherein, it is held that there are certain
occasions where the original documents may
not be available with the executor of the
documents and that if there is any reasonable
doubt about the identity of the person
executing the documents, the original
documents can be dispensed with. The entire
circular issued on 25.04.2012 cannot be
questioned. In fact, the circular issued by the
Inspector General of Registration should be
appreciated, as in order to avoid duplication of
registration and fraudulent registration of the
very same property, it has been issued. The
contention of the respondent that the extract
mentioned by him supra cannot be read in
isolation and it got to be read as a whole.
9. Apart from the directions given by this
Court in W.P. (MD) No.2657/2020 dated
19.02.2020, this Court is of the view that if the
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W.P.No. 21479 of 2021
Sub Registrar has got any doubt about the
documents, copy of the parent documents,
which is available in the office of the Sub
Registrar, can very well be verified about the
genuineness of the certified documents
produced by the petitioner. Even assuming that
the executor is a genuine person and
producing fake documents, it is open to the Sub
Registrar to refuse to register the document.
Hence, this Court is of the view that the
condition may be included in the Circular by
way of amendment stating that the Sub
Registrar will have to verify the records of the
parent document from their office or from the
office, where the said document is obtained
and produced, as the Sub Registrars office
have been bifurcated many times, scrutinize the
same and after completely satisfied with the
document, referring to those documents, he can
register the same so that no prejudice would be
cause to any person, more so, the buyer.
Accordingly, the impugned order is set aside
and the matter is remanded back to the
authorities.”
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W.P.No. 21479 of 2021
7. At this, the learned counsel for the petitioner would submit that
this Court has consistently held in a number of decisions that such
insistence is nowhere found in the provision of the Registration Act and
therefore, the latest decision of the learned single Judge may not be a
correct view.
8. This Court is entirely in agreement with the submissions made
on behalf of the petitioner in this regard. The latest decision of the
learned single judge appears to have not considered the implication of
the circular with reference to the scheme of the relevant Act. On the other
hand, the above three decisions cited supra on behalf of the petitioner
would certainly hold the field and in which event, insistence on
production of original title deeds by the Registering Authority is without
any authority of law. The circular issued by the Inspector General of
Registration, Chennai, in this regard cannot have any sanctity, unless the
power of issuance of such circular is authorized under the provisions of
the Act. This Court has consistently held that no such power can be read
into the Act, in the absence of any specific provisions and in that view of
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W.P.No. 21479 of 2021
the matter, as rightly contended by the learned counsel for the petitioner,
the subject issue is no more res-integra. As far as the latest decision of
the learned single Judge is concerned, being a kind of a contra view, this
Court is of the opinion that the order passed by the learned single Judge
of this Court in W.P.(MD) No.16768 of 2020, dated 26.11.2020 has not
appreciated the provisions of the Act, as the reasons of the learned single
Judge are contrary to the well considered earlier judgments of this Court.
The learned Judge has reasoned without any specific reference to the
scheme of the Act, which governs the registration.
9. In fact, in one of the judgments cited by the learned counsel for
the petitioner, the learned Government Advocate for the respondent
himself has conceded the legal position. In that view of the matter, the
reliance placed by the Department on the latest order of the learned
single Judge needs to be held as not valid.
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W.P.No. 21479 of 2021
10. With the above observations, the Writ Petition is disposed of
and the respondent is hereby directed to register the document presented
by the petitioner for registration, if the document is otherwise in order,
without insisting on the production of original parent document, in terms
of the law laid down by this Court in the three decisions as cited supra.
No costs.
05.10.2021
Index: Yes/No
Internet: Yes/No
gba/msm
To
The Sub-Registrar,
Pollachi,
Coimbatore District.
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W.P.No. 21479 of 2021
V.BHAVANI SUBBAROYAN, J.
gba/msm
W.P.No.21479 of 2021
05.10.2021
https://www.mhc.tn.gov.in/judis
