Madras High Court
Sri Devi vs Sub Registrar on 1 September, 2021
1 W.P.No. 17436 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.09.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
W.P.No. 17436 of 2021
Sri Devi ... Petitioner
/Vs/
1. Sub Registrar, Vadalur.
2. District Registrar, Cuddalore.
3. Inspector General of Registration.
Chennai. ... Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India
praying Writ of Certiorarified Mandamus, to call for the records by order
dated 30.06.2021 made in RFL/Vadalur/84/2021 on the file of the first
respondent, to quash the same and consequently, to direct the first
respondent to register the Power of Attorney dated 30.06.2021, submitted by
the petitioner.
https://www.mhc.tn.gov.in/judis
2 W.P.No. 17436 of 2021
For Petitioner : Mr.V.V.Sairam
For Respondents : Mr.Yogesh Kannadasan.
Government Advocate
----
ORDER
The grievance of the petitioner is that she is the adoptive daughter
of one Anusuya @ Balasundarammal dated 04.08.1988 in Doc.No.34 of
1988 registered on the file of Sub Registrar Office, Vadalur, Cuddalore
District and confirmed by the order passed by the learned Principal District
Judge, Cuddalore in Guardian O.P.No.59 of 1998, dated 12.08.1999. In the
meanwhile, the petitioner's adoptive mother Anusuya @ Balasundarammal
died, therefore, she could not get the original title deed despite her best
efforts, she had applied for certified copies of the sale deeds for the
properties. While filing the GOP.No.59/1998 her natural mother was said to
have enclosed only certified copies of the sale deeds. Thereafter, the
petitioner has caused the preparation of General Power of Attorney Deed
after going through the formalities it came to be presented before the first
respondent for registration. In the circumstances, when the petitioner
presented the documents relating to the properties for registration, the
respondent has been refused to register the same insisting upon the
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production of original parent deed. However, the first respondent/Sub
Registrar has refused to register the said document. 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.
2. In one such attempt to register the document, the petitioner
presented a Power of Attorney in favour of petitioner relating to the
properties belonging to her adoptive mother. The respondent refused to
register the Power of Attorney by the impugned refusal. 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 25.04.2012,
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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4. Mr.V.V.Sairam, 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 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
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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 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.”
https://www.mhc.tn.gov.in/judis
(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
http://www.judis.nic.in W.P.(MD)No.19745 of 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 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.”
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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.Yogesh Kannadasan, learned Government Advocate, who
has entered appearance on behalf of the respondents, 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 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
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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 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,
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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.”
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 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
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that no such power can be read into the Act, in the absence of any specific
provisions and in that view of 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.
10. With the above observations, the Writ Petition is disposed of
and the first respondent is hereby directed to register the documents
presented by the petitioner for registration, if the document is otherwise in
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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.
01.09.2021
Index : Yes/No
Internet : Yes/No
gba/msm
To
1.Sub Registrar.
Vadalur.
2. District Registrar.
Cuddalore.
3. Inspector General of Registration.
Chennai.
https://www.mhc.tn.gov.in/judis
V.BHAVANI SUBBAROYAN, J.
gba/msm
W.P.No.17436 of 2021
01.09.2021
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
