Madras High Court
Vaithilingam vs The District Registrar ... on 7 September, 2021
W.P.No.22329 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P. No.22329 of 2017
Vaithilingam ... Petitioner
-Vs-
1. The District Registrar (Administration)
Virudhachalam.
2. The Sub Registrar,
Ulundurpet,
Villupuram.
3. Vijayakumar
4. Babu ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
records on the file of the first respondent in Na.Ka.No.2334/A1/2015 dated
03.10.2016 and quash the same as illegal, incompetent and without jurisdiction
and further direct the second respondent to cancel the registration No.3815/2011
dated 22.02.2011.
For Petitioner : Mr.V.Raghavachari
For Respondents
For R1 & R2 : Mr.M.R.Gokul Krishnan
Government Advocate.
R3 : Not Ready in notice
R4 : Notice served.
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W.P.No.22329 of 2017
ORDER
The Writ Petition has been filed to call for the records on the file of
the first respondent in Na.Ka.No.2334/A1/2015 dated 03.10.2016 and quash the
same as illegal, incompetent and without jurisdiction and further direct the
second respondent to cancel the registration No.3815/2011 dated 22.02.2011.
2. The case of the petitioner is that the subject properties were
purchased by him by the two registered sale deeds vide document No.2116/2006
dated 14.12.2006 and document No.588/2007 dated 04.04.2007 from the third
respondent herein. Thereafter, the petitioner is in absolute possession and
enjoyment of the same. The revenue records also mutated in favour of the
petitioner. While being so, the third respondent with an intention to have the
subject properties created an agreement for sale in the name of the fourth
respondent herein, in respect of the very same property dated 07.08.2006. On
the strength of the agreement for sale, the fourth respondent filed suit in
O.S.No.128 of 2008 on the file of the Principal Sub Court, Villupuram and
conveniently, the third respondent did not appear before the trial Court and he
was set exparte. The trial Court granted exparte decree by the judgment decree
dated 19.12.2008.
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W.P.No.22329 of 2017
3. On the strength of the exparte decree, the sale deed was executed in
favour of the fourth respondent herein on 22.02.2011 registered vide document
No.3815/2011. Thereafter, the petitioner came to under stand about the sale
deed executed in favour of the four respondent in respect of the very same
property and lodged compliant before the Inspector of Police, District Crime
Branch, Villupuram and the same was registered in Crime No.17 of 2014 for the
offences under Sections 417, 420, 423, 466, 467, 468, 471 & 120(b) of IPC as
against the respondents 3 & 4 herein. After completion of investigation, the
Inspector of Police, District Crime Branch, Villupuram laid final report for the
offences under Sections 417, 420, 423, 466, 467, 468, 471 & 120(b) of IPC as
against the respondents 3 & 4, before of the concerned Judicial Magistrate, and
it is pending for trial.
4. In the mean time, the petitioner also filed an application before the
first respondent to annull the sale deed which was executed in favour of the
fourth respondent herein. Though the first respondent considered all the grounds
raised by the petitioner, refused to annull the document and directed the
petitioner to approach the concerned Court for appropriate relief. Aggrieved by
the same, the present Writ Petition has been filed.
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W.P.No.22329 of 2017
5. The learned counsel appearing for the petitioner would submit that
the agreement for sale itself subsequent to the sale as such, the agreement for
sale itself is not valid. The alleged agreement was created in the 20 rupees stamp
paper stood in the name of one Ramesh, Nellikuppam, and the same was
corrected in the name of the fourth respondent and fabricated the agreement for
sale. It is only evidence from the information received under the Right To
Information Act, on 05.04.2013 from the Sub Registrar, Uluthoorpet.
5.1. He further submitted that on the complaint, now the Inspector of
Police, District Crime Branch, laid charge sheet as against the respondents 3 &
4. Therefore, it is clearly proved that the alleged agreement for sale is fabricated
one and the third respondent only with an intention to grab the entire properties,
which were already sold out in favour of the petitioner, created the agreement
for sale, as if the third respondent executed in favour of the fourth respondent
and thereafter, the fourth respondent filed suit for specific performance.
Conveniently the third respondent was absent before the trial Court and he was
set exparte, thereby the fourth respondent obtained exparte decree and on the
strength of the exparte decree, the trial Court executed the sale deed in favour of
the fourth respondent herein.
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W.P.No.22329 of 2017
5.2. He further submitted that the Inspector General of Registration
issued circular by way of letter No.20217/U1/2021 dated 09.07.2021 and gave
direction to follow the proceedure as directed by this Court. In support of his
contention, he relied upon the following judgments :-
(i) 2017 (3) Mad LJ 363 – A.M.Adhil Badusha Vs. Sucharitha Anand
and anr.
(ii) AIR 1954 SC 75 – Lala Durga Prasad and anr Vs. Lala Deep
Chand and ors
(iii) Order dated 17.06.2021 in W.P(MD).No.10177 of 2021 – S.R.M.
Packiri Rajan Vs. The Inspector General of Registration & ors.
6. The learned Government Advocate appearing for the respondents 1
to 4 filed counter stating that the scope of the Inspector General of Registration
Circular No.67 dated 03.11.2011 has been unambiguously articulated in the said
circular and the same is extracted as follows :-
“In light of the above discussion, following
mandatory procedure is prescribed to deal with
the complaints relating to fraudulent registrations
through impersonation or production of false
documents and evidences.
.........................
It is further emphasized that the procedure
prescribed above is only to deal with fraudulent
registrations done and it should in no way be
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W.P.No.22329 of 2017
construed to mean that the registering authority
shall go into the issue of deciding title in case of
rival claims on certain basis.....”
From the bare reading of the above excerpts of the Circular, it could be readily
concluded that the scope of said Circular is confined only to deal with the
registration of documents achieved through impersonation and or production of
false evidences.
6.1. He further submitted that it would be pertinent to note that in the
present case does not involve production of a forged document or false
evidences such as fabricated identity card, etc., before the registering officer in
order to achieve registration of document. Whereas in this case, registration of a
sale deed duly executed by the learned Principal Subordinate Judge, Villupuram
is the centre of issue and the same does not fall within the scope of said Circular
No.67 dated 03.11.2011 and Section 82 of the Registration Act, 1908.
Therefore, it is not the case where a forged document has been produced before
the Registering Officer for achieving registration of document. The validity of
the decree passed by the learned Principal Subordinate Judge, Villupuram in
O.S.No.128 of 2008 and sale deed executed in pursuance of decree could not be
decided by the District Registrar under said Circular No.67 dated 03.11.2011.
7. Heard Mr.V.Raghavachari, learned counsel appearing for the
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W.P.No.22329 of 2017
petitioner and Mr.M.R.Gokul Krishnan, learned counsel appearing for the
respondents1 & 2. Though notices served to the respondents 3 & 4, no one is
appeared on behalf of them by person or through pleader.
8. Admittedly, the agreement for sale dated 07.09.2006 was fabricated
one by the respondents 3 & 4 herein to grab the properties which were sold out
in favour of the petitioner. On the strength of the fabricated agreement for sale,
they filed suit for specific performance and obtained exparte decree in
O.S.No.128 of 2008 dated 19.12.2008. On the strength of the decree, the trial
Court executed sale deed in favour of the fourth respondent.
9. Now the Inspector of Police, District Crime Branch, Villupuram
found that the agreement for sale itself is fabricated one and laid charge sheet as
against the respondents 3 & 4 herein. Though the first respondent has no power
to annull the document, as per the Circular No.67 dated 03.11.2011 and under
Section 82 of the Registration Act, 1908, since no fabricated document was
produced before the Registering Officer for registration of document, the first
respondent has power to annull the document. Admittedly, on the strength of the
fabricated document, they obtained fraudulent and collusive exparte decree and
on the strength of the decree, the sale deed was executed in favour of the fourth
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W.P.No.22329 of 2017
respondent herein.
10. In this regard, the learned counsel appearing for the petitioner relied
upon the judgment reported in 2017 (3) Mad LJ 363 in the case of A.M.Adhil
Badusha Vs. Sucharitha Anand and anr., which reads as follows:-
“7. The above position of law was
clarified by the Hon'ble Supreme Court in Lala
Durga Prasad and another vs. Lala Deep Chand
and others reported in AIR 1954 SC 75, wherein
the Hon'ble Supreme Court while considering the
form of decree to be passed in a suit for specific
performance where there are alienations between
the date of the agreement and the date of the suit,
taking note of the principle law, that an
agreement of sale by itself does not confer title in
the immovable property, observed as follows:
“The proper form of decree is to direct
specific performance of the contract between the
vendor and the plaintiff and direct the subsequent
transferee to join in the conveyance so as to pass
on the title which resides in him to the plaintiff”
8. Thus it could be seen that subsequent
purchaser is a necessary party to the suit for
specific performance. The subsequent purchaser
will only mean the purchaser after the agreement
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W.P.No.22329 of 2017
but prior to the suit. As far as pendente lite
purchaser, does not get any protection and the
decree is binding on him. The Specific Relief Act
also confers certain rights of subsequent
purchaser. A suit for specific performance will
have to fail, if the subsequent purchaser is able to
show that he is a bonafide purchaser for value
without notice of the subsisting agreement.
This Court held that subsequent purchaser is a necessary party to the suit for
specific performance. The subsequent purchaser will only mean, the purchaser
after the agreement but prior to the suit.
11. Admittedly, in the case on hand, the petitioner purchased the
subject property prior to the agreement for sale. Even then, the petitioner was
not added as a party to the suit. Further the suit itself collusive one, between the
fourth and third respondents herein, on the strength of the fabricated agreement
for sale. The Registration Act, 1908 provided for a mechanism to the concerned
authority to deal with the complaint pertaining to the fraudulent transaction.
Once an authority exercises such a power and conducts an enquiry and
ultimately, finds that entire transaction is fraudulent, such an order passed by the
authority should get reflected in the records. On the one hand, the authority
cannot state that he will declare a transaction to be fraudulent and thereafter, he
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W.P.No.22329 of 2017
will send the party to a civil Court to cancel that document. Declaring a
transaction to be a fraudulent one, virtually makes that document void in the eye
of law. Once, the document is void in the eye of law, it is nonest and there is no
necessity for the party to go before the Civil Court seeking for cancellation of
such document.
12. On perusal of the impugned order revealed that, the first respondent
rejected the request of the petitioner to annull the sale deed executed in favour of
the fourth respondent for the reason that, the sale deed was executed by the
Principal Subordinate Court, Villupuram and therefore, the said sale deed cannot
be annulled and there is no provisions under Sections 82 & 83 of the
Registration Act.
13. As stated supra, on the complaint lodged by the petitioner, the
charge sheet has been laid as against the respondents 3 & 4 for the offences
under Sections 417, 420, 423, 466, 467, 468, 471 & 120(b) of IPC and it is
pending for trial. Therefore, admittedly, the respondents 3 & 4 created the
fabricated agreement and obtained collusive decree of specific performance. On
the strength of the exparte decree, the trial Court executed the sale deed as such,
the entire transaction is fabricated one and the document is void in the eye of
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W.P.No.22329 of 2017
law. Hence, the impugned order is liable to be set aside.
14. In view of the above discussions, the order dated 03.10.2016
passed by the first respondent in Na.Ka.No.2334/A1/2015, is hereby set aside
and the sale deed executed in favour of the fourth respondent by the Principal
Subordinate Court, Villupuram, vide registered document No.3815/2011 dated
22.02.2011 is hereby declared as void and non-est in the eye of law. The Sub
Registrar concerned is directed to make necessary entries in the records.
15. In the result, the Writ Petition is allowed. There shall be no order as
to costs.
07.09.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The District Registrar (Administration)
Virudhachalam.
2. The Sub Registrar,
Ulundurpet,
Villupuram.
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W.P.No.22329 of 2017
G.K.ILANTHIRAIYAN, J.
rts
W.P. No.22329 of 2017
07.09.2021
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