Madras High Court

Easwari vs The Sub-Registrar on 6 September, 2022

                                                               1

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 06.09.2022

                                                           CORAM

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                     W.P.No.31273 of 2016
                     1. Easwari
                     2. Kavitha                                                     ... Petitioners
                                                              Vs.

                     The Sub-Registrar,
                     Registration Department,
                     Mettupalayam,
                     Coimbatore District.                                           ....Respondent

                            Writ petition filed under Article 226 of Constitution of India,
                     seeking a writ of Certiorarified Mandamus, calling for the records of the
                     respondent in check slip No-I, dated 16.08.2016 on the file of the
                     respondent herein, quash the same and consequently direct the
                     respondent herein to register the Settlement Deed, dated 16.08.2016
                     executed by the 1st petitioner to and in favour of the 2nd petitioner within
                     a stipulated period.

                                        For Petitioners             :Mr.K.Govi Ganesan
                                        For Respondent             : Mr.E.Indumathi,
                                                                     Government Advocate

                                                          ORDER

This Writ Petition has been filed seeking to quash the order of the

respondent, refusing to register a document on the ground of non

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production of the parent deed and No Objection Certificate.

2. The learned counsel for the petitioners would submit that the

Check Slip dated 16.08.2016 issued by the respondent is result of non

application of mind since his reasoning cannot be a bar for registering the

document as the 1st petitioner has not intended to alienate the property to

third parties. The petitioners are mother and daughter respectively. He

would further submit that even the mere attachment will not be a ground

to refuse registration of a document. Therefore, there cannot be any

refusal on the part of the Registrar by citing the non production of

documents such as parent deed and NOC.

3. In support of his contention, he has also placed reliance on the

Judgment reported in 2016 (1) CWC 449 in S.Praveen Bohra Vrs. Joint-

I Sub Registrar following the Judgment reported in 1985 (2) SCC 167 in

Balkrishan Gupta and Ors. Vrs Swadeshi Polytex Ltd and anr.

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4. The learned Government Advocate appearing for the respondent

would submit that the document has been refused to be received mainly

for non production of NOC and parent document. As against the said

refusal, an appeal will only lie and the Writ Petition is not maintainable.

5. Heard the learned counsel appearing on either side and perused

the materials available on record.

6. The very order of the respondent is not on merits. The appeal

provision contemplated under the Registration Act as against the refusal

of registration, will not be applicable. The mechanism for appeal

provided under the said Act is in a different context where the Registrar

can exercise the Power provided in the Act to refuse to register the

document.

7. In this connection it is relevant to refer Section 22-A of the

Registration (Tamil Nadu Amendment) Act, 2008, which reads as

follows:

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"22-A Refusal to register certain doucments : Notwithstanding anything contained in this Act, the registering officer shall refuse to register any of the following documents namely:-

(1) instrument relating to the transfere of immovable properties by way of sale, gift, mortgage, exchange or lease -

(i) belonging to the State Government or the local authority or Chennai Metropolitan Development Authority established under Section 9-A of the Tamil Nadu Town and Country Planning Act, 1971;

(ii) belonging to, or given or endowed for the purpose of any religious institution to which the Tamil Nadu Religious and Charitable Endowments Act, 1959 is applicable.

(iii) donated for Bhoodan Yagna and vested in the Tamil Nadu State

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Bhoodan Yagna Board established under Section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958; or

(iv) of Wakfs which are under the superintendence of the Tamil Nadu Wakf Board established under the Wakf Act, 1995.

Unless a sanction in this regard issued by the competent authority as provided under the relevant Act or in the absence of any such authority, an authority so authorised by the State Government for this purpose, is produced before the registering officer.

(2) instrument relating to the transfer of ownership of lands converted as house sites without the permission for development of such land from planning authority concerned:

provided that the house sites without such permission may be registered if it is

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shown that the same house site has been previously registered as house site."

8. Section 23 deals with the time limit within which the document

shall be presented for registration. Section 34 of the Act deals with the

power of Registrar to make any enquiry which reads as follows:

34. Enquiry before registration by registering officer :- (1) Subject to the provision contained in this part and in Sections 41, 43, 45,69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26 :

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any payable under Section 25, the document may be registered. 21 (2)

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Appearances under sub-section(1) may be simultaneous or at different times. (3) The registering officer shall thereupon - (a) enquire whether or not such document was executed by the persons by the whom it purports to have been executed ; (b) satisfy himself as to the identity of the person appearing before him and alleging that they have executed the document ; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub- Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders.

9. Rule 55 states that it is not the duty of the Registering Officer to

enquire into the validity of the document. However, he is bound to

consider objections in any of the grounds stated in the rules namely:

(a) that the parties appearing or about to appear before him are not the persons they profess to be;

(b) that the document is forged;

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(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity.

(d) that the executing party is not really dead, as alleged by the party applying for registration; or

(e) that the executing party is a minor or an idiot or a lunatic.

10. It is also relevant to refer Rule 162 of the Registration Rules

which reads as follows:

"162. When registration is refused the reasons for refusal shall be at once recorded in Book 2. They will usually come under one or more of the heads mentioned below---

I. Section 19.---That the document is written in a language which the Registering Officer does not understand and which is not commonly used in the District, and that it is unaccompanied by a true translation and a true copy.

II. Section 20.---That it contains unattested interlineations, blanks, erasures or alterations which in the opinion of the Registering Officer require to be attested.

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III. Section 21.---(1) to (3) and Section 22.-- That the description of the property is insufficient to identify it or does not contain the information required by Rule 18.

IV. Section 21(4).---That the document is unaccompanied by a copy or copies of any map or plan which it contains.

V. Rule 32.---That the date of execution is not stated in the document or that the correct date is not ascertainable.

VI. Sections 23, 24, 25, 26, 72, 75 and 77.---That it is presented after the prescribed time.

VII. Sections 32, 33, 40 and 43.---That it is presented by a person who has no right to present it.

VIII. Section 34.---That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time.

IX. Sections 34 and 43.---That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document.

X. Sections 34 and 40.---That the Registering Officer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear.

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XI. Section 35.---That execution is denied by any person purporting to be an executing party or by his agent. Note:-When a Registering Officer is satisfied that an executant is purposely keeping out of the day with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused the non-appearance being treated as tantamount to denial of execution.

XII. Section 35.---That the person purporting to have executed the document is a minor, an idiot or a lunatic. Note:-When the executant of a document who is examined under a commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic registration may be refused and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification.

XIII. Section 35.---That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed. Note:-When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being left to apply to the Registrar for an enquiry into the fact of execution.

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XIV. Sections 35 and 41.---That the alleged death of a person by whom the document purports to have been executed has not been proved. XV. Section 41.---That the Registering Officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.

XVI. Sections 25, 34 and 80.---That prescribed fee or fine has not been paid.

XVII. Section 230(A) of the Income Tax Act, 1961 (Act 43 of 1961).--That the prescribed certificates from the Income Tax Officer has not been produced.

XVIII. Section 10 of the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961 (Act 58 of 1961).--- That the declaration has not been filed by the transfer.

XIX. Section 27 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Act 24 of 1978).---That the statement has not been filed by the transferror and transferee.

11. Considering the above, it makes it clear that except an enquiry

contemplated under Section 34, the Registrar has no power to go into the

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validity of the title deeds and other aspects. He can only consider the

objections, if any, as per Rule 55. Such view of the matter, directing the

title holder to get a NOC for registration is not at all required. Even

assuming that there is a mere attachment, the same is not a ground for

refusing to register the document since registration of subsequent transfer

will always be subject to the prior attachment in respect of the property.

Such view of the matter, refusing to register the document is not valid in

the eye of law. Accordingly, this Writ Petition is allowed. The Registrar

is directed to register the document by following the provisions of law