C.Sriraman vs The Joint Sub-Registrar No.2
2022 Latest Caselaw 14843 Mad

                                    1

        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          DATED: 06.09.2022

                                CORAM

    THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                         W.P.No.29605 of 2016
C.Sriraman                                                ... Petitioner
                                   Vs.

The Joint Sub-Registrar No.2,
Arakkonam,
Vellore 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.2/16 dated 12.08.2016 and quash the same
and direct the respondent to accept the document presented by the
petitioner on 12.08.2016 and register the same.

             For Petitioner              :Mr.G.Jeremiah
             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 that the subject

matter is already in attachment vide DRC No.43 of 2010 on the file of the

DRT-1, Chennai.

2. The learned counsel for the petitioner would submit that 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 order of attachment. 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.

3. The learned Government Advocate appearing for the respondent

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

on the ground of an order of attachment passed by the Tribunal. As

against the said refusal, an appeal will only lie and the Writ Petition is

not maintainable.

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

the materials available on record.

5. 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.

6. In this connection it is relevant to note that Section 22-A was

inserted by State of Tamil Nadu and Section 22-A of The Registration

(Tamil Nadu Amendment) Act, 2008, which reads as follows:

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

7. 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) 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.

8. 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;

(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.

9. In view of the above, the Writ Petition is maintainable. It is also

relevant to note that though the attachment of the property will have

precedent in respect of the claim, the mere attachment of the property

will not be a ground to refuse registration of document. The attachment

of the property is mainly to release the debts or claim. After attachment,

the claim in the said case may be satisfied by even a portion of the

property. Therefore, it cannot be said that the entire property cannot be

dealt with by the title holder. Since any transfer of property in respect of

which the attachment has already been made is subject to the attachment

and the claim will not give absolute title to the transferee. As the title is

always subject to the attachment and claims, the Registration of the

documents will not convey any better title and mere attachment itself is

also is not a ground to refuse registration of the document.

10. In view of the above, this Court is of the opinion that as the

attachment is always subject to the claim for recovery, the Registrar

rejecting to receive the document for registration is not valid in the eye of

law. Accordingly, this Writ Petition is allowed. The Registrar is directed

to register the document within a period of two months from the date of

receipt of a copy of this order. No costs.

06.09.2022 Index: Yes/No Speaking order/Non speaking order vum

To

The Joint Sub-Registrar No.2, Arakkonam, Vellore District.

N.SATHISH KUMAR,J.

vum

W.P.No.29605 of 2016

06.09.2022