Madras High Court
The Inspector General Of ... vs Wilson Gnanamuthu on 17 April, 2023
W.A.(MD) No.419 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A.(MD) No.419 of 2023
and
C.M.P(MD) No.4556 of 2023
1.The Inspector General of Registration,
Door No.100, Santhome High Road,
Foreshore Estate, Pattinapakkam,
Chennai – 600 028.
2.The District Registrar (Administration),
Madurai South.
3.The Joint Sub-Registrar No.IV,
Madurai. ... Appellants
-vs-
1.Wilson Gnanamuthu
2.T.Balakrishnan ... Respondents
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W.A.(MD) No.419 of 2023
Writ Appeal filed under Clause 15 of Letters Patent to set aside the order,
dated 12.01.2023, passed in W.P.(MD) No.28209 of 2022, on the file of this
Court.
For Appellants : Mr.Veera Kathiravan
Additional Advocate General
assisted by Mr.M.Prakash
Additional Government Pleader
For Respondents : Mr.J.Barathan for R1
Mr.P.Ganapathi Subramanian for R2
JUDGMENT
[Judgment of the Court was made by R.SUBRAMANIAN, J.]
The Department is on appeal against the order of the Writ Court
where the Writ Court found that the Department cannot launch upon an inquiry
under Section 77-A of the Registration Act, 1908 (for brevity “the Act”),
regarding the validity of the document which was executed prior to the
introduction of Section 77-A of the Act. The Writ Court had also found that the
complaint of the fourth respondent in the writ petition is not that the petitioner in
the writ petition has committed any act of impersonation or forgery. The
jurisdiction to entertain complaints or cancel documents is vested with the
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W.A.(MD) No.419 of 2023
Registrar under Section 77-A of the Act. The said Section reads as follows:-
“77-A. Cancellation of registered documents in certain
cases.- (1) The Registrar, either suo moto or on a complaint received
from any person, is of the opinion, that registration of a document is
made in contravention of Section 22-A or Section 22-B, shall issue a
notice to the executant and all the parties to the document and parties
to subsequent documents, if any, and all other persons who, in the
opinion of the Registrar, may be affected by the cancellation of the
document, to show cause as to why the registration of the document
shall not be cancelled. On consideration of reply, if any received
therefor, the Registrar may cancel the registration of the document
and cause to enter such cancellation in the relevant books and
indexes.”
A reading of the above provision would show that the authorised officer, namely,
the Registrar, can launch upon an inquiry only in cases where the documents are
hit by or in contravention of Section 22-A or Section 22-B of the Act.
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W.A.(MD) No.419 of 2023
2. Section 22-A of the Act which was introduced with effect from
20.10.2016 deals with documents executed in respect of properties that are owned
by the State Government or other religious institutions. It is not in dispute that
Section 22-A will not apply to the facts of this case. Section 22-B of the Act reads
as follows:-
“[22-B. Refusal to register forged documents and other
documents prohibited by law. - Notwithstanding anything contained
in this Act, the registering officer shall refuse to register the following
documents, namely:-
1. forged document;
2. document relating to transaction, which is prohibited by any
Central Act or State Act for the time being in force;
3. document relating to transfer of immovable property by way of
sale, gift, lease or otherwise, which is attached permanently or
provisionally by a competent authority under any Central Act
or State Act for the time being in force or any Court or
Tribunal;
4. any other document as the State Government may, by
notification, specify.]”
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W.A.(MD) No.419 of 2023
A reading of the above section would show that the power of cancellation is
vested in the Registrar only in respect of three kinds of documents:-
(a) a forged document;
(b) a transaction which is prohibited by the Central Act or the State Act for
the time being in force and;
(c) a document relating to the transfer of immovable property by way of
sale, gift deed or otherwise which is attached permanently or provisionally by the
competent authorities under any Central or State Act for the time being in force or
a Tribunal or any other documents which the State Government may specify.
3. A perusal of the complaint which has been made by the fourth
respondent shows that the petitioner's vendor has claimed title to the property and
has sold the property as if it belongs to him. This type of document cannot fall
within the definition of a “forged document” under Section 22-B of the Act. In the
absence of a complaint of forgery or impersonation, the document will not be in
contravention of Section 22-B so as to enable the Registrar to invoke the power
under that Section. The power of the Registrar to cancel the document is
dependent on a document falling within any of the clauses of Section 22-B. If the
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W.A.(MD) No.419 of 2023
document does not fall within Section 22-B or Section 22-A, the Registrar has no
power to cancel the same. Section 2(5-A) of the Act provides that the term
“forged document”shall have a same meaning as assigned to it under Section 470
of IPC.
4. Section 470 of IPC reads as follows:-
“470. Forged document.—A false [document or electronic
record] made wholly or in part by forgery is designated “a forged
[document or electronic record].”
4.1 'Forgery' is defined under Section 463 of IPC. Section 463 of IPC
reads as follows:-
“463. Forgery.— Whoever makes any false document or false
electronic record or part of a document or electronic record, with
intent to cause damage or injury, to the public or to any person, or to
support any claim or title, or to cause any person to part with
property, or to enter into any express or implied contract, or with
intent to commit fraud or that fraud may be committed, commits
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W.A.(MD) No.419 of 2023
forgery.”
4.2 Section 464 of IPC reads as follows:-
“464. Making a false document.— A person is said to make a
false document or false electronic record—
First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part
of a document;
(b) makes or transmits any electronic record or part of
any electronic record;
(c) affixes any [electronic signature] on any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the [electronic signature],
with the intention of causing it to be believed that such
document or part of document, electronic record or
[electronic signature] was made, signed, sealed, executed,
transmitted or affixed by or by the authority of a person by
whom or by whose authority he knows that it was not made,
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W.A.(MD) No.419 of 2023
singed, sealed, executed or affixed;” (emphasis supplied)
A reading of the above provisions would clearly manifest that in order to
constitute forgery, a person should have either impersonated another or should
have signed as another. In the absence of such an allegation, there is no question
of the document being termed as a 'forged document' or a 'false document'. In
order to bring the document within the sweep of Section 22-B of the Act, the
complainant must aver that the respondent or the person accused of creating a
false document has either impersonated somebody or has signed as a person
having authority. Unless such allegation was made, the Registrar will not have
jurisdiction to entertain the complaint and launch upon an inquiry. If a person
claims a right to the property under some colour of title and deals with the
property, the remedy of a person who claims a counter-title is not under Section
77-A but under common law before the Civil Court. Though, the power to inquire
is vested in the Registrar, Section 77-A does not vest the power to record
evidence in the Register.
5. At this juncture, it will be useful to refer to the judgment of the
Hon'ble Supreme Court of India in Mohammed Ibrahim and Others v. State of
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W.A.(MD) No.419 of 2023
Bihar and Another, reported in (2009) 3 SCC (Cri) 929, the Apex Court had
considered a similar situation where a person who had executed a sale deed in
favour of another claiming that the property belonged to himself was accused of
having convicted for the offences under Sections 457 and 451 of the Indian Penal
Code. After exhaustively analyzing the provisions of the Code and various
precedents, the Hon'ble Supreme Court concluded as follows:-
“16. There is a fundamental difference between a person
executing a sale deed claiming that the property conveyed is his
property, and a person executing a sale deed by impersonating the
owner or falsely claiming to be authorised or empowered by the
owner, to execute the deed on owner's behalf. When a person executes
a document conveying a property describing it as his, there are two
possibilities. The first is that he bonafide believes that the property
actually belongs to him. The second is that he may be dishonestly or
fraudulently claiming it to be his even though he knows that it is not
his property. But to fall under first category of `false documents', it is
not sufficient that a document has been made or executed dishonestly
or fraudulently. There is a further requirement that it should have
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W.A.(MD) No.419 of 2023
been made with the intention of causing it to be believed that such
document was made or executed by, or by the authority of a person,
by whom or by whose authority he knows that it was not made or
executed.
17. When a document is executed by a person claiming a
property which is not his, he is not claiming that he is someone else
nor is he claiming that he is authorised by someone else. Therefore,
execution of such document (purporting to convey some property of
which he is not the owner) is not execution of a false document as
defined under Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery, then neither
Section 467 nor Section 471 of the Code are attracted.”
6. From the complaint that has been lodged before the Registrar on
23.02.2022, we find that the accused persons have made a false claim that the
property belongs to them and had sold the property to various persons even in the
year 2006 and 2008. There is no allegation of forgery or creation of false
document in the petition that is presented before the Registrar. So in our
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W.A.(MD) No.419 of 2023
considered opinion, the ingredients for invocation of Section 77-A of the Act are
absent and the Writ Court was justified in quashing the notice that was sent for
the proposed inquiry. The Writ Court has gone into the other question relating to
the prospectivity or otherwise of the provisions of Section 77-A, that is subject
matter of a reference which we do not propose to address in the case on hand, as
in our opinion, the essential ingredients which would empower the Registrar to
launch upon an inquiry or absent in the complaint made by the private
respondents, therefore, the writ appeal fails and it is accordingly dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
[R.S.M., J.] [L.V.G., J.]
17.04.2023
NCC : No
Index : No
Internet : Yes
PKN
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W.A.(MD) No.419 of 2023
To:
1.The Inspector General of Police,
Door No.100, Santhome High Road,
Foreshore Estate, Pattinapakkam,
Chennai – 600 028.
2.The District Registrar (Administration),
Madurai South.
3.The Joint Sub-Registrar No.IV,
Madurai.
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W.A.(MD) No.419 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
PKN
W.A.(MD) No.419 of 2023
17.04.2023
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