Madras High Court
E.Geetha Helan Alexandria vs The Joint Sub Registrar No.Ii on 2 January, 2023
W.P(MD)No.6947 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.01.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.6947 of 2019
and
W.M.P.(MD)No.5538 of 2019
1.E.Geetha Helan Alexandria
2.P.Mohanakumari
3.K.P.Elango
4.S.Anbalaagan
5.T.Nagalakshmi ... Petitioners
Vs.
1.The Joint Sub Registrar No.II,
Dindigul Sub-Registrar Office, Dindigul.
2.P.K.Sekar
3.Prema ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, to direct the first respondent to
cancel the Deed of Agreement for Sale dated 24.07.2013 in Doc.No.4223/2013
on the file of the 1st respondent based on the representations of the petitioners
dated 28.02.2019 and 13.03.2019 within a time frame fixed by this Court and ,
forbearing the respondents 2 & 3 from further encumbering the landed
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W.P(MD)No.6947 of 2019
properties of the petitioners in Plot No.19,20,21,28 & 30 in Survey No.185/2,
Chettinaickenpatti village, Dindigul District.
For Petitioners : Mr.B.Saravanan
For Respondents : Mr.S.Shanmugavel
Additional Government Pleader for R1
: Mr.M.P.Senthil for R2 & R3
ORDER
Heard the learned counsel on either side.
2.The property in question belonged to one Kandasamy. It was allotted
to him under a family partition held during the year 1966. The case of the
second respondent is that he is also entitled to share in the property. Since
according to him, it is an ancestral property, Kandasamy executed a Will dated
15.03.2017 bequeathing a portion of the property in favour of his son namely
the second respondent herein. However, before his demise, Kandasamy plotted
out the portion of the property and sold the same individually to the petitioners
herein. The documents were registered on 12.10.2007. The copies of the sale
deed have been enclosed as Document Nos.3 to 7 in the typed set of papers.
Mutations were effected in the revenue records and the petitioners obtained
individual patta.
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W.P(MD)No.6947 of 2019
3.While so, the second respondent herein entered into a sale agreement
dated 24.07.2013 with his wife, namely, the third respondent herein. Since this
document has cast cloud on the writ petitioners' title over the plots purchased
by them, they want the same to be cancelled. Invoking Circular No.67 dated
03.11.2011, the petitioners submitted a representation before the first
respondent. Since it was not acted upon, the present writ petition came to be
filed.
4.The learned counsel on either side reiterated their respective
contentions.
5.It is beyond dispute that Circular No.67 dated 03.11.2011 has been
withdrawn and an instruction has also been issued by the IG of Registration
that all orders passed under Circular No.67 dated 03.11.2011 will have to be
rescinded and recalled.
6.The next question that arises is whether the petitioners can fall back on
Section 77-A of the Registration Act. It reads as follows:-
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W.P(MD)No.6947 of 2019
“77-A.Cancellation of registered documents in certain
cases.—
(1) The Registrar, either suo motto 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 aff ected
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.
(2)The power under sub-section (1) may also be exercised by
the Inspector General of Registration.”
The amendment was introduced vide Tamil nadu Act 41 of 2022. It came into
force on 16.08.2022. The Hon'ble Supreme Court in CIT v. Vatika Township
(P) Ltd., (2015) 1 SCC 1 held that the established Rule is that unless a contrary
intention appears, a legislation presumed not to be intended to have a
retrospective operation and that law passed today cannot apply to events of the
past. Section 77-A has not been made retrospective.
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W.P(MD)No.6947 of 2019
7.Question arose if a settlement deed executed before the coming into
force of the Senior Citizens Act can be cancelled by invoking Section 23 of the
said Act. A learned Judge of this Court in the decision reported in (2018) 6
CTC 21 (K.Neelavathy v. The District Magistrate) held that the power under
Section 23 of the Act cannot be exercised in respect of a document that was
executed before the Act came into force. The same approach has to be adopted
here also. The petitioners cannot take advantage of circulars that were issued
subsequently or statutory amendments that came into force later. It is true that
the I.G of Registration issued circulars and instructions under Section 68 of the
Registration Act after withdrawing circular No.67 dated 03.11.2011. Such
instructions came to be issued in 2018. If Section 77-A of the Registration Act
cannot be retrospective, I fail to understand as to how such circulars can be
retrospective. The circulars are also prospective and will apply to documents
registered after the said circulars were issued. Section 77-A of the Act will
apply only in respect of documents that were registered after 16.08.2022.
8.The petitioners need not despair. They can very well take advantage of
the decision of the Hon'ble Division Bench reported in (2020) 6 CTC 697
(N.Ramayee v. Sub-Registrar). The Hon'ble Division Bench had held that
even if a subsisting sale agreement, there is no bar for creating subsequent
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W.P(MD)No.6947 of 2019
transfer of the immovable property. The existence of a registered sale
agreement executed by the second respondent in the encumbrance register
cannot bar the petitioners' right to deal with the property.
9.I hold that the document registered in the year 2013 cannot be
cancelled by the authorities under the Registration Act, 1908 on the strength of
the subsequently issued circulars/subsequently introduced statutory
amendments. It is seen that the second respondent along with his son filed O.S
147 of 2019 on the file of Sub Court, Dindigul. The learned Sub Judge is
directed to dispose of the same on merits and in accordance with law within a
period of six months from the date of receipt of copy of this order. If the suit
ends in favour of the second respondent, then obviously, the writ petitioners'
remedy will be elsewhere. If the suit is dismissed and ends in favour of the
petitioners herein, they can very well register the Judgment and decree and that
would more than address their concerns.
10.With this clarification and observation and direction to the learned
trial Judge, the writ petition is disposed of. No costs. Consequently, connected
miscellaneous petitions are closed.
02.01.2023
Index : Yes / No
Internet : Yes/ No
rmi/SKM
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W.P(MD)No.6947 of 2019
NOTE: Registrar (Judicial), Madurai Bench of the Madras High Court,
is directed to mark a copy of this order to the learned Sub Judge,
Dindigul for compliance.
To
The Joint Sub Registrar No.II,
Dindigul Sub-Registrar Office,
Dindigul.
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W.P(MD)No.6947 of 2019
G.R.SWAMINATHAN, J.
rmi/SKM
W.P(MD)No.6947 of 2019
02.01.2023
https://www.mhc.tn.gov.in/judis
