Madras High Court
Vijayan vs The Sub-Registrar on 8 June, 2023
W.P.Nos.35180 & 35181of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.35180 & 35181of 2022
Vijayan ... Petitioner
in 2WPs
Vs.
The Sub-Registrar
Office of the Sub Registrar
Avaraipakkam
Tindivanam – 604 001. ... Respondent
in 2WPs
Prayer in W.P.No.35180 of 2022: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Certiorari Mandamus,
calling for the records pertaining to the impugned Refusal Check Slip
No.12/2022 dated 01.11.2022 on the file of the respondent and quash the
same and consequently directing the respondent to register the said Gift Deed
dated 27.10.2022 submitted by the petitioner.
Prayer in W.P.No.35181 of 2022: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Certiorari Mandamus,
calling for the records pertaining to the impugned Refusal Check Slip
No.13/2022 dated 01.11.2022 on the file of the respondent and quash the
https://www.mhc.tn.gov.in/judis
W.P.Nos.35180 & 35181of 2022
same and consequently directing the respondent to register the said Gift Deed
dated 27.10.2022 submitted by the petitioner.
For Petitioner : Mr.B.Gurunathan
(in 2WPs)
For Respondent : Mr.D.Ravichander
Special Government Pleader
(in 2WPs)
COMMON ORDER
The refusal check slips issued by the respondent on 01.11.2022 are
sought to be quashed in the present writ petition.
2. The petitioner presented a gift deed for registration and the
respondent refused to register the same and issued impugned check slips
stating that a Civil Suit in A.S.No.34 of 2021 is pending. In other words the
Sub Registrar refused merely on the ground that the a civil litigation is
pending between the parties.
3. Mere pendency of a Civil Suit is not a bar for registering a
document, if such documents are presented or otherwise in accordance with
the procedures contemplated under the Registration Act and Rules in force.
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W.P.Nos.35180 & 35181of 2022
4. The issues in this regard are no more res integra. The Hon’ble
Division Bench of this Court in the case of N.Ramayee Vs. Sub Registrar,
Registration Department, Salem and Another reported in (2020) 6 CTC 697
held that the pendency of a Civil Suit cannot be a bar for registering a
document. The relevant portion of the judgment reads as under:
“37. It is also pertinent to note that even if
transfer is made during a pending suit, such
transfer is not void but is subject to the result of the
suit. Section 53 of the Transfer of Property Act,
deals with fraudulent transfer. Even such
fraudulent transfer is made with intent to defeat or
delay the creditors of the transferor shall be
voidable at the option of any creditor so defeated
or delayed. Even in such cases the rights of
transferee in good faith and for consideration is
protected.
38. Section 56 of the Transfer of Property
Act deals with marshalling by subsequent
purchaser. The above provision also makes it clear
that when the owner of two or more properties
mortgages them to one person and then sells one or
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W.P.Nos.35180 & 35181of 2022
more of the properties to another person, the buyer
is in the absence of a contract to the contrary,
entitled to have the mortgage-debt satisfied out of
the property or properties not sold to him, so far as
the same will extend, but not so as to prejudice the
rights of the mortgagee or persons claiming under
him or of any other person who has for
consideration acquired an interest in any of the
properties. The above provision also makes it clear
that though there were mortgages already created
there is no bar for subsequent transfer of the
property. But subsequent transfer is subject to the
mortgage earlier created.
39. Section 57 of the Transfer of Property
Act deals with the Provision by Court for
encumbrances and sale freed therefrom. The
Section also makes it clear that even the properties
already encumbered can be brought under court
sale and the encumbrance can be freed after
issuance of notice to the encumberer.
40. It is also relevant to note that even a
mortgage is a transfer of an interest in specific
immoveable property for the purpose of securing
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W.P.Nos.35180 & 35181of 2022
the payment of money advanced or to be advanced
by way of loan, an existing or future debt, or the
performance of an engagement which may give rise
to a pecuniary liability. Therefore, it cannot be said
that once the encumbrance is made by creating a
mortgage, the mortgagor is totally prohibited from
effecting any further transfer. In fact if any such
transfer is made, it is always subject to the
mortgage alone. If the analogy is drawn from the
judgment of the single judge in W.P. No. 33601 of
2019 [Venkattamma v. The Sub-Registrar] that
agreement once registered there cannot be any
subsequent settlement deed is accepted, such
situation even may lead to the contention that even
where a simple mortgage is created, the mortgagor
cannot transfer the property for any other purpose
even for a lease, even though lease is just transfer
of right to enjoy the property. The judgment of the
learned single Judge in W.P. No. 33601 of 2019
[Venkattamma v. The Sub-Registrar] holding that
unless there is declaration declaring the agreement
for sale is null and void is obtained from civil court
no further transfer could be registered, which is, in
our view, not according to law. It is also to be
noted that in the above case only agreement for
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W.P.Nos.35180 & 35181of 2022
sale was registered. It is relevant to extract Section
54 of the Transfer of Property Act:
54. “Sale” defined.— “Sale” is a transfer of
ownership in exchange for a price paid or
promised or part-paid and part-promised. Sale how
made.—3 Such transfer, in the case of tangible
immoveable property of the value of one hundred
rupees and upwards, or in the case of a reversion
or other intangible thing, can be made only by a
registered instrument. 1In the case of tangible
immoveable property of a value less than one
hundred rupees, such transfer may be made either
by a registered instrument or by delivery of the
property. Delivery of tangible immoveable property
takes place when the seller places the buyer, or
such person as he directs, in possession of the
property. Contract for sale.—A contract for the
sale of immoveable property is a contract that a
sale of such property shall take place on terms
settled between the parties. It does not, of itself,
create any interest in or charge on such property.”
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W.P.Nos.35180 & 35181of 2022
5. In view of the principles laid down in the judgment (cited supra),
the impugned refusal check slips issued by the respondents in proceedings
Nos.12 and 13 of 2022 dated 01.11.2022 are quashed and the respondent is
directed to register the document, if the document is in accordance with the
procedures contemplated under the Statues and Rules in force.
6. With this direction, these Writ Petitions stand allowed. No costs.
08.06.2023
Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
To
The Sub-Registrar
Office of the Sub Registrar
Avaraipakkam
Tindivanam – 604 001.
https://www.mhc.tn.gov.in/judis
W.P.Nos.35180 & 35181of 2022
S.M.SUBRAMANIAM, J.
Jeni
W.P.Nos.35180 & 35181of 2022
08.06.2023
https://www.mhc.tn.gov.in/judis
