Madras High Court
M.Ariyanatchi vs The Inspector General Of ... on 27 June, 2023
W.A.(MD) No.856 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A.(MD) No.856 of 2023
1.M.Ariyanatchi
2.R.Kannusamy ... Appellants
-vs-
1.The Inspector General of Registration
Santhome High Road
Santhome, Chennai
2.The Joint Sub-Registrar No.IV
Madurai South, Madurai ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 24.04.2023, passed in W.P.(MD) No.9525 of 2023, on the file of
this Court.
For Appellants : Mr.C.Jeyaprakash
For Respondents : Mr.M.Prakash
Additional Government Pleader
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W.A.(MD) No.856 of 2023
JUDGMENT
[Judgment of the Court was made by R.SUBRAMANIAN, J.]
This writ appeal is directed against the order of the Writ Court,
which came to be passed under the following circumstances:
(i) One Shanmugam Ambalam had purchased certain
immovable properties under a registered sale deed
dated 27.01.2003. Consequent upon the said
purchase, the revenue records were also mutated in
his name and a patta was issued to him in Patta No.
467 for an extent of 0.60.00 Hectares in Survey No.
53/2 and 0.26.00 Hectares in Survey No.54/2B.
(ii) The said Shanmugam Ambalam died on 27.05.2008,
leaving behind four daughters and three sons.
(iii) One of the sons of Shanmugam Ambalam, namely,
Chelladurai predeceased him after having been
married.
(iv) Two of the daughters of Shanmugam Ambalam along
with their legal heirs had executed a sale deed in
respect of their 2/8th undivided share in favour of
the appellants on 15.11.2022.
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W.A.(MD) No.856 of 2023
(v) When the said document was presented for
registration, the jurisdictional Sub-Registrar refused
registration, on the ground that the original deed of
sale in favour of Shanmugam Ambalam has not been
produced.
(vi) The said order was challenged by the appellants in
the writ petition and in the supporting affidavit, it
was mainly contended that insistence of production
of original document is against the provisions of the
Registration Act, 1908. It is also stated that the
original document is not available with the vendors
of the appellants. It was also claimed that the said
document was with the male members of the family
and they were reluctant to part with it.
(vii) The Writ Court had worked out a via media by
requiring the appellants to produce the document
for perusal of the Registrar, since it was claimed that
the said document was with the male members of
the family and they were reluctant to part with it.
Hence, this writ appeal.
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W.A.(MD) No.856 of 2023
2. We have heard Mr.C.Jeyaprakash, learned counsel appearing
for the appellants and Mr.M.Prakash, learned Additional Government Pleader,
appearing for the respondents.
3. Mr.M.Prakash, learned Additional Government Pleader
appearing for the respondents, would contend that based on the
recommendations of a Division Bench of this Court in W.A.No.1989 of 2019,
dated 30.04.2021, Rule 55-A of the Registration Rules, 1949 (for brevity, “the
Registration Rules”) was introduced and the provisions that were contained in
a Circular issued by the Inspector General of Registration were made part of
the Registration Rules. It is stated that the Rules were introduced based on
the recommendations of the very High Level Committee dated 27.12.2022.
4. Whatever be the directions of the Division Bench or the
Committee, the same will not preclude us from deciding upon the vires of the
Rules that have been incorporated. If the Rules, which are subordinate
legislations are in conflict with substantive law, the substantive law alone
would prevail and not the Rules.
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W.A.(MD) No.856 of 2023
5. Rule 55-A of the Registration Rules, which was introduced by
way of an amendment on 05.09.2022, in our opinion, has been introduced
only with an end object of facilitating realisation of illegal gratification. While
Rule 55-A(i) provides that the original document should be produced, the third
proviso to Rule 55-A(i) requires the presentant of the document to produce a
non-traceable certificate, if the original document is lost. We have been made
alive to the fact that a non-traceable certificate comes for a particular price.
We cannot but ignore the happenings around us.
6. Adverting to the facts of this case, the original owner, namely,
Shanmugam Ambalam died leaving behind four daughters and three sons.
Another son, by name, Chelladurai, who was married, had predeceased him.
Therefore, each one of the sons and daughters would get a eighth share in the
estate. Two of the daughters want to sell away their 2/8 th share. The sons are
not cooperating. The legislature thought it fit to empower the daughters by
even removing Section 23 of the Hindu Succession Act, 1956, which prevented
the daughters from claiming a share in the dwelling house until the male heirs
decided to have it partitioned. This intended empowerment of the daughters
stands negated by the insertion of Rule 55-A of the Registration Rules
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W.A.(MD) No.856 of 2023
requiring the daughters to produce the original parent document, which will
be in the hands of the sons only.
7. Mr.M.Prakash, learned Additional Government Pleader, would
rely upon a machinery provided by a circular of the Inspector General of
Registration, wherein a provision has been made under Clause (f), which reads
as follows:
“If the property is purchased by the
Father/Mother and after his/her intestate demise, if
his/her legal heirs claim that the original document is
with one of the legal heirs and he/whe is refusing to
handover the original deeds, then on a petition being
made to that effect, an enquiry shall be conducted by an
Officer not below the rank of the District Registrar by
calling all the legal heirs concerned. In such cases even
if any of the legal heirs fail to attend the enquiry or
refuses to divulge the possession of original document,
then the Enquiry officer shall permit registration on
getting sworn affidavit from the presentant and others
who attend enquiry to that effect. The same exercise of
getting sworn affidavit can be followed in cases where
all the legal heirs submit that the original documents is
not in possession of any others.”
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W.A.(MD) No.856 of 2023
8. Relying heavily upon the above clarification issued,
Mr.M.Prakash, learned Additional Government Pleader, would vehemently
contend that the District Registrar is empowered to conduct an enquiry.
9. We do not think that would achieve the desired result. There is
always a possibility of one of the legal heirs claiming under a testamentary or
non-testamentary instrument alleged to have been executed by the deceased
owner or there is always a possibility of some of the legal heirs joining together
and denying the status of the very executant of the document, thereby
compelling the District Registrar to decide on the validity of the testamentary
or non-testamentary instrument or on the paternity, which is definitely
beyond the scope of the powers of the District Registrar. We really shudder to
think of a situation vesting jurisdiction in a Registrar to decide paternity or
validity of a testamentary or non-testamentary instrument. Therefore, the
machinery that is provided under Clause (f) is wholly unsatisfactory.
10. The object of Rule 55-A(i) of the Registration Rules is said to
be to prevent fraudulent registrations. We are sure that Rule 55-A(i) is not a
method by which fraudulent registrations could be prevented. Once the
status of the executant is accepted and the ownership of the property by the
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W.A.(MD) No.856 of 2023
predecessor-in-interest is also accepted, insistence upon production of original
document, in our opinion, in cases of this nature, would only lead to
empowering corruption. We must also point out that such refusal to register
for non-production of original document would definitely infringe the rights
guaranteed under Article 300A of the Constitution of India.
11. While dealing with the first proviso to Rule 55-A of the
Registration Rules, this Court had, in the Federal Bank Ltd., vs. the Sub
Registrar, Pollachi [order dated 08.02.2023 in W.P.No.2758 of 2023],
pointed out that if the Rule, which is a subordinate legislation, is in conflict
with the substantive law, it will not prevail.
12. Rule 55-A(i), in our opinion, in the given circumstances, would
result in infringement of proprietary right guaranteed under Article 300A of
the Constitution of India. There is nothing in the substantive law, which
prevents the co-owner from dealing with his / her share in the property. If the
co-owner, who deals with his / her share in the property, had created
encumbrance, such transfer will be subject to such encumbrance. If the other
co-owner had created encumbrance, that encumbrance will be confined to the
share of the other co-owner only. Therefore, enough and more safeguards are
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W.A.(MD) No.856 of 2023
already available both under the Transfer of Property Act, 1882 as well as in
the Registration Act, 1908.
13. No doubt, requirement to produce the original document
would be a safer method by which the Sub Registrar can ensure that the
property belongs to the executant. But, that is not the only method. In the
case on hand, it is clearly seen that the earlier document was also registered
with the very same Sub Registrar and after computerization and digitization,
the document is available online for the Sub Registrar to peruse. He can
always take an undertaking or a declaration in the form of a sworn affidavit
from the vendors to the effect that the original document is with their siblings
and register the document. Conduct of an enquiry of the nature that is
recommended under Clause (f), extracted supra, would only lead to confusion.
If the other legal heirs want to claim exclusive title, it is always open to them
to approach the competent Civil Court and if they are able to establish their
exclusive right before the Civil Court, the alienation will be invalid. In such
circumstances, when the substantive law takes care of and protects any
misuse or abuse, we do not think that Rule 55-A of the Registration Rules is
the only method by which fraudulent transactions are prevented.
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W.A.(MD) No.856 of 2023
14. In the light of the above, we do not think that insistence on
production of original document, in all cases across the Board, could be
sustained. Wherever the vendor is a co-owner and it is claimed that the
original document is in the hands of the other co-owners, who are reluctant to
part with it, the Registrar can always take a declaration in the form of a sworn
affidavit from the co-owner, who is the executant and register the document.
If the other siblings dispute the rights of the executant, they can also do so
before the Civil Court and there is no law that authorizes the Registrar to
conduct a trial to decide title to the property in question. What is sought to be
done in the garb of an enquiry is exactly that. We are, therefore, convinced
that the order of the Writ Court as well as the check slip issued by the Sub
Registrar cannot be sustained.
15. The writ appeal is allowed and the order of the Writ Court,
dated 24.04.2023, passed in W.P.(MD) No.9525 of 2023 is set aside. The writ
petition in W.P.(MD) No.9525 of 2023 will stand allowed. The check slip
issued by the Sub Registrar is quashed. The Joint Sub-Registrar / second
respondent is directed to register the document, after getting a declaration in
the form of sworn affidavit from the executants of the document that the
original sale deed dated 27.01.2003 executed in favour of Shanmugam
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W.A.(MD) No.856 of 2023
Ambalam is in the hands of the male heirs of Shanmugal Ambalam and on
production of the certified copy of the document along with the other
documents, namely, Patta, death certificate and legal heirship certificate of
Shanmugam Ambalam. The process of registration shall be completed within
fifteen days from the date of representation of the document by the appellants.
Since we have quashed the rejection of the check slip today, the appellants
will have four months time to represent the document for registration from
today. No costs.
[R.S.M., J.] [L.V.G., J.]
27.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Inspector General of Registration,
Santhome High Road,
Santhome, Chennai.
2.The Joint Sub-Registrar No.IV,
Madurai South, Madurai.
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W.A.(MD) No.856 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
krk
W.A.(MD) No.856 of 2023
27.06.2023
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