N.Elavarasan vs The Assistant Commissioner
2023 Latest Caselaw 2879 Mad

                                                          1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED 20.03.2023

                                                   CORAM
                                      THE HON'BLE MR.JUSTICE M.S.RAMESH

                                                W.P. No.5368 of 2020

                      N.Elavarasan                                           .. Petitioner

                                                         Vs

                      1.The Assistant Commissioner,
                        Hindu Religious & Charitable
                        Endowment Department,
                        Cuddalore,
                        Cuddalore District.

                      2.The Joint I Sub Registrar,
                        Virudhachalam Sub-Registrar Office,
                        Cuddalore,
                        Cuddalore District.

                      3.Sri Kumara Dev Mutt
                        represented by its Madapathi
                        Kalyana Sundara Siva Prakasa
                        Pandara Sannadhigal,
                        Vridhachalam,
                        Cuddalore District.                                  .. Respondents


                      Prayer: Writ petition filed under Article 226 of the Constitution of India
                      praying to issue a writ of Certiorarified Mandamus calling for the records
                      pertaining to the order in Na.Ka.No.3075/AaPaBi/2019 dated 09.01.2020
                      passed by the second respondent herein and quash the same and


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                      consequently direct the second respondent to register the sale deed dated
                      21.11.2013 bearing pending document P.36/2013.


                                       For Petitioner   :    Mr.K.Raja for
                                                             Mr.Kaviveerappan

                                       For Respondents :     Mr.N.R.Arul Natarajan,
                                                             Special Government Pleader for R1

                                                             Mr.Yogesh Kannadasan,
                                                             Special Government Pleader for R2

                                                             No appearance for R3

                                                         ORDER

This writ petition has been filed, challenging the order in

Na.Ka.No.3075/AaPaBi/2019 dated 09.01.2020, passed by the second

respondent herein and seeking a direction to the second respondent to

register the Sale Deed dated 21.11.2013, bearing pending document

P.36/2013.

2.The subject property in Re Survey No.38/2 of Sathukoodal

Kizhpatti Revenue Village, under the jurisdiction of Sub Registrar,

Chidambaram, measuring 0.49 cents, originally belonged to the third

respondent herein. When the Mutt third respondent herein had originally

filed petitions in O.P. Nos.35 of 1949 and 37 of 1950 before the District

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Munsif, Tiruchirappalli under Section 84(2) of the then Madras Hindu

Religious and Charitable Endowments Act for setting aside the orders of

the Hindu Religious Endowments Board dated 02.11.1948, which declared

that the Institutions called Periamadam in Turaiyur in Tiruchirappalli

District and Sri Gnanakoothar Mutt in South Arcot District were Mutts

within the meaning of Section 9(7) of Act II of 1927, the District Court had

declared that it was not competent for the Hindu Religious Endowments

Board to reopen the matter by holding that the Mutt is a Private Mutt and

not a Public Mutt. The order of the District Court claims to be confirmed by

a Division Bench of this Court in Appeal Suit Nos.192 and 193 of 1955

through a judgment and decree dated 17.02.1959. The findings of the

District Court as well as the Hon'ble Division Bench has become final.

3.In this background, when the petitioner herein had purchased the

subject properties from the third respondent through a Sale Deed dated

21.11.2013 for a valid sale consideration and the Sale Deed was presented

before the second respondent herein for registration, the same has been

rejected through the impugned order dated 09.01.2020 by holding that since

the properties are endorsed as the Mutt under the Hindu Religious and

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Charitable Endowments Department, they are not subject for registration in

the absence of any orders granting sanction by the Hindu Religious and

Charitable Endowments Department.

4.The learned counsel for the petitioner submitted that when the

District Court as well as the Hon'ble Division Bench had already declared

the third respondent Mutt as a Private Mutt, there was no authority on the

part of the second respondent herein to insist for prior orders of the Hindu

Religious and Charitable Endowments Department to facilitate any sale of

the immovable properties belonging to them.

5.The learned Special Government Pleader appearing for the second

respondent places reliance on the impugned order as well as the counter

affidavit filed by them and submitted that the third respondent Mutt is

under the control of the Hindu Religious and Charitable Endowments

Department and therefore, in view of Section 22-A(1)(ii) of the Registration

Act, 1908, such documents, dealing with the properties, which are under the

control of Hindu Religious and Charitable Endowments Department, cannot

be registered.

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6.The learned Special Government Pleader appearing for the first

respondent/HR&CE submitted that as per the judgment in A.S. Nos.192 and

193 of 1955, the third respondent Mutt has been declared to be a Private

Mutt and not a Public Mutt.

7.As stated earlier, when the third respondent herein had filed

petitions in O.P. Nos.35 of 1949 and 37 of 1950 under Section 84(2) of the

Hindu Religious and Charitable Endowments Act, which is pari materia to

Madras Hindu Religious Endowments Act II of 1927 before the District

Court, Tiruchirapalli seeking for a declaration to declare the third

respondent institution along with other institutions as a Mutt within the

meaning of Section 9(7), the District Court had passed orders, holding that

it was not competent for the Hindu Religious Endowments Department to

reopen the matter as the third respondent Mutt is a Private Mutt. In the Intra

Court Appeals before this Court in A.S. Nos.192 and 193 of 1955, the order

of the District Court was upheld holding that the third respondent

Institution, which was the subject matter of the Appeals, would not be a

Mutt within the definition of the Act. Hence, by referring to the previous

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decisions of the Board, taken in 1932 and 1935, it was held that the board

has no authority to reopen the matter.

8.The second respondent herein has now placed reliance on Section

22-A(1)(ii) of the Registration Act, 1908 and submitted that the Registering

Officer has to refuse to register a document, which relates to any transfer of

an immovable property belonging to, or given or endowed for the purpose

of, any religious institution to which the Tamil Nadu Hindu Religious and

Charitable Endowments Act is applicable. The said reasoning is

misconceived. When there is a specific declaration by the Civil Court to the

effect that the third respondent Trust is not a Public Mutt as defined under

the Act, this Court is unable to comprehend as to how the subject property

would be under the control of the Hindu Religious and Charitable

Endowments Department.

9.Thus, when the Hon'ble Division Bench of this Court has accepted

the findings of the District Court with regard to the status of the third

respondent as being a Private Mutt, which is not covered under the

provisions of the Hindu Religious and Charitable Endowments Act, placing

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reliance on Section 22-A(1)(ii) for the purpose of refusing the registration,

is opposed to the judgment and decree passed in the Civil proceedings, as

confirmed by the Hon'ble Division Bench of this Court and therefore the

same is illegal. Consequently, the second respondent is bound to register

the Sale Deed dated 21.11.2013, executed in favour of the petitioner herein,

which has now been kept as pending Document P.36/2013.

10.In the light of the above findings, the impugned order dated

09.01.2020, passed by the second respondent since being opposed to the

judgment and decree passed in O.P. Nos.35 of 1949 and 37 of 1950 as

confirmed in the judgment and decree passed by the Hon'ble Division

Bench of this Court in A.S. Nos.92 and 193 of 1955, is set aside.

Consequently, there shall be a direction to the second respondent to

forthwith register the Sale Deed dated 21.11.2013, executed by the third

respondent in favour of the petitioner herein, which has been kept as

pending Document P.36/2013, subject to a proper valuation and payment of

stamp duty as on 21.11.2013, within a period of two weeks from the date of

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M.S.RAMESH,J.

vga

receipt of a copy of this order. Accordingly, this writ petition stands

allowed. No costs.

20.03.2023 Index : Yes vga

To

1.The Assistant Commissioner, Hindu Religious & Charitable Endowment Department, Cuddalore, Cuddalore District.

2.The Joint I Sub Registrar, Virudhachalam Sub-Registrar Office, Cuddalore, Cuddalore District.

W.P. No.5368 of 2020

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