Madras High Court
G.Subbaiah Konar vs The Inspector General Of ... on 29 March, 2023
W.P.(MD)No.14402 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :29.03.2023
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.(MD)No.14402 of 2016
and
W.M.P.(MD).No.10665 of 2016
G.Subbaiah Konar ... Petitioner
Vs.
1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai 600 028.
2.The District Registrar,
Madurai District,
Madurai.
3.The Sub Registrar,
Karungalakudi Sub-Registrar Office,
Melur Taluk,
Madurai District.
4.Chokkalingam
5.C.Vijayan ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of certiorari to call for the records pertaining to
the impugned order dated 22.07.2016 in Na.Ka.No.891/A1/2016 on the file
Page 1 of 14
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
of the second respondent and quash the same.
For Petitioner :Mr.A.N.Ramanathan
For Respondents :Mr.T.Amjadkhan
Government Advocate for R1 to R3
:Mr.N.Rahamadullah for R4 & R5
ORDER
The petitioner assails an order dated 22.07.2016 of the District
Registrar, Madurai, by which the registration of sale deed dated 23.01.1976
was held to be invalid.
2. The petitioner states that land measuring 1 acre 91 cents in
S.F.No.6/5 of Thargakudi Sub Village, Ayyapatti Village, Melur Taluk,
originally belonged absolutely to one Nallathambi Konar. The said
Nallathambi Konar had a daughter called Annapooranathammal and son
also called Nallathambi Konar. The original owner of the land, Nallathambi
Konar, died when his children had not attained adulthood.
Annapooranathammal married one Valli Konar through whom she had two
daughters, namely, Vallikannu, who is the wife of the petitioner, and
Gomathy and one son, Chokkalingam, who is the fourth respondent herein.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
3. The petitioner asserts that he was unaware of a settlement deed
dated 06.07.1947 allegedly executed by his vendor in favour of
Annapooranathammal. According to the petitioner, the above mentioned
properties, which were originally owned by Nallathambi Konar, remained in
the possession of the son, who is also called Nallathambi Konar. It is further
stated that all the revenue records stand in the name of Nallathambi Konar.
According to the petitioner, Nallathamabi Konar sold the property to the
petitioner on 23.01.1976 under Document No.76 of 1976. The said
transaction was effected upon payment of valuable consideration. The
petitioner further states that pursuant to such purchase, the patta was also
mutated in favour of the petitioner.
4. In these facts and circumstances, it is stated that the fourth and
fifth respondents, who were aware of the purchase of the property by the
petitioner on 23.01.1976, issued a notice dated 29.05.2013 asserting their
title over the property and stating that unless possession of the property was
handed over to them, a civil suit would be filed. The said notice was replied
to on 11.06.2013 denying their claim. This was followed by representations
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
dated 30.01.2016 and 15.02.2016. Thereafter, W.P.(MD).No.10952 of 2016
was filed by the fifth respondent herein seeking consideration of the above
mentioned representations. The said writ petition was disposed of by order
dated 22.06.2016 by which the respondents therein were directed to
consider and dispose of the representations within three weeks. Upon
receipt of such order, the second respondent conducted an enquiry and
concluded that the sale deed registered on 23.01.1976 is not valid and
consequently directed the Sub Registrar to make the necessary entries
indicating that the registration is not valid. Hence, this writ petition.
5. Learned counsel for the petitioner invited my attention to the
material documents, such as the sale deed dated 23.01.1976, the notice
dated 29.05.2013, the reply dated 11.06.2013, the subsequent
representations dated 30.01.2016 and 15.02.2016 and the order of the Court
dated 22.06.2016. Thereafter, he invited my attention to the operative
portions of the impugned order. In particular, he pointed out the
observations in the impugned order to the effect that
Tmt.Annapooranathammal may not have taken possession of the property,
may not have paid kist and other taxes etc. He also pointed out that the
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
second respondent recorded in the impugned order that he was over ruling
the objection on the ground of limitation on the basis that Circular No.67
does not specify a period of limitation.
6. Thereafter, learned counsel submitted that the impugned order
is unsustainable because the second respondent has effectively decided the
question of title. According to learned counsel, Circular No.67 does not
empower the registration authority to decide the question of title. In order to
substantiate this contention, learned counsel referred to Circular No.67 and
pointed out that the authority of the registering authority under such circular
is limited to cases of impersonation and production of false documents. He
also placed for my consideration the order of this Court in the case of
R.Pugazhenthi v. The Inspector General of Registration and others in
W.P.No.6903 of 2018 dated 19.06.2019. He relied upon the judgment of the
Hon'ble Supreme Court in the case of Satya Pal Anand v. State of Madhya
Pradesh and others reported in (2016) 10 SCC 767. Since the impugned
order was issued without jurisdiction by erroneously relying upon Circular
No.67, learned counsel submitted that the impugned order is liable to be
quashed.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
7. In response, learned counsel for the fourth and fifth respondents
submitted that the impugned order is not without jurisdiction because the
registering authority has the power to examine whether a registration was
fraudulent. In particular, learned counsel referred to the findings in the
impugned order that the settlement deed dated 06.07.1947 was duly
registered as document No.894 of 1947. Learned counsel submitted that the
said finding was recorded after calling for the records from the relevant Sub
Registrar's Office. In view of the said registration, he submitted that the
registration of the sale deed on 23.01.1976 is a fraudulent registration. He
further submitted that the registering authority did not decide questions
relating to possession, including whether the petitioner is entitled to title by
way of adverse possession. Therefore, he submitted that it is always open to
the petitioner to institute appropriate civil proceedings in relation to his
possession or title by way of adverse possession.
8. Learned counsel for respondents 1 and 3 defended the
impugned order by submitting that Circular No.67, which was in force at the
relevant point of time, empowered the registering authority to examine
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
whether a registration was fraudulent.
9. Learned counsel for the fourth and fifth respondents also
pointed out that the petitioner has an alternative remedy. The said contention
cannot be countenanced when the petitioner asserted that the registering
officer has no jurisdiction under Circular 67 to conclude that the document
registered in 1976 was invalid.
10. From the rival contentions, the question that falls for
consideration is whether the registering authority was empowered under
Circular No.67 to conclude that the registration of the sale deed on
23.01.1976 was invalid. The obvious first stop in such enquiry is to examine
Circular No.67. Circular No.67 was issued largely on the basis of Sections
82 and 83 of the Registration Act 1908.
11. Section 82 enables the registering authority to initiate action
in respect of intentional false statements, the intentional submission of false
documents and impersonation. Section 83 enables the registering officer to
initiate a prosecution in respect of offences under the Registration Act.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
Circular No.67 prescribes a procedure to deal with complaints relating to
fraudulent registrations. The operative paragraph, inter alia, provide as
under:
In light of the above discussion, following
mandatory procedure is prescribed to deal with the
complaints relating to fraudulent registrations through
impersonation or production of false documents and
evidences.
Once the enquiry is completed following
summary procedure and it is proved that the registration
has taken place through impersonation and through
production of false documents and
statements/admissions, he shall pass orders to this effect,
recording his findings and issue direction to the
concerned registering officers to file FIR against the
concerned persons and also to make a note in the Index-
II of the document which was fraudulently registered to
the effect that the “registration is annulled as per the
proceedings of the District Registrar (proceeding no. to
be noted) and is shall have same effect as prescribed
under Section 49 of the Registration Act”.
However, these instructions will not apply to
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
the cases where the complainant has admitted execution
by himself due to whatever reasons. It is further
emphasized that the procedure prescribed above is only
to deal with fraudulent registrations done and it should
in no way be construed to mean that the registering
authority shall go into the issue of deciding title in case
of rival claims on certain basis.
12. From the above extracts, it is evident that Circular No.67 was
intended to deal with fraudulent registration through impersonation or
production of false documents. The said circular expressly provided that the
registering authority is not empowered to decide title in case of rival claims.
13. Circular No.67 should also be examined in light of the
Registration Rules. Rule 55 provides as under:
55. It forms no part of a registering officer's
duty to enquire into the validity of a document
brought to him for registration or to attend to any
written or verbal protest against the registration of a
document based on the ground that the executing
party had no right to execute the document; but, he is
bound to consider objections raised on any of the
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
grounds stated below;-
(a) that the parties appearing or about to
appear before him are not the persons they profess to
be;
(b) that the document is forged;
(c) that the person appearing as
representative, assign or agent, has no right to appear
in that capacity;
(d) that the executing party is not really
dead, as alleged by the party applying for
registration; or
(e) that the executing party is a minor or an
idiot or a lunatic.
Rule 55 expressly stipulates that a registering officer is not
required to enquire into the validity of a document brought before him for
registration. It further expressly states that he is not required to consider an
objection on the ground that the executing party does not have the right to
execute the document. Although Rule 55 deals with a pre registration
enquiry, it clearly indicates that the registering officer cannot examine
whether the executant of the document was empowered to execute the same.
A fortiori, a registering officer cannot conclude that the document registered
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
almost 40 years earlier is invalid.
14. Before concluding, it should be noticed that the Registration
Act has subsequently been amended by inserting Section 77-A therein.
Under Section 77-A, if the registration was in contravention of Section 22-A
or 22-B of the Registration Act, the registering authority has been
empowered to cancel such registrations. Whether Section 77-A is
retrospective or prospective is pending adjudication before a Division
Bench of this Court.
15. For reasons set out above, I am of the view that the registering
authority did not have the power under Circular 67 to adjudicate on the
validity of the sale deed. The registering authority should have relegated the
parties to the jurisdictional civil court for such adjudication. Therefore, the
impugned order is liable to be and is hereby quashed. In view of the
subsequent amendments to the Registration Act 1908, it is open to the
aggrieved party to submit an appropriate application before the registering
authority under Section 77-A of the Registration Act. In the alternative, it is
also open to the aggrieved party to approach the civil court.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
16. W.P.(MD).No.14402 of 2016 is disposed of on the above
terms without any order as to costs. Consequently, W.M.P.(MD).No.10665
of 2016 is closed.
29.03.2023
NCC :Yes/No
Internet :Yes/No
Index :Yes/No
sbn
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
To
1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai 600 028.
2.The District Registrar,
Madurai District,
Madurai.
3.The Sub Registrar,
Karungalakudi Sub-Registrar Office,
Melur Taluk,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14402 of 2016
SENTHILKUMAR RAMAMOORTHY, J.
sbn
W.P.(MD)No.14402 of 2016
and
W.M.P.(MD).No.10665 of 2016
29.03.2023
https://www.mhc.tn.gov.in/judis
