Madras High Court
Easwari vs The Sub Registrar on 10 October, 2023
Order dated 10.10.2023 in
W.P.No.29224 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P.No.29224 of 2023
Easwari ... Petitioner
versus
The Sub Registrar,
Office of Sub Registrar,
Mulanoor,
Tiruppur District. .....Respondent
Writ Petition filed under Article 226 of Constitution of India, to issue a Writ
of Certiorarified Mandamus calling for the records of order of refusal check slip
in Refusal Number RFL/Mulanoor/8/2021 dated 19.04.2023 passed by the
respondent herein and quash the same and consequently direct the respondent
to register the Sale Deed dated 17.04.2023 presented by the petitioner herein.
For Petitioner : Mr.N.Ponraj
For Respondent : Mr.R.Ramanlal
Additional Advocate General
Assisted by Mr.Yogesh Kannadasan
Special Government Pleader
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Order dated 10.10.2023 in
W.P.No.29224 of 2023
ORDER
The petitioner has filed the present Writ Petition praying to quash the
refusal check slip in Refusal Number RFL/Mulanoor/8/2021, dated 19.04.2023
passed by the respondent and consequently to direct the respondent to register
the Sale Deed, dated 17.04.2023 presented by the petitioner.
2. Learned counsel for the petitioner submitted that the petitioner is the
absolute owner of the land, measuring an extent of 2.84 acres in S.F.No.152/2 in
Kalipalayam Village in Mulanoor Union of Dharapuram Taluk in Tiruppur District,
vide settlement deed dated 17.08.2011, registered as Doc.No.2085 of 2011 on
the file of the respondent. Due to her financial crisis, she intended to sell the
above said property to one Shivashanmugam and accordingly, she executed a
sale deed, dated 17.04.2023 in favour of Shivashanmugam and the same was
presented for registration before the respondent. However, the respondent
refused to register the sale deed stating that attachment orders of Civil Court are
pending and also no prior documents were filed. He further submitted that,
pending attachments, will not be a bar to register the present document as per
the judgment of the Division Bench of this Court in W.P.No.674 of 2020, dated
05.11.2020 [Ramayee.N., Vs. The Sub Registrar, Registration Department,
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Order dated 10.10.2023 in
W.P.No.29224 of 2023
Valapady, Salem District] and another], reported in 2020 (6) CTC 697. Further,
the first proviso to Rule 55-A(i) of Registration Rules empowers the Sub Registrar
to refuse registration citing attachments, which had been declared as null and
void by this Court in W.P.No.2758 of 2023 dated 08.02.2023 [Federal Bank Ltd.,
Vs. Sub Registrar, Office of the Sub Registrar, Pollachi and others] reported in
2023 (2) CTC 289. Hence, the respondent/Sub Registrar has no power to insist
the parties to clear the attachment orders.
3. Mr.R.Ramanlal, learned Additional Advocate General assisted by
Mr.Yogesh Kannadasan, learned Special Government Pleader appearing for the
respondent submitted that as per Rule 55-A(i) of the Registration Rules, if any
property is attached or mortgaged or Lease Agreement is entered into, the Sale
Deed cannot be registered. Thus, as per Rule 55-A(i) of the Registration Rules, a
document cannot be presented for registration, unless the attachment is raised.
In the present case, three attachment orders are pending on the subject
property. Therefore, the Sub Registrar is not in a position to register the
document, when the attachment orders are in force.
4. On a perusal of the impugned refusal check slip passed by the
respondent, it is seen that three attachment orders are pending on the subject
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Order dated 10.10.2023 in
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property and therefore, they advised the parties to present the document, after
raising the attachments. Further, the impugned refusal check slip clearly shows
that there are three attachments in the subject property.
5. In the facts and circumstances, it is useful to extract Rule 55-A(i) of the
Registration Rules, which reads as follows:
"Rule 55-A(i):
The registering officer before whom a
document relating to immovable property is
presented for registration, shall not register the same,
unless the presentant produces the previous original
deed by which the executant acquired right over the
subject property and an Encumbrance Certificate
pertaining to the property obtained within ten days
from the date of presentation:
Provided that in case an encumbrance as to
mortgage, orders on Attachment of property, sale
agreement or lease agreement exists over the
property, the registering officer shall not register such
document if the time limit for filing of suit is not
lapsed, or No Objection Certificate is not granted by
the appropriate authority or raising of the attachment
is not done, as the case may be:
Provided further that in case the previous
original deed is not available as the property being an
ancestral one, the registering officer shall not register
such document, unless the presentant produce any
revenue record evidencing the executant's right over
the subject property such as patta copy issued by
Revenue Department or tax receipt:
Provided also that if the previous original deed
is lost, the registering officer shall register such
document only on production of non-traceable
Certificate-issued by the Police department alongwith
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Order dated 10.10.2023 in
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the advertisement published in the local Newspaper
as to the notice of loss of the previous original deed:
Provided also that production of the previous
original Deed shall not be necessary where the
Government or a Statutory body is the executant of
the document or for such class of documents as may
be notified by the Inspector General of Registration,
from time to time."
6. Learned counsel for the petitioner contended that the attachments in
this case are only for lesser amount, and in support of the same, the learned
counsel for the petitioner relied on a decision of this Court reported in 2023 (2)
CTC 289 (Federal Bank Limited Vs. Sub-Registrar), wherein, this Court observed
as follows:
"19. The effect of the First Proviso, is to
virtually nullify the aforesaid statement of law by the
Supreme Court which is binding law under Article 141.
That apart, even if an Order of Attachment is made,
any Sale Deed registered thereafter would be
automatically void only against all claims enforceable
under the Attachment under the provisions of Section
64 of the Code of Civil Procedure. For example, if the
Attachment is made for recovery of sum of Rupees
One lakh and the property value is more than One
Crore, it cannot be said that entire property cannot be
dealt. Such case sale is void only against claim of
Rupees One Lakh and its interest and not in entirety."
7. In the case on hand, the impugned refusal check slip pertains to three
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Order dated 10.10.2023 in
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attachments of the properties and it is not stated as to what is the amount
involved in the said attachments. Since no value has been mentioned in respect
of these attachments, the Registrar has returned the documents with a direction
to present them after raising the attachments.
8. Under the above circumstances, this Court does not find any perversity
in the impugned refusal check slip dated 19.04.2023 passed by the respondent
and it is for the petitioner to present the document, which is free from
encumbrance.
9. Accordingly, this writ petition is dismissed. There shall be no order as to
costs.
10.10.2023
Speaking Order: Yes/ no
Index : Yes/No
Neutral Citation: Yes/No
ms/cs
To
The Sub Registrar,
Office of Sub Registrar,
Mulanoor,
Tiruppur District
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Order dated 10.10.2023 in
W.P.No.29224 of 2023
P.VELMURUGAN, J.
cs
W.P.No.29224 of 2023
10.10.2023
Pg.Nos.7/7
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