Madras High Court
D.Baskar vs The Sub Registrar on 5 September, 2023
WP(MD)Nos.21605 & 21606 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP.(MD).Nos.21605 & 20606 of 2023
D.Baskar ..Petitioner in both
WPs
Vs
The Sub Registrar,
Keeranur,
Dindigul District. .. Respondent in
both WPs
Prayer in WP(MD) No.21605 of 2023: Writ Petition filed under
Article 226 of the Constitution of India, praying this Court to issue a
Writ of Certiorarified Mandamus, calling for the records pertaining to
the respondent in Refusal Number.RFL/Keeranur/24/2023,dated
10.08.2023 and quash the same as illegal, consequently direct the
respondent to register the sale deed, dated 09.08.2023 presented by the
petitioner for registration on 10.08.2023 in respect of the properties in
Survey Nos.56/1B, 57/1, 58, 59, 60/1, 60/3 & 62/1 for an undivided
extent of 5 acre 77.5 cents in the total extent of 18 acres 48 cents
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WP(MD)Nos.21605 & 21606 of 2023
situated at Balappampatti Village, Oddanchatram Taluk, Dindigul
District within a time framed by this Court.
Prayer in WP(MD) No.21606 of 2023:: Writ Petition filed under
Article 226 of the Constitution of India, praying this Court to issue a
Writ of Certiorarified Mandamus, calling for the records pertaining to
the respondent in Refusal Number.RFL/Keeranur/25/2023,dated
10.08.2023 and quash the same as illegal, consequently direct the
respondent to register the sale deed, dated 09.08.2023 presented by the
petitioner for registration on 10.08.2023 in respect of the properties in
Survey Nos.56/1B, 57/1, 58, 59, 60/1, 60/3 & 62/1 for an undivided
extent of 5 acre 15.5 cents in the total extent of 18 acres 48 cents
situated at Balappampatti Village, Oddanchatram Taluk, Dindigul
District within a time framed by this Court.
For Petitioner : Mr.D.Venkatesh
For Respondent : Mrs.D.Farjana Ghoushia
Special Government Pleader
(In both WPs)
COMMON ORDER
The petitioner claims that originally, the properties in
56/1B, 57/1, 58, 59, 60/1, 60/3 & 62/1 belongs to the father of one
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WP(MD)Nos.21605 & 21606 of 2023
Manimegalai, her sisters and mother. After the demise of her father, the
properties devolved upon her, her sisters and her mother. On
09.08.2023, the said Manimegalai executed a draft sale deed in favour
of the petitioner, in respect of her undivided share. The said draft sale
deed was presented for execution before the respondent on 10.08.2023
and the same was refused to register on the ground that the original
partition deed has not been submitted. Aggrieved over the same, these
writ petitions are filed.
2.The learned counsel appearing for the petitioner submits
a copy of the original partition has been produced before the
respondent. However, without considering the same, the respondent
has issued the refusal check slips, directing them to produce the
original partition deed. However, the petitioner claims that a copy of
the partition deed is available with the petitioner's vendor's sister. The
learned counsel further submits that registration of a document can be
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WP(MD)Nos.21605 & 21606 of 2023
refused as per Rule 55 of the Tamil Nadu Registration Rules and the
same is extracted 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 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 a 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.”
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WP(MD)Nos.21605 & 21606 of 2023
3.The learned counsel for the petitioner by referring the
decision already rendered by this Court in Federal Bank vs. Sub
Registrar, reported in 2023 (2) CTC 289 submits that the relevant Rule
with Clause 1 of Rule 55A has already been quashed by this Court. The
relevant paragraphs from the above order has been extracted as under:-
15. The effect of the first proviso is clearly an arbitrary
exercise of power aimed at setting at naught the above
declaration of law by the Division Bench of this Court in
Ramayee’s case. In the considered opinion of this Court, a
subordinate legislation issued by the Inspector General of
Registration under Section 69 of the Act cannot annul a
declaration of law made by the Division Bench. In Madras
Bar Association v Union of India, 2021 SCC Online SC
463, the Supreme Court quoted Chief Justice John
Marshall’s classic observation in Marbury v Madison (28 5
US 137): “It is emphatically the province and duty of the
judicial department to say what the law is.” The Hon'ble
Supreme Court then went on to observe as under:
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WP(MD)Nos.21605 & 21606 of 2023
“41. It is open to the legislature within certain
limits to amend the provisions of an Act
retrospectively and to declare what the law shall
be deemed to have been, but it is not open to the
legislature to say that a judgment of a Court
properly constituted and rendered in exercise of
its powers in a matter brought before it shall be
deemed to be ineffective and the interpretation of
the law shall be otherwise than as declared by
the Court.”
15.a. Thus, when the legal position has already
been declared by the Division Bench of this Court
and has been affirmed by the Supreme Court it is
not open to the Inspector General of Registration
to take a contra view and notify a subordinate
legislation the effect of which is to completely
render nugatory to the interpretation made by this
Court. Ex-facie, the first proviso to Rule 55-A (i)
is clearly illegal and is vitiated by a clear abuse of
power.
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WP(MD)Nos.21605 & 21606 of 2023
26. In view of the above, as this Court has held
that the first proviso to Rule 55-A has been found
to be invalid and ultra vires, the respondent
cannot refuse to register the document placing
reliance on the aforesaid proviso.
4.In view of the above, these writ petitions are allowed.
The respondent shall proceed with the registration of the document
presented for registration, after obtaining an affidavit of undertaking
from the petitioner's vendor, based on the certified copy of the partition
deed produced by her. No costs.
05.09.2023
NCC : Yes / No.
Index : Yes / No.
Internet : Yes
vrn
To
The Sub Registrar,
Keeranur,
Dindigul District.
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.21605 & 21606 of 2023
B.PUGALENDHI, J.
vrn
Common Order made in
WP.(MD).Nos.21605 & 20606 of 2023
05.09.2023
https://www.mhc.tn.gov.in/judis
