Madras High Court

M.Kaladevi vs The Sub-Registrar (Administration) on 8 August, 2024

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                               W.P.(MD)No.22817 of 2018


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 08.08.2024

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                             W.P.(MD)No.22817 of 2018
                                                      and
                                            W.M.P.(MD)No.20686 of 2018

                M.Kaladevi                                                   ... Petitioner

                                                        Vs.

                1.The Sub-Registrar (Administration),
                  Tenkasi Registration District,
                  Tirunelveli District.

                2.The Sub Registrar,
                  Melaneelithanallur,
                 Sankarankovil Taluk,
                 Tirunelveli District.

                3.S.Kasthuri Jeyarani                                        .... Respondents


                PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
                records relating to the impugned order of the 1st respondent in No.4981/Aa2/2018
                dated 12.09.2018 and quash the same and consequently direct the 2nd respondent to
                remove the entry if any made in pursuant to the impugned order in Book No.2.




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                                                                                          W.P.(MD)No.22817 of 2018


                                           For Petitioner            : Mr.H.Arumugam

                                           For Respondents           : Mr.P.Subbaraj,
                                                                       Spl. Govt. Pleader for R1 & R2
                                                                       Mr.F.X.Eugene for R3


                                                             ORDER

This Writ Petition has been filed seeking for issuance of a Writ of

Certiorarified Mandamus, to call for the records relating to the impugned order of

the 1st respondent in No.4981/Aa2/2018 dated 12.09.2018 and quash the same and

consequently direct the 2nd respondent to remove the entry if any made in pursuant

to the impugned order in Book No.2.

2. Heard the learned counsel for the petitioner, the learned Special

Government Pleader appearing for the respondents 1 and 2 and the learned

counsel appearing for the third respondents and perused the materials available on

record.

3. It is the case of the Writ Petitioner that on the basis of the complaint

given by the respondent No.3 to cancel the settlement deed, the impugned order

has been passed holding that the settler has settled excess land in the settlement

deed and therefore, the said document is treated as a forged one. Challenging the

same, the petitioner has filed this Writ Petition.

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4. The main contention of the third respondent in the complaint is that an

extent of 114.65 sq.mts is included in the settlement deed executed by the said

Annathai in favour of the petitioner. According to the third respondent, the same

is belonged to her and therefore, the settlement deed executed in favour of the

petitioner has to be cancelled.

5. The impugned order came to be passed only on the basis of the

representation as well as the statement of the third respondent and the same has

been passed without any document in this regard. Be that as it may. The power to

go into the title issue and cancel the document by the Registrar is no longer res

integra. Based on the some circulars and orders, the Registering Authority

assumed their power as a civil Court and used to cancel the document. Ultimately,

the Hon'ble Apex Court in Satya Pal Anand vs. State of Madhya Pradesh and

others reported in (2016) 10 SCC 767, has held that power conferred on the

Registrar by virtue of Section 68 cannot be invoked to cancel the registration of

the document already registered. Sections 22-A and 22-B were inserted by Tamil

Nadu Act 28 of 2022 and Act 41 of 2022 respectively to prevent registration of

certain category of the documents. Thereafter, Section 77-A has been brought by

Act 41 of 2022 to cancel the document registered in contravention of Sections 22-

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A and 22-B not beyond it. Now Section 77-A of the Registration Act, 1908 is also

struck down by the Hon'ble Division Bench of this Court in W.P.No.10291 of 2022

batch as unconditional. Such being the position, this Court is of the definite view

that the title cannot be decided by the Registering Authorities. These facts have

been discussed by this Court in W.P.No.29706 of 2022 [G.Rajasulochana Vs.

Inspector General of Registration and others] and the Order in the writ petition

is as follows:

“... 3. It is relevant to note that the object of the law of registration is to provide public notice of the transaction embodied therein. The execution of documents and its validity, the right created or extinguished is governed by the substantive law namely the Transfer of Property Act, 1882. The provisions contained in the Registration Act, 1908 relates to the factum of registration alone. The Hon'ble Supreme Court in the case of State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 has held as follows:

“The Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn.”

4. The practice has been developed in the recent past in Tamil Nadu to entertain the applications given by the so-called affected parties to cancel all the documents under the pretext of either forgery or fradulent transactions. The Inspector General of Registration, Government of Tamil Nadu has brought out Circular No.67 dated 03.11.20211 to deal with the fraudulent registrations through impersonation. The said circular is mainly based on the judgment of the Full Bench of the Andhra Pradesh High Court

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in the case of YanalaMalleshwari v. AnanthulaSayamma, reported in AIR 2007 AP 57. However, the three bench of Hon'ble Apex Court in the case of Satya Pal Anand v. State of M.P., reported in (2016) 10 SCC 767 has held that the power of the Registrar, under the Registration Act, is purely administrative and not quasi-judicial. The same is extracted hereunder:

“34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan [State of U.P. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787] ). Section 17 of the 1908 Act deals with documents which require compulsory registration. Extinguishment deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to government maps and surveys. There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter.

In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.”

5. In fact, the Hon'ble Apex Court has held that and in the absence of any express power to cancel the registered document, the Registrar has

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no power to cancel the document. Section 68(2) of the Registration Act, 1908 relied upon by the Registration Department to substantiate the circular in this regard, when carefully seen. Section 68(2) of the Registration Act, 1908 reads as follows:

“68. Power of Registration to superintend and control Sub Registrars.

(1) every Sub Registrar perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub Registrar is situate.

(2) Every Registrar shall have authority to issue (Whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.”

6. The above provision makes it clear that the said section confers power upon the Registrar to supervise and control all the acts of the Sub- Registar. Sub-Section 2 empowers the Registrar to issue any order consistent with the Act, which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him. Similarly, the Registrar shall also have power in respect of the rectification of any error regarding the book or the office in which any document has been registered. The above power empowering the Registar to issue any order is a power of superitendence and supervision and not a power vested to cancel the registration of the document. Therefore, relying upon Section 68(2) of the Registration Act, 1908 and issuing such circular cannot be valid in the eye of law. Unless a specific power and express provision is made in the Act empowering the Registrar to cancel the document, such

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powers cannot be conferred by the Inspector General of Registration by taking aid of 68(2) of the Registration Act, 1908.”

6. In view of the settled position of law, the authority has no right

whatsoever to decide the civil rights of the parties that too cancelling the

document. Therefore, the impugned order cannot be sustained in the eye of law

and the same has to be quashed.

7. Accordingly, this Writ Petition is allowed and the impugned order

passed by the 1st respondent in No.4981/Aa2/2018 dated 12.09.2018 stands

quashed. It is stated by the parties that a civil suit in O.S.No.75 of 2014 is

pending on the file of the Principal District Munsif Court, Sankarankovil. Hence,

the parties are directed to agitate their rights in the pending suit. There shall be no

order as to costs. Consequently, connected miscellaneous petition is closed.