Madras High Court
Venugopal vs The Inspector General Of Registration on 14 August, 2024
2024:MHC:3083
W.P.No.22270 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.08.2024
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.P.No.22270 of 2024
Venugopal ... Petitioner
vs.
1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai-600028.
2.The Sub-Registrar,
Office of Sub-Registrar,
Chennimalai, Erode. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order passed by the 2nd Respondent vide Refusal
Check Slip bearing Refusal Number. RFL / CHENNIMALAI / 25 / 2024
dated 30.04.2024 and quash the same and consequently direct the 2 nd
respondent to register Settlement Deed dated 30.04.2024 without insisting
the production of original title document.
For Petitioner : Mr.S.K.D.Rajasekar
For Respondents : Mr.M.Shahjahan
Special Government Pleader
1/19
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W.P.No.22270 of 2024
ORDER
The writ petition is filed challenging Refusal Check Slip issued by the
2nd respondent refusing to register the Settlement Deed presented by
petitioner for registration on the ground that the petitioner failed to produce
the original title document of the Settlor by relying on Rule 55-A(i) of the
rules framed under Registration Act, 1908.
2. According to the petitioner, the property which is sought to be
settled was originally belonged to Chennimalai Gounder and his son
Kailasanathan. The petitioner purchased the same under registered Sale
Deed executed by the above said persons dated 04.06.1980. The petitioner
executed a Settlement Deed in respect of the said property in favour of his
wife-Revathi and presented it for registration before the 2 nd respondent with
the certified copy of the original title deed. It was specifically averred by the
petitioner that the original title document which was kept in the safe custody
was lost and inspite of his best effort, he could not find out the same. It is
asserted by the petitioner that he also approached the Police Officials for
tracing the document but in vain. In these circumstances, petitioner
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presented the Settlement Deed executed by him in favour of his wife with
certified copy of the Sale Deed in his favour.
3. Mr.S.K.D.Rajasekar, learned counsel appearing for the petitioner
assails the order passed by 2nd respondent on the ground that production of
original title document is not the sine qua non for registration of the
subsequent document under the Registration Act, 1908. He further
submitted that production of encumbrance certificate from the date of
purchase by the petitioner down to the date of settlement would establish the
petitioner has not encumbered the property subsequent to his purchase and
therefore, insistence on production of original title document is not tenable in
law. In support of his contention, the learned counsel relied on the following
judgments:-
(i) Federal Bank Ltd., represented by its Senior Manager vs. Sub
Registrar and others in W.P.No.2758 of 2023, dated 08.02.2023.
(ii) M.Ariyanatchi and another vs. Inspector General of Registration
and another made in W.A.(MD).No.856 of 2023, dated 27.06.2023.
(iii) S.Sarangapani vs. State of Tamil Nadu and others in W.P.No.21346
of 2019 and batch of cases, dated 26.04.2024.
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(iv) Subramani vs. Sub Registrar, Office of the Sub-Registrar and
another in W.P.No.11056 of 2024, dated 26.04.2024.
4. Per contra, Mr.M.Shahjahan, learned Special Government Pleader
appearing for the respondents would submit that in Federal Bank case
referred supra, this Court only declared first proviso to Rule 55-A(i) of
Registration Rules framed under the Registration Act, 1908 as invalid and
ultra vires. The learned Special Government Pleader further submitted that
the present case is governed by Rule 55-A(i) and third proviso to said Rule.
The learned Special Government Pleader further submitted that if the
original deed is lost, it is for the petitioner to follow the mandate under third
proviso to Rule 55-A(i) and produce Non-Traceable Certificate issued by
Police Department along with the advertisement published in the local
Newspaper as to the loss of the original document. He further submitted that
the Division Bench of this Court in the order passed in Palanisamy and
another vs. Sub Registrar in W.A.No.974 of 2024, dated 25.03.2024 held
that provisions of Rule 55-A are intact in the Rule Books and therefore, it
has to be complied scrupulously, whenever documents are presented for
registration.
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5. The main question to be decided in this writ petition is whether the
refusal order passed by 2nd respondent on the ground that petitioner failed to
produce original title document is sustainable in law.
6. The said question was considered in Federal Bank case cited
supra, the relevant observation made by this Court in this regard reads as
follows:-
“12. It is now necessary to closely examine Rule 55-A
as this is the sheet anchor of the case of the respondents for
refusing registration of the document presented by the
petitioner. Rule 55-A (i) authorizes the Registrar to refuse
registration of the document unless the presentant produces
the previous original sale deed by which the executant
acquired right over the property, and the Encumbrance
certificate pertaining to the said property. It is not difficult to
foresee that a literal application of this rule would lead to
several absurd results. For example, if a person desires to
execute a Will and get it registered, and the property is
mortgaged to a Bank it is obvious that he would be unable to
present the original document. Similarly, where one sharer
deals with his interest in joint family property registration can
be easily stalled if the other co-sharer refuses to part with the
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original parent deed. In fact, in a recent decision [Ananthi v
District Registrar, W.P. 2498 of 2023, order dated
02.02.2023], this Court was confronted with a case where the
Sub-Registrar had relied on Rule 55-A (i) and refused to
register a sale deed only on the ground that the original
partition deed had not been produced. Quashing the
impugned order, this Court observed as follows:
“While framing such Rule, the Government has not
taken into consideration of the fact that the partition deeds
are entered among the co-owners. Normally, original
partition deed will be retained by anyone of the family
member. In fact, there may be a situation, wherein, the person
who will be in possession of the original partition deed, may
not be willing to produce the documents. If such original is
not produced as required under this Rule, the other members
of the family cannot deal with the property.”
13. It appears that on the very same day ie.,
02.02.2023, the Inspector General of Registration issued
Circular No 22482/Cl/2022, dispensing with the production of
the original documents in certain situations indicated in the
guidelines. In the considered opinion of this Court, the very
fact that several exemptions had to be granted by a circular
clearly demonstrates the unworkability of Rule 55-A(i).
However, a very intriguing aspect lies in the amendment to
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Rule 162 inserting Clause XX which reads as follows:
“Clause XX Rule 55A. – That the presentant of
the
document fails to produce the original deed or record
specified in rule 55A.”
13.a The newly introduced Clause XX is preceded by
Clauses I-XIX authorizing the Registrar to refuse registration
on the grounds set out therein. More importantly, each of the
clauses authorizing the Registrar to refuse registration from
Clauses I to XIX specifically refers to a substantive provision
of law in the Registration Act or in some other legislation like
the Income Tax Act. 1961 as the source of power. Clause XX
on the other hand, does not refer to any substantive provision
of law. Strangely and most curiously it authorizes the
Registrar to refuse registration for nonproduction of original
deed or record as specified in Rule 55-A. Normally, a
subordinate legislation like a rule is authorized by a
substantive provision of law. However, this is a unique case
where a rule is authorized by another rule. This Court is of
the considered opinion that in the absence of any substantive
provision of law in the parent legislation, Clause XX is clearly
beyond the powers of the Inspector General of Registration.
The scheme of Rule 162 particularly Clauses 1 to XIX make it
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very clear that the grounds for refusal must be traceable to a
substantive provision of law in the Registration Act or other
legislation.” (Emphasis supplied by this
Court)
7. The view of the learned Single Judge in Federal Bank case was
affirmed by the Division Bench of this Court in M.Ariyanatchi case cited
supra. In the said judgment, the Division Bench after referring to Federal
Bank case opined that Rule 55-A(i) would result in infringement of
proprietary right guaranteed under Article 300A of the Constitution of India.
After observing so, the Division Bench directed the Registering Authority to
register the document, after getting a declaration in the form of sworn
affidavit from the executants that the original title deed was in the hands of
other parties. The relevant observation of the Division Bench in this regard
would read as follows:-
“10. The object of Rule 55-A(i) of the Registration
Rules is said to be to prevent fraudulent registrations. We are
sure that Rule 55-A(i) is not a method by which fraudulent
registrations could be prevented. Once the status of the
executant is accepted and the ownership of the property by
the predecessor-in-interest is also accepted, insistence upon
production of original document, in our opinion, in cases of
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this nature, would only lead to empowering corruption. We
must also point out that such refusal to register for non-
production of original document would definitely infringe the
rights guaranteed under Article 300A of the Constitution of
India.
11. While dealing with the first proviso to Rule 55-A of
the Registration Rules, this Court had, in the Federal Bank
Ltd., vs. the Sub Registrar, Pollachi [order dated 08.02.2023
in W.P.No.2758 of 2023], pointed out that if the Rule, which is
a subordinate legislation, is in conflict with the substantive
law, it will not prevail.
12. Rule 55-A(i), in our opinion, in the given
circumstances, would result in infringement of proprietary
right guaranteed under Article 300A of the Constitution of
India. There is nothing in the substantive law, which prevents
the co-owner from dealing with his / her share in the
property. If the co-owner, who deals with his / her share in the
property, had created encumbrance, such transfer will be
subject to such encumbrance. If the other co-owner had
created encumbrance, that encumbrance will be confined to
the share of the other co-owner only. Therefore, enough and
more safeguards are already available both under the
Transfer of Property Act, 1882 as well as in the Registration
Act, 1908.
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13. No doubt, requirement to produce the original
document would be a safer method by which the Sub Registrar
can ensure that the property belongs to the executant. But,
that is not the only method. In the case on hand, it is clearly
seen that the earlier document was also registered with the
very same Sub Registrar and after computerization and
digitization, the document is available online for the Sub
Registrar to peruse. He can always take an undertaking or a
declaration in the form of a sworn affidavit from the vendors
to the effect that the original document is with their siblings
and register the document. ... ... ... ...”
8. In S.Sarangapani vs. State of Tamil Nadu while dealing with
refusal to register the document on the ground of non-production of original
title deed, this Court observed as follows:-
“17. ... ... ... ... c. With regard to the refusal on the
absence of parent document, this Court in the case of K.S.
Vijayendran v. The Inspector General of Registration
reported in (2011) 2 LW 648, Lakshmi Ammal v. The Sub
Registrar, Villivakkam reported in 2015 SCC OnLine Mad
5868 and C. Moorthy v. Sub Registrar Aruppukottai reported
in 2018 SCC OnLine Mad 3898, it was held that absence of a
parent document is no ground to refuse registration. Pursuant
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to these judgments, sub-rule XX was introduced in Rule 162
authorizing the Sub-Registrar to refuse registration for non-
production of the original title deed as required by Rule 55-
A. This Court in the case of Federal Bank v Sub-Registrar,
reported in 2023 2 CTC 289 has held that Sub-Rule XX of
Rule 162 has no statutory backing. The said order has been
followed by a Division Bench of this Court in the case of M.
Ariyanatchi v Inspector General made in W.A.(MD).No. 856
of 2023, dated 27.06.2023, wherein, Division Bench of this
Court has held that, for instance, the original document is
held by one co-owner, the Sub-Registrar can always take an
undertaking or a declaration in the form of an affidavit from
the vendors to the effect that the original document is with the
said person and register the document. Hence, the Sub-
Registrar cannot refuse to register a document merely
because the original parent deed has not been produced.
Considering the above settled position of law, the
Registrar cannot refuse to register the document merely on
the ground of non production of parent document.”
The said view was reiterated in Subramani case cited supra.
9. The learned Special Government Pleader appearing for the
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respondents brought to the notice of this Court the contrary view taken by
another Division Bench in Palanisamy case cited supra, wherein after
referring to the Federal Bank case, the Division Bench observed as follows:-
“13. Even in the concluding paragraph, the learned
Single Judge in the said order has not declared that the first
proviso to Rule 55-A is ultra vires to the constitution or
supplanting the provisions of the Act.
14. Thus, citing the said order, the presentant of a
document cannot be pleaded before the Registering Officer
that first proviso to Rule 55-A cannot be insisted upon. All the
provisos to Rule 55-A are intact in Rule Books. Therefore, it is
to be complied scrupulously, when ever documents are
presented for registration.”
10. However, the order passed by the Division Bench in Palanisamy
case was not brought to notice of the subsequent Division Bench which
approved the view of the learned Single Judge in M.Ariyanatchi case.
11. In M.Ariyanatchi case, the original document was in the hands of
third party/co-owner. Therefore, the presentant was not able to produce the
original title document before the Sub Registrar. There is no way out in Rule
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55-A to deal with a situation where presentant is unable to produce the
original title document due to the custody of the same with some other third
party not in good relationship with him. In order to find a way out, the
Division Bench in that case directed the Sub Registrar to get a sworn
affidavit from the presentants with regard to the availability of the original
with third party/siblings and proceed with the registration on production of
certified copy.
12. In Federal Bank case as mentioned earlier, this Court
categorically held that Clause XX of Rule 162 which enables the Registering
Authority to reject the document presented for registration on various
circumstances mentioned under Rule 55-A has no backing in the substantial
provision of law in the parent legislation and hence, Clause XX of Rule 162
read with Rule 55-A is beyond the power of Inspector General of
Registration as the same is not traceable to substantial provision of law. The
view expressed by the learned Single Judge in Federal Bank case was
affirmed by the Division Bench in M.Ariyanatchi csae cited supra.
13. In M.Ariyanatchi case, the Registering Authority was directed to
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register the document presented for registration by obtaining sworn affidavit
from the presentant regarding non-availability of the original title document.
14. In the case on hand, the petitioner asserts that his original title
document was lost and hence, he could not produce the same. The fact
situation in the present case is covered by third proviso to Rule 55-A(i),
which reads as follows:-
“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 along with the advertisement published in
the local Newspaper as to the notice of loss of the previous
original deed:”
15. Therefore, failure to produce original title document is not an
absolute bar for registration of the document presented for registration.
Proviso 3 to Rule 55-A(i) only mandates that the presentant shall produce
Non-Traceable Certificate from Police Department along with advertisement
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published in the local Newspaper as to the notice of loss of the previous
original deed. In the affidavit filed in support of the writ petition, the
petitioner asserted that he approached the Police Officials for tracing the
original document but in vain. It is not clear whether the petitioner gave any
police complaint. In fact, the petitioner has not produced any copy of police
compliant in the typed-set of papers.
16. The Proviso 3 to Rule 55-A does not say Non-Traceable
Certificate shall be issued by police within a time frame. We cannot expect
the petitioner, who presented the document for registration to wait endlessly
expecting Non-Traceable Certificate. Further, Section 23 of Registration Act
compels presentant to present the document for registration within four
months. Hence, presentant cannot wait indefinitely for non-traceable
certificate by Police. The Proviso 3 to Rule 55-A(i) does not mention any
time limit for issue of non-traceable certificate. Hence, if Police Authorities
failed to issue certificate within time to enable presentant to comply with
Section 23 of Registration Act, there is a danger of document being refused
as presented out of time. Therefore, following the order passed by the
Division Bench of this Court in M.Ariyanatchi case, this Court directs the
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2nd respondent to register the document on petitioner fulfilling certain
conditions, which can be treated as substantial compliance of Proviso 3 to
Rule 55-A.
17. As mentioned earlier, failure to produce original title document is
not a ground to refuse registration provided petitioner satisfy third proviso to
Rule 55-A(i). Therefore, the impugned Refusal Check Slip issued by the 2nd
respondent in RFL / CHENNIMALAI / 25 / 2024, dated 30.04.2024 is
quashed and the petitioner is directed to represent the document before the
2nd respondent within a period of two weeks from today, along with an
affidavit mentioning the fact of loss of original title document and
untraceability of the same. The petitioner shall also enclose newspaper
advertisement issued by him in leading Tamil newspapers having wide
circulation in Erode District. The Newspaper advertisement shall disclose
loss of original title deed and intention of the Seller to convey the property.
On fulfilment of these two conditions, the 2nd respondent is directed to
register the same.
18. Therefore, the Writ Petition stands allowed with the above
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directions. No costs.
14.08.2024
Index : Yes
Speaking order:Yes
Neutral Citation:Yes
dm
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To
1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai-600028.
2.The Sub-Registrar,
Office of Sub-Registrar,
Chennimalai, Erode.
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S.SOUNTHAR, J.
dm
14.08.2024
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