Madras High Court

M.Booma Devi vs The District Registrar ... on 16 August, 2024

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                                    W.P.(MD)No.19275 of 2022


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 16.08.2024

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                              W.P.(MD)No.19275 of 2022
                                                        and
                                         W.M.P.(MD)Nos.14062 & 14063 of 2022

                M.Booma Devi                                                             ... Petitioner

                                                          Vs.

                1.The District Registrar (Administration),
                  The Registration Department,
                  Cheranmahadevi,
                  Tirunelveli Registration District.

                2.The Sub Registrar,
                 (Registration Department),
                  Kadayam,
                  Tenkasi District.

                3.J.John
                4.P.Murugan                                                       .... Respondents

                PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                praying for the issuance of a Writ of Certiorarified Mandamus, calling for the
                entire records pertaining to the impugned communication made by the 1st
                respondent in Na.Ka.No.1868/A2/2022 signed on 21.06.2022 and quash the same
                in so far as it relates to the rejection of initiating an enquiry under Section 68(2) of
                the Registration Act 1908 in respect of the fraudulent registration of a sale deed
                registered on 27.08.2021 vide Doc.No.4217 of 2021 in connection with the
                properties situated in S.No.30/8, 30/9D, 30/5A, 30/5E, 30/5C, 30/5F, 30/5D and
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                1/8
                                                                                         W.P.(MD)No.19275 of 2022


                30/5G, Thuppakudi Village, Alankulam Taluk, Tenkasi District and consequently
                direct the 1st respondent to hold an enquiry on the petitioner's complaint dated
                12.04.2022 and complete the same as expeditiously as possible within the time
                stipulation as prescribed by this Court.


                                           For Petitioner           : Ms.C.Geetha
                                           For R1 & R2              : Mr.P.Subbaraj
                                                                       Special Government Pleader
                                           For R4                   : Mr.K.Suyambulinga Bharathi

                                                            ORDER

This Writ Petition has been filed challenging the order of the second

respondent dated 21.06.2022 and to direct the official respondents to cancel the

illegal registration of the document in Doc.No.4217 of 2021 dated 27.08.2021 on

the file of the third respondent based on the petitioner's complaint dated

12.04.2022.

2. Heard the submissions made on either side and perused the materials

available on record.

3. The petitioner's contention is that the property in question belongs to

one Joy Joseph. He had executed a lease agreement in favour of the petitioner's

husband in the year 1996 for the purpose of doing cultivation. Thereafter, the

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husband of the petitioner died and the petitioner's legal heirs were enjoying the

property. In the meantime, the owner of the property namely, Joy Joseph died

without any issues. While that being so, the third and fourth respondents have

created forged documents for the purpose of registering a sale deed. Therefore,

the petitioner made a complaint on 12.04.2022 before the first respondent to

cancel the said document. However, the same was rejected. Challenging the

same, the petitioner has filed this writ petition.

4. Considering the facts and circumstances of the case, this Court is of

the view that the Registering Authority has no power to go into all these

transactions. In Satya Pal Anand vs. State of Madhya Pradesh and others

reported in (2016) 10 SCC 767, the Hon'ble Supreme Court 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-A and 22-B not beyond it. Now Section 77-A of the Registration

Act, 1908 also is 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

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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 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

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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 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.

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

5. In view of the above settled position of law, unless the power is

specifically vested with the registering authority to cancel any document and to go

into the matter, there cannot be any direction to cancel the document. All these

facts cannot be looked into by this Court and the same has to be agitated before

the civil Court.

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6. With the above observations, this Writ Petition is dismissed. It is for

the petitioner to work out his remedy before the competent civil Court. There

shall be no order as to costs. Consequently, connected miscellaneous petitions are

closed.

16.08.2024 NCC : Yes/No Index : Yes/No ta

1.The District Registrar (Administration), The Registration Department, Cheranmahadevi, Tirunelveli Registration District.