Madras High Court
Sivasakthi vs / on 4 November, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.(MD)No.26180 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.(MD)No.26180 of 2024
Sivasakthi ... Petitioner
/Vs./
1.The District Registrar,
Sivagangai District.
2.The Sub Registrar,
Sub Registrar Office,
Kalaiyarkovil,
Sivagangai District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records relating
to the impugned refusal slip in Refusal RFL/Kalaiyarkovil/86/2024 dated
22.10.2024 passed by the 2nd respondent and quash the same
consequently direct the 2nd respondent to register the sale deed dated
02.08.2024 presented by the petitioner.
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W.P.(MD)No.26180 of 2024
For Petitioner : Mr.R.Mahendrarajan
For Respondents : Mr.S.P.Maharajan
Special Government Pleader
ORDER
This writ petition has been filed challenging the impugned refusal
check slip dated 22.10.2024 issued by the second respondent, thereby
refused to register the settlement deed on the ground that the petitioner
failed to produce the parent document as contemplated under Rule 55A
of the Tamil Nadu Registration Rules.
2. By consent of both parties, this writ petition is taken up for final
disposal at the stage of admission itself.
3. Heard the learned counsel on either side and perused the
materials placed before this Court.
4. The petitioner submitted a settlement deed for registration
executed in favour of his wife without production of the parent
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document. According to the petitioner, the subject property which was
executed in favour of his wife, was purchased by him by the registered
sale deed dated 04.03.2024 vide Document No.886/21. Thereafter, the
petitioner decided to execute a settlement deed in favour of his wife. The
petitioner, after execution of the settlement deed, presented the said
document for registration. However, the second respondent refused to
register the same on the ground that the petitioner failed to produce the
parent document in order to prove his title.
5. This issue has been dealt with by the Hon'ble Division Bench of
this Court recently in WA.No.1160 of 2024 by judgment dated
27.09.2024. The relevant portion of the judgment is extracted
hereunder:-
“7. The law relating to transfer of immovable property
is governed by the substantial enactment namely, The
Transfer of Property Act, 1882. The right to hold property and
the right to be not deprived of property without reasonable
compensation is a constitutional right ensured under Article
300A of the Constitution of India. Being a constitutional right,
it is one step superior to even the fundamental rights, as there
cannot be a reasonable restriction on the said right and no
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one can be deprived of the property without reasonable
compensation. The right to hold the property also takes in its
fold the right to deal with the property. No doubt, the second
proviso to rule 55-A of the Tamil Nadu Registration Rules
mandates that the original of the antecedent document should
be produced to enable registration of a subsequent
instrument. Of course, a way-out is provided namely, the
production of non traceability certificate from the police
department. We should also be conscious of the fact that any
certificate from any Government department, as of today,
comes only at a price for an ordinary citizen. An elaborate
procedure has also been fixed for issuance of non traceability
certificate. We have come across several instances where,
because of the high pricing of and the complicated procedure
involved in obtaining a non traceability certificate, instances
of people obtaining non traceability certificate from the
neighbouring States has increased.
8. The fundamental principle of law relating to transfer
of immovable property is caveat emptor. A buyer of the
property is required to be careful in not purchasing certain
properties which are already encumbered or from person who
does not have title. Even if a person sells a property that does
not belong to him, there is no provision in the Registration
Act, 1908, to enable the Registrar to refuse registration
except Section 22-A and Section 22-B, which have been
introduced recently in the year 2022 by the State Legislature
insofar as Tamil Nadu is concerned. Even Section 22-A and
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Section 22-B do not authorise refusal of registration on the
ground that the original of the prior's title deed has not been
produced. We are unable to resist observing that Rule 55-A
has been stealthily introduced as a subordinate legislation
only to enable Registrars refuse to register instruments
indiscriminately. Neither Section 22-A nor Section 22-B
authorise a Registrar to refuse to register instruments on the
grounds specified under Rule 55-A. No doubt, Mr.Ramanlaal
falls back on the power of Superintendence conferred on the
Chief Controlling Revenue Authority and the District
Registrars under Section 68 of the Registration Act, 1908.
Section 68 reads as follows:
“68. Power of Registrar to superintend and
control Sub-Registrars.
(1) Every Sub-Registrar shall 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.''
9. The power conferred under Section 68 of the
Registration Act, 1908, is only a supervisory jurisdiction and
it invests the power in the Registrars to issue any order
consistent with the Act. As we already observed, the provision
of Section 55-A inserted in the rules has no statutory
authority. Section 69 of the Registration Act 1908, enables the
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Inspector General to make rules providing for the matters
that are set out in Clauses (a) to (h). The provision namely,
Section 69 further provides that the rule so framed shall be
consistent with the provisions of the Act. Therefore, the rules
made by the Inspector General of Registration exercising the
power under Section 69 cannot override the provisions of the
Act. Rule 162 of the Registration Rules prescribes the
circumstances under which a Registrar can refuse to register
an instrument. Clause 20 has been added to Rule 162 to
enable the Registrar to refuse registration, if the presentant
does not produce the original deed or record specified in Rule
55A. We do not propose to delve into the validity or otherwise
of the rule, but we must record that prima facie, the rule
overreaches the legislation and it is beyond the powers of the
Inspector General of Registration under Section 69.
10. Adverting to the facts on hand, the document that is
sought to be registered is a release deed executed by the sister
in favour of the brother. The document recites that the
property belonged to the father. The parties are not strangers
to each other. They have produced registration copies of the
antecedent documents which are registered in the very same
office. Unless the Registrar has a doubt regarding the
genuineness of the copies issued by his own office, insistence
on production of originals is a superfluous exercise. As we
had already stated, it is a common knowledge and accepted
phenomena today that one cannot secure a certificate from a
Government office without the price. In such situation,
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driving executant of documents to obtain a non traceability
certificate in case of lost document in every case, will result
only in encouraging under hand dealings. When certified
copies have been produced and it is not impossible for the
Sub Registrar to have it verified with the original record that
is available in his own office, insisting upon a non
traceability certificate appears to be rather a wasteful
exercise. Even in Punithavathy's case referred to supra, we
have observed that the Registrars will not refuse registration
particularly, when the parties to the documents are relatives
and they take the risk of obtaining the document without
examining the title. The copies of the documents have already
been produced. The Sub Registrar could have verified the
same with the original records in his office and register the
instrument without dogmatically refusing registration. We,
therefore, do not find any substance in the argument of
Mr.Ramanlaal, learned Additional Advocate General. We,
therefore, set aside the order of the learned Single Judge as
well as the impugned check slip. We direct the Sub Registrar,
Rasipuram, to register the release deed. We permit the
appellant to re-present the release deed within four weeks
from today and upon such re-presentation, the Sub Registrar,
Rasipuram, will register the instrument without insisting on
production of originals within 15 days from the date of
presentation.”
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6. The learned Special Government Pleader appearing for the
respondents would submit that even according to the petitioner, the
parent documents are in the custody of the police personnel, since the
petitioner had indulged in a criminal case and therefore, the petitioner
failed to approach the second respondent with clean hands for
registration of the settlement deed, which was executed in favour of his
wife.
7. A perusal of the documents reveals that the petitioner had
availed loan by mortgaging the jewels. Subsequently, it was found that
the petitioner mortgaged the fictitious jewels and availed loan.
Therefore, a complaint was lodged as against the petitioner and the same
was registered in Crime No.277 of 2021 on the file of the Inspector of
Police, Melur Police Station, Madurai, for the offence punishable under
Section 420 of IPC. After completion of the investigation, a charge sheet
was filed against the petitioner and the petitioner is now facing criminal
trial. It is seen that pursuant to the registration of the FIR, the police
personnel came into the house of the petitioner and had taken away all
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the documents and therefore, the petitioner could not able to produce the
original documents, while presenting the settlement deed for registration.
8. The aforesaid criminal case registered against the petitioner is
nothing to do with the property, which is now entitled to be settled in
favour of his wife. If any case is registered as against the petitioner with
regard to purchase of the subject property, the second respondent can
very well refuse to register the settlement deed. Hence, the above
judgment of the Hon'ble Division Bench of this Court held recently in
WA.No.1160 of 2024, dated 27.09.2024 is squarely applicable to the case
on hand.
9. In view of the above, the impugned refusal check slip cannot be
sustained and is liable to be quashed. Accordingly, the impugned refusal
check slip dated 22.10.2024 is hereby quashed. The petitioner is directed
to re-present the settlement deed within a period of two weeks from the
date of receipt of a copy of this order. On receipt of the same, the second
respondent is directed to register the settlement deed presented by the
petitioner without insisting production of the parent deed in respect of
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the subject property forthwith. Accordingly, this writ petition is allowed.
No costs.
04.11.2024
Index : Yes / No
NCC : Yes / No
sm
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TO:-
1.The District Registrar,
Sivagangai District.
2.The Sub Registrar,
Sub Registrar Office,
Kalaiyarkovil,
Sivagangai District.
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G.K.ILANTHIRAIYAN, J.
Sm
Order made in
Dated:
04.11.2024
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