Madras High Court

P.Appavu vs / on 5 November, 2024

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                              W.P.(MD)No.26415 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 05.11.2024

                                                      CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                            W.P.(MD)No.26415 of 2024

                     P.Appavu                                                    ... Petitioner
                                                         /Vs./

                     The Sub Registrar,
                     Manachanallur,
                     Trichy District.                                            ... Respondent


                     PRAYER: Petition filed under Article 226 of the Constitution of India, to
                     issue a Writ of Certiorarified Mandamus calling for the records
                     pertaining     to     the       Impugned       Refusal        Check          Slip
                     RFL/Manachanallur/378/2024         dated    20.09.2024     passed      by    the
                     respondent and quash the same and consequently direct the respondent to
                     register the documents without insisting for the production of the original
                     Sale Deed Document No. 723/1990 dated 28.03.1990 for the Survey No.
                     40/9, Kalpalayam Village, Manachanallur Taluk, Trichy District.


                                  For Petitioner      : Mr.M.R.Sreenivasan
                                  For Respondent      : Mr.D.Sadiq Raja
                                                       Additional Government Pleader


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                                                                                   W.P.(MD)No.26415 of 2024

                                                             ORDER

This writ petition has been filed challenging the impugned refusal

check slip dated 20.09.2024 passed by the respondent, thereby refused to

on the ground that the petitioner failed to produce the original parent

document in respect of the subject property.

2. By consent of both parties, this writ petition is taken up for final

disposal at the stage of admission itself. Heard the learned counsel on

either side and perused the materials placed before this Court.

3. The petitioner's father had purchased the property in S.No.40/9,

measuring to an extent of 22.5 cents at Kalpalayam Village,

Manachannallur Taluk, Trichy District, vide registered sale deed dated

28.03.1990 in Document No.723/1990, through the power agent.

Subsequently, he had executed an unregistered will dated 15.03.1997 in

favour of the petitioner. Thereafter, the petitioner's father died on

13.07.1998. The petitioner, who is in possession of the subject property,

is intended to sell the property in favour of third party and therefore,

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executed a sale deed and presented the same for registration, which was

refused to register on the ground that the petitioner failed to produce the

parent deed in respect of the subject property.

4. The learned counsel appearing for the petitioner would submit

that the petitioner produced the certified copy of the sale deed standing in

his father's name and also the unregistered will dated 15.03.1997.

5. The learned Additional Government Pleader appearing for the

respondent would submit that though the petitioner is in possession and

enjoyment of the subject property, the petitioner did not even obtain patta

till today, on the strength of the will executed in his favour. He would

further submit that the petitioner also failed to produce any non-traceable

certificate from the concerned police with the paper publication.

6. 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:-

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“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 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

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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 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

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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 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

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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, 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

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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.”

7. In view of the above, the respondent cannot insist the party to

produce the original parent document while registration. Therefore, the

impugned refusal check slip cannot be sustained and is liable to be

quashed. Accordingly, the impugned refusal check slip dated 20.09.2024

is hereby quashed. The petitioner is directed to re-present the sale deed

within a period of one week from the date of receipt of a copy of this

order. On receipt of the same, the respondent is directed to register the

sale deed presented by the petitioner without insisting upon production

of the parent deed in respect of the subject property within a period of

one week thereafter and release the same forthwith, if it is otherwise in

order. Accordingly, this writ petition is allowed. No costs.

05.11.2024 Index : Yes / No NCC : Yes / No sm

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TO:-