Madras High Court
Sundareswari vs The District Registrar on 12 November, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.(MD) No.26903 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.(MD) No.26903 of 2024
Sundareswari ... Petitioner
-vs-
1.The District Registrar
Madurai North
Madurai District
2.The Sub Registrar
Chettikulam
Sub Registrar Office
Madurai 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
proceedings of the second respondent made in RFL/ Chettikulam (Madurai
North)/203/2024 dated 05.11.2024 and quash the same and consequently
direct the second respondent to register the sale deed dated 05.11.2024 in
respect of property comprised in Plot No.76, Matha Nagar, in S.No.186/6
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W.P.(MD) No.26903 of 2024
UDR No.45/6, Thirupalai Group Siruthur Village, Utkadai Sakimangalam,
Madurai.
For Petitioner : Mr.V.Chandrapandi
For Respondents : Mr.S.P.Maharajan
Special Government Pleader
ORDER
Mr.S.P.Maharajan, learned Special Government Pleader, takes
notice for the respondents.
2. With the consent of both parties, this writ petition is taken up
for final disposal at the admission stage itself.
3. This writ petition has been filed challenging the refusal slip
dated 05.11.2024, issued by the second respondent, refusing to register the
sale deed dated 05.11.2024, presented by the petitioner for registration, in
respect of the property situated at Plot No.76, Matha Nagar, in Survey No.
186/6, UDR No.45/6, Thirupalai Group Siruthur Village, Utkadai
Sakimangalam, Madurai.
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4. The petitioner's father purchased the land in Plot No.76, Matha
Nagar, in Survey No.186/6, UDR No.45/6, Thirupalai Group Siruthur Village,
Utkadai Sakimangalam, Madurai, measuring an extent of 2027 sq.ft., under a
sale deed dated 04.11.1996 and registered as document No.3225 of 1996.
After the demise of her father, the petitioner and her younger sister and
younger brother were in possession of the said land. The petitioner and her
younger sister decided to sell their 2/3rd undivided share in the said property
i.e., 1351.33 sq.ft., out of 2027 sq.ft., to one Chitra for a valid sale
consideration and executed a sale deed. When the petitioner presented the
document for registration, the second respondent refused to register the sale
deed on the ground that original parent document has not been produced.
Challenging the same, the present writ petition has been filed.
5. According to the petitioner, the parent title deed stands in the
name of her father and after his death, she could not trace the original parent
title deed. However, she is ready and willing to produce the certified copy of
the parent deed before the second respondent.
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6. The issue involved in the case on hand i.e., production of
original parent document, has already been decided by the Honourable
Division Bench of this Court, vide Judgment dated 27.09.2024, in W.A.No.
1160 of 2024 [P.Pappu vs. The Sub Registrar], wherein the Division Bench of
this Court, in Paragraph Nos.7 to 10, has held as follows:
“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
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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 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
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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 Inspector General to make rules providing for
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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
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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 certificed 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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7. The above decision squarely applies to the case on hand.
8. In view of the above, the second respondent cannot insist upon
the production of original parent document to verity the title over the subject
property. Therefore, the impugned check slip cannot be sustained and the
same is liable to be quashed.
9. Accordingly, this writ petition is allowed and the impugned
check slip, dated 05.11.2024, issued by the second respondent, is quashed.
The petitioner is directed to re-present the sale deed for registration before the
second respondent forthwith along with a certified copy of the parent title deed
and on receipt of the same, the second respondent is directed to register the
sale deed and release the same as expeditiously as possible, if it is otherwise
in order. No costs.
12.11.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
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To:
1.The District Registrar,
Madurai North, Madurai District.
2.The Sub Registrar,
Chettikulam Sub Registrar Office,
Madurai District.
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G.K.ILANTHIRAIYAN, J.
krk
12.11.2024
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