Madras High Court
Murugan vs The District Registrar on 12 November, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.(MD) No.26847 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.26847 of 2024
and
W.M.P.(MD) No.22754 of 2024
Murugan ... Petitioner
-vs-
1.The District Registrar
Thenkasi District, Thenkasi
2.The Sub Registrar
Surandai Sub Registrar Office
Surandai, Thenkasi District
3.Rathinasamy ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of certiorarified mandamus to call for records pertaining to the
impugned refusal Check Slip vide No.RFL/Surandai/38/2024, dated
21.10.2024 issued by the second respondent and quash the same as illegal
and consequently directing the second respondent to register the sale deed
executed by the third respondent in favour of the petitioner in respect of 19
cents of land comprised in S.No.345/1B situated at Kulaiyaneri Village,
V.K.Pudur Taluk, Thenkasi District.
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W.P.(MD) No.26847 of 2024
For Petitioner : Mr.T.Indrachithu
For Respondents : Mr.S.P.Maharajan
Special Government Pleader for R1 & R2
ORDER
Mr.S.P.Maharajan, learned Special Government Pleader, takes
notice for the respondents 1 and 2.
2. Since the writ petition is disposed of at the admission stage
itself and in view of the nature of the order proposed to be passed, notice to
the private respondent is dispensed with.
3. With the consent of both parties, this writ petition is taken up
for final disposal at the admission stage itself.
4. This writ petition has been filed challenging the check slip,
dated 21.10.2024, issued by the second respondent, refusing to register the
sale deed presented for registration in respect of the property comprised in
Survey No.345/1B of Kulaiyaneri Village, V.K.Pudur Taluk, Thenkasi District,
measuring to an extent of 19 Cents.
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5. The petitioner purchased the subject property from the third
respondent by a sale deed dated 21.10.2024 for a valid sale consideration.
The third respondent, being vendor, had purchased the subject property from
one Murugasamy and his son Kadarkarai, by a sale deed registered as
document No.1439 of 1992 and thereafter, he was issued with a patta in
respect of the subject property. When the petitioner presented the sale deed
dated 21.10.2024 before the second respondent for registration, the second
respondent refused to register the sale deed on the ground that the original
parent document registered as document No.1439 of 1992 has not been
produced. According to the petitioner, the said original parent document has
been lost and as such, the third respondent lodged a complaint before
Surandai Police Station and he was issued with CSR No.24318407.
Thereafter, paper publication was also effected in the newspaper about the
missing of the original parent document.
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:
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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.
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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
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
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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
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
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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, 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
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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.”
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.
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9. Accordingly, this writ petition is allowed and the impugned
check slip, dated 21.10.2024, issued by the second respondent, is quashed.
The petitioner is directed to re-present the sale deed for registration before the
second respondent forthwith and on receipt of the same, the second
respondent is directed to register the sale deed and release the same as
expeditiously as possible. No costs. Consequently, connected miscellaneous
petition is closed.
12.11.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The District Registrar,
Thenkasi District,
Thenkasi.
2.The Sub Registrar,
Surandai Sub Registrar Office,
Surandai, Thenkasi District.
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G.K.ILANTHIRAIYAN, J.
krk
and
12.11.2024
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