Madras High Court
M.Uthayakumar vs The District Registrar on 14 November, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P (MD).No.27304 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.11.2024
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P (MD).No.27304 of 2024
and
W.M.P(MD)No.23132 of 2024
M.Uthayakumar ... Petitioner
Vs.
1.The District Registrar,
Madurai District,
Madurai.
2.The Sub-Registrar,
Thiruppuvanam,
Sivagangai District. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorarified Mandamus, to call for the records of the
impugned refusal check slip in RFL/Thiruppuvanam/22/2024 on the file of the
second respondent dated 29.10.2024 and quash the same and further direct the
second respondent to register the sale deed dated 16.10.2024 without insisting
any No Objection Certificate from the Mortgage.
For Petitioner : Mr.K.Chengiz Khan
For R1 & R2 : Mr.M.Sarangan
Additional Government Pleader
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1/8
W.P (MD).No.27304 of 2024
ORDER
This writ petition has been filed challenging the refusal check slip
issued by the second respondent, dated 29.10.2024 thereby, refused to register
the sale deed, dated 16.10.2024 on the ground that there is a mortgage deed in
respect of the subject property and directed the petitioner to obtain No
Objection Certificate.
2. By consent of both parties, the Writ Petition is taken up for final
disposal at the admission stage itself.
3. Heard the learned counsel appearing on either side and perused the
materials placed before this Court.
4. The property comprised in S.No.177/5 to an extent of 74 cents at
Vellore Village, Thiruppuvanam Taluk, Sivagangai District is originally owned
by the petitioner's grandfather. Thereafter, he was issued with patta No.698.
He availed loan by mortgating the said property in favour of one Kathiresan
vide mortgage deed, dated 25.10.1978, thereafter, entire amount has been
repaid to the mortgagee and even then, the mortgage deed was not redeemed
since whereabouts of the mortgagee not known. The petitioners grandfather
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also died and the said properties title derived by the petitioner and other legal
heirs. They intended to sell the subject property and executed a sale deed in
favour of the third party on 16.10.2024 for valid sale consideration and
presented for registration. However, it was refused to register on the ground
that the subject property was already mortgaged and the said mortgage is not
yet redeemed sofar. Therefore, the petitioner was directed to obtain No
Objection Certificate from the mortgagee.
5. Admittedly, there is no rival claim and the petitioner's grand-father
availed loan. Subsequently, entire loan was repaid by the legal heirs and derive
title over the property. According to the petitioner, whereabouts of the
mortgagee not known and as such, they could not able to redeem the mortgage
deed. That apart, the mortgage deed was executed on 25.10.1978 and it has
been lapsed since 30 years of period has already been expired. That part, even
assuming that the mortgage deed is alive, as per the first proviso of Section
55(A) of the Tamil Nadu Registration Rules (2022), the registering authority
can entertain the registration if the right of mortgagee crosses the limitation
period to file the suit. Admittedly, the mortgage deed of the year 1978 and the
statutory limitation period of 30 years also expired. As per first proviso of Rule
55(A) of the Tamil Nadu Registration Rules, 2022 the registering authority
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should insist for No Objection Certificate only when the time limit to file the
mortgage suit is not lapsed.
6. In this regard, this Court, in W.P.11056 of 2024, dated 26.04.2024
in the case of Subramani Vs. Sub-Registrar and others, has held as follows:-
"e. As far as the refusal based on the existence of
mortgage, it is now settled that once the encumbrance is made by
creating a mortgage, the mortgagor is not prohibited from
effecting any further transfer. Section 56 of Transfer of Property
Act, 1882 deals with the marshalling by subsequent purchaser. The
Division Bench of this Court in the case of N. Ramayee v Sub-
Registrar, reported in (2020) 6 CTC 697, in paragraphs 29 & 30
has held as follows:
“29. Section 56 of the Transfer of Property
Act deals with marshalling by subsequent purchaser.
The above provision also makes it clear that when the
owner of two or more properties mortgages them to
one person and then sells one or more of the
properties to another person, the buyer is in the
absence of a contract to the contrary, entitled to have
the mortgage-debt satisfied out of the property or
properties not sold to him, so far as the same will
extend, but not so as to prejudice the rights of the
mortgagee or persons claiming under him or of any
other person who has for consideration acquired an
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interest in any of the properties. The above provision
also makes it clear that though there were mortgages
already created there is no bar for subsequent
transfer of the property. But subsequent transfer is
subject to the mortgage earlier created.
30. Section 57 of the Transfer of Property
Act deals with the Provision by Court for
encumbrances and sale freed therefrom. The Section
also makes it clear that even the properties already
encumbered can be brought under court sale and the
encumbrance can be freed after issuance of notice to
the encumberer.”
That apart, the first proviso to Rule 55-A of the T.N
Registration Rules, 2000 had inserted which authorises the
registrar to refuse the document until the limitation period for
redeeming the mortgage has expired. This Court in the case of
Federal Bank v Sub-Registrar, reported in 2023 2 CTC 289, has
already declared the first proviso to Section 55-A as ultravires the
powers under the Act, as it runs counter to the substantive
provisions of law viz., Sections 48 and 56 of the Transfer of
Property Act. When the Rule under the Registration Act cannot
override the statutory provisions of the Transfer of Property, it is
not open to the SubRegistrar to refuse registration citing the
existence of a mortgage or lease since the Transfer of Property,
which is the substantive law permits such transfer despite the
earlier mortgage is created and lease is executed.
In N.Ramayee's case (cited supra), the Division Bench
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of this Court, in paragraph 30 has held as follows:
30. Section 57 of the Transfer of Property Act deals with
the Provision by Court for encumbrances and sale freed
therefrom. The Section also makes it clear that even the
properties already encumbered can be brought under
court sale and the encumbrance can be freed after
issuance of notice to the encumberer.
Therefore, any Rule inserted to undo the law declared by
this Court without any statutory backing cannot be sustained in the
eye of law.""
7. The above judgment is squarely applicable to the case on hand and as such, the
respondents ought not to have refused to register the sale deed on the ground of non-
furnishing of No Objection Certificate from the mortgagee in respect of the subject property.
8. 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 29.10.2024 is hereby quashed. The petitioner is directed to re-
present the sale deed for registration. On receipt of the same, the second
respondent is directed to register the sale deed presented by the petitioner and
release the document forthwith.
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9. Accordingly, this writ petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
Internet : Yes
Index : Yes/No 14.11.2024
Speaking/Non Speaking order
am
To
1.The District Registrar,
Madurai District,
Madurai.
2.The Sub-Registrar,
Thiruppuvanam,
Sivagangai District.
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G.K.ILANTHIRAIYAN, J.
am
14.11.2024
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