Madras High Court
Kannan vs The Sub-Registrar on 1 October, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P(MD)No.23531 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.10.2024
CORAM :
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P(MD)No.23531 of 2024
and
W.M.P.(MD)No.19921 of 2024
Kannan ... Petitioner
Vs.
The Sub-Registrar,
Thiruppuvanam, Sivagangai District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned refusal Check Slip dated 19.09.2024 in
No.18/2024 issued by the respondent and quash the same and consequently, to
direct the respondent to register the document dated 04.09.2024 executing the
sale deed in favour of the petitioner within the time stipulated by this Court.
For Petitioner : Mr.V.Sasikumar
For Respondent : Mr.C.Satheesh,
Government Advocate
ORDER
By consent of both parties, this Writ Petition is taken up for final
disposal at the stage of admission itself.
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2.Challenge has been made to the refusal check slip issued by the
respondent dated 19.09.2024.
3.It is the grievance of the petitioner that when he presented the sale
deed dated 04.09.2024, which is executed in favour of him, it was refused by
the respondent, vide refusal check slip dated 19.09.2024 on the ground that no
objection certificate is to be obtained from the mortgagee. Challenging the
same, the petitioner has filed this Writ Petition.
4.The issue raised in this Writ Petition is no longer res-integra, in
view of the judgment rendered by this Court in the case of Subramani vs. the
Sub Registrar and others [WP.No.11056 of 2024, dated 26.04.2024], in which
it has been 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
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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 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.”
5.In such view of the matter, the refusal made by the respondent
cannot be sustained in the eye of law. Therefore, the same is liable to be
quashed, accordingly, it is quashed. This Writ Petition is allowed with a
direction to the respondent to register the document presented by the petitioner,
within a period of one week from the date of receipt of a copy of this order. No
costs. Consequently, connected miscellaneous petition is closed.
01.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Yuva
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J
Yuva
To
The Sub-Registrar,
Thiruppuvanam, Sivagangai District.
01.10.2024
https://www.mhc.tn.gov.in/judis
