Madras High Court
Maphari Devi vs The Inspector General Of Registration on 3 September, 2024
W.P.No.25335 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2024
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
W.P No.25335 of 2023
Maphari Devi ...Petitioner
Vs.
1.The Inspector General of Registration
100, Santhome High Road
Pattinampakkam
Chennai 600 028.
2.The District Registrar
Erode District.
3.The Joint I Registrar
Joint I/II Sub- Registrar Office
Erode District.
4.E.Sivasakthi
5.Saravanan
6.Dudaram ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records relating
to the impugned refusal check slip dated 13.08.2024 in RFL/1 Joint Sub
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1/11
W.P.No.25335 of 2023
Registrar /Erode/53/2024 made by the third respondent quash the same and
consequently direct the third respondent to register and release the settlement
deed dated 13.08.2024 without insisting production of original parent
document.
For Petitioner : Mr.R.Prabakar
For Respondents : Mr.M.Shahjahan for R1 to R3
Special Government Pleader
ORDER
Aggrieved by the impugned refusal check slip issued by the third
respondent refusing to register the settlement deed executed by the petitioner,
the petitioner is before this Court.
2. According to the petitioner, he purchased the property with an
extent of 621 sq.ft., old T.S.No.4P Door No.23, New T.S.No.40, Door No.37,
in Resurvey Ward-C, Block-18, Erode Town, from one Dudaram and his wife
Keli Devi, by the sale deed dated 01.09.2023 registered with the third
respondent. The said sale deed was prepared with the help of document writers.
Since the original sale deed in favour of the petitioner was not available with
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her, when the same was presented at the time of registration, the impugned
refusal check slip was issued by the third respondent refusing to register the
document on the ground that the petitioner failed to furnish the original title
deeds. Aggrieved by the same, the petitioner is before this Court.
3. The learned counsel for the petitioner submitted that the
original sale deed is not in custody of the petitioner. The petitioner also
preferred a police complaint regarding the same. The third respondent ought
not to have refused the registration of the document on the ground that the
original was not issued. The learned counsel for the petitioner further
submitted that she also preferred a complaint before the first respondent
seeking action against the document writers and the same is pending on the file
of the second respondent.
4. Mr.M.Shahjahan, learned Special Government Pleader, who
takes notice for the respondents 1 to 3 by relying Rule 55A of the Registration
Rules, submitted unless the original document is produced the third respondent
cannot register the document.
5. The issue involved in this Writ Petition relating the inability of
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a person to present the original document during registration was considered
by this Court in M.Ariyanatchi and other Vs The Inspector General of
Registration in W.A.(MD).No.856 of 2023.
6. The Division Bench of this Court, in the case of M.Ariyanatchi
and other Vs The Inspector General of Registration in W.A.(MD).No.856 of
2023, taken a view that in case the original document is not in the custody of
the presenter, the registering authority can get an affidavit from the presenter
and go ahead with the registration. The relevant observation of the judgment of
Division Bench of this Court reads as follows:-
“13. No doubt, requirement to produce the
original document would be a safer method by which
the Sub Registrar can ensure that the property belongs
to the executant. But, that is not the only method. In the
case on hand, it is clearly seen that the earlier
document was also registered with the very same Sub
Registrar and after computerization and digitization,
the document is available online for the Sub Registrar
to peruse. He can always take an undertaking or a
declaration in the form of a sworn affidavit from the
vendors to the effect that the original document is with
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their siblings and register the document. Conduct of an
enquiry of the nature that is recommended under
Clause (f), extracted supra, would only lead to
confusion. If the other legal heirs want to claim
exclusive title, it is always open to them to approach the
competent Civil Court and if they are able to establish
their exclusive right before the Civil Court, the
alienation will be invalid. In such circumstances, when
the substantive law takes care of and protects any
misuse or abuse, we do not think that Rule 55-A of the
Registration Rules is the only method by which
fraudulent transactions are prevented.
14. In the light of the above, we do not think that
insistence on production of original document, in all
cases across the Board, could be sustained. Wherever
the vendor is a co-owner and it is claimed that the
original document is in the hands of the other co-
owners, who are reluctant to part with it, the Registrar
can always take a declaration in the form of a sworn
affidavit from the co-owner, who is the executant and
register the document. If the other siblings dispute the
rights of the executant, they can also do so before the
Civil Court and there is no law that authorizes the
Registrar to conduct a trial to decide title to the
property in question. What is sought to be done in the
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garb of an enquiry is exactly that. We are, therefore,
convinced that the order of the Writ Court as well as
the check slip issued by the Sub Registrar cannot be
sustained.
15. The writ appeal is allowed and the order of
the Writ Court, dated 24.04.2023, passed in W.P.(MD)
No.9525 of 2023 is set aside. The writ petition in
W.P.(MD) No.9525 of 2023 will stand allowed. The
check slip issued by the Sub Registrar is quashed. The
Joint Sub-Registrar / second respondent is directed to
register the document, after getting a declaration in the
form of sworn affidavit from the executants of the
document that the original sale deed dated 27.01.2003
executed in favour of Shanmugam is in the hands of the
male heirs of Shanmugal Ambalam and on production
of the certified copy of the document along with the
other documents, namely, Patta, death certificate and
legal heirship certificate of Shanmugam Ambalam. The
process of registration shall be completed within fifteen
days from the date of representation of the document by
the appellants. Since we have quashed the rejection of
the check slip today, the appellants will have four
months time to represent the document for registration
from today. No costs.”
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7. I had occasion to consider similar question in Venugopal Vs
The Inspector General of Registration in W.P.No.22270 of 2024. The
relevant observation therein reads as follows:-
“16. The Proviso 3 to Rule 55-A does not
say Non-Traceable Certificate shall be issued by police
within a time frame. We cannot expect the petitioner, who
presented the document for registration to wait endlessly
expecting Non-Traceable Certificate. Further, Section 23
of Registration Act compels presentant to present the
document for registration within four months. Hence,
presentant cannot wait indefinitely for non-traceable
certificate by Police. The Proviso 3 to Rule 55-A(i) does
not mention any time limit for issue of non-traceable
certificate. Hence, if Police Authorities failed to issue
certificate within time to enable presentant to comply
with Section 23 of Registration Act, there is a danger of
document being refused as presented out of time.
Therefore, following the order passed by the Division
Bench of this Court in M.Ariyanatchi case, this Court
directs the 2nd respondent to register the document on
petitioner fulfilling certain conditions, which can be
treated as substantial compliance of Proviso 3 to Rule
55-A.
17. As mentioned earlier, failure to produce
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original title document is not a ground to refuse
registration provided petitioner satisfy third proviso to
Rule 55-A(i). Therefore, the impugned Refusal Check
Slip issued by the 2 nd
respondent in RFL /
CHENNIMALAI / 25 / 2024, dated 30.04.2024 is
quashed and the petitioner is directed to represent the
document before the 2nd respondent within a period of
two weeks from today, along with an affidavit mentioning
the fact of loss of original title document and
untraceability of the same. The petitioner shall also
enclose newspaper advertisement issued by him in
leading Tamil newspapers having wide circulation in
Erode District. The Newspaper advertisement shall
disclose loss of original title deed and intention of the
Seller to convey the property. On fulfilment of these two
conditions, the 2nd respondent is directed to register the
same.
18. Therefore, the Writ Petition stands allowed
with the above directions. No costs.”
8. In the case on hand, it is the specific case of the petitioner that
the original sale deed in her favour was received by the document writers
respondents 4 & 5 from the office of the third respondent and the same has not
been handed over to her. In this regard, the petitioner already preferred a police
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complaint before the Erode District Taluk Police Station in CSR.No.76 of
2024. The petitioner also preferred a complaint before the first respondent on
06.03.2024 seeking action against the document writers.
9. It is also stated that the first respondent forwarded the
complaint to the second respondent and the second respondent issued summons
on 09.08.2024 to the petitioner as well as the respondents 4 & 5, now the
enquiry is pending on the file of the second respondent. In such circumstances,
the third respondent is not justified in refusing to register the document on the
ground that the petitioner failed to produce the original document at the time of
registration. Therefore, the petitioner is directed to represent the document
before the third respondent within a period of two weeks from the date of
receipt of copy of this order along with affidavit narrating the fact under which
the petitioner is unable to produce the original document at the time of
registration. The petitioner shall also produce Newspaper advertisement as
indicated above. The third respondent is directed to complete the registration of
the document if it is otherwise in order.
10. With the above directions, this Writ Petition is disposed of. No
costs.
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03.09.2024
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
dna
To
1.The Inspector General of Registration
100, Santhome High Road
Pattinampakkam
Chennai 600 028.
2.The District Registrar
Erode District.
3.The Joint I Registrar
Joint I/II Sub- Registrar Office
Erode District.
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S.SOUNTHAR, J.
dna
03.09.2024
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