Madras High Court

P.Mariammal vs The District Registrar (Admin) on 4 September, 2024

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                             W.P.(MD)No.26304 of 2022


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 04.09.2024

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                             W.P.(MD)No.26304 of 2022
                                                      and
                                            W.M.P.(MD)No.20476 of 2022


                P.Mariammal                                                ... Petitioner


                                                      Vs.


                1.The District Registrar (Admin),
                  Virudhunagar District,
                  District Collectorate Complex,
                  Virudhunagar.

                2.The Sub Registrar,
                  Thiruthangal Sub Registration Office,
                  Thiruthangal, Virudhunagar District.

                3.G.Krishnasamy                                            .... Respondents

                PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                praying for the issuance of a Writ of Certiorari to call for the records of the
                impugned order of the 1st Respondent in Na.Ka.No.6864/A4/2021 dated
                07.11.2022 and quash the same as illegal.




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                                                                                     W.P.(MD)No.26304 of 2022


                                          For Petitioner         : Mr.M.Kannan
                                          For Respondents        : Mr.C.Satheesh,
                                                                   Govt. Advocate for R1 & R2
                                                                   Mr.A.K.Kannan for R3




                                                            ORDER

This Writ Petition has been filed seeking for issuance of a Writ of

Certiorari to call for the records of the impugned order of the 1st Respondent in

Na.Ka.No.6864/A4/2021 dated 07.11.2022 and quash the same as illegal.

2. It is the case of the Writ Petitioner that the subject property

originally jointly belonged to Karuppaiah Thevar, Muthusamy Thevar, Lakshmi

and Muthaiah Thevar. The Karuppiah Thevar died issueless and he leaving behind

his sisters Velammal, Shanmugammal, Karuppayee and Krishnammal as class-II

legal heirs. The daughter of Velammal, who is the eldest sister of Karuppaiah

Thevar, was one Sadachiammal and she has executed a gift settlement deed dated

07.08.2015 in favour of her daughter Velrani. Similarly, the other legal heirs of

Karuppaiah Thevar have also executed a gift settlement deed dated 31.12.2015.

While so, the third respondent, being one of the joint pattadar, has given a

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complaint alleging that the gift deed has to be cancelled, since while executing the

gift settlement deed, the Village Administrative Officer has given a certificate in

the year 2015 mentioning name of the legal heirs of Karuppaiah Thevar, wherein

he has stated that Sadachiammal, daughter of Velammal was died, but the said

Sadachiammal died in the year 2020. Based on the said complaint, the impugned

order has been passed, cancelling the gift settlement deed dated 31.12.2015.

Challenging the same, the petitioner has filed this Writ Petition.

3. The respondents have not filed their counter affidavit.

4. Heard the learned counsel for the petitioner, the learned Government

Advocate appearing for the respondents 1 and 2 and the learned counsel appearing

for the third respondent and perused the materials available on record.

5. Considering the facts and circumstances of the case, this Court is of

the view that the dispute is only among the legal heirs of Karuppaiah Thevar,

whereas, the third respondent is a joint patta holder. It is relevant to note that

merely on the basis of the letter issued by the revenue authority, the impugned

order has been passed. In the absence of any record withregard to the date of

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death, the letter issued by the revenu authority cannot held to be proved.

Therefore, the impugned order cannot be sustained in the eye of law. Further, the

registring authorities have no power to go into all the transactions. In Satya Pal

Anand vs. State of Madhya Pradesh and others reported in (2016) 10 SCC 767,

the Hon'ble Supreme Court has held that power conferred on the Registrar by

virtue of Section 68 cannot be invoked to cancel the registration of the document

already registered. Sections 22-A and 22-B were inserted by Tamil Nadu Act 28 of

2022 and Act 41 of 2022 respectively to prevent registration of certain category of

the documents. Thereafter, Section 77-A has been brought by Act 41 of 2022 to

cancel the document registered in contravention of Sections 22-A and 22-B not

beyond it. Now Section 77-A of the Registration Act, 1908 also is struck down by

the Hon'ble Division Bench of this Court in W.P.No.10291 of 2022 batch as

unconditional. Such being the position, this Court is of the definite view that the

title cannot be decided by the Registering Authorities. These facts have been

discussed by this Court in W.P.No.29706 of 2022 [G.Rajasulochana Vs.

Inspector General of Registration and others] and the Order in the writ petition

is as follows:

“... 3. It is relevant to note that the object of the law of registration is to provide public notice of the transaction embodied therein. The execution of documents and its validity, the right created or

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extinguished is governed by the substantive law namely the Transfer of Property Act, 1882. The provisions contained in the Registration Act, 1908 relates to the factum of registration alone. The Hon'ble Supreme Court in the case of State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 has held as follows:

“The Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn.”

4. The practice has been developed in the recent past in Tamil Nadu to entertain the applications given by the so-called affected parties to cancel all the documents under the pretext of either forgery or fradulent transactions. The Inspector General of Registration, Government of Tamil Nadu has brought out Circular No.67 dated 03.11.20211 to deal with the fraudulent registrations through impersonation. The said circular is mainly based on the judgment of the Full Bench of the Andhra Pradesh High Court in the case of YanalaMalleshwari v. AnanthulaSayamma, reported in AIR 2007 AP 57. However, the three bench of Hon'ble Apex Court in the case of Satya Pal Anand v. State of M.P., reported in (2016) 10 SCC 767 has held that the power of the Registrar, under the Registration Act, is purely administrative and not quasi-judicial. The same is extracted hereunder:

“34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan [State of U.P. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787] ). Section 17 of the 1908 Act deals with documents which require compulsory registration. Extinguishment deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents,

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registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to government maps and surveys. There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.”

5. In fact, the Hon'ble Apex Court has held that and in the absence of any express power to cancel the registered document, the Registrar has no power to cancel the document. Section 68(2) of the Registration Act, 1908 relied upon by the Registration Department to substantiate the circular in this regard, when carefully seen. Section 68(2) of the Registration Act, 1908 reads as follows:

“68. Power of Registration to superintend and control Sub Registrars.

(1) every Sub Registrar 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

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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.”

6. The above provision makes it clear that the said section confers power upon the Registrar to supervise and control all the acts of the Sub- Registar. Sub-Section 2 empowers the Registrar to issue any order consistent with the Act, which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him. Similarly, the Registrar shall also have power in respect of the rectification of any error regarding the book or the office in which any document has been registered. The above power empowering the Registar to issue any order is a power of superitendence and supervision and not a power vested to cancel the registration of the document. Therefore, relying upon Section 68(2) of the Registration Act, 1908 and issuing such circular cannot be valid in the eye of law. Unless a specific power and express provision is made in the Act empowering the Registrar to cancel the document, such powers cannot be conferred by the Inspector General of Registration by taking aid of 68(2) of the Registration Act, 1908.”

6. In view of the above settled position of law, this Court is of the view

that all these facts cannot be looked into by authorities and the same has to be

agitated before the civil Court. Therefore, the impugned order is liable to be

quashed.

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7. Accordingly, this Writ Petition is allowed and the impugned order

dated 07.11.2022 issued by the first respondent stands quashed. No costs.

Consequently, connected miscellaneous petition is closed.

04.09.2024 NCC : Yes/No Index : Yes/No vsm

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1.The District Registrar (Admin), Virudhunagar District, District Collectorate Complex, Virudhunagar.

2.The Sub Registrar, Thiruthangal Sub Registration Office, Thiruthangal, Virudhunagar District.