Madras High Court
Jeyapaul vs The District Registrar on 9 September, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P(MD).No.25158 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P(MD).No.25158 of 2023
Jeyapaul ... Petitioner
Vs.,
1.The District Registrar,
Virudhunagar District.
2.The Sub Registrar,
Sattur, Virudhunagar District.
3.Sanjay Gandhi Kammavar Youth Sangam,
rep., by its Secretary the then President
Athinarayanasamy
Vembakottai Taluk, Panayadipatti Village,
Virudhunagar District.
4.Kammavar Samuga Nala Sangam
rep., by its Secretary N.Mahalakshmi ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Mandamus to direct the first respondent to cancel the gift deed dated
09.06.2023 executed by the third respondent defunct sangam in favour of the
fourth respondent sangam by considering the representation of the petitioner dated
03.07.2023.
1/8
https://www.mhc.tn.gov.in/judis
W.P(MD).No.25158 of 2023
For Petitioner : Mr.R.Devaraj
For Respondents : Mr.M.Siddharthan (for R1 & R2)
Additional Government Pleader
Ms.P.Jessi Jeeva Priya (for R3 & R4)
ORDER
This Writ Petition has been filed seeking direction to the first respondent
to cancel the gift deed dated 09.06.2023 executed by the third respondent/ Sangam
in favour of the fourth respondent/ Sangam by considering the representation of
the petitioner dated 03.07.2023.
2. Heard the learned counsel for the petitioner, the learned Additional
Government Pleader appearing for the respondents 1 & 2, the learned counsel
appearing for the respondents 3 & 4 and perused the materials available on record.
3. It is the case of the writ petitioner that the subject property in S.No.
1000/2 to an extent of 1 acre 2 cents belonged to one Venkatasamy, who formed a
layout and divided into plots and laid road on the western side, which connects
Vembukottai Sathur Road, sold various house plots to several persons including
the petitioner. The purchasers of the plots have constructed houses and using the
said road as ingress and egress to reach the their respective houses. The said
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Venkatasamy has sold to an extent of 9.88 cents in the subject property to the third
respondent. Thereafter, the office bearers of the third respondent Sangam
prevented the petitioner and other plot owners from using the said pathway. In
this regard, the petitioner and other plot owners have filed a suit in O.S.No.122 of
2022 before the District Munsif Court, Sivakasi, seeking permanent injunction. In
the meantime, the third respondent executed a gift deed in favour of the fourth
respondent vide Doc.No.6346 of 2023, dated 09.06.2023. Hence, the petitioner
has filed this writ petition to cancel the said document.
4. Considering the facts and circumstances of the case, this Court is of
the view that the Registering Authority has no power to go into all these
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
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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 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
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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, 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
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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
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
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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.”
5. In view of the above settled position of law, unless the power is
specifically vested with the registering authority to cancel any document and to go
into the matter, there cannot be any direction to cancel the document. All these
facts cannot be looked into by this Court and the same has to be agitated before
the civil Court.
6. With the above observations, this Writ Petition is dismissed. It is for
the petitioner to work out his remedy before the civil Court. There shall be no
order as to costs.
09.09.2024
NCC : Yes/No
Index : Yes/No
Rmk
To
1.The District Registrar,
Virudhunagar District.
2.The Sub Registrar,
Sattur, Virudhunagar District.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
Rmk
09.09.2024
https://www.mhc.tn.gov.in/judis
