Madras High Court

V.Subbiah vs The Inspector General Of Registration on 9 September, 2024

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                                  W.P.(MD)No.25077 of 2022


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 09.09.2024

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                             W.P.(MD)No.25077 of 2022
                                      and W.M.P.(MD)Nos.19175 and 19177 of 2022


                V.Subbiah                                                       ... Petitioner


                                                         Vs.

                1.The Inspector General of Registration,
                  No.100, Santhom High Road, Chennai.

                2.The District Registrar (Administration),
                  Madurai South, Madurai District.

                3.The Sub Registrar,
                  O/o. Joint-I, Sub Registrars Office,
                  Madurai South.

                4.P.Rajapandian                                                 .... Respondents


                PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                praying for the issuance of a Writ of Certiorari calling for the records relating to
                the order of the 2nd respondent made in Na.Ka.No.5316/Aa2/2021 dated
                13.09.2022 and quash the same as it is arbitrary and illegal.




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                                                                                         W.P.(MD)No.25077 of 2022


                                           For Petitioner           : Mr.R.Suriyanarayanan
                                           For Respondents          : Mr.P.Subbaraj,
                                                                      Spl. Govt. Pleader for R1to R3
                                                                      Mr.S.M.A.Jinnah for R4




                                                             ORDER

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

Certiorari calling for the records relating to the order of the 2nd respondent made in

Na.Ka.No.5316/Aa2/2021 dated 13.09.2022 and quash the same as it is arbitrary

and illegal.

2. Heard the learned counsel for the petitioner, the learned Special

Government Pleader appearing for the respondents 1 to 3 and the learned counsel

appearing for the fourth respondent and perused the materials available on record.

3. It is the case of the writ petitioner that the petitioner's father has

purchased the subject property through a sale deed dated 01.11.2016, registered as

Document No.7063/2016. After his demise, the petitioner and his siblings are

become the owner of the subject property. While so, the 4th respondent has given a

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complaint alleging that the subject property belongs to his mother

Kulumayeeammal and hence, seeking to conduct enquiry under Section 68(2) of

the Registration Act, 1908. On the basis of the said complaint, the impugned order

has been passed, canceling the sale deed dated 01.11.2016 executed in favour of

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

4. The learned counsel appearing for the petitioner submitted that on the

basis of the complaint given by the 4th respondent, without holding enquiry, the 2nd

respondent has passed the impugned order against a dead person. Therefore, the

impugned order is liable to be set aside.

5. The 4th respondent has filed a counter affidavit, in which it is stated

that the subject property originally belongs to his father T.Pandi and his mother

Kulumayeeammal. His mother is the second wife of his father. At the time of

marriage, the petitioner's father executed a settlement deed in favour of his mother.

It is further stated that in all the Court proceedings, it was declared that the subject

property belongs to his mother. However, one Marammal @ Subbulakshmi and

Akkanan, who are the children of the first wife of his father, executed a settlement

deed and sale deed in respect of the subject property. Hence, the petitioner has

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given a complaint to cancel the documents. The 2nd respondent has issued notice

to all the parties to file a reply. But they are not chosen to file their reply.

Therefore, the 2nd respondent, after perusing the materials placed before him,

passed the impugned order. Hence, opposed this Writ Petition.

6. On a perusal of the impugned order, it is seen that on the basis of the

complaint given by the fourth respondent, the 2nd respondent has passed the

impugned order, cancelling the sale deed dated 01.11.2016 executed in favour of

the petitioner. This Court is of the view that the dispute is only with regard to the

rival parties claiming title over the property. 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

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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 made in the Act empowering the Registrar to cancel the document, such

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powers cannot be conferred by the Inspector General of Registration by taking aid of 68(2) of the Registration Act, 1908.”

7. 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.

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

the 2nd respondent dated 13.09.2022 is quashed. It is made clear that mere

quashing of the impugned order will not give absolute title to the parties

concerned. As far as the title is concerned, the same has to be established by the

parties in the manner known to law. There shall be no order as to costs.

Consequently, connected miscellaneous petitions are closed.