Madras High Court
M.Vijayan vs The Inspector General Of Registration on 24 September, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)No.19318 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.19318 of 2023
and
W.M.P.(MD)No.15988 of 2023
M.Vijayan ... Petitioner
Vs.
1.The Inspector General of Registration,
Registration Department,
No.100, Santhome High Road,
Chennai-600028.
2.The District Registrar (Administration),
Madurai South,
No,171, Palace Road,
Madurai-01.
3.The Sub Registrar,
Joint-4 Sub Registrar office, Palanganatham,
Madurai South,
Madurai.
4.B.Ayyammal
5.J.Megala .... Respondents
1/10
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.19318 of 2023
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 entire records in
relating to the impugned order in Na.Ka.No.3888/Aa3/2023 dated 27.07.2023 of
the 2nd respondent and to quash the same as illegal.
For Petitioner : Mr.M.S.Jeyakarthik
For Respondents : Mr.C.Satheesh,
Govt. Advocate for R1 to R3
Mr.R.M.Makesh Kumaravel for R4
Mr.R.Vasanthakumar for R5
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of
Certiorari to call for the entire records relating to the impugned order in Na.Ka.No.
3888/Aa3/2023 dated 27.07.2023 of the 2nd respondent and to quash the same as
illegal.
2. It is the case of the Writ Petitioner that originally the subject property
was belonged to one Anna Kutti Ammal. The said Anna Kutti Ammal executed a
power deed dated 12.10.1998 in favour of the petitioner. Thereafter, the petitioner
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has executed a sale deed dated 14.02.2008 in favour of his sons, who in turn
executed a settlement dated 03.12.2019 in favour of the petitioner. The
respondents 4 and 5, claiming that they are the daughters of said Anna Kutti
Ammal, had tried to grab the subject property by creating forged documents.
Further, the respondents 4 and 5 has submitted an application dated 13.04.2023,
for cancelling the documents executed in favour of the petitioner, alleging that the
said Anna Kutti Ammal died on 20.04.1998, but the petitioner created a power
deed dated 12.10.1998, which is a forged one. The respondents 4 and 5 also
executed a sale agreement dated 20.03.2023 in favour of one Balakumar. Hence,
the petitioner has also given an application dated 20.03.2023 for cancelling the
said document. Based on the applications of the petitioner and the respondents 4
and 5, the 2nd respondent, after conducting an enquiry, has passed the impugned
order by cancelling the documents executed in favour of the petitioner.
Challenging the same, the petitioner has filed this Writ Petition.
3. The respondents have not filed their counter affidavits.
4. Heard the learned counsel for the petitioner, the learned Government
Advocate appearing for the respondents 1 to 3, the learned counsel appearing for
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the 4th respondent and the learned counsel appearing for the 5th 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 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 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
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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
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
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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
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
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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
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
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agitated before the civil Court and therefore, the impugned order cancelling the
power deed and sale deed executed in favour of the petitioner cannot be sustained
in the eye of law and the same is liable to be quashed.
7. Accordingly, this Writ Petition is allowed and the impugned order
dated 27.07.2023 issued by the second respondent stands quashed. No costs.
Consequently, connected miscellaneous petition is closed.
24.09.2024
NCC : Yes/No
Index : Yes/No
vsm
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To
1.The Inspector General of Registration,
Registration Department,
No.100, Santhome High Road,
Chennai-600028.
2.The District Registrar (Administration),
Madurai South,
No,171, Palace Road,
Madurai-01.
3.The Sub Registrar,
Joint-4 Sub Registrar office, Palanganatham,
Madurai South,
Madurai.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
vsm
24.09.2024
https://www.mhc.tn.gov.in/judis
