Madras High Court
Udhayam M.Rajendran vs The Deputy Inspector General ... on 7 February, 2025
W.P.(MD)No.1244 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.02.2025
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
W.P.(MD) No.1244 of 2024
and
W.M.P.(MD).Nos.1274 and 1275 of 2024
Udhayam M.Rajendran ... Petitioner
vs.
1.The Deputy Inspector General Registration,
Tirunelveli Zone, Tirunelveli.
2.The District Registrar,
Office of the District Registrar,
Tenkasi District.
3.Kaja Saibudeen ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari, calling for the records pertaining
to the impugned order in Na.Ka.No.800/Aa2/2022 dated 18.05.2022
passed by the 2nd respondent and the consequential order in Na.Ka.No.
3203/Vu/2022 dated 10.10.2023 passed by the 1st respondent and quash
the same as illegal.
For Petitioner :Mr.M.Pozhilan
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W.P.(MD)No.1244 of 2024
For R1 & R2 :Mr.R.Suresh Kumar
Additional Government Pleader
For R3 : Ms.H.Jasima Yasmin for
M/s.Ajmal Associates
ORDER
This Writ Petition challenges the proceedings of the respondents 1
and 2, dated 18.05.2022 and 10.10.2023 respectively. By the said
proceedings, the purchase made by the writ petitioner with respect to the
property situated at Melapalayam in S.No.42/2A to an extent of 36 cents
has been declared to be fraudulent.
2. The petitioner claims to have purchased the property from one
Ummul Kairi Salma Beevi in Doc.No.2513/2017 dated 19.06.2017 for a
sum of Rs.9,00,000/-. This document comprises of another property,
which the petitioner had purchased from Muhammed Nagutha
Maraikayar, situated in S.No.103/1 of Alangudi Village.
3. The petitioner pleads that his vendor, Ummul Kairi Salma Beevi
had acquired the property pursuant to the judgment and decree in
O.S.No.8 of 1970 dated 05.07.1971 on the file of the Sub Court,
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Tirunelveli. He pleads, subsequently, a partition deed was entered into
and this property was allotted to his vendor. On the basis of these
documents, revenue records were also mutated in her favour.
4. The said Ummul Kairi Salma Beevi executed a registered deed
of power of attorney in favour of one Ismail. It is through the said power
of attorney that the petitioner claims he obtained the property on
19.06.2017.
5. The petitioner pleads that he was attempting to grade the land.
At that time, the third respondent pleaded that he is the owner of the
property. He claimed he had purchased the same from one Sahul
Hameed. According to him, Sahul Hameed had acquired the property by
way of a registered document in Document No.2351/1996. As disputes
arose between Sahul Hameed and Ummul Kairi Salma Beevi, a suit was
presented in O.S.No.693 of 1999 before the Principal District Munsif
Court at Tirunelveli. The suit was compromised. Under the compromise,
it was stated that Ummul Kairi Salma Beevi would receive a sum of
Rs.3,90,000/- and in consequence thereof, a decree for declaration that
Sahul Hameed is the owner of the property would ensue. After the
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compromise had been effected, Sahul Hameed executed a sale deed in
favour of one Chidambaramanickam. In turn, Chidambaramanickam
executed a sale deed in favour of the third respondent.
6. The petitioner pleaded that the compromise decree dated
16.06.2000 recorded by the Principal District Munsif Court is invalid, as
Ummul Kairi Salma Beevi never received the suit summons or the notice
in the case. He further pleads that she was not examined in the suit and
that no monetary consideration of Rs.3,90,000/- was ever received from
Sahul Hameed. It was urged that Ummul Kairi Salma Beevi challenged
the compromise decree by way of E.A.No.583 of 2015 in O.S.No.693 of
1999. When the Writ Petition was filed, the same was pending.
7. This property was the subject matter of another suit in O.S.No.
337 of 2016 before the Principal District Munsif Court at Tirunelveli, at
the instance of one Ramaiah and M.Durai. They pleaded that Ummul
Kairi Salma Beevi had executed a registered sale deed in their favour and
hence, they have title to the same. This suit was dismissed on
23.10.2019, holding that the document executed in favour of the
plaintiffs in that case is a fraudulent one.
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8. The genesis of this Writ Petition is that the third respondent filed
an application before the second respondent seeking cancellation of the
registered sale deed executed in favour of the writ petitioner in
Document No.2513/2017, alleging that it is a fraudulent one.
9. Exercising the power under Section 68(2) of the Registration
Act, the second respondent also declared that the document is a
fraudulent one. Aggrieved by the same, the writ petitioner preferred an
appeal to the first respondent. The first respondent too upheld the order
passed by the second respondent vide his order dated 10.10.2023 and
declared that the document is violative of Sections 28 and 22-B(2) of the
Registration Act. Challenging the same, the present Writ Petition.
10. This Court entertained the Writ Petition and notice was ordered
to the respondents on 22.01.2024. The third respondent has entered
appearance through Ms.H.Jasima Yasmin.
11. Ms.Jasima Yasmin submitted that on 29.07.1996, Sahul
Hameed purchased the property from one A.Hameed Mohammed and
others. He had instituted a suit in O.S.No.693 of 1999 against Ummul
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Kairi Salma Beevi. On 16.07.2000, a compromise decree was entered
into between the parties and Ummul Kairi Salma Beevi had endorsed that
she had received a sum of Rs.3,90,000/-, giving up her right over the
property. Subsequently, the decree holder, Sahul Hameed and his wife,
Shakeena mortgaged the property to M/s.Bank of India for a term loan of
Rs.10,00,000/-. As they defaulted in payment of the said amount, the
Bank of India invoked SARFAESI proceedings and issued a notice under
Section 13(2) on 01.12.2004. The Bank subsequently brought the
property for auction and it was purchased by one Chidambara Manickam
on 19.10.2005. A sale certificate too was issued in favour of Chidambara
Manickam on 06.01.2006.
12. She urges that the action of Bank of India was challenged by
Sahul Hammed and his wife before this Court in W.P.(MD).No.634 of
2006 and W.P.(MD).No.635 of 2006. The Writ Petitions were allowed on
09.03.2007. Appeals were preferred to a Division Bench. The appeals
had been received by this Court as W.A.(MD).Nos.145 of 2007 and 146
of 2007. The Division Bench of this Court allowed the appeals and
dismissed the Writ Petitions filed by the said persons on 10.08.2007.
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Subsequently, physical possession was taken by the Bank and handed
over to the purchaser on 18.09.2007. She points out, soon thereafter, the
auction purchaser, Chidambara Manickam, sold the property to the third
respondent by way of a registered sale deed in Document No.7221/2007
on the file of the Sub Registrar, Melapalayam, the consideration for the
purchase being Rs.50,19,000/-.
13. Ms.Jasima Yasmin urges that eight years thereafter, Ummul
Kairi Salma Beevi filed a petition under Section 47 of Code of Civil
Procedure in E.A.No.583/2015 questioning the compromise deed.
Pending the litigation, Ummul Kairi Salma Beevi had executed a sale
deed in respect of the property in favour of the writ petitioner receiving a
poultry sum of Rs.9,00,000/-. She points out that even in the year 2007,
the amount that the third respondent had purchased the property is
Rs.50,00,000/- and a decade thereafter, the same could not have been
alienated for Rs.9,00,000/-. She adds that the petitioner had deliberately
included another property situated within the jurisdiction of the Sub
Registrar at Alangulam and had obtained a sale deed for this property
also.
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14. She further points out that Sahul Hameed and Shakeena had
preferred Special Leave Petitions to the Supreme Court against the order
passed by this Court in W.A.(MD).Nos.145 and 146 of 2007 dated
10.08.2007. The Supreme Court dismissed the appeals on 20.08.2019.
She states that pending the proceedings in E.A.No.583 of 2015, the
vendor of the petitioner, Ummul Kairi Salma Beevi passed away on
12.03.2020. The writ petitioner had brought himself on record, as the
legal representative of his deceased vendor, by filing an application
before the Executing Court.
15. She states that the actions of the Ummul Kairi Salma Beevi
and that of the writ petitioner is fraudulent and the same had rightly been
interfered with by the second respondent and confirmed by the first
respondent. She states that the impugned proceedings had been issued
prior to coming into force of the amendments to the Registration Act
including Section 77A and that the orders were passed on the basis of the
Circulars and departmental instructions, that were in force during the
relevant time.
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16. Finally, she produced the order passed by the learned Principal
District Munsif at Tirunelveli in E.A.No.583/2015 dated 04.01.2025,
pointing out that the application filed under Section 47 had been
dismissed by the Court on that day. Hence, she prays that the Writ
Petition may be dismissed with costs.
17. Mr.R.Suresh Kumar, learned Additional Government Pleader
appearing for the respondents 1 and 2 states that the amendment brought
to Section 77A had been declared as unconstitutional by the Division
Bench of this Court. He invites my attention to the judgment in
M.Kathirvel Vs. Inspector General of Registration and others, 2024 (4)
CTC 769.
18. Referring to the very same judgment, Mr.M.Pozhilan pleads
that the respondents 1 and 2 have no jurisdiction or power to cancel a
document invoking Section 77A and pleads that the Writ Petition may be
allowed.
19. I have carefully considered the submissions of both sides. I
have gone through the records.
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20. The narration of the facts shows that the third respondent
herein had filed an application before the District Registrar, Tenkasi/
second respondent herein seeking cancellation of the sale deed in favour
of the writ petitioner. The sale deed is a registered document in
Document No.2513/2017. It is alleged to have been fraudulently
registered in his favour. The second respondent purported to have
exercised the power under Section 68(2) of the Registration Act and has
declared the registered sale deed to be a fraudulently registered
document. Instead of challenging the order by way of a Writ Petition, the
writ petitioner preferred an appeal before the first respondent by
invoking Section 69 of the Registration Act. The first respondent too
upheld the order passed by the second respondent. He has stated that the
registration is contrary to Sections 22-B(2) and 28 of the Registration
Act.
21. Though arguments are advanced as if Section 77A of the
Registration Act had been invoked by the authorities, a perusal of the
impugned order shows what has been exercised is only Section 68.
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22. Insofar as Section 77A is concerned, the learned counsel for
the petitioner is correct that a Division Bench of this Court in
M.Kathirvel Vs. Inspector General of Registration and others, 2024 (5)
CTC 769, has declared Section 77A to be unconstitutional.
23. Apart from that, a perusal of the Registration Act shows that
Section 68 falls under Part XI of the Act. This Part is divided into further
sub-chapters.
(i) Sections 51 to 57 deal with the register books and indexes to be
kept in the office of the Sub Registrar.
(ii) As to what is the procedure that should be followed while
admitting a document is covered by Sections 58 to 63.
(iii) The special duties to be performed by a Sub Registrar are set
forth under Sections 64, 64-A and 65.
(iv) The duties of a Registrar are found under Sections 66 and 67.
(v) Sections 68 to 70 deal with controlling powers of the Registrar
and Inspector General of Registration.
These are superintending powers available to the Administrative
Superiors of a Sub Registrar. The Registrar has the power to rectify any
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error regarding the book or the office in which the document is
registered. Yet, it continues to be in the realm of administrative power. It
cannot be expanded to include a power to cancel registration of a
document already registered.
24. This issue is no longer res integra. The Supreme Court was
called upon to decide this issue in Sathya Pal Anand Vs. State of
Madhya Pradesh and others, (2016) 10 SCC 767. The Supreme Court
declared that once a document is registered, it is not open to any
authority under the Act to cancel the registration. Once the document is
registered, the role of a Sub Registrar stands discharged. The fact
whether the document was properly presented for registration, cannot be
re-opened by the superior after its registration. It also found that the
power to cancel registration is a substantive power. This power is
available with the Civil Court, while granting a decree for declaration
that the document, is hit by anyone of the substantive laws.
25. Similarly, the power of the Inspector General of Registration is
limited to do superintendence of registration offices and to make rules
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thereunder. Even the highest authority under the Registration Act does
not have the power to cancel the registration of a document already
registered. In fact, the Registrar in exercise of the powers under this
Section cannot direct a Sub Registrar not to register a document
presented for registration, if the document, otherwise complies with all
the statutory requirements and formalities under the Act. The power
under Section 68 is only to enable the Registrar to give directions with
respect to his ministerial functions and duties. In fine, it is only
administrative and not quasi-judicial.
26. If the aforesaid paragraph is the position of law, then a
direction to cancel the registration is wholly beyond the scope of Section
68 and Section 69 of the Registration Act.
27. In the light of the above discussion, I am constrained to
interfere with the orders passed by the first and second respondents. The
impugned orders are quashed. Since the registration of the document in
favour of the petitioner was pending the application in E.A.No.583 of
2015 in O.S.No.693 of 1999 on the file of the Principal District Munsif at
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Tirunelveli, the registration will be subject to the result of the said
Execution Petition.
28. Needless to add, lis pendens commences from the date of
presentation of the plaint and stops only with final orders passed in the
Execution Petition. Ms.Jasima Yasmin urged that E.A.No.583 of 2015 in
O.S.No.693 of 1999 came to be dismissed by the Executing Court on
04.01.2025. A party is always entitled to take such legal remedies, as is
open to her/him, to get rid of an order passed against her/him. Therefore,
suffice it to hold the document will be subject to the result of the
proceedings initiated by the writ petitioner challenging the order dated
04.01.2025.
29. With the above observation, the Writ Petition stands allowed.
There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
Index :Yes / No 07.02.2025
Internet :Yes / No
NCC :Yes / No
mm/Lm
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To
1.The Deputy Inspector General Registration,
Tirunelveli Zone, Tirunelveli.
2.The District Registrar,
Office of the District Registrar,
Tenkasi District.
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V. LAKSHMINARAYANAN, J.
mm/Lm
07.02.2025
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