Petitioner sought cancellation of registered sale documents alleged to be forged over his gifted property. The Court held that registering authorities lack power to cancel registered documents or decide title, such disputes lying before the civil court, and dismissed the writ petition.
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W.P.(MD)No.16907 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.16907 of 2022
Durairajvelar
... Petitioner
Vs.
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus, to direct the third respondent to cancel the document number 2238 of 2014 dated 04.07.2014, document No.3200 of 2015 dated 18.09.2015 and document No.3284 of 2016 dated 24.10.2016 on the
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file of the fourth respondent based on the petitioner's representation dated 20.05.2022, 07.06.2022 and 09.06.2022 given to the third respondent, second respondent and to the first respondent, respectively.
For Petitioner : Mr.T.M.Madasamy For R1 to R4 : Mr.C.Satheesh Government Advocate For R5 to R7 : Mr.Sathiya Chidamabaram For R8 & R9 : No Appearance
O R D E R
This Writ Petition has been filed seeking for a direction to the third respondent to cancel the documents registered on the file of the fourth respondent based on the petitioner's representation dated 20.05.2022, 07.06.2022 and 09.06.2022 given to the respondents 1 to 3, respectively.
2. Heard the learned counsel for the petitioner, the learned Government Advocate appearing for the respondents 1 to 4 and the learned counsel for the respondents 5 to 7 and perused the materials available on record.
3. It is the case of the writ petitioner that the properties in question were gifted to the petitioner by his father by way of a registered gift deed dated 04.01.1989. Sine then, the petitioner is possession and enjoyment of the said
properties. Further, the father of the petitioner had also gifted some properties to https://www.mhc.tn.gov.in/judis
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the respondents 5 to 7 herein. Thereafter, the sixth and seventh respondents have executed a release deed in favour of the fifth respondent in respect of their shares in the said property. While executing such document, the sixth and seventh respondents have included the property belonging to the petitioner and created forged documents in respect of the petitioner's property and sold the same to the eight respondent. Hence, the petitioner made representations to the authorities to cancel the said forged documents. Since no action has been taken on the same, the petitioner has filed this wit petition.
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 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
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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 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
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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 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
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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 SubRegistar. 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.”
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 take action on the complaint of the petitioner and to cancel the registered documents. All these facts cannot be looked
into by this Court and the same has to be agitated before the civil Court. https://www.mhc.tn.gov.in/judis
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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.
19.08.2024
NCC : Yes/No Index : Yes/No ta To
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W.P.(MD)No.16907 of 2022
N.SATHISH KUMAR, J.
ta
W.P.(MD)No.16907 of 2022
19.08.2024
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1 issue framed by the court
Whether the registering authority can be directed to cancel registered documents alleged to be forged under Section 68 or Section 77-A of the Registration Act, 1908.
Colour shows how this judgement treated each authority
Satya Pal Anand vs. State of Madhya Pradesh and othersRelied on¶4
(2016) 10 SCC 767 · Who else cites this
G.Rajasulochana Vs. Inspector General of Registration and othersRelied on¶4
W.P.No.29706 of 2022
3 provisions across 1 enactments
Durairajvelar
The Inspector General of Registration
The Deputy Inspector General of Registration, Tirunelveli Region
The District Registrar, Tenkasi District
The Sub Registrar, Surandai
Pushbam
N.Sathish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
