Allowed

Subbiah.v v. Inspector General of Registration

Madras HC9 Sept 2024WP(MD)/25077/2022

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court allowed a Writ Petition seeking to quash an order passed by the District Registrar cancelling a sale deed. The Court held that registration authorities lack jurisdiction to decide title disputes or cancel already registered documents on substantive grounds.

What did the court decide?

The impugned order dated 13.09.2022 by the 2nd respondent cancelling the sale deed is quashed. No order as to costs.

Subbiah.v Vs Inspector General of Registration — Property and Title | Madras HC (2024)

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

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 09.09.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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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.

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

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

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4.P.Rajapandian

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.... Respondents

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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 2^nd 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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https://www.mhc.tn.gov.in/judis

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

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

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O R D E R

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This Writ Petition has been filed seeking for issuance of a Writ of Certiorari calling for the records relating to the order of the 2^nd 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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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.

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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 4^th respondent has given a

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https://www.mhc.tn.gov.in/judis

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

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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.

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4. The learned counsel appearing for the petitioner submitted that on the basis of the complaint given by the 4^th respondent, without holding enquiry, the 2^nd respondent has passed the impugned order against a dead person. Therefore, the impugned order is liable to be set aside.

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5 . The 4^th 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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https://www.mhc.tn.gov.in/judis

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

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given a complaint to cancel the documents. The 2^nd respondent has issued notice to all the parties to file a reply. But they are not chosen to file their reply. Therefore, the 2^nd respondent, after perusing the materials placed before him, passed the impugned order. Hence, opposed this Writ Petition.

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6 . On a perusal of the impugned order, it is seen that on the basis of the complaint given by the fourth respondent, the 2^nd 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:

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“... 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:

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“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.”

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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:

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“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.”

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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:

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“68. Power of Registration to superintend and control Sub Registrars.

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(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.

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(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.”

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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

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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.”

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7 . In view of the above settled position of law, this Court is of the view

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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.

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8. Accordingly, this Writ Petition is allowed and the impugned order of the 2^nd 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.

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09.09.2024

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NCC : Yes/No Index : Yes/No vsm

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