Madras High Court
Amaravathi vs The Joint Sub-Registrar No.I on 18 November, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P (MD).Nos.27449 to 27451 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.11.2024
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P (MD).Nos.27449, 27450 & 27451 of 2024
and
W.M.P(MD)Nos.23283, 23306 & 23295 of 2024
1.Amaravathi
2.Ashok Kumar
3.Kavitha ... Petitioners
in all the writ petitions
Vs.
The Joint Sub-Registrar No.I,
Thoothukudi,
Thoothukudi District. ... Respondents
in all the writ petitions
Prayer in W.P(MD)No.27449 of 2024: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus, to
call for the records relating tot he impugned Refusal Check Slip issued by the
respondent vide Refusal No.RFL/No.1 Joint Sub Registrar,
Thoothukudi/147/2024 dated 06.11.2024 and quash the same as illegal and
consequently direct the respondent to register the partition Release Deed
executed by petitioners in favour of first petitioner's daughter and other
petitioners' sister namely Vasantha dated 06.11.2024.
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W.P (MD).Nos.27449 to 27451 of 2024
Prayer in W.P(MD)No.27450 of 2024: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus, to
call for the records relating tot he impugned Refusal Check Slip issued by the
respondent vide Refusal No.RFL/No.1 Joint Sub Registrar,
Thoothukudi/155/2024 dated 06.11.2024 and quash the same as illegal and
consequently direct the respondent to register the Partition Release Deed
executed by petitioners in favour of first petitioner's son and other petitioners'
brother namely Ashok Kumar dated 06.11.2024.
Prayer in W.P(MD)No.27451 of 2024: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus, to
call for the records relating tot he impugned Refusal Check Slip issued by the
respondent vide Refusal No.RFL/No.1 Joint Sub Registrar,
Thoothukudi/156/2024 dated 06.11.2024 and quash the same as illegal and
consequently direct the respondent to register the partition Release Deed
executed by petitioners in favour of first petitioner's daughter and other
petitioners' sister namely Kavitha dated 06.11.2024.
For Petitioners : Mr.A.Balakrishnan
For Respondent : Mr.D.Sadiq Raja
Additional Government Pleader
ORDER
These writ petitions have been filed challenging the order 06.11.2024 passed by the respondent, thereby, refused to register the Partition Release Deed, which was presented by the petitioners for registration in respect of the subject property.
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2. By consent of both parties, these Writ Petitions are taken up for final disposal at the admission stage itself.
3. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
4. The property comprised in Re.Sy.No.433 to an extent of 4 acres 4 cents situated at Sankaraperi Village originally owned by one Vellaiyan @ Subbiah Naattan. He derived the title of property by way of registered sale deed executed by one Kandasamy Reddy and others vide sale deed No. 1179/1952 registered before the respondent's office. After the death of Vellaiyan @ Subbian Nattan, his son namely Murugesan inherited the property. Whileso, on 20.07.1984 said Murugesan executed a Gift deed in favour of his son namely Ramasamy vide Document No.740/1984. The said Ramasamy is none other than the husband of the first petitioner and father of the other petitioners. Pursuant to the gift deed, first petitioner's husband is in possession of the property, patta also stands in his name along with other pattadhars vide Patta No.1788. The first petitioners husband died on 23.10.2012 leaving behind present petitioners and an another son namely Ashok Kumar. After the death of first petitioner's husband, property was inherited to the petitioners and https://www.mhc.tn.gov.in/judis 3/10 W.P (MD).Nos.27449 to 27451 of 2024 property was subdivided as 433/1B. Very recently petitioners partitioned the property and executed release deed by releasing 3/4 right of the property to an extent of 1 acre 26.19 cents in favour of the first petitioner's daughter namely Vasantha, 1 acre 52.13 cents in favour of the first petitioner's son namely Ashok Kumar and 1 acre 26.11 cents in favour of the first petitioner's daughter namely Kavitha and the same were presented before the respondent on 06.11.2024. But the respondent refused to register the same and issued the refusal check slip on the ground that the original copy of parental document namely Gift Deed No.740/1984 was not produced.
5. This issue has already been dealt with by the Hon'ble Division Bench of this Court recently in WA.No.1160 of 2024 by judgment dated 27.09.2024. The relevant portion of the judgment is extracted hereunder:-
“7. The law relating to transfer of immovable property is governed by the substantial enactment namely, The Transfer of Property Act, 1882. The right to hold property and the right to be not deprived of property without reasonable compensation is a constitutional right ensured under Article 300A of the Constitution of India. Being a constitutional right, it is one step superior to even the fundamental rights, as there cannot be a reasonable restriction on the said right and no one can be deprived of the property without reasonable compensation. The right to hold the property also takes in its fold the right to deal with the property. No doubt, the second https://www.mhc.tn.gov.in/judis 4/10 W.P (MD).Nos.27449 to 27451 of 2024 proviso to rule 55-A of the Tamil Nadu Registration Rules mandates that the original of the antecedent document should be produced to enable registration of a subsequent instrument. Of course, a way-out is provided namely, the production of non traceability certificate from the police department. We should also be conscious of the fact that any certificate from any Government department, as of today, comes only at a price for an ordinary citizen. An elaborate procedure has also been fixed for issuance of non traceability certificate. We have come across several instances where, because of the high pricing of and the complicated procedure involved in obtaining a non traceability certificate, instances of people obtaining non traceability certificate from the neighbouring States has increased.
8. The fundamental principle of law relating to transfer of immovable property is caveat emptor. A buyer of the property is required to be careful in not purchasing certain properties which are already encumbered or from person who does not have title. Even if a person sells a property that does not belong to him, there is no provision in the Registration Act, 1908, to enable the Registrar to refuse registration except Section 22-A and Section 22-B, which have been introduced recently in the year 2022 by the State Legislature insofar as Tamil Nadu is concerned. Even Section 22-A and Section 22-B do not authorise refusal of registration on the ground that the original of the prior's title deed has not been produced. We are unable to resist observing that Rule 55-A has been stealthily introduced as a subordinate legislation only to enable Registrars refuse to register instruments indiscriminately. Neither Section 22-A nor Section 22-B authorise a Registrar to refuse to register instruments on the grounds specified under Rule 55-A. No https://www.mhc.tn.gov.in/judis 5/10 W.P (MD).Nos.27449 to 27451 of 2024 doubt, Mr.Ramanlaal falls back on the power of Superintendence conferred on the Chief Controlling Revenue Authority and the District Registrars under Section 68 of the Registration Act, 1908.
Section 68 reads as follows:
“68. Power of Registrar to superintend and control Sub-Registrars.
(1) Every Sub-Registrar shall 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.''
9. The power conferred under Section 68 of the Registration Act, 1908, is only a supervisory jurisdiction and it invests the power in the Registrars to issue any order consistent with the Act. As we already observed, the provision of Section 55-A inserted in the rules has no statutory authority. Section 69 of the Registration Act 1908, enables the Inspector General to make rules providing for the matters that are set out in Clauses (a) to (h). The provision namely, Section 69 further provides that the rule so framed shall be consistent with the provisions of the Act. Therefore, the rules made by the Inspector General of Registration exercising the power under Section 69 cannot override the provisions of the Act.
Rule 162 of the Registration Rules prescribes the circumstances under which a Registrar can refuse to register an instrument. Clause 20 has been added to Rule 162 to enable the Registrar to refuse registration, if the presentant does not produce the original deed or record specified in Rule 55A. We do not propose to delve into the validity or otherwise of the rule, but we must record that prima facie, https://www.mhc.tn.gov.in/judis 6/10 W.P (MD).Nos.27449 to 27451 of 2024 the rule overreaches the legislation and it is beyond the powers of the Inspector General of Registration under Section 69.
10. Adverting to the facts on hand, the document that is sought to be registered is a release deed executed by the sister in favour of the brother. The document recites that the property belonged to the father. The parties are not strangers to each other. They have produced registration copies of the antecedent documents which are registered in the very same office. Unless the Registrar has a doubt regarding the genuineness of the copies issued by his own office, insistence on production of originals is a superfluous exercise. As we had already stated, it is a common knowledge and accepted phenomena today that one cannot secure a certificate from a Government office without the price. In such situation, driving executant of documents to obtain a non traceability certificate in case of lost document in every case, will result only in encouraging under hand dealings. When certified copies have been produced and it is not impossible for the Sub Registrar to have it verified with the original record that is available in his own office, insisting upon a non traceability certificate appears to be rather a wasteful exercise. Even in Punithavathy's case referred to supra, we have observed that the Registrars will not refuse registration particularly, when the parties to the documents are relatives and they take the risk of obtaining the document without examining the title. The copies of the documents have already been produced. The Sub Registrar could have verified the same with the original records in his office and register the instrument without dogmatically refusing registration. We, therefore, do not find any substance in the argument of Mr.Ramanlaal, learned Additional Advocate General. We, therefore, set aside the order of the learned Single Judge as well as the https://www.mhc.tn.gov.in/judis 7/10 W.P (MD).Nos.27449 to 27451 of 2024 impugned check slip. We direct the Sub Registrar, Rasipuram, to register the release deed. We permit the appellant to re-present the release deed within four weeks from today and upon such re- presentation, the Sub Registrar, Rasipuram, will register the instrument without insisting on production of originals within 15 days from the date of presentation.”
6. Therefore, the respondent cannot insist the petitioners to produce the original parental document for verification. In view of the above, the impugned refusal check slips cannot be sustained and are liable to be quashed. Accordingly, the impugned refusal check slips dated 06.11.2024 are hereby quashed. The petitioners are directed to re-present the Partition Release Deed for registration within a period of one week from the date of receipt of a copy of this order. On receipt of the same, the respondent is directed to register the Partition Release Deed presented by the petitioners, without insisting for production of the parental document in respect of the subject property and release the document, forthwith. Accordingly, these writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
Internet : Yes
Index : Yes/No 18.11.2024
Speaking/Non Speaking order
am
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W.P (MD).Nos.27449 to 27451 of 2024
To
The Joint Sub-Registrar No.I,
Thoothukudi,
Thoothukudi District.
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W.P (MD).Nos.27449 to 27451 of 2024
G.K.ILANTHIRAIYAN, J.
am
W.P (MD).Nos.27449, 27450
& 27451 of 2024
18.11.2024
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