Madras High Court
N.Jeevalakshmi vs N.Maheswaran on 24 June, 2022
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
W.A.No.984 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.A.No.984 of 2022
1.N.Jeevalakshmi
2.N.Yuvaneswari .. Appellants
Vs
1.N.Maheswaran
2.The Inspector General of Registration,
Santhome High Road,
Chennai-600 004.
3.The Sub Registrar,
Arakkonam – 631 001,
Ranipet District. .. Respondents
Prayer : Appeal filed under Clause 15 of Letters Patent against the
order dated 19.1.2022 passed in W.P.No.22019 of 2021.
____________
Page 1 of 31
https://www.mhc.tn.gov.in/judis
W.A.No.984 of 2022
For the Appellant : Mr.N.Manoharan
for Mr.P.Krishnan
For the Respondents : Mr.P.Muthukumar
State Government Pleader
for respondent Nos.2 and 3
JUDGMENT
(Delivered the Hon'ble Chief Justice) This writ appeal has been filed to challenge the order dated 19.1.2022, by which a challenge to the cancellation of a registered document was accepted.
2. It was a case that a settlement deed was submitted for registration with the Sub-Registrar, Arakonam and has been registered. However, after registration of the document, the settlor cancelled the settlement deed unilaterally. It was cancelled and challenged by an aggrieved party i.e. the writ petitioner/non-appellant.
The challenge was accepted by the learned Single Judge finding that once a document is registered, the Sub-Registrar has no power to cancel the registration.
____________ Page 2 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
3. The appeal has been filed to challenge the order mainly on the ground that the challenge to the cancellation of registration by the Sub-Registrar could not have been made by invoking the jurisdiction of this Court under Article 226 of the Constitution of India. For the aforesaid, remedy lies before the civil court. But ignoring the aforesaid, the learned Single Judge interfered in the cancellation of the registration by the Sub-Registrar. To support the argument, reference of the judgment of the Apex Court in the case of Satya Pal Anand v. State of Madhya Pradesh and others, (2016) 10 SCC 767 has been given, wherein certain issues were framed by the Apex Court for its answer and one of the issues was as to whether a writ petition would be maintainable to challenge the registration of the document and it was held that once a document is registered, it cannot be assailed by maintaining a writ jurisdiction. Rather for that, jurisdiction would be available to the civil court and, accordingly, the party aggrieved by registration of the document can invoke the jurisdiction of the civil court. Reference of the questions framed by the Apex Court and its answers has been given to submit that the order in question by the learned Single Judge is in ignorance of the aforesaid.
____________ Page 3 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
4. A further reference of the judgment of a Division Bench of this Court in the case of P.Rukumani and others v. Amudhavalli and others [W.A.No.229 of 2018, decided on 17.07.2019] has been given, wherein the same view was considered by this Court. Accordingly, a prayer is made to set aside the judgment of the learned Single Judge.
5. We have considered the submissions made by learned counsel for the appellants and also perused the materials available on record.
6. The facts on record show that a property comprised in Survey No.207/9, T.S.No.60 in Ward-B, Block-15 to an extent of 1260 square feet in Srinivasan Street, Stuartpet, Arakonam Town owned by the writ petitioner's father was settled in favour of the writ petitioner/non-
appellant by an irrevocable deed of settlement dated 8.4.2009 registered vide Document No.3524 on the file of the second respondent. After execution of the settlement deed, the settlor expired on 5.7.2021. After his demise, the writ petitioner/non-
appellant came to know that the settlement deed dated 8.4.2009 executed by his father was cancelled by way of unilateral cancellation deed of settlement dated 13.5.2015. On the same day, a Will was ____________ Page 4 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 executed by the father of the writ petitioner/non-appellant in favour of the writ petitioner/non-appellant and two others.
7. Challenge to the cancellation of the settlement deed was made mainly on the ground that once a deed is registered, the Sub-
Registrar has no power to cancel it and, that too, unilaterally without causing a notice to the party. To support the argument, reference of the judgment of a Division Bench in the case of D.V.Loganathan v.
The Sub Registrar, Pallavaram, Chennai and another, 2014 (3) CTC 113 was given and, accordingly, the learned Single Judge allowed the writ petition with liberty to the appellants to approach the civil court, if they are so aggrieved by the settlement deed registered in favour of the writ petitioner/non-appellant.
8. Two issues have been raised before us to challenge the order of the learned Single Judge. The first issue is regarding maintainability of the writ petition for challenge to the cancellation of the registration unilaterally. According to the appellants, the challenge aforesaid was not sustainable by way of writ petition filed under Article 226 of the Constitution of India. Reference of the judgment of the Apex Court in ____________ Page 5 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 the case of Satya Pal Anand (supra) was given, wherein certain issues were formulated in paragraph 23 and are quoted hereunder:
“23. Having considered the rival submissions, including keeping in mind the view taken by the two learned Judges of this Court on the matters in issue, in our opinion, the questions to be answered by us in the fact situation of the present case, can be formulated as under:
23.1. “(a) Whether in the fact situation of the present case, the High Court was justified in dismissing the writ petition?
23.2. (b) Whether the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is duty-bound to declare the registered deeds (between the private parties) as void ab initio and to cancel the same, especially when the aggrieved party (appellant) has already resorted to an alternative efficacious remedy under Section 64 of the 1960 Act before the competent forum whilst questioning the action of the Society in cancelling the allotment of the subject plot in favour of the original allottee and unilateral execution of an extinguishment deed for that purpose?
____________ Page 6 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 23.3. (c) Even if the High Court is endowed with a wide power including to examine the validity of the registered extinguishment deed and the subsequent registered deeds, should it foreclose the issues which involve disputed questions of fact and germane for adjudication by the competent forum under the 1960 Act?
23.4. (d) Whether the Sub-Registrar (Registration) has authority to cancel the registration of any document including an extinguishment deed after it is registered? Similarly, whether the Inspector General (Registration) can cancel the registration of extinguishment deed in exercise of powers under Section 69 of the 1908 Act? 23.5. (e) Whether the Sub-Registrar (Registration) had no authority to register the extinguishment deed dated 9-8-2001, unilaterally presented by the respondent Society for registration?
23.6. (f) Whether the dictum in Thota Ganga Laxmi [Thota Ganga Laxmi v. State of A.P., (2010) 15 SCC 207 : (2013) 1 SCC (Civ) 1063] is with reference to the express statutory Rule framed by the State of Andhra Pradesh or is a general proposition of law applicable even to the State of Madhya Pradesh, in absence of an express provision in that regard?” ____________ Page 7 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
9. A bare perusal of the issues framed by the Apex Court would show that the writ petition was filed to challenge a registered deed to be void ab initio and, accordingly, to cancel the same. It was not a case of cancellation of the registered deed, but challenge to the deed registered by the Sub-Registrar. A further issue has been framed as to whether the Registrar has authority to cancel the registration of any document and has been answered holding that after registration of document, the Registrar has no authority to cancel it, which includes an extinguishment deed submitted unilaterally. The answer to the questions framed by the Apex Court has been given in paragraphs 24 to 40 and are quoted for ready reference:
“24. The answer to the first three questions will have to be given in the backdrop of the factual matrix of the present case. Indisputably, the appellant entered into a compromise deed and accepted the consideration amount of Rs 6.50 lakhs. Despite that, he chose to file a dispute under Section 64 of the 1960 Act before the Deputy Registrar, Cooperative Societies challenging the action of the Society in unilaterally executing and causing registration of the subject extinguishment deed dated 9-8-2001 and also the allotment of the subject plot to third party. Pending that dispute, he filed an ____________ Page 8 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 application before the Sub-Registrar (Registration) for the same relief of cancellation of registration of the extinguishment deed and the subsequent deeds in favour of third parties. In addition, the appellant resorted to criminal complaint with reference to the same extinguishment deed and the subsequent deeds in favour of third parties. In this backdrop, the High Court declined to entertain the writ petition filed by the appellant, which was essentially to challenge the same extinguishment deed and subsequent deeds.
25. It is a well-established position that the remedy of writ under Article 226 of the Constitution of India is extraordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its ____________ Page 9 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Dipak Misra, J. We respectfully agree with that view.
26. The other view of V. Gopala Gowda, J. however, is that it was the duty of the High Court to answer the matters in issue because of the unilateral registration of the extinguishment deed by the Society without authority and a nullity. Ordinarily, if the party had not resorted to any other remedy provided by law and had straightway approached the High Court to question the action of the statutory Authority of registering a document improperly and in particular in disregard of the prescribed procedure, that would stand on a different footing. In the present case, however, the appellant not only entered into a compromise deed with the Society and the subsequent purchaser but also resorted to statutory remedy. Having entered into a compromise deed, it is doubtful whether the appellant can be heard to complain about the irregularity in the registration of the extinguishment deed, if any. It is noticed that the appellant has not disputed the ____________ Page 10 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 execution of the compromise deed, nor has he paid any heed to the notice given by the other party to refund the amount accepted by him in furtherance of the compromise deed. No court can be party to a speculative litigation much less the High Court in exercise of writ jurisdiction. Having said this it must necessarily follow that the writ petition filed by the appellant deserved to be dismissed, as was rightly dismissed by the High Court.
27. As the writ petition is liable to be dismissed with liberty to the appellant to pursue other statutory remedy already invoked by him, examining any other contention at his instance would be awarding premium to a litigant who does not deserve such indulgence. The fact whether the compromise deed entered into by the appellant was voluntary and at his own volition or under duress, is essentially a question of fact. That cannot be adjudicated in writ jurisdiction. Depending on the answer thereto, the other issues may become relevant and would arise for consideration. The only relief that can be granted and which has already been clarified by the High Court in the impugned judgment, is to keep all questions open to enable the appellant to pursue the statutory remedy already invoked by him. It is open to the appellant to contend in those ____________ Page 11 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 proceedings that the extinguishment deed could not have been unilaterally executed by the Society. That plea can be examined by the statutory forum provided for that purpose.
28. The decision of the Society to cancel the allotment of a plot to its member or to rescind his membership and to allot the plot to another member, is undoubtedly the business of the Society. Any cause of action in that behalf, indeed, can be pursued before the competent forum by the aggrieved member or his legal representative. That will require examination of the governing cooperative laws and the bye-laws of the Society—to ascertain whether it is open to the Society to cancel the allotment of a plot to its members including to cancel the membership of such person. If that action of the Society is held to be just and permissible in law, the appellant may not be entitled to any other relief much less the declaration as sought.
Further, remedy of writ cannot be used for declaration of private rights of the parties or enforcement of their contractual rights and obligations.
29. In our considered opinion, it would be unnecessary if not inappropriate to examine any other contention at the instance of this appellant as we agree with the view ____________ Page 12 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 taken by the High Court in summarily dismissing the writ petition with liberty to the appellant to pursue statutory remedy. At best, further observation or clarification would suffice to the effect that the competent forum before whom the dispute has been filed by the appellant shall consider all contentions available to the parties, uninfluenced by the factum of registered extinguishment deed. In that, if the competent forum was to hold that it was open to the Society to cancel the allotment and membership of the member concerned and thereafter to allot the same plot to another person enrolled as a member of the Society, no other issue would arise for consideration. On the other hand, if the competent forum was to answer the relevant fact in favour of the appellant, only then the argument of the effect of unilateral registration of the extinguishment deed followed by compromise deed voluntarily executed by the appellant may become available to the Society and to the subsequent purchasers/allottees of the subject plot. At their instance, those issues can be examined on the basis of settled legal position. Neither the observation nor the opinion recorded by one of the dissenting Judges of this Court need any further dissection nor would it be appropriate to enlarge the scope of the proceedings before this Court on those aspects. This ____________ Page 13 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 would subserve the twin requirements. Firstly, to avoid an exposition on matters and questions which do not arise for our consideration in the fact situation of the present case at this stage; and secondly, also provide an opportunity to the parties to pursue all contentions and other remedies as may be permissible in law.
30. The exposition of the Constitution Bench of this Court in S. Partap Singh v. State of Punjab, AIR 1964 SC 72 adverted to in the dissenting opinion would be attracted in cases where the State Authority acts in bad faith or corrupt motives. Merely because some irregularity has been committed in registration of extinguishment deed unilaterally presented by the Society for registration or in respect of the subsequent deeds registered at the instance of third party without notice to the appellant, that, by itself, will not result in registration of those documents due to corrupt motives of the State Authority. More so, in the present case, the appellant having entered into a compromise deed with the Society and third party (subsequent allottees) in respect of the subject plot, it is doubtful whether it is open to the appellant to question the act of unilateral execution and registration of the stated extinguishment deed being irregular much less void and nullity. Indisputably, the respondent Society is a limited ____________ Page 14 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 cooperative housing society and is governed by its bye- laws. According to the counsel for the Society, the member is obliged to erect a house on the plot allotted to him within specified time, failing which must suffer the consequence including of cancellation of allotment of plot and removal of his membership. At the time of allotment, the member executes an agreement whereunder he/she undertakes to abide by the conditions specified for erecting a house on the plot allotted to him/her in the manner prescribed therein. Whether the Society is justified in proceeding against the defaulting member by cancelling the allotment of plot as well as membership, is an issue falling within the purview of the business of the Society. The member is bound by the stipulation contained in the agreement executed by him/her and in particular the bye-laws of the Society. Any action by the Society for breach thereof is just or otherwise can be questioned before the statutory forum under the 1960 Act. Those are matters which can and must be answered in the proceedings resorted to by the appellant before the statutory forum.
31. The aforementioned reported decision has noted the subtle distinction between ultra vires act of the statutory authority and a case of a simple infraction of ____________ Page 15 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 the procedural Rule. The question, whether the Society was competent to unilaterally cancel the allotment of a plot given to its member and to cancel the membership of such member due to default committed by the member, is within the purview of the business of the Society. Any cause of action in that regard must be adjudicated by the procedure prescribed in that behalf. It is not open to presume that the Society had no authority in law to take a decision in that behalf. The right of the appellant qua the plot of land would obviously be subject to the final outcome of such action. The appellant being the legal representative of the original allottee, cannot claim any right higher than that of his predecessor qua the Housing Society, which is the final authority to decide on the issue of continuation of membership of its member. The right of the member to remain in occupation of the plot allotted by the Society would be entirely dependent on that decision.
32. Reference made to the other decisions of this Court with regard to the scope of Article 136 of the Constitution of India in Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297 and Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 will be of no avail in the fact situation of the present case.
____________ Page 16 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 Similarly, the other decisions adverted to in the dissenting opinion under consideration in CAG v. K.S. Jagannathan, (1986) 2 SCC 679, Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 and Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 will be of no avail in the fact situation of the present case. Suffice it to observe that the High Court had, in our opinion, justly, summarily dismissed the writ petition with liberty to the appellant to pursue statutory remedy under the provisions of the 1960 Act or by way of a civil suit. Thus understood, it may not be necessary or appropriate to dwell upon the other issues regarding the merits of the controversy which may have to be adjudicated by the competent forum.
33. It is common ground that the deed regarding allotment of plot to a member of the Society required registration. The allotment of the subject plot in favour of the appellant's mother was accordingly, registered in the Office of the Sub-Registrar (Registration). The subject plot was allotted to the appellant's mother consequent to her admission as a member of the Society. As the allotment of the plot by the Society creates and transfers rights in an immovable property, the deed of allotment was required to be registered.
____________ Page 17 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 But if the member failed to comply with the stipulation of allotment, it would be open to the Society to cancel such allotment and including the membership of that member. In that event, it may become necessary for the Society to execute an extinguishment deed qua such allotment deed operating in favour of the member concerned. For, mere cancellation of membership may not be enough. The Society could extinguish the right, title or interest in the immovable property belonging to the Housing Society, by executing an extinguishment deed for that purpose.
34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see 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 ____________ Page 18 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 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.
35. The procedure for registration of documents is spelt out, inter alia, in Part VI of the 1908 Act. Section 32 of the said Act reads thus:
PART VI OF PRESENTING DOCUMENTS FOR REGISTRATION “32. Persons to present documents for registration.— Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office— ____________ Page 19 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assignee of such person, or
(c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned.”
36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the 1908 Act enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the 1908 Act can be said to be fraudulent.
____________ Page 20 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the civil court.
37. Admittedly, the documents in question do not fall within Sections 31, 88 and 89. Further, Section 32 does not require presence of both parties to the document when it is presented for registration. In that sense, presentation of extinguishment deed by the authorised person of the Society for registration cannot be faulted with reference to Section 34 of the 1908 Act. That provision stipulates the enquiry to be done by the Registering Officer before registration of the document. The same reads thus:
“34. Enquiry before registration by registering officer.—(1) Subject to the provisions contained in this Part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26:
____________ Page 21 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered.
(2) Appearances under sub-section (1) may be simultaneous or at different times.
(3) The registering officer shall thereupon—
(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and
(c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.” Even this provision does not require presence of both parties to the document when presented for registration before the Registering Officer.
____________ Page 22 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
38. Section 35 of the 1908 Act provides for procedure of admission or denial of execution respectively. The same reads thus:
“35. Procedure on admission and denial of execution respectively.—(1)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) if in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or
(c) if the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Sections 58 to 61, inclusive.
(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(3)(a) If any person by whom the document purports to be executed denies its execution, or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or ____________ Page 23 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
(c) if any person by whom the document purports to be executed is dead, and his representative or assignee denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:
Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:
Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.”
39. Section 36 of the 1908 Act provides for procedure when appearance of the executant or witness is insisted upon. The same reads thus:
PART VII OF ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES “36. Procedure where appearance of executant or witness is desired.—If any person presenting any document for registration, or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in his discretion, call upon such officer or court as ____________ Page 24 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 the State Government directs in this behalf to issue a summons requiring him to appear at the registration office, either in person or by duly authorised agent, as in the summons may be mentioned and at a time named therein.”
40. The Andhra Pradesh High Court, in Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57 was called upon to consider whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Officer like District Registrar and/or Sub-Registrar appointed by the State Government is bound to refuse registration when a cancellation deed is presented. The fact remains that if the stipulation contained in Sections 17 and 18 of the 1908 Act are fulfilled, the Registering Officer is bound to register the document. The Registering Officer can refuse to register a document only in situations mentioned in sections such as Sections 19 to 22, 32 and 35. At the same time, once the document is registered, it is not open to the Registering Officer to cancel that registration even if his attention is invited to some irregularity committed during the registration of the document. The aggrieved party can challenge the registration and validity of the document before the civil court. The majority view of the Full Bench was that if a ____________ Page 25 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 person is aggrieved by the extinguishment deed or its registration, his remedy is to seek appropriate relief in the civil court and a writ petition is not the proper remedy.”
10. The finding recorded by the Apex Court regarding maintainability of the writ petition is not on the challenge to the power of the Registrar to unilaterally cancel the registered deed, but on a challenge to the deed so registered. The remedy of writ would obviously be not available, when it needs determination of the question of fact and otherwise an efficacious alternative remedy is available. It can be denied even when the litigant initiates multiple proceedings for the same relief. The issue needs to be taken up in reference to what has been opined by the Apex Court in paragraph 26 of the said judgment quoted above.
11. In the said case, the appellant had resorted to statutory remedy before filing the writ petition and having entered into a compromise deed, it was held that writ petition in that case would not be maintainable. It is otherwise would be maintainable, if a party has ____________ Page 26 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 not resorted to any other remedy provided by law and had straightway approached the High Court to question the action of the statutory authority to register a document improperly or in disregard of the prescribed procedure. Therefore, the judgment in the case of Satya Pal Anand (supra) was on its own facts. But even therein, it was clearly held that once the document is registered, the Registrar cannot cancel it as would be borne out from paragraphs 33 to 40 of the judgment quoted above.
12. In paragraph 40, it has been specifically held that once the document is registered, it is not open for the Registering Officer to cancel that registration even if his attention is invited to some irregularity committed during the registration of the document and after making it clear, it was further observed that if a party is aggrieved by the registration of the document and its validity, challenge can be made before the civil court. The remedy before the civil court was thus given if somebody is aggrieved by the registration of the deed and not on cancellation of the registered deed. Rather for that, the Registrar has no power even as per the judgment of the Apex Court in the case of Satya Pal Anand (supra) and if the Registrar still ____________ Page 27 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 makes cancellation of the deed presented unilaterally, then the authority of the Registrar for it can be questioned by maintaining a writ petition being a legal question. In the light of the aforesaid, we find that the writ petition was maintainable and the order has not been passed going contrary to what has been held by the Apex Court.
13. The judgment in the case of P.Rukumani (supra) was against the judgment of the learned Single Judge, wherein also the judgment of the Apex Court in the case of Satya Pal Anand (supra) was considered. The Division Bench, however, referred the judgment of the Full Bench of this Court in the case of Latif Estate Line India Limited v. Hadeeja Ammal and others, 2011 (2) CTC 1 to hold that writ jurisdiction would not be available, but it was after finding that a civil suit was already instituted by the appellants seeking cancellation of the sale deed which was later on cancelled by another cancellation deed dated 20.09.2007. It was on the facts of that case held that the writ petition would not be maintainable. If there is any dispute on facts and the rights of the parties involved therein, the only appropriate remedy for the parties is to approach the civil court by way of civil suit. It would not apply when power of the authority is in ____________ Page 28 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 question. The aforesaid would be borne out from paragraph 9 of the aforesaid judgment. But the facts of this case are distinguishable and, therefore, the judgment of the Division Bench in the case of P.Rukumani (supra) would not have application. In view of the discussion made above, we do not find that the writ petition in the case was not maintainable.
14. The further issue is regarding the authority of the Sub-
Registrar to cancel the registered deed. The issue aforesaid has already been decided by the Apex Court in the case of Satya Pal Anand (supra) and held that once a deed is registered by the Sub-
Registrar, he has no power to cancel it and, accordingly, the second issue is covered by the judgment in the case of Satya Pal Anand (supra) and in the instant case, the registered settlement deed was cancelled unilaterally by the Sub-Registrar having no power for it and otherwise, the writ petition does not involve a disputed question of fact, rather the simple issue was as to whether the Sub-Registrar has authority to cancel the registered document or not and if it has no power to do it, the cancellation of the registered document is held to be illegal. Accordingly, we answer the second issue.
____________ Page 29 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022
15. In view of the above, we find no merit in the writ appeal and it fails. Accordingly, the writ appeal is dismissed. There will be no order as to costs. Consequently, C.M.P.No.6291 of 2022 is closed.
(M.N.B., CJ.) (N.M., J.)
24.06.2022
Index : Yes/No
bbr
To:
1.The Inspector General of Registration, Santhome High Road, Chennai-600 004.
2.The Sub Registrar, Arakkonam – 631 001, Ranipet District.
____________ Page 30 of 31 https://www.mhc.tn.gov.in/judis W.A.No.984 of 2022 THE HON'BLE CHIEF JUSTICE AND N.MALA,J.
bbr W.A.No.984 of 2022 24.06.2022 ____________ Page 31 of 31 https://www.mhc.tn.gov.in/judis