Madras High Court
G.Ayyakkonar vs The Inspector General Of on 27 June, 2006
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 27/06/2006 CORAM: THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU W.P.(MD)No.10073 of 2005 G.Ayyakkonar ... Petitioner Vs. 1.The Inspector General of Registration, Santhome, Chennai. 2.The District Registrar, Office of District Registrar, Virudhunagar District. 3.Sub. Registrar, Kovilpatti. 4.Sub. Registrar, Kila Rajakula Raman, Virudhunagar District. 5.M.Aanai 6.Raja Guru 7.Ramamoorthi. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, to direct the respondents 1 to 4 to take immediate steps to prosecute the respondents 5 to 7 as provided under Sec.82 and 83 of the Registration Act, 1908. !For Petitioner ... Mr.S.Natarajan ^For Respondent ... Mr.R.Balasubramanian Nos.1 to4 Additional Government Pleader For Respondent No.5 ... Mr.M.Thirunavukkarasu For Respondent No.7 ... Mr.G.Marimuthu :ORDER
The case of the petitioner is that he is the owner of the punja land measuring about 17 acres in patta No.5 at Arasiarpatti Village. It is further stated that he sold 5 cents of land in Survey No.261/01 to one Aanai, through document No.1011/88 on 02.11.1988. It is stated that the said Survey No.261/01 measuring about 0.51.0 was deleted from patta No.5 and separate patta No.854 was given to Survey No.261/01. The said Aanai is the 5th respondent in the writ.
2. The grievance of the petitioner is that the 5th respondent in collusion with 6th respondent executed a power of attorney in favour of 6th respondent which was registered in the Sub Registrar's Office, Kovilpatti on 19.05.2004, and by using the said registered power of attorney, the 6th respondent sold the lands in patta No.5 belonging to the petitioner and accordingly a sale deed was executed by the 6th respondent in favour of the 7th respondent on 15.06.2004 and the said sale deed was registered in the office of Sub Registrar, Kelarajakula Raman, on 16.06.2004, in document No.1219/2004. It is further stated that the 5th and 6th respondents have misrepresented as if the 6th respondent owned and enjoyed the property and the 6th respondent has created the document to sell the land.
3. The specific case of the petitioner is that the said power of attorney was fraudulently obtained and using the same sale deeds are being executed. The petitioner issued notice to the 5th, 6th and 7th respondents and 5th respondent admitted that he has no right over the land and 5th respondent has replied that his signature in the power of attorney was obtained by the 6th respondent by false representation and he has no knowledge about executing either power of attorney or sale deed. In fact he has not executed any document. Whileso there is no reply from the 6th and 7th respondents. The contention of the petitioner is that respondents 1 to 4, who are the authorities of the Registration Department, are not taking any action. Hence, a direction may be given. The prayer of the petitioner also includes to issue necessary steps to prosecute the respondents 5 to 7 as provided.
4. The learned Special Government Pleader filed a counter on behalf of the respondents 1 to 4. The 4th respondent in his counter stated that as per Section 52 of the Registration Act, it is the duty of the registering Officers to register the document whatever is presented and under Section 52(b) "A receipt for such document shall be given by the registering officer to the person presenting the same" and thereby they have been performing the duty by registering the power of attorney, so also the sale deed executed by the 6th respondent in favour of the 7th respondent. It is further stated that under Section 32, the registering authority has to verify the genuineness of the person presenting the documents and since it is a registered power of attorney in favour of 6th respondent, they proceeded with the registration. It is further stated that as the schedule mentioned is shown in the power of attorney and in pursuance of the power of attorney, they have registered the document. Hence, there are no merits in the writ petition.
5. Heard the arguments of the learned counsel for the petitioner, the learned Special Government Pleader for respondents 1 to 4, and learned counsel for 5th and 7th respondents. There is no representation for the 6th respondent.
6. The short point for determination is whether the petitioner is entitled for any direction.
7. Point:In the instant case, the 5th respondent has admitted in the reply notice that he is not the owner of the land which was sold by 6th respondent to the 7th respondent, on the strength of power of attorney executed by the 5th respondent in favour of the 6th respondent. The stand taken by 6th respondent is that the signature is fraudulently obtained from the 5th respondent. Therefore, it is proved that the land was sold by the 6th respondent taking advantage of the power of attorney executed by the 5th respondent. The Sub Registrars in the Registrar's Office are the creation of the Statute and they draw their authority therefrom. The powers and duties of the Sub Registrars are defined under the Act and they performs statutory functions under the Registration Act. All that it enacts is that when a document is presented to effectuate any of the transactions specified under Section 17 of the Act, such document must be registered. Section 17 of the Act deals with the document of which registration is compulsory. Whileso, Section 18 of the Act deals with documents of which registration is optional. Under Section 21 of the Act, no non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. The description includes not only maps or plans but also the boundaries, the occupants, the Survey numbers, door numbers, etc. The registering Officers can register a document when the vendors or the owners of the property appeared before them and confirmed for the registration. Section 28 of the Act deals with the place for registering documents relating to land and it clarifies that every document that affects immovable property, shall be presented for registration in the office of a Sub Registrar within whose sub district the whole or some portion of the property to which such document relates is situate.
8. In the instant case, according to the petitioner and the 5th respondent, the entire property is situated at Arasiarpatti Village. Whileso, the power of attorney was registered in the Office of the Sub Registrar Office, Kovilpatti, whereas the sale deed executed by the 6th Respondent in favour of 7th respondent was registered in the Office of the Sub Registrar, KelarajakulaRaman . It is not the case of the parties that the property is situated partly in one jurisdiction and others in another jurisdiction. Section 32 of the Act deals with persons to present documents for registration. It means that every document should be presented by a person who is claiming the property or executing the document. The Registration Act has imposed several conditions regulating the presentation of documents for registration and it is of great importance that those conditions framed with a view to meet the legal circumstances, should not be weakened or strained on the ground that it appears to be strict. The power and jurisdiction of the Registrar will come to play only when they are invoked by a person having a direct relation to the deed. The Registrar, after hearing the parties and after satisfying himself, gets it right to register. The words in Sections 32 and 33 of the Act are imperative for presentation of document for registration by a person who is entitled to do so. If a document is presented for registration by a person who is not entitled to do so, under Section 32 of the Registration Act, it is invalid. Improper presentation is not a mere defect in procedure falling under Section 18 of the Act, but this error is of more radical in nature. The provisions of the Act are very carefully designed to prevent forgeries and the procurement of conveyance by fraud or undue influence and though it may be somewhat technical, the Registering authority has to insist upon exact compliance with the provisions of the Act. It is necessary to do so.
9. In Jambu Prasad Vs. M.A.Alikhan reported in (28 IC 422), their Lordships of the Privy Council observed that executants of a deed who attend the Registrar's Office or Sub Registrar's Office are not merely to admit the execution and it cannot be treated as presentation for the purpose of Section 32 of the Act as presenting the deed for registration as they would exist to the registration but that could not be sufficient to come to the Registrar's jurisdiction. When the presentation itself is unauthorized, there cannot be any registration. It is also a case of the power of attorney holder presenting the document for registration.
10. Section 33 of the Act deals with power of attorney, recognizable for purposes of Section 32. In the instant case, when the owner of the property is the petitioner, the 5th respondent cannot give any power of attorney to 6th respondent. Section 34 of the Act specifically deals with the enquiry before registration by registering Officer and no document shall be registered, whether it is a sale deed or power of attorney, unless the person executing such document is present and admits its execution. Sub Section(3) of Section 34 of the Act clarifies as follows;
"34. Enquiry before registration by registering officer.-
(1) and (2) xxxx xxxxx (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, assign or agent, satisfy himself of the right of such person so to appear."
11. In the instant case, the specific plea of 5th respondent is that his signature was fraudulently obtained in the document and thereafter it was registered as a power of attorney. If this is accepted, it is clear negligence on the part of the then Sub Registrar, who is instrumental for registering the power of attorney. Apart from that, the said Sub Registrar was under obligation to make enquiry about the right of 5th respondent to execute the power of attorney on the property.
12. It is now clear that the petitioner is the owner of the property and he is having the valid title, and 5th respondent admitted the same. The 6th respondent, the person who is instrumental for all these illegal activities, did not choose to appear before the Court, and disappeared, and the 7th respondent is the loser. The respondents 1 to 4 are saying that they are ignorant. In the behind history, the 4th respondent cannot claim to be ignorant as far as the provisions of the Act are concerned. The registering Officers cannot take any excuse under Section 52 of the Act. When it was brought to their notice that fraud has been committed, they should have immediately initiated an action. The specific case of the petitioner is that despite his informing the registering authorities, no action is taken. The Court is unhappy to hear the same, if it is true. Be it may, it is necessary that the respondents 1 to 4 should initiate immediate enquiry and take necessary action. The clear penal provisions in the Act under Sections 82 and 83, should be invoked if any fraud is committed at the time of registrations. If the respondents 1 to 4 come to the conclusion that fraud has been committed, they have to cancel both the documents, ie., the power of attorney and also the alleged deed executed by 6th respondent in favour of 7th respondent. Apart from that, they have to initiate action against the culprit, viz., 6th respondent, who is responsible for the entire episode. Therefore, the 1st respondent, the Inspector General of Registration, Santhome, Chennai, is directed to issue necessary instructions to respondents 2 to 4, to immediately conduct detailed enquiry and take necessary actions.
13. In the result, the writ petition is allowed and the first respondent is directed to conduct detailed enquiry and initiate necessary actions. Consequently, connected W.P.M.P.No.10773 of 2005 is closed. No costs.
gcg To
1.The Inspector General of Registration, Santhome, Chennai.
2.The District Registrar, Office of District Registrar, Virudhunagar District.
3.Sub. Registrar, Kovilpatti.
4.Sub. Registrar, Kila Rajakula Raman, Virudhunagar District.