Madras High Court
K.Ithayaselvi vs The Sub Registrar on 1 February, 2010
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.02.2010 CORAM: THE HONBLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.675/2010 & M.P.No.1/2010 K.Ithayaselvi ... Petitioner Vs. The Sub Registrar Sub-Registration Officer Mylapore Chennai 600 004. Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the respondent to release the document No.P.200900120(Book 1) registered on 26.08.2009. For Petitioner : Mr.S.L.Venkatesan For Respondent : Mr.P.Subramani Additional Government Pleader ORDER
The prayer in the Writ Petition is for issue of a Writ of Mandamus to direct the respondent to release the pending document bearing P.No.120/2009 presented for registration before the respondent on 26.08.2009. The document is a mortgage deed by which one Mr.Balaraman son of Kannan has created a mortgage of his lease hold right of the land comprised in Survey No.2349/1 together with the superstructure measuring about 620 sq. ft. From the recitals of the mortgage deed it is seen that the said Balaraman has executed the mortgage in favour of the petitioner with a right of redemption after a period of 5 years and if the said Balaraman fails to clear the mortgage debt within six months on the expiry of 5 years, the petitioner is entitled to foreclose the mortgage. Thus it is seen that the mortgage is for a period exceeding five years.
2. The learned Additional Government Pleader based on written instructions given by the respondent would submit the document was kept pending by the then registering officer, as P.No.120/2009, for getting NOC from the HR & CE Department as the land and building belong to Ellamman and Pazhandiamman Temple Devastanam and the document is still pending for want of NOC from the HR & CE Department under Section 34 of the Hindu Religious and Charitable Endowments Act (The Act).
3. Based on the above submissions two questions arise for consideration as to whether (i) No objection Certificate is required from the HR & CE Department under the Act before registering and releasing the document in question, and, (ii) Is the respondent justified in keeping the document as a pending document and refusing to register and release the same on the ground that NOC has not be produced under Section 34 of the Act.
4. Section 34(1) of the Act states that any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to or given or endowed for the purpose of any religious institution shall be null and void, unless it is sanctioned by the Commissioner of HR & CE as being necessary or beneficial to the institution. As seen from the recitals of the mortgage deed of 26.08.2009 it is for a period exceeding 5 years, with a right to foreclose the mortgage after 6 months, after expiry of the 5 year period. If that be the case, in the absence of a NOC from the Commissioner of HR & CE such transaction is deemed to be null and void in terms of Section 34 (1) of the Act. This conclusion is supported by a decision of this Court in Basha Sahib Vs. Valikandapuram Village Kasi Viswanathaswamy Koil, 2003 (1) CTC 519, wherein this Court "7. Further, the suit property is the property of the temple. Therefore, neither the trustee nor the manager of the temple has any right to sell the property to any other person. If at all only with the permission of the Commissioner, H.R. & C.E. Board, such a sale can be effected. Admittedly, the Commissioner of H.R.& C.E., has not conveyed the property nor the property was conveyed by the second plaintiff with the permission of the Commissioner. Therefore, Ex.B.1 sale deed relied upon by the defendant has no validity at all. The sale deed is sham and nominal, inasmuch as it has been executed by the person other than the person competent to sell the property. Therefore, no rights flow from Ex.B.1. Consequently, Ex.B.2 by which the property was settled in favour of the Education Department is also sham and nominal. A person who does not possess any right cannot convey that right. Therefore, no rights flow either by Exs.B.1 or B.2. The lower Appellate Court has rightly concluded that Exs.B.1 and B.2 do not convey the right over the property."
5. Thus it appears that no right could flow in favour of the petitioner by virtue of the mortgage deed dated 26.08.2009 since admittedly no sanction has been grated by the Commissioner, HR & CE for such transaction as required under Section 34 (1) of the Act. Therefore, it has to be necessarily held that such transaction is null and void and would not in any manner impinge on the title of the Devastanam over the property. Hence the first question has to be held in the affirmative.
6. Now coming to the second question, is the respondent justified in refusing to register and release the document in question for non production of sanction under Section 34(1) of the Act. The question as to whether a registering authority could refuse to register and release a document on the grounds stated is no longer res-integra. The Hon'ble Division Bench of this Court in Captain Dr. R. Bellie and another Vs. Sub Registrar, [2007 3 MLJ 1025], and this Court in R.Sreedher Vs. Registering Officer (District Registrar), [(2008) 1 MLJ 342], held that the registrar has no jurisdiction to refuse to register the document in question.
7. The sum and substance of the above referred decision is that the registering authority, the respondent herein is required to register the document in question. By following the dictum of this Court the Government of Tamil Nadu had also withdrawn G.O.Ms.No.150, Commercial Taxes Department dated 22.09.2000 which insisted upon production of NOC from at the appropriate local body before registering a sale deed in respect of unapproved lay outs of housing site. However the issue whether on such withdrawal of G.O.Ms.No.150 dated 22.09.2000, could a vendor unilaterally cancel a registered sale deed without the signature of the purchaser has been held to be impermissible by this Court in G.D.Subramaniam Vs. Sub Register, 2009 (1) CTC 709. However this issue does not arise for consideration in this case.
8. By virtue of registration of the mortgage deed, it does not automatically validate the transaction. The registration of the document cannot impinge on the right of Devastanam over the property in question. The respondent exercising power under the Registration Act, 1908, cannot in any manner give a seal of approval for the transaction or as regards the right of the petitioner under the mortgage deed.
9. Thus the irresistible conclusion is that the respondent is required to register the document in question. This however would not in any manner create any indefeasible right in favour of the petitioner in view of the specific embargo under Section 34(1) of the Act.
10. In the result, the Writ Petition is disposed of. The respondent is directed to register and release the document, namely the mortgage deed now pending as document No.120/2009 dated 26.08.2009 within a period of three weeks from the date of receipt of a copy of this order. As stated above the registration and release of such document would not in any manner advance the right of the petitioner by virtue of such registration in view of the legal position is mentioned above. Consequently, connected miscellaneous petition is also closed. No costs.
01.02.2010 Index:Yes/No Internet:Yes/No pbn To The Sub Registrar Sub-Registration Officer Mylapore Chennai 600 004.
T.S.SIVAGNANAM.J, pbn Order in W.P.No.675/2010 01.02.2010