Madras High Court
Zaibunnissa Begum vs The Sub Registrar on 16 July, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2013
CORAM
THE HONOURABLE MR. JUSTICE T.RAJA
W.P.No.15411 of 2013
and
M.P.No.1 of 2013
Zaibunnissa Begum .. Petitioner
Vs.
1.The Sub Registrar,
Triplicane,
No.182, Bharathi Salai,
Royapettah,
Chennai 600 014.
2.Haseena Begum
3.Syed Natif Nawaz
4.Arshiya Asha
5.Buhari Beevi .. Respondents
(Respondents 2 to 4 are
represented by their
General Power of Attorney
Agent Ethashamul Haq)
Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Prohibition prohibiting the first respondent from releasing the Sale Deed dated 30.04.2013 to the fifth respondent registered as Document No.577 of 2013 on the file of the first respondent herein executed by the respondents 2 to 4 represented by their Power Agent-Ethashamul Haq in favour of the fifth respondent.
For Petitioner ... Mr.V.V.Sairam
For 1st Respondent ... Mr.N.Srinivasan, AGP
For Respondents 2 to 4 ... Mr.N.A.Nissar Ahamed
For 5th Respondent ... Mr.G.A.Thiyagarajan
ORDER
The present writ petition has been filed by Zaibunnisa Begum for issuance of writ of prohibition prohibiting the first respondent, Sub Registrar, Triplicane, Chennai from releasing the sale deed dated 30.04.2013 to the fifth respondent Buhari Beevi registered as Document No.577 of 2013 on the file of the first respondent, which was executed by respondents 2 to 4 represented by their Power Agent-Ethashamul Haq.
2.The learned counsel for the petitioner has submitted that the petitioner is the second wife of late Syed Yacoob Ali and the second respondent is the first wife of her husband late Syed Yacoob Ali. Respondents 3 and 4 are the son and daughter of the second respondent/Haseen Begum and her husband late Syed Yacoob Ali. The respondents 2 to 4 are represented by their power agent Ethashamul Haq.
3.The learned counsel for the petitioner has further submitted that the husband of the petitioner died on 11.1.2003 leaving behind her along with his first wife/second respondent and his son and daughter/respondents 3 and 4 as legal heirs to succeed his estate. Unfortunately, after the death of the husband of the petitioner, respondents 2 to 4 wrongly usurped all the immovable properties and documents when there is a property at No.4/2, Typhoon All Khan Street, Triplicane, Chennai in their favour. When the son of the petitioner already released the share to respondents 2 to 4 in respect of the above said property and the share of the petitioner was yet to be divided and allotted, respondents 2 to 4 for some reason or other are postponing in giving share to the petitioner. Therefore, the petitioner filed a suit in O.S.No.9282 of 2010 on the file of the City Civil Court, Chennai seeking possession of 7/112th share in the above said property as well as one another property and the said suit was dismissed on 20.3.2012. As against the said judgment and decree dated 20.3.2012, the petitioner preferred an appeal in A.S.No.465 of 2012 before this Court and the same is still pending. In the meanwhile, respondents 2 to 4 represented by their power agent sold the property to the fifth respondent Buhari Beevi under the sale deed dated 30.4.2013 registered as Document No.577 of 2013 on the file of the Sub Registrar, Triplicane. In order to create an encumbrance deliberately over the above said property in collusion with the fifth respondent, respondents 2 to 4 sold the said property to the fifth respondent. Therefore, the petitioner has come to this Court by way of filing the present writ petition seeking for issuance of writ of prohibition prohibiting the first respondent from releasing the sale deed dated 30.4.2013 to the fifth respondent.
4.In reply, Mr.N.A.Nissar Ahamed, learned counsel appearing for respondents 2 to 4 has submitted that the writ petition filed for writ of prohibition against the first respondent/Sub Registrar, Triplicane is not maintainable in law, for the reason that the first respondent/Sub Registrar has no power to retain the sale deed when the civil dispute is pending.
5.In support of his submission, he has relied upon the decision in S.SUBRAMANIAN VS. THE JOINT SUB-REGISTRAR III (DISTRICT REGISTRAR CADRE, TOWN HALL, TRICHY-3) (2010 WRIT L.R.568), wherein it is held thus:
"The second respondent had no power to retain the release deed on the ground that a civil dispute is pending. The respondent having registered a release deed, as document NO.62/2008, on 21.8.2008, is not competent to withhold the same. Further, the respondent has no power to retain the document, in view of the decision of this Court reported in STATE OF RAJASTHAN VS. BASANT NAHATA (AIR 2005 SC 3401) and in R.SREEDHAR VS. REGISTERING OFFICER (DISTRICT REGISTRAR) (2008 (1) MLJ 342 = 2008-4-L.W 603). The action of the respondent in retaining the document, registered as document No.62/2008, is arbitrary and illegal."
6.He also relied upon yet another decision in V.K.AMALRAJ VS. INSPECTOR GENERAL (REGISTRATIONS), THE APPELLATE AUTHORITY, GOVERNMENT OF TAMILNADU AND OTHERS (2011 (1) CWC 283) reiterating the same proposition of law.
7.While relying upon the above said two decisions, the learned counsel for respondents 2 to 4 has submitted that retaining the sale deed dated 30.4.2013, which is registered under Document No.577 of 2013 in the office of the Sub Registrar, Triplicane, is arbitrary and illegal and the prayer made by the petitioner to prohibit the first respondent Sub Registrar, Triplicane from releasing the document is beyond the scope of law and therefore, there is no legal provision to issue direction to the first respondent to retain the document with him. Hence, the writ petition is not maintainable and the same is liable to be dismissed.
8.Mr.G.A.Thiyagarajan, learned counsel appearing for the fifth respondent has submitted that as the fifth respondent is a bona-fide purchaser of the property situated at No.4/2, Typhoon Ali Khan Street, Triplicane, Chennai, the sale deed dated 30.4.2013, which is registered as Document No.577 of 2013 on the file of the first respondent, has to be returned to the fifth respondent because, the first respondent has no power to withhold the said registered document. Hence, the prayer made by the petitioner is not sustainable.
9.Heard Mr.V.V.Sairam, learned counsel appearing for the petitioner and Mr.N.Srinivasan, learned Additional Government Pleader appearing for the first respondent, Mr.N.A.Nissar Ahamed, learned counsel appearing for respondents 2 to 4 and Mr.G.A. Thiyagarajan, learned counsel appearing for the fifth respondent.
10.Admittedly, the petitioner is the second wife of late Syed Yacoob Ali. She filed a suit in O.S.No.9282 of 2010 on the file of the City Civil Court, Chennai seeking decree for partition in respect of her share, namely, 7/112 in the above said property along with one another property. The said suit was dismissed on 20.3.2012. As against the same, the petitioner filed A.S.No.465 of 2012 on the file of this Court and the same is still pending.
11.In the meanwhile, respondents 2 to 4 by their power agent sold the property in favour of the fifth respondent under the sale deed dated 30.4.2013 registered as Document No.577 of 2013 on the file of the first respondent Sub Registrar, Triplicane. It was admitted by both parties before this Court that the petitioner is having two sons and they have also filed one another suit against respondents 2 to 4 herein in respect of the property of their father viz., late Syed Yacoob Ali, wherein the petitioner was not made as a party. However, when the issue is the subject matter of pending appeal in A.S.No.465 of 2012 filed before this Court challenging the correctness of the judgment and decree dated 20.3.2012 passed in O.S.No.9282 of 2010, the writ petition filed by the petitioner for writ of prohibition prohibiting the first respondent, Sub Registrar, Triplicane, not to release the sale deed in favour of the fifth respondent, is not maintainable in law as rightly relied upon by the learned counsel appearing for respondents 2 to 4 in the two decisions in S.SUBRAMANIAN VS. THE JOINT SUB-REGISTRAR III (DISTRICT REGISTRAR CADRE, TOWN HALL, TRICHY-3) (2010 WRIT L.R.568) and V.K.AMALRAJ VS. INSPECTOR GENERAL (REGISTRATIONS), THE APPELLATE AUTHORITY, GOVERNMENT OF TAMILNADU AND OTHERS (2011 (1) CWC 283) for the simple reason that the Sub Registrar has no power to retain the document whether it is a release deed or sale deed.
12.In the case of V.K.AMALRAJ mentioned supra, the Division Bench of this Court has held that the Registering Authorities cannot be directed to act contrary to the provisions of the statute. While extracting Rule 55 framed under the provisions of the Registration Act 1908, it has been held that the Registering Authority cannot enquire into the validity of a document presented for registration. The said Rule 55 is as follows:
"It forms no part of a Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:
(a)that the parties appearing or about to appear before him are not the persons they profess to be;
(b)that the document is forged;
(c)that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d)that the executing party is not really dead, as alleged by the party applying for registration; or
(e)that the executing party is a minor or an idiot or a lunatic."
13.The above said rule clearly envisages that the Registering Authority is bound to consider the objections only on the grounds, which are stated in the said rule.
14.In view of the above said rule, this Court clearly observed that Rule 55 does not provide enquiry by the Registering Officer with regard to the right and ownership of the seller.
15.Moreover, in K.PALANISAMY VS. THE JOINT SUB REGISTRAR-I, (DISTRICT REGISTRAR), P.N. ROAD, TIRUPPUR, this Court has held that under the Registration Act 1908, the Registrar shall not enquire into the title of the property, while registering a document. Furthermore, once a Registrar completes the process of Registration, he becomes functus officio. In view of that, he cannot retain the same.
16.In the light of the above said two decisions, the writ petition is not maintainable and the prayer sought for by the petitioner that not to release the sale deed dated 30.4.2013 to the fifth respondent registered under Document No.577 of 2013 on the file of the first respondent cannot be granted.
17.Hence, the writ petition is dismissed. There is no order as to costs. Consequently, connected M.P.No.1 of 2013 is closed.
cla To The Sub Registrar, Triplicane, No.182, Bharathi Salai, Royapettah, Chennai 600 014