Madras High Court
R.Surekha vs The Sub Registrar on 28 September, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
1 W.P. No. 24028 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2022
CORAM
THE HON'BLE MR.JUSTICE M.DHANDAPANI
W.P.No.24028 of 2022
R.Surekha ...Petitioner
Vs.
1. The Sub Registrar,
Office of the Sub Registrar,
Kadayam, Tirunelveli District.
2. The Sub Registrar,
Office of the Sub Registrar,
Thalaivasal, Attur Taluk,
Salem District.
3. R.Sukanya ...Respondents
Petition filed under Article 226 of the Constitution of India to issue a Writ
of Certiorarified Mandamus calling for the records relating to the order of the
first respondent dated 16.06.2022 in Na.Ka.No.184/2022 and quash the same and
consequently, direct the first respondent to register the Will dated 06.05.2021
executed by the petitioner's father J.Rajendran.
For petitioner : Mr.K.Selvaraj
For Respondents : Mr.E.Vijay Anand, AGP RR1 & 2
Mr.P.Valliappan
For M/s.P.V.Law Associates– for R3
ORDER
https://www.mhc.tn.gov.in/judis 2 W.P. No. 24028 of 2022 The writ petition has been filed seeking to quash the order of the first respondent dated 16.06.2022 in Na.Ka.No.184/2022 and consequently, direct the first respondent to register the Will dated 06.05.2021 executed by the petitioner's father J.Rajendran.
2. It is the case of the petitioner that on 06.05.2021, the petitioners father has executed a Will and thereby, bequethed the property measuring an extent of 1,798 sq. ft. in S.No.23A in patta No.41 along with RCC roof house bearing door No.6/910 and 6/911 situated at Mummudi Village, Attur Taluk in favour of the petitioner. On 14.05.2021, the petitioner father died. On 13.07.2021, the petitioner has registered a Will and the same was registered as Doc. No.P 44 of 2021 by the first respondent. However, the first respondent .......................
4. Learned Senior Counsel appearing on behalf of the petitioners submitted that though the third respondent initiated several suits against the petitioners and the same is pending on the file of respective Courts. Till date, no Courts have passed any restrained order in the said suits. Without proper appreciation, the first respondent have arrived at a conclusion that not to register https://www.mhc.tn.gov.in/judis 3 W.P. No. 24028 of 2022 any document in respect of the subject properties, which is not sustainable one.
Further, as on date, there is no restrained orders passed against the petitioners from any Courts and therefore, the second respondent has to entertain the documents which was presented by the petitioners. In the absence of any restrained order, the first respondent had issued a direction to the second respondent not to entertain any deeds by the petitioners, which is against the law.
Further, as on date, only one suit in O.S.No.76 of 2015 is pending in respect of the subject properties, which was instituted by the petitioner Nos. 3 & 5 seeking injunction against the third respondent before the District Munsif Court, Coimbatore, which was allowed in their favour. In this case, there is no adverse order passed against the petitioners and therefore, the impugned order is liable to be set aside. Hence, this Court may allow the writ petition.
5. The third respondent has filed a counter-affidavit, in which, the relevant paragraphs are extracted hereunder:
''3. This respondents submits that the 1st petitioner is his maternal aunty. The petitioners 2, 3, 4 and 5 are the nephew and niece of the 3rd respondent. The 6th petitioner had entered into a sale agreement with the petitioners 1 to 5 vide doc.No. 440/2022 on the file of Sub Registrar of Gandhipuram dated 06.01.2022 https://www.mhc.tn.gov.in/judis 4 W.P. No. 24028 of 2022 with regard to the property situated in Coimbatore District, Gandhipuram sub Registry, Kalapatti Village in S.F.No. Below mentioned in two items.
1. 890/2A : 6.6 acres
2. 889/3 : 1.66 acres
3. 889/4 : 1.66 acres
4. 891/2 : 1.4 acres.
5. 891/4 : L49 acres (out of 2.96 acres)
6. 891/1 : 0.70 acres
4. I submit that his mother Maragatham is the eldest daughter of Subbe Gounder and Nanjammal. Maragatham was born with 2 sisters by name Rathinam and Saraswathiammal.
Rathinam is the 1st petitioner herein. Saraswathiammal is now no more and her legal heirs are petitioners 2 to 5 respectively. The petitioner No. 6 is the registered agreement holder of the properties which is in the file of the 2nd respondent for which order has been passed by the 1st respondent.
5. I submit that his great grandfather Appaji Gounder had two wives. The 1st wife's only daughter was Rayakkal. The 2nd wife's only son was Marappa Gounder. Rayakkal's husband died in young age and after his death the widow Rayakkal was left under the care of Marappa Gounder. Rayakkal did not have any issues or legal heirs. During the life time of Appaji Gounder some of the properties were given to https://www.mhc.tn.gov.in/judis 5 W.P. No. 24028 of 2022 Marappa Gounder and Rayakkal was given separate property. Thus Marappa Gounder acquired ancestral property which were owned possessed and enjoyed by him during his life time along with his wife and only Son Subbe gounder. Subbe gounder executed a Will in favour of his father on 05.09.1948 which was unregistered. Subbe Gounder was murdered during the life of Marappa Gounder. The son of Marappa Gounder namely Subbe Gounder died on 03.8.1949.
6. I submit that his mother was married to Duraisamy Gounder, the 3rd respondent's father. My father Duraisamy Gounder took care of the entire family and arranged for the marriage of the sister in laws and was administering and taking care of the property of Marappa Gounder, after the demise of Subbe Gounder. Hence, Marappa Gounder executed a Will on 17.12.1964 in favour of Duraisamy Gounder, which was left unregistered.
7. I humbly submit that Marappa Gounder died on 27.12.1969. After the demise of Marappa Gounder, the Will dated 17.12.1964 came into existence. According to the Will, Nanjammal, wife of Subbe Gounder, daughter in law of the Marappa Gounder was granted only the right to enjoy the property and it was only after her demise, Duraisamy was granted absolute right to acquire the property for which order is sought for along with few other properties. Duraisamy Gounder conducted https://www.mhc.tn.gov.in/judis 6 W.P. No. 24028 of 2022 the funeral ceremony of Marappa Gounder, Subbe Gounder, Rayakkal, carried out all the moral obligations of Nanjammal, arranging for the marriage of the 1st petitioner and the mother of the petitioners 2 to 5 by name Saraswathiammal and hence out of love and affection towards the son in law Duraisamy, Nanjammal executed a Will in favour of my father Duraisamy on 23.11.1991, which was left unregistered. She died on 15.12.1995. After the demise of Nanjammal by virtue of the will, Duraisamy Gounder became the absolute owner of the properties.
8. I further submit that Duraisamy acquired the property, became the absolute owner of the property, possessed and enjoyed the same without any disturbance by whatsoever means along with his wife and the 3rd respondent along with his legal heirs.
9. I submit that my father namely Duraisamy during his life time executed a will in favour of me regarding the property and some other properties on 9.3.1998 which was a registered one.
10. I submit that my father namely Duraisamy died on 30.3.1998 leaving behind his wife Maragatham daughter Padmavathy, sons Rangasamy, Mani and me. Among them the daughter and the two sons namely Rangasamy and Mani were married and they are living in a separate fold. I and my mother were living under one roof. By virtue of the will executed by https://www.mhc.tn.gov.in/judis 7 W.P. No. 24028 of 2022 Duraisamy the father of me, I acquired the property.
11. I humbly submits that his mother who had no right over the suit property was trying to sell the property suppressing the Will resulting in which filed the suit seeking to declare the Will of Duraisamy dated 09.03.1998 as the last Will and it is genuine and can be acted upon. My mother admitted the execution of the Will and hence the suit was decreed in my favour in O.S.No. 2550/2012 dated 20.04.2013 on the file of IADM of Coimbatore.
12. I submit that while so, my nephews and nieces claimed the property by virtue of a settlement deed dated 05.11.1960 vide Doc.No. 6179/1960 executed by Nanjammal in favour of 1st petitioner and deceased Saraswathiammal. But the properties are acquired by Marappa Gounder and Nanjammal is the daughter in law of Marappa Gounder and wife of Subbe gounder, who had executed the Will in favour my father on 23.11.1991 and I and my mother are still in possession and enjoyment of the properties since 1954 when the properties and few other properties were leased out to Ganapaty Gounder, following him, my father Duraisamy Gounder and after the execution of the Will, I am in possession and enjoyment without any disturbance by what so ever means and hence the settlement deed executed in favour of the 1st petitioner and Saraswathiammal by Nanjammal in 05.11.1960 vide doc.No. 6179/1960 is not valid.
https://www.mhc.tn.gov.in/judis 8 W.P. No. 24028 of 2022 Now the petitioner No.1 and the legal heirs of late. Saraswathiammal namely the petitioners 2 to 5 without knowledge about the Will, the genesis and the declaration suit had filed a suit in O.S.No. 76/2016 seeking the relief to declare that the order obtained by me against my mother in O.S.No. 2550/2012 dated 20.04.2013 on the file of the I Additional District Munsif of Coimbatore is null and void and with the consequent relief of permanent injunction restraining this 3rd respondent from encumbering and alienating the property and directing the sub registrar of Gandhipuram to remove the entries with relate to O.S.no. 2550/2012. I and my mother are arrayed as petitioner No. 1 & petitioner No. 5 in the said suit. The copy of the plaint and the written statement are already filed as Documents in the typed set by the petitioners vide Doc.No. 20 and 21. The suit in O.S.No. 76/2015 is pending trial before the VI Additional District Munsif of Coimbatore.
13. I submit that in O.S.No. 76/2015 the 6th petitioner is not party to the proceedings. But the respondents 1 to 3 are arrayed as defendants 1, 6 and 7. When the suit is pending before the trial court the petitioners 1 to 5 before obtaining an order seeking to declare that the decree obtained by this respondent in O.S.No.2550/2012 dated 20.04.2013 on the file of I ADM of Coimbatore by virtue of the Lok Adalath settlement dated 20.04.2013 as Void abinio invalid and is unenforceable in the eyes https://www.mhc.tn.gov.in/judis 9 W.P. No. 24028 of 2022 of law would not bind these petitioners 1 to 5 had entered into an sale agreement with the 6th petitioner.
14. I submit that during the pendency of the suit and the petitioners 1, to 5 had entered into a sale agreement with the petitioner No.6 to sell the properties and agreement was registered on 06.01.2022 vide Doc.No.440/2022 agreeing to execute a sale deed within 3 months from the date of sale agreement.
15. I submit that the registered sale agreement is unenforceable as the suit filed by the petitioners 1, 5 as against me, my mother and the petitioners 2, 3 & 4 are still pending and before the decree and judgment is passed nullifying the judgment and decree in O.S. No. 2550/2012 dated 20.04.2003 as void abinito cannot be executed.
16. I submit that the petitioner No.6 without knowing the genesis of the documents and titles had entered into as sale agreement with petitioners 1 to 5 without knowing the pendency of O.S.No.76/2015 which cannot be executed and if executed would result in multiplicity of suit and denial of justice. The 2nd respondent who had registered the sale agreement executed by the petitioners 1 to 5 in favour of 6 th petitioner knowing that the decree and judgment in O.S. 2550/2012 dated 20.04.2013 has also been registered. The 6th petitioner may register the sale deed also and hence I filed an application before https://www.mhc.tn.gov.in/judis 10 W.P. No. 24028 of 2022 the 1st respondent seeking an order not to register the sale deed if executed by the petitioners 1 to 5 in favour of the 6th petitioner. The 1st respondent called upon all the petitioners and a detailed counter was filed by them. The 1st respondent knowing that there is dispute between the petitioners 1 to 5 and this respondent and litigations are pending before the court and the decree obtained by either parties are to be decided and hence passed an order directing the 2nd respondent not to register the sale deed till the disposal of 76/2015 on the file of VI ADM of Coimbatore.
17. I submits that the order passed by the 1st respondent is maintainable. He had not acted in arbitrary manner. He had passed the orders based on the complaint , summoned the petitioners 1 to 6 and perused the documents filed on either sides and had passed the orders without any prejudice. There is no violation of procedure by the 1st respondent.
18. I submit that the petitioners 1 to 5 had suppressed these facts before the trial court. The 6th respondent does not have any privity of contract to be added as necessary party in the suit pending before the trial court. My prayer before the trial court is to dismiss the suit in O.S. 76/2015. When the suit is pending the registration of the sale agreement between the petitioners 1 to 5 and the 6th petitioner is lispendens. Hence before the disposal of the suit, if this application is allowed it would result in multiplicity of suits.'' https://www.mhc.tn.gov.in/judis 11 W.P. No. 24028 of 2022
6. In the counter-affidavit dated 05.09.2022 filed by the First and Second Respondents, in which it has been stated in para Nos.21 and 22 are extracted hereunder:
21) I further submit that though the petitioners would rely the judgment and decree passed in O.S. No.71/1993 which was reversed and passed in favour of the petitioners in A.S. No.24/2005 but the fact remains that the 3rd respondent herein had obtained a decree in O.S. No.2550/2012 which has been registered as Doc. No.8613/2013. The decree obtained by the 3rd respondent is much later and as such, the said decree has not been challenged to the knowledge of this respondent. It is incorrect to state that the Sale Agreement dated 06.01.2022 cannot be questioned and is binding on the 3rd respondent especially when the proceedings are pending with regard to the properties which are subject matter of the Sale Agreement before the competent civil court.
''22) I further submit that it is in, incorrect to state this respondent had not considered various G.O. issued by Inspector General of Registration considering the complaint filed by the 3rd respondent. It is no doubt that the petitioners would aver this respondent had considered the pendency of some suit was the reason but at the same time, that alone is not the https://www.mhc.tn.gov.in/judis 12 W.P. No. 24028 of 2022 reason but a judgment and decree obtained by the 3rd respondent in O.S. No.2550/2012 on the file of the District Munsif, Coimbatore which was registered as Doc. No.8613/2013 creates a title in favour of the 3rd respondent which has not been challenged till date by the petitioners. As such there is no merits in the case of the petitioners seeking to set aside the orders passed by this respondent in Ref. No.5124/B1/2022 dated 01.07.2022. The said order has been passed considering the fact of the pendency of the civil suit which has been suppressed in the matter of the Sale Agreement brought out on 06.01.2022 and also the obstruction petition filed earlier prior to the registration of the Sale Agreement was not considered by the 2nd respondent is also one of the reason. Under the above circumstance, there is no merits in the case of the petitioners to state that the orders passed by this respondent is without nay merits. On the other hand, if the orders passed by this respondent is to set aside, it will lead to further documents and ultimately leading to multiplicity of civil proceedings and wasting the precious time of this Hon'ble Court. As such the above petition is devoid of merits and is liable to be dismissed.''
7. Heard the learned counsel on either side and perused the materials available on record.
https://www.mhc.tn.gov.in/judis 13 W.P. No. 24028 of 2022
8. The facts of the case are not in dispute. Admittedly, the 6 th petitioner purchased the subject properties from the petitioners 1 to 5. On the earlier occasion, there was a property dispute between the petitioners 1 to 5 and the 3rd respondent and other legal heirs of the said Nanjammal and therefore, the said Saraswathiammal and Rathinam filed a suit in O.S.No.71 of 1993 against Nanjammal, Padmavathy, Rangasamy, Mani and Balasubramaniam(who is the third respondent herein), Ganesan and Deivathal and Maragatham, which was ended against the petitioners. Subsequently, the lower appellate Court granted decree in favour of the petitioners including the properties in question in respect of which the 6th petitioner had entered into an agreement of sale with the petitioner Nos. 1 to 5.
9. It is also not disputed that as there is no injunction order passed against the petitioners in respect of the subject properties, the first respondent has passed the impugned restrained order directing the second respondent not to entertain any document with respect to the subject properties, which is not sustainable one. In fact, the power of the first respondent is that he is only an adjudicating authority in terms of Section 77(a) or 68(ii) of the Registration Act.
Further, the first respondent has stated in the impugned order that there are https://www.mhc.tn.gov.in/judis 14 W.P. No. 24028 of 2022 multiple litigations pending between the parties in respect of the subject properties before the respective Courts. Though there are multiple litigations pending between the parties, and no restrained order passed by any of the competent Court, the first respondent passed the impugned order directing the second respondent not to entertain any document in respect of the subject properties, which is non-est in law.
10. The issue in this case no longer res integra as the similar issue was considered by this Court in Vadamugam Vellode NalukaraiNattu Goundergal Sangam Vs Inspector General of Regisration, reported in [2021 (1) CTC 535] made in W.P.No.12585 of 2020 & W.M.P.Nos.15518 & 15521 of 2020. The relevant portion of the order is extracted under as:
10. The 5th Respondent has approached the Civil Court and he has file O.S.No.48 of 2019, seeking for the relief of Partition and separate posession of 1/27th share in the Suit properties. It is also seen that the 5th Respondent has filed yet another Suit in O.S.No.58 of 2017 in which kshe has claimed for the relief of Permanent Injunction restraining the Defendants not to alienate the Suit Properties. In both the Suits, there is no Order passed by the Competent Civil Court injuncting from dealing with the Suit properties. What the 5th Respondent was not able to achieve before the Civil court is now sought to be achieved through the 3rd Respondent by virtue of a Letter given before this Court, dated 21.02.2020.
The 3rd Respondent is a Statutory Authority, who has to strictly perform his functionin accordance with law. This https://www.mhc.tn.gov.in/judis 15 W.P. No. 24028 of 2022 Court exercising its jurisdiction under Article 226 of Constitution of India can never prevent a Statutory Authority from performing his function. Therefore unless and otherwise a Competent Civil Court passes any Interim Order restraining the alienation of the property, the 3rd Respondent has to entertain the documents and register the same, if it is otherwise in order. Ultimately, even if the suit is decreed, the transaction will be subject to the Rule of les pendens. There is no law in force which says that no transaction can take place during the pendency of the suit. That is exactly why Section 52 of the Transfer of Property Act, provides a solution for transactions that take place during the pendency of the suit.
11. In view of the above discussion, the impugned Letter of the 3rd Respondent, dated 21.02.2020 is hereby quashed and the 3rd Respondent is directed to entertain the documents submitted for registration and register the same, it it is otherwise in order. It goes without saying that the necessary Stamp Duty and Registration Fee will be paid at the time of submitting the document for registration.
12. This Writ Petition is accordingly allowed. No Costs. Consequently, the connected Miscellaneous Petitions are closed.
11. It is the claim of the petitioners that the pendency of the suit with respect to the subject property cannot be a bar for registration of the document related to the very same property, however, on going through the facts and circumstances of the present case on hand, this Court is of the view that in the absence of any interim order in the suit restraining the alienation of the property https://www.mhc.tn.gov.in/judis 16 W.P. No. 24028 of 2022 and in the absence of any material to substantiate the right of the private respondent over the subject property, the refusal to register the document citing the pendency of the suit for partition is not sustainable and therefore, this Court is inclined to interfere with the impugned order.
12. In view of the above said decision, this Court is hereby set aside the impugned order in Letter No.5421/B1/2022, dated 01.07.2022 passed by the first respondent and the second respondent is directed to entertain the document, which is presented by the petitioners, if there is no legal impediment and without influence of the impugned order quashed herein and if it is otherwise in order, after collection of necessary registration charges and the stamp duty.
13. With the above observations, the writ petition is allowed. No costs.
28.09.2022 rli Index : Yes/No Internet:Yes/No Speaking Order : Yes/No To https://www.mhc.tn.gov.in/judis 17 W.P. No. 24028 of 2022
1. The District Registrar, (A.I.G.Cadre) Coimbatore.
2. Sub-Registrar (District Registrar Cadre) Gandhipuram.
M.DHANDAPANI, J.
rli W.P.No.19670 of 2022 https://www.mhc.tn.gov.in/judis 18 W.P. No. 24028 of 2022 28.09.2022 https://www.mhc.tn.gov.in/judis