Madras High Court
M.Muthiah vs The District Registrar on 3 December, 2018
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 03.12.2018
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.23663 of 2018
1.M.Muthiah
2.M.Subachithra ..Petitioners
-Vs-
1.The District Registrar,
Tirunelveli.
2.The Sub-Registrar,
Gangaikondan,
Tirunelveli. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for
the records relating to the impugned order of the second respondent
dated 21.08.2018 and quash the same and consequently, direct the
second respondent to register the sale deed dated 20.08.2018 filed by the
petitioners within the time fixed by this Court.
For Petitioners : Mr.H.Arumugam
For Respondents : Mr.M.Murugan,
Government Advocate.
ORDER
This Writ Petition has been filed, seeking for a Writ of Certiorarified Mandamus, to quash the impugned order of the second http://www.judis.nic.in 2 respondent dated 21.08.2018 and for consequential direction to the second respondent to register the sale deed dated 20.08.2018 filed by the petitioners within the time fixed by this Court.
2.The case of the petitioners is that the land in S.No.279/4B to an extent of 80.87 acres, i.e., 2 acres in Alangarapperi Village, Tirunelveli, is belonged to the second petitioner herein and she is in possession and enjoyment of the property. The Patta No.204 in respect of the said property stood in her name. She had sold part of the land in the said survey number to one Shanmugam through Document No.1212/14 and thereafter, the joint patta No.333 for the property stood in the name of the second petitioner and the said Shanmugam.
3.It is the further case of the petitioner that while so, one P.Muthusamy executed a gift deed in Document No.1245/13 in favour of his wife Sri Devi, in respect of the above said property along with some other properties. One of the owners namely, M.Krishnan, who is the father-in-law of the second petitioner lodged a criminal complaint before the first respondent to cancel the above said document, alleging that it was a forged one. After conducting proper enquiry, the first respondent in his proceedings No.6734/E1/2015, dated 10.01.2017 found that the said document is a forged one, which is an offence committed under the provisions of the Registration Act, 1908 apart from IPC offences.
However, http://www.judis.nic.in since the First Information Report was already registered, no 3 need to initiate prosecution once again and thus, the issue of annulment of the document will be taken after the outcome of the pending case as per Circular No.67 issued by the Inspector General of Registration, dated 03.11.2011.
4.The learned counsel appearing for the petitioners would contend that without knowledge of the said issue, the first petitioner has purchased 3 acres of the land situated in S.No.279/4B in Alangarapperi Village, Tirunelveli from Sri Devi under a registered sale deed dated 08.11.2013. Pursuant to the order of the first respondent dated 10.01.2017, the first petitioner has requested the second petitioner to sell her property to an extent of 2 acres mentioned above, admitting her right and title. The second petitioner also acceded for the same and sold the above property for valuable consideration and accordingly, executed the sale deed on 20.08.2018 in favour of the first petitioner. The petitioners have got appointment for registration of sale deed on 21.08.2018 and also presented the sale deed for registration before the second respondent on the same date itself. However, the second respondent has returned the said document by passing the impugned order dated 21.08.2018, informing that the first respondent in his proceedings No.6734/E1/2015, dated 10.01.2017, directed not to register any document regarding the property in Survey No.279/4B and thus, he could not accept the document for registration. http://www.judis.nic.in 4
5.Aggrieved by the said impugned order of the second respondent, the petitioners have approached this Court by raising various grounds.
6.The learned counsel appearing for the petitioners would contend that the order dated 10.01.2017 itself has been passed only based on the complaint given by the father-in-law of the second petitioner herein about the execution of fraudulent document by the said P.Muthusamy in favour of his wife Sri Devi. The fact remains that the first petitioner though had purchased the same property from the said Sri Devi, after realizing the fact that the said P.Muthusamy had no title, he has now purchased the property again from the second petitioner, who is a real title holder, to get a clear and marketable title over the property.
7.He would further contend that even the registration of document on the basis of document, which was found to be a fake one, after completion of enquiry alone directed not to be registered by the respondents in the Circular dated 31.07.2018 issued by the Inspector General of Registration. He would also contend that the respondents have rejected the said document from registering without even giving them an opportunity, even though the second petitioner is the original owner and his name also found place in the petition issued by the second respondent http://www.judis.nic.in on 20.08.2018. He would further contend that the second 5 respondent is bound to register the document under Sections 52 to 58 of the Registration Act, 1908.
8.The learned Government Advocate appearing for the respondents, on instructions, would submit that the second respondent has rightly rejected the document, stating that the first respondent after conducting an enquiry has issued a circular dated 10.01.2017, in favour of the petitioner therein, namely, one Krishnan.
9.While perusing the document deed dated 12.04.2013, it is seen that the properties were included in the poromboke lands' pathways and hence, as per the Circular No.67 issued by the Inspector General of Registration, dated 03.11.2011, the Registrars are directed to conduct an enquiry regarding the complaint received by them and on completion of enquiry, if they find any offence being committed or irregularities, they were directed to lodge criminal proceedings immediately, regarding the pending annulment of document and the same will be taken for consideration only after disposal of Court cases.
10.Hence, the District Registrar / first respondent herein based on the complaint given by the father-in-law of the second petitioner and on the basis of the enquiry conducted, has ordered that the First Information Report to be registered by the police, regarding the forgery committed http://www.judis.nic.in by the said P.Muthusamy and he has issued an order that after 6 the outcome of the criminal proceedings, action will be taken regarding the cancellation of the said sale deed.
11.This proceedings of the order passed by the District Registrar / first respondent was not challenged by the petitioners herein. When criminal proceedings have been initiated, the first petitioner woke up then, he immediately enquired with the original owner and then he entered into an agreement and then he tried to register the same before the authorities. The second respondent has rejected the same in accordance with the directions issued by the first respondent by stating that since there is an order passed by the District Registrar / first respondent dated 10.01.2017, the document should not be registered regarding the said survey number.
12.Heard the learned counsel appearing for the petitioners and the learned Government Advocate appearing for the respondents.
13.On reading of the Section 55 of Registration Act, it could be seen that the Registrar is duty bound to enquire into the complaint, if he has found that anyone of the said documents is forged. In this case, a criminal case is already pending and as per the directions of the District Registrar / first respondent only, the second respondent has rightly rejected the claim of the petitioners herein.
http://www.judis.nic.in 7
14.At this juncture, it is pertinent to note Section 35 of the Registration Act, 1908, which reads as follows:-
“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, assign or agent, such representative, assign or agent admits the execution, or
(c) if the person executing the document is dead, and his representative or assign 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
(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or http://www.judis.nic.in dead.” 8
15.The Registrar prima facie has to satisfy himself about the persons, who appear before him, are the persons represented and examine the person in his office, if any, before executing the document. Accordingly, if the Registering Officer has accepted to reissue the documents and he is not able to come to the conclusion that whether the document presented for registration is having title as mentioned in the annulment.
16.As per Section 72 of the Registration Act, 1908, except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of Sub-Registrar refusing to admit a document for registration (Whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.
17.Accordingly, the Registering Officer can refuse the said document presented for Registration, when the same is void and from illegal transaction. Here, there is a criminal case pending before the authorities regarding the said disputed land. Hence, the Sub Registrar has rejected the claim of the petitioner, when he presented the document for registration. The said document was already executed by the person, who has been accused of committing forgery and again he was approaching http://www.judis.nic.in the original owner and trying to get the sale deed executed 9 and also trying to register the same before the concerned Sub Registrar. Accordingly, the Sub Registrar has refused it from taking it on file and rejected the same.
18.It is left open to the petitioner to approach the authorities concerned for appeal remedy. When there is an appeal remedy available under the Act, the petitioner cannot file this petition under Article 226 of Constitution of India, seeking to consider the case of the petitioner and direct the respondent to register the same.
19.Accordingly, this Writ Petition is dismissed. No costs.
03.12.2018 Index : Yes/No Internet:Yes/No Myr To
1.The District Registrar, Tirunelveli.
2.The Sub-Registrar, Gangaikondan, Tirunelveli.
http://www.judis.nic.in 10 V.BHAVANI SUBBAROYAN, J.
Myr W.P(MD)No.23663 of 2018 03.12.2018 http://www.judis.nic.in