W.P (MD).No.28530 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.11.2024
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P (MD).No.28530 of 2024
A.Tamilraj ... Petitioner
Vs.
1.The District Registrar (Madurai North),
Registration Department,
Office of District Registrar,
Integrated Complex of Registration Department,
TNAU Nagar, Y.Othakadai,
Madurai.
2.The Sub-Registrar,
Chettikulam (Madurai North),
Sub-Registrar Office,
Madurai. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorarified Mandamus, to call for the entire records
pertaining to the impugned Refusal Check Slip in Refusal Number
RFL/Chettikulam (Madurai North)/213/2024 dated 22.11.2024 issued by the
second respondent to register the General Power of Attorney dated 22.11.2024
which is presented for registration on 22.11.2024 in respect of land in survey
No.16/5A1A1 to the extent of 0-32.70 ares equivalent to 80 cents situated at
Chatrathondaimanpatti Village, Madurai North Taluk, Madurai District.
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For Petitioner : Mr.R.Aravindraj
For Respondents : Mr.D.Sadiq Raja
Additional Government Pleader
O R D E R
This writ petition has been filed challenging the order, dated
22.11.2024, passed by the second respondent, thereby, refused to register the
General Power of Attorney, which was presented by the petitioner for
registration in respect of the subject property.
2. By consent of both parties, the Writ Petition is taken up for final
disposal at the admission stage itself.
3. Heard the learned counsel appearing on either side and perused the
materials placed before this Court.
4. The property comprised in S.No.16/5 to an extent of 1 acre 32
cents, situated at Chatrathondaimanpatti Village, Madurai North Taluk,
Madurai District was originally self acquired property of one Sonaisamban,
who purchased the said property through registered sale deed in Document No.
148/1935. The said Sonaisamban died on 24.07.1984 leaving behind
Pottaiammal, Sonai and Sonaammal as his legal heirs and the same was
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declared by the learned Principal District Munsif, Melur in O.S.No.40 of 2012,
dated 28.03.2012. Among the legal heirs, Pottaiammal and her husband namely
Sevugan were died on 07.09.2016 and 24.11.2012 respectively without having
no issues. Sonai, who is the brother in law of petitioner and Sonammal who is
the wife of petitioner are the legal heirs of Sonaisamban and enjoyed the above
mentioned property without any let and hindrances. Thus being so, the part of
land in S.No.16/5 was acquired by the National Highways Authority of India
and the balance land to the extent of 0.32.70 ares of land got sub-divided in
Survey No.16/5A1A1 and patta was issued in the names of Sonai and
Sonaammal in Patta No.1551. In the meanwhile, Sonaammal who is the wife of
the petitioner died on 26.05.2018 leaving behind the petitioner and her daughter
Muthulakshmi, her sons Andisamy and Sanjeevi as her legal heirs. The
petitioner, his sons and daughter are decided to execute the General Power of
Attorney in favour of the petitioner's brother in law namely Sonai in respect of
their shares in the above mentioned property. They presented the General
Power of Attorney deed for registration before the second respondent on
22.11.2024. However, the second respondent refused to register the same on
the ground that the original parent document was not produced.
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5. This issue has already been dealt with by the Hon'ble Division
Bench of this Court recently in WA.No.1160 of 2024 by judgment dated
27.09.2024. The relevant portion of the judgment is extracted hereunder:-
“7. The law relating to transfer of immovable property is
governed by the substantial enactment namely, The Transfer of
Property Act, 1882. The right to hold property and the right to be
not deprived of property without reasonable compensation is a
constitutional right ensured under Article 300A of the Constitution
of India. Being a constitutional right, it is one step superior to even
the fundamental rights, as there cannot be a reasonable restriction
on the said right and no one can be deprived of the property without
reasonable compensation. The right to hold the property also takes
in its fold the right to deal with the property. No doubt, the second
proviso to rule 55-A of the Tamil Nadu Registration Rules mandates
that the original of the antecedent document should be produced to
enable registration of a subsequent instrument. Of course, a way-out
is provided namely, the production of non traceability certificate
from the police department. We should also be conscious of the fact
that any certificate from any Government department, as of today,
comes only at a price for an ordinary citizen. An elaborate
procedure has also been fixed for issuance of non traceability
certificate. We have come across several instances where, because
of the high pricing of and the complicated procedure involved in
obtaining a non traceability certificate, instances of people
obtaining non traceability certificate from the neighbouring States
has increased.
8. The fundamental principle of law relating to transfer of
immovable property is caveat emptor. A buyer of the property is
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required to be careful in not purchasing certain properties which are
already encumbered or from person who does not have title. Even if
a person sells a property that does not belong to him, there is no
provision in the Registration Act, 1908, to enable the Registrar to
refuse registration except Section 22-A and Section 22-B, which
have been introduced recently in the year 2022 by the State
Legislature insofar as Tamil Nadu is concerned. Even Section 22-A
and Section 22-B do not authorise refusal of registration on the
ground that the original of the prior's title deed has not been
produced. We are unable to resist observing that Rule 55-A has been
stealthily introduced as a subordinate legislation only to enable
Registrars refuse to register instruments indiscriminately. Neither
Section 22-A nor Section 22-B authorise a Registrar to refuse to
register instruments on the grounds specified under Rule 55-A. No
doubt, Mr.Ramanlaal falls back on the power of Superintendence
conferred on the Chief Controlling Revenue Authority and the
District Registrars under Section 68 of the Registration Act, 1908.
Section 68 reads as follows:
“68. Power of Registrar to superintend and
control Sub-Registrars.
(1) Every Sub-Registrar shall perform the duties of his office
under the superintendence and control of the Registrar in
whose district the office of such Sub-Registrar is situate.
(2) Every Registrar shall have authority to issue (whether on
complaint or otherwise) any order consistent with this Act
which he considers necessary in respect of any act or
omission of any Sub-Registrar subordinate to him or in
respect of the rectification of any error regarding the book
or the office in which any document has been registered.''
9. The power conferred under Section 68 of the
Registration Act, 1908, is only a supervisory jurisdiction and it
invests the power in the Registrars to issue any order consistent with
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the Act. As we already observed, the provision of Section 55-A
inserted in the rules has no statutory authority. Section 69 of the
Registration Act 1908, enables the Inspector General to make rules
providing for the matters that are set out in Clauses (a) to (h). The
provision namely, Section 69 further provides that the rule so framed
shall be consistent with the provisions of the Act. Therefore, the
rules made by the Inspector General of Registration exercising the
power under Section 69 cannot override the provisions of the Act.
Rule 162 of the Registration Rules prescribes the circumstances
under which a Registrar can refuse to register an instrument. Clause
20 has been added to Rule 162 to enable the Registrar to refuse
registration, if the presentant does not produce the original deed or
record specified in Rule 55A. We do not propose to delve into the
validity or otherwise of the rule, but we must record that prima facie,
the rule overreaches the legislation and it is beyond the powers of
the Inspector General of Registration under Section 69.
10. Adverting to the facts on hand, the document that is
sought to be registered is a release deed executed by the sister in
favour of the brother. The document recites that the property
belonged to the father. The parties are not strangers to each other.
They have produced registration copies of the antecedent documents
which are registered in the very same office. Unless the Registrar
has a doubt regarding the genuineness of the copies issued by his
own office, insistence on production of originals is a superfluous
exercise. As we had already stated, it is a common knowledge and
accepted phenomena today that one cannot secure a certificate from
a Government office without the price. In such situation, driving
executant of documents to obtain a non traceability certificate in
case of lost document in every case, will result only in encouraging
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under hand dealings. When certified copies have been produced and
it is not impossible for the Sub Registrar to have it verified with the
original record that is available in his own office, insisting upon a
non traceability certificate appears to be rather a wasteful exercise.
Even in Punithavathy's case referred to supra, we have observed
that the Registrars will not refuse registration particularly, when the
parties to the documents are relatives and they take the risk of
obtaining the document without examining the title. The copies of the
documents have already been produced. The Sub Registrar could
have verified the same with the original records in his office and
register the instrument without dogmatically refusing registration.
We, therefore, do not find any substance in the argument of
Mr.Ramanlaal, learned Additional Advocate General. We, therefore,
set aside the order of the learned Single Judge as well as the
impugned check slip. We direct the Sub Registrar, Rasipuram, to
register the release deed. We permit the appellant to re-present the
release deed within four weeks from today and upon such re-
presentation, the Sub Registrar, Rasipuram, will register the
instrument without insisting on production of originals within 15
days from the date of presentation.”
6. Therefore, the second respondent cannot insist the petitioner to
produce the original parent document for verification. In view of the above, the
impugned refusal check slip cannot be sustained and is liable to be quashed.
Accordingly, the impugned refusal check slip dated 22.11.2024 is hereby
quashed. The petitioner is directed to re-present the sale deed for registration
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within a period of one week from the date of receipt of a copy of this order
along with certified copy of the parent document. The petitioner is also
directed to file an affidavit mentioning the reason for non-production of the
parent document. On production of the certified copy of the parent document,
the second respondent is directed to register the sale deed presented by the
petitioner, without insisting for production of the original document in respect
of the subject property and release the document, forthwith.
7.Accordingly, this writ petition is allowed. No costs.
Internet : Yes
Index : Yes/No 29.11.2024
Speaking/Non Speaking order
am
To
1.The District Registrar (Madurai North),
Registration Department,
Office of District Registrar,
Integrated Complex of Registration Department,
TNAU Nagar, Y.Othakadai,
Madurai.
2.The Sub-Registrar,
Chettikulam (Madurai North),
Sub-Registrar Office,
Madurai.
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W.P (MD).No.28530 of 2024
G.K.ILANTHIRAIYAN, J.
am
W.P (MD).No.28530 of 2024
29.11.2024
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