Kameshwaran.S v. The Sub Registrar

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.10.2021

CORAM

THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY S.Kameshwaran ... Petitioner Vs.

The Sub Registrar, Sholavanthan Sub Registrar Office, Madurai District.

...Respondent

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 impugned refusal check slip in RFL/Sholavanthan/26/2021 dated 06.08.2021 issued by the respondent and quash the same and consequently direct the respondent to register the settlement deed dated 06.08.02021 executed by the petitioner in favour petitioner's son viz. Sivasubbramanian on re-presentation within stipulated time fixed by this Court.

For Petitioner : Mr.K.R.Manimaran For Respondent : Mr.K.S.Selva Ganesan Counsel for State

ORDER

The petitioner assails a refusal check slip dated 06.08.2021 of the respondent.

2.The petitioner traces title to the property bearing old S.No.724/8, new S.No.773/26, Ward No.7, Sholavanthan Village, Vadipatti Taluk, Madurai District, through his mother, namely, S.Chellammal. It is asserted that the petitioner's mother purchased the said property under a registered sale deed dated 07.09.1995, bearing Document No.1131/1995. Thereafter, by Will dated 30.06.2007, it is stated that the property described in schedule "B" property to the said Will was bequeathed in favour of the petitioner. Upon the demise of the petitioner's mother on 18.01.2009, it is stated that the said Will came into force and the petitioner succeeded to the estate described in schedule "B". 1/3

In order to settle the property bequeathed to him in favour of his son, the petitioner executed a settlement deed and presented the same for registration on 06.08.2021. The said application for registration was rejected by the impugned order. 3.By adverting to the impugned order, the petitioner contends that such order is unsustainable because the non-registration of the Will and the failure to obtain a probate in respect thereof have been cited as reasons for refusal to register. By relying upon an earlier order of this Court in W.P.(MD)No.16999 of 2020, the petitioner contends that the Registration Act, 1908 does not include a Will in the category of documents which require compulsory registration. As regards the obtaining of probate, the petitioner points out that probate is not required since the Will was executed in Madurai and the relevant property is situated at Sholavanthan Village.

4.Mr.K.S.Selva Ganesan, learned counsel for the State, accepts notice for the sole respondent. He points out that the impugned order also records that the petitioner had not obtained a mutation of the patta relating to the relevant property in his name. Therefore, he submits that the impugned order does not call for interference.

5.Upon scrutiny of the impugned order, it is evident that three reasons are cited therein. The first is the nonregistration of the Will, the second is that probate has not been obtained in respect of such Will and the third is that the patta was not mutated in favour of the petitioner.

6.As regards non-registration and not obtaining probate, the contentions of the petitioner are liable to be accepted. The law does not make the registration of a Will mandatory. Likewise, unless the Will was executed in a presidency town or the property bequeathed thereby is situated in a presidency town or a notified town, probate is not mandatory. However, the third reason cited therein, namely, that patta mutation should be effected before the document is represented is a valid reason in view of Section 5 of the Tamil Nadu Patta Passbook Act, 1983. Therefore, the impugned order is liable to be interfered with as regards the first two reasons cited therein, but not as regards the third reason. 7.In the aforesaid facts and circumstances, the petitioner is permitted to take necessary steps to obtain a mutation of the patta in his name.

Once the petitioner obtains the mutated patta, the petitioner is permitted to resubmit the document for registration before the respondent.

Will or the obtaining of a probate in respect thereof. 8.W.P.(MD).No.18847 of 2021 is disposed of on these terms without any order as to costs.

Sd/- Assistant Registrar (Crl) // True Copy // / /2021 Sub Assistant Registrar(CS) sji Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To The Sub Registrar, Sholavanthan Sub Registrar Office, Madurai District.

+1 CC to M/s.SPL.GP ( SR-32572[F] dated 26/10/2021 ) +1 CC to M/s.S.MANIMARAN, Advocate ( SR-32600[F] dated 26/10/2021 ) 25.10.2021 RK/UV (02/11/2021) 3P 4C 3/3