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Madras High CourtWP(MD)/21494/2023allowed

E.Ayyappan v. The Deputy Inspector General Of Registration

2024-09-02Honourable Mr Justice N. Sathish Kumar8 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.09.2024

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR and W.M.P(MD).Nos.17882 and 17883 of 2023 E.Ayyappan ... Petitioner Vs., 1.The Deputy Inspector General of Registration, Registration Department, St.Mark Street, John's High School Backside, Palayamkottai, Tirunelveli 627 002.

2.The District Registrar (Administration) Registration Department, Tenkasi District, Tenkasi.

3.Murugan 4.Latha 5.N.Muthiahsamy 6.M.Thirumalai Kumar 7.Mohanlal N.Patel ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent in his impugned order Na.Ka.No.6250/jgp/2022 dated 27.07.2023 and quash the 1/8

same as devoid of merits and restraining the seventh respondent not ot alienate or encumber the joint family property of the petitioner. For Petitioner : Mr.R.Iyappan For Respondents : Mr.P.Subbaraj (For R1 & R2) Special Government Pleader Mr.D.Srinivasaragavan (for R7) Mr.V.P.Rajan (for R6) No appearance (for R4)

ORDER

Challenging the impugned order relegating the parties to go to the civil Court seeking cancellation of document, this writ petition has been filed.

2. The brief fact of the case is that the land in Survey No.60/7 to an extent of 40 cents situated at Vallam Village, Senkottai Taluk, Tenkasi District, originally belongs to the petitioner's father, namely, Esakki Thevar. He executed a registered general power deed in favour of one Sheeba. After the demise of the petitioner's father, the said Sheeba taking advantage of the power deed had executed a registered sale deed in respect of the subject property in favour of one Lilly Florence, who in turn executed the sale deed in favour of the seventh respondent. In this regard, the legal heirs of the said Esakki Thevar filed a suit in O.S.No.112 of 2010 before the District Munsif Court, Senkottai, seeking recovery 2/8

of possession and they also executed a general power deed in favour of the petitioner's brother, namely, Murugan/third respondent herein. The said suit was dismissed, as against which, appeal suit has been filed and the same was allowed on 08.01.2019. Thereafter, the third respondent in collusion with respondents 4 and 7 had executed fraudulent sale deeds vide Doc Nos.404 of 2019, 1184 of 2019, 1283 of 2019 and 727 of 2022. Hence, the petitioner has given application before the second respondent for cancelling the aforesaid documents. After enquiry, the authority concerned directed the parties to approach the civil Court. Challenging the same, the petitioner is before this Court.

3. Heard both sides and perused the materials available on record.

4. Considering the facts and circumstances of the case, this Court is of the view that the Registering Authority has no power to cancel the document already registered. In Satya Pal Anand vs. State of Madhya Pradesh and others reported in (2016) 10 SCC 767, the Hon'ble Supreme Court has held that power conferred on the Registrar by virtue of Section 68 cannot be invoked to cancel the registration of the document already registered. Sections 22-A and 22-B were inserted by Tamil Nadu Act 28 of 2022 and Act 41 of 2022 respectively to prevent 3/8

registration of certain category of the documents. Thereafter, Section 77-A has been brought by Act 41 of 2022 to cancel the document registered in contravention of Sections 22-A and 22-B not beyond it. Now, Section 77-A of the Registration Act, 1908 also is struck down by the Hon'ble Division Bench of this Court in W.P.No.10291 of 2022 batch as unconditional. Such being the position, this Court is of the definite view that the title cannot be decided by the Registering Authorities. These facts have been discussed by this Court in W.P.No.29706 of 2022 [G.Rajasulochana Vs. Inspector General of Registration and others] and the Order in the writ petition is as follows: "... 3. It is relevant to note that the object of the law of registration is to provide public notice of the transaction embodied therein.

The execution of documents and its validity, the right created or extinguished is governed by the substantive law namely the Transfer of Property Act, 1882. The provisions contained in the Registration Act, 1908 relates to the factum of registration alone. The Hon'ble Supreme Court in the case of State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 has held as follows: "The Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn."

4. The practice has been developed in the recent past in Tamil Nadu to entertain the applications given by the so-called affected parties to cancel all the documents under the pretext of either forgery or fradulent transactions. The Inspector General of Registration, Government of Tamil Nadu has brought out Circular No.67 dated 03.11.20211 to deal with the 4/8

fraudulent registrations through impersonation. The said circular is mainly based on the judgment of the Full Bench of the Andhra Pradesh High Court in the case of YanalaMalleshwari v. AnanthulaSayamma, reported in AIR 2007 AP 57. However, the three bench of Hon'ble Apex Court in the case of Satya Pal Anand v. State of M.P., reported in (2016) 10 SCC 767 has held that the power of the Registrar, under the Registration Act, is purely administrative and not quasi-judicial. The same is extracted hereunder:

"34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan [State of U.P. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787] ). Section 17 of the 1908 Act deals with documents which require compulsory registration. Extinguishment deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to government maps and surveys. There is no express provision in the 1908 Act which empowers the Registrar to recall such registration.

The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question.

superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered."

5. In fact, the Hon'ble Apex Court has held that and in the absence of any express power to cancel the registered document, the Registrar has no power to cancel the document. Section 68(2) of the Registration Act, 1908 relied upon by the Registration Department to substantiate the circular in this regard, when carefully seen. Section 68(2) of the Registration Act, 1908 reads as follows:

"68. Power of Registration to superintend and control Sub Registrars.

(1) every Sub Registrar 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."

6. The above provision makes it clear that the said section confers power upon the Registrar to supervise and control all the acts of the Sub-Registar. Sub-Section 2 empowers the Registrar to issue any order consistent with the Act, which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him. Similarly, the Registrar shall also have power in respect of the rectification of any error regarding the book or the office in which any document has been registered. 6/8

The above power empowering the Registar to issue any order is a power of superitendence and supervision and not a power vested to cancel the registration of the document. Therefore, relying upon Section 68(2) of the Registration Act, 1908 and issuing such circular cannot be valid in the eye of law. Unless a specific power and express provision is made in the Act empowering the Registrar to cancel the document, such powers cannot be conferred by the Inspector General of Registration by taking aid of 68(2) of the Registration Act, 1908."

5. In view of the above, this Court do not find any merits to interfere with the impugned order passed by the first respondent and accordingly, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.

02.09.2024 NCC : Yes/No Index : Yes/No Rmk To 1.The Deputy Inspector General of Registration, Registration Department, St.Mark Street, John's High School Backside, Palayamkottai, Tirunelveli 627 002.

2.The District Registrar (Administration) Registration Department, Tenkasi District, Tenkasi.

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N.SATHISH KUMAR , J.

Rmk 02.09.2024 8/8