Kathan .K v. The District Registrar

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.09.2023

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI K.Kathan ... Petitioner verus

1. The District Registrar, Dindigul District, Dindigul.

2. The Sub Registrar, Office of the Sub Registrar, Attur, Dindigul District.

3. K.Kamatchi

4. S.Ramasamy

5. S.Chinnaraman

6. S.Ramakrishnan

7. S.Manikandan ... Respondents 1/8

Writ Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the 1st respondent in O.Mu.No. 3924/Aa3/2023 dated 21.06.2023 and quash both the same and further direct the 1st respondent to enquire D.No.95/1998 dated 09.02.1998, registered before the 2nd respondent office and consequently, endorse the report of the same in the registry of the said office.

For Petitioner : Mr.T.Selvam For R1 and R2 : Ms.D.Farjana Ghoushia, Special Government Pleader

ORDER

The petitioner claims that he and his brothers are in joint possession of the property in Survey No.598/5 to the extent of 50 cents situated at Pachaimalayan Kottai Village, Nilakkottai Taluk, Dindigul District. While so, one of his brothers, Muthukaruppan has sold his undivided share to one Samayan vide D.No.1054/1983 dated 30.11.1983. Thereafter, the said property was partitioned equally. While so, the 3rd respondent, one of his brothers, with an intention to grab his property, created a sale deed with the respondents 4 to 7 who are the legal heirs of Samayan, under Document No. 2/8

95/1998 dated 09.02.1998. Therefore, the petitioner has submitted a representation dated 19.06.2023 to the first respondent to enquire into the same. But, the first respondent, by impugned proceedings dated 21.06.2023, passed an order stating that the complaint made by the petitioner relates to title dispute and it cannot be enquired under Sections 77-A and 22-B of the Registration Act. Aggrieved over the same, the present writ petition has been filed.

2. The Hon'ble Supreme Court in Satya Pal Anand v. State of M.P., [(2016) 10 SCC 767] has held that that the power to cancel the registration is a substantive matter and in the absence of any express provision on that behalf, it is not open to assume that the Registering Officer would be competent to cancel the registration of the documents in question. Therefore, for cancellation of registered documents, the State of Tamil Nadu brought an amendment to the Registration Act, vide the Registration (Tamil Nadu Second Amendment) Act, 2021. By this amendment Act, Sections 22B, 77A, 77B, 81A and 81B were inserted in the Registration Act. Section 77A provides the power to the Registrar to cancel registered documents, if it is 3/8

found to be in contravention of sections 22A and 22B.

3. Whereas, this Court in S.M. Hajabakrutheen Vs. The Inspector General of Registration [W.P.(MD) Nos. 14546 of 2022 batch, dated 27.03.2023], in view of the conflicting views taken by two different benches of this Court regarding the applicability of Section 77A, has referred various issues for consideration by a Larger Bench of this Court. The relevant portion of the reference order is extracted as follows- "20. In view of the reasonings of the Full Bench and in view of the conflicting views of the two learned Single Judges the following issues are referred for due consideration by a Larger Bench of this Court.

i) whether the recitals in a document presented for registration, can be examined to determine that such document was fraudulently executed or registered;

ii) whether a document in which the recitals alone are questioned can be considered only as voidable which would normally necessitate the filing of the suit to set aside the particular document or whether even those documents can be cancelled by the Sub Registrar under Section 77A of the Registration Act;

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iii) whether exercise of power under Section 77A must be restricted to registration of documents in contravention to Section 22-A or 22-B of Registration Act, 1908 alone? iv) whether the exercise of such power under Section 77A of the Registration Act can be prospective in nature or retrospective in nature?

21. To determine these issues, the Registry may place all the writ petitions before the Hon'ble Administrative Judge for constitution of a Larger Bench to examine the issues in detail.

22. Till a decision is rendered by the Larger Bench, let no further action be taken by any of the Sub Registrars, who may await further orders of the Larger Bench."

4. By referring to the above order, this Court in A.Shanthi v. The District Registrar [WP.No.18814 of 2023, dated 27.06.2023] has reiterated that the District Registrars across Tamil Nadu shall not take any action on an application under Section 77A of the Registration Act, till the reference is answered by the Larger Bench. The relevant portion is extracted as follows:- "4.In the light of the above order, there is no scope for 5/8

considering the representation made by the petitioner at present and the petitioner has to necessarily await for the final orders to be passed by the Larger Bench on the issue. Hence, this writ petition is closed for the present.

5.It is brought to the notice of this Court that in spite of the above order passed by this Court, the District Registrars are entertaining the applications under Section 77A of the Registration Act and even orders are passed. It is not known as to whether this order was circulated to all the District Registrars in State of Tamil Nadu. In view of the above order, this Court once again reiterates that the District Registrars across Tamil Nadu shall not take any further action on the application submitted under Section 77A of the Registration Act, till a final decision is rendered by the Larger Bench. The Inspector General of Registration is directed to issue a Circular in this regard to all the District Registrars across the State of Tamil Nadu immediately"

5. In view of the above decisions, this writ petition is disposed of with liberty to the petitioner to approach the competent civil Court and if any civil suit is filed, the same shall be entertained by the civil Court by excluding the period for which this writ petition was pending before this Court for the 6/8

purpose of calculating the limitation period. The writ petitioner is also at liberty to invoke Section 77A of the Act upon the outcome of the reference made. No costs.

Index :

Yes / No 25.09.2023 NCC :

Yes / No ogy To

1. The District Registrar, Dindigul District, Dindigul.

2. The Sub Registrar, Office of the Sub Registrar, Attur, Dindigul District.

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B.PUGALENDHI, J.

ogy 25.09.2023 8/8