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.{Para 10}
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 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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
W.A.No.1160 of 2024
P.Pappu Vs The Sub Registar,
CORAM :
MR.JUSTICE R.SUBRAMANIAN
and
MR.JUSTICE R.SAKTHIVEL
DATED : 27.09.2024.
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
Aggrieved by the dismissal of the writ petition challenging the
refusal check slip issued by the Sub Registrar, Rasipuram dated 30.11.2023, the
petitioner/appellant had moved this Court in W.P.No.242 of 2024. The refusal
check slip was issued on the ground that the petitioner has not produced the
original of the antecedent title deeds. The petitioner/appellant had sought to
register a release deed dated 30.11.2023 in and by which, she sought to
relinquish her rights over certain immovable properties in favour a brother. It is
not in dispute that those properties belonged to the family and were allotted to
the father of the executant / petitioner under the partition deed dated
04.10.1960 and the sale deed dated 18.01.1966. The revenue records that stood
in the name of the father were also produced. The Sub Registrar, however,
relied upon the second proviso to rule 55A(i) of the Tamil Nadu Registration
Rules, refused to register the document and issued the impugned check slip.
The petitioner, however, produced certified copies of those documents which
were also issued by the very same office namely, Sub Registrar, Rasipuram.
Since the prayer of the petitioner was rejected by the Writ Court, the petitioner
has come up with this appeal.
2. We have heard Mr.N.Manokaran, learned counsel appearing for the
appellant and Mr.R.Ramanlaal, learned Additional Advocate General assisted
by Mr.L.S.M.Hasan Fizal, learned Additional Government Pleader appearing
for the respondent.
3. Mr.Manokaran, learned counsel appearing for the appellant would
vehemently contend that Rule 55A of the Tamil Nadu Registration Rules itself
is against the provisions of the parent Act namely, the Registration Act, 1908.
He would submit that it runs counter to various provisions of the substantive
law relating to transfer of immovable property namely, The Transfer of Property
Act, 1882. If a State legislature intends to enact the law which will be
inconsistent with the central enactment in respect of matters enumerated in List
III of Schedule 7 of the Constitution of India, Article 245 of the Constitution of
India requires that the State law should be reserved for the assent of the
President and upon such assent being granted after the President is apprised of
the inconsistency, the State law would prevail in that State. He would point out
by placing Rule 55A of the Tamil Nadu Registration Rules in the subordinate
legislation that the State has circumvented the provisions of Article 245 of the
Constitution of India. He would therefore submit that the very rule which lays
down several conditions for registration of instruments of transfer of
immovable property being inconsistent with the Transfer of Property Act, 1882,
it cannot be invoked by the Sub Registrar indiscriminately to deny registration
of instruments.
4. The learned counsel would further point out that mechanical
application of rule 55A of the Tamil Nadu Registration Rules, will only lead to
even a genuine transfer instruments being refused registration. He would also
draw our attention to two Division Bench judgments of this Court to which one
of us (R.SUBRAMANIAN, J.) was a party. The first judgment relied upon by
him is M.Ariyanatchi and another vs. The Inspector General of
Registration, Chennai, and another [W.A(MD)No.856 of 2023, dated
27.06.2023], wherein, this Court had taken note of the very same provision and
held that production of original documents, where it is claimed that it is lost,
need not be insisted upon in all cases across the board without application of
mind. Reliance is also placed on the judgment in Punithavathy vs. Inspector
General of Registration, Chennai and three others [W.A.No.1571 of 2024,
dated 05.06.2024], where, again a refusal check slip issued by the Registrar on
the ground of non production of original documents, was quashed. The learned
counsel would also draw our attention to the judgment of the learned Single
Judge of this Court in The Federal Bank Ltd., vs. The Sub Registrar,
Pollachi, [W.P.No.2758 of 2023, dated 08.02.2023], where, it was pointed out
that the entire rule 55-A violates the constitutional right enshrined under Article
300A of the Constitution of India.
5. Contending contra, Mr.R.Ramanlaal, learned Additional Advocate
General appearing for the respondent would submit that the judgment in
Federal Bank Ltd's case has been appealed against and the appeal is pending.
He would also claim that the provision namely, Rule 55-A has been introduced
only to prevent fraudulent transactions and creation of multiple encumbrance
over the property which leads to multiplicity of legal proceedings. The learned
counsel would also submit that there is no absolute bar on registration of
documents which are not accompanied by the originals of the parent document.
It is always open to the presentant or the executant to produce a non traceability
certificate issued by the jurisdictional police along with the publication and get
the instrument registered. Several clarifications have also been issued by the
Inspector General of Registration taking into account various issues that crop
up in implementation of Rule 55-A. The learned counsel would also point out
that in one such circular, the need for production of non traceability certificate
has been dispensed with if it is shown that the original document is a partition
deed which is in the custody of somebody else.
6. We have considered the rival submissions.
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 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 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 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.
11. The Writ Petition stands allowed on the above terms. No costs.
(R.S.M, J.) (R.S.V, J.)
27.09.2024
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