High Court ruling on sale deed registration
MADURAI, January 19, 2013
Recently I came across a news item in the daily newspaper that the sub-registrar of a particular place in Tamil Nadu was locked inside his office for entertaining registration of a land with the help of fraudulent documents. Since this sort of things are happening quietly in Tamil Nadu and I am one of the victim, I just searched what the law says about it. While searching, I came across the news item “High Court ruling on Sale Deed registration” which made to write this article.
The content of the news item says :
As per the law in force, the Registration Department cannot refuse to register sale deeds by raising doubts over the right of the executants to sell the immovable properties, the Madras High Court Bench here has held.
Justice R. Subbiah said that if the Inspector General of Registration had issued any administrative instructions asking Sub-Registrars to enquire about the executants’ right of ownership, such instructions were illegal and liable to be set aside. The judge pointed out that as per Section 55 of the Registration Act, an officer could refuse to register a document only if there were allegations of impersonation or forgery of documents or if the executing party was a minor or of unsound mind and such other reasons.
However, it forms no part of a registering officer’s duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute it.
The observations were made while allowing a writ petition filed by a woman who wanted to purchase 20 cents of land at Thiruvudayarpatti village in Sivaganga district. A Sub-Registrar had refused to register her sale deed on the ground that the property did not belong to the purchaser from whom she intended to buy it. Holding that the Sub-Registrar was wrong in taking such a decision, the judge agreed with senior counsel M. Ajmal Khan, appearing for the petitioner, that disputes, if any, over the title of a property could be decided only by a civil court and not by the officials of the Registration Department.
Though a government counsel claimed that the Sub-Registrar had acted in accordance with executive instructions issued by the Inspector General of Registration in order to prevent fraudulent registrations, the judge said that such instructions were not in conformity with the Act.
I was surprised and shocked to read the news item which appeared in one of the leading newspaper dated January 19,2013.
Suppose, if you are buying an immovable property and go the sub-registrar’s office, to register the same and the registration officials deny the registration saying that the seller is not the genuine owner, What will be your action after hearing the fact from the sub-registrar ? Will you try to cancel the purchase or go ahead with the purchase ? Assuming that the seller is the original owner, protesting the Sub-Registrar’s act, naturally who will come forward to file a suit against the Registrar ? The Buyer or Seller ? Here is an interesting suit filed in the High Court Bench of Madras at Madurai.
A writ petition was filed by a woman who wanted to purchase 20 cents of land at Thiruvudayarpatti village in Sivaganga district. A Sub-Registrar had refused to register her sale deed on the ground that the property did not belong to the purchaser from whom she intended to buy it. Holding that the Sub-Registrar was wrong in taking such a decision, the judge agreed with senior counsel M. Ajmal Khan, appearing for the petitioner, that disputes, if any, over the title of a property could be decided only by a civil court and not by the officials of the Registration Department.
What is the purpose of Registration ? Is it not for giving legal status for the document that is getting registered ? Can a person representing in official capacity of the Government go ahead and register a document knowing pretty well that it is a fraudulent registration. Even if there is no provision, and there is hole in the Registration Act, does n’t the Government has the authority to amend the Registration Act ? Does the judge want all such disputes should come to court and court only has the authority to decide ? Why should you allow the hole exist and invite trouble ?
The judge pointed out that as per Section 55 of the Registration Act, an officer could refuse to register a document only if there were allegations of impersonation or forgery of documents or if the executing party was a minor or of unsound mind and such other reasons.
What is impersonation ? I guess that according to Honourable Judge, if a person Y acts as the person X posing himself and telling that he is X, then only it impersonation. Taking X’s property from his hand illegally by Y as that of his (Y’s) is not a crime and even if it is known, the Registrar should close his eyes and go ahead. Is that what the honourable justice wants to tell? According to the Judge, it should be decided by the Civil Court. It is agreed, provided if there is a dispute between two or more parties regarding the ownership, then it is fine to say that it should be decided by the Civil Court. But when a person sells or attempts to sell someone’s property, where from comes the dispute ? As long as the document held with the registration officials does not contain the seller’s name or it is proved that the seller has got the power to do so or the seller is the legal heir to the original owner, the seller cannot be accepted as the owner of the property. In many cases, without the knowledge of the original owner, fraudulent persons indulge in such grabbing activities. Because they know pretty well that if the matter goes to the court it will prolong for years and by the time when the judgment is delivered either he or his opponent or both may not be alive or even if both are alive, the property goes to the rightful owner and the fraudulent person go scot free with minimal punishment of paying the legal expenses to the genuine person if at all claimed. The ultimate sufferer is the genuine rightful owner who has to undergo unnecessary mental turmoil apart from physical and financial strain.
I am shocked to read the statement of the judge saying that “However, it forms no part of a registering officer’s duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute it.”. Then what about the Section 82 of the Registration Act ? To whom and what for it is meant ? If I am caught by the police for driving after consuming alcoholic drinks and if I argue with the police officials saying that I have not consumed alcoholic drink but I have taken only whisky or brandy, will they allow me to go free ? Or if a lawyer enters the court hall after consuming alcoholic drinks and if he argues saying that he had not taken alcoholic drinks but only beer/brandy/whisky, will the judge allow him ? The same thing applies here also. The Registration Act Section 34 Rule 55 says that the seller, buyer, witness should be identified. The identification implies that the seller is the genuine owner or power holding person or legal heir. Though not explicitly said, it implies. OK for consensus sake let us agree with that view. How the seller, buyer, witness are identified ? Do the Registration Act explicitly say that they have to verify Ration Card, Passport, Voted’s id or Bank Passbook etc. Then how can the Registration officials can take their own decision by asking for one of the document which has not been mentioned in the Registration Act ?
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU in Writ Petition No.8567 of 2008 and M.P.Nos. 1 and 2 of 2008 had said that “Section 34 and Rule 55 speak of the limitations on the powers of the Registering Officer to hold enquiry, which would only mean that the Registering Officer is not required to hold a roving enquiry to decide the validity of a document presented for registration. On the other hand, if, by simply glancing through the document, without there being any necessity to hold any enquiry, the Registering Officer is satisfied that the document is either void ab initio or illegal, in such a situation, it cannot be said at any stretch of imagination, that the Registering Officer has to blindly register the said document. Such kind of construction of Section 34 and Rule 55 would only defeat the very object of the Act and the public interest. For example, if two persons enter into an agreement thereby one party agrees to kill one "X" for the consideration to be paid by the other and present the deed for registration, can it be said that the Registering Officer is bound to register the said document?" If such documents, which are patently void ab initio or illegal, are allowed to be registered, then,such kind of interpretation of the Registration Act would not serve the cause of justice. The Hon'ble Supreme Court in Kishan Chandar v. Ganesh Prasad reported in A.I.R. 1954 SC 316, has held "the registration Act lays down the formalities and rules of procedure which must be complied with before the document is presented for registration. It is the duty of the Registrar to see proper compliance with the provisions of the Act before the document is registered".
In the said backdrop, if the entire scheme of the Act and the rules are analysed, then it would make one to understand without any doubt, that the Registering Officer either on enquiry or without an enquiry, should, besides other things, prima facie be satisfied that the document is neither illegal nor void and then to register the same provided the other requirements are satisfied. If the document is ipso facto illegal or void, then, he is not obliged to register the same and instead he should refuse to register the said document.
To constitute a valid execution, it should be executed by all parties to the earlier sale. Needless to say that unless there is valid execution by competent persons, the Registering Officer has to necessarily refuse to register the document.
In the minority judgment of His Lordship Justice Bilal Nazki in para 120, the learned Judge has held as follows:-
" Lastly, it was contended by the respondents that under no provision of law the Sub-Registrar is required to register a document after an enquiry as to the ownership of the property with respect to which a document is sought to be registered. It may be true that there is no such provision in the Registration Act, but if strictly interpreted, then the Registration Act would not empower the registering authority to register any document unless it falls within Section 17 or 18 of the Registration Act. Section 17 mentions those documents which are compulsorily registrable and Section 18 mentions those documents, of which, the registration is optional, but, the whole scheme of the Registration Act shows that it is incumbent upon the Registrar not to register documents that are unlawful. Obviously if a person has no right in the property and his interests in the property had extinguished, if he tries to execute any document for the same property, the document would be illegal......................."
".........It is only on mere reading of the document that Sub-Registrar would come to a conclusion that the document, which was sought to be registered, was an illegal document and as such could not be registered. Therefore, the argument of the learned counsel for respondents that the Sub-Registrar has no authority to make enquiries with regard to the title of the parties who executes the documents, would have to be accepted with exceptions. That document has no title over the property, the Sub-Registrar is not bound to register such a document.
Two different judges of the same court but two different views. I leave it for your judgment to decide which one is correct.
What a meticulous judicial system ?
