Sunday, August 17, 2014

Registrar need not inquire into the title of the property

Registration Act, 1908, Ss. 34, 35, 36, 37, 38, 52, 55, 57, 58, 59, 60, 61, 63, 64, 65, 66, 68, 70, 72, 73, 74, 75 and 83 - The Sub Registrar cannot conduct a roving enquiry regarding title and ownership - The registering authority cannot verify the title of the vendor - Under the Indian Registration Act, 1908, the Registrar need not inquire into the title of the property while registering a document. (DOJ: 22-12-2011) (Rajambal Vs. The Inspector General of Registration and 2 others) (V.Ramasubramanian, J) (2012 (1) CWC 627 : 2012 (2) CTC 289) (http://indiankanoon.org/doc/154849770/

Also read the FULL Judgment as follows:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN

W.P.(MD)No.11651 of 2011 and M.P.(MD) No.1 of 2011, dated 22 December, 2011

Rajambal ..... Petitioner

Vs.

1.The Inspector General (Registration), Government of Tamil Nadu, 120 Santhome High Road, Chennai.

2.The District Registrar, Karaikkudy, Sivagangai District.

3.The Sub Registrar, Subramaniyapuram and Post, Aranthangi Taluk, Pudukkottai District. ..... Respondents

Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records from the third respondent in his proceedings in "Villai No.3/2011 dated 7.7.2011" and quash the same and consequently direct the respondents, particularly the third respondent to receive and register the Sale Deed dated 23.6.2011 in favour of the petitioner.

For Petitioners ... Mr.N.Balakrishnan

For Respondents ... Mr.M.Alagudevan, Special Government Pleader.

ORDER

The petitioner has come up with the above writ petition, challenging a demand made by the Sub Registrar, Subramaniyapuram, who is the third respondent herein, calling upon the petitioner to produce the revenue records and the 10(1) chitta issued by the Tahsildar to complete the formality of registration of a Sale Deed presented by her.

2. I have heard Mr.N.Balakrishnan, learned counsel for the petitioner and Mr.M.Alagudevan, learned Special Government Pleader for respondents.

3. Four persons by name P.Panneerselvam, T.Balasubramaniyan, T.Muthu Ramalingam and T.Sathiyamoorthy of Rathinasinthamani village executed a Sale Deed dated 23.6.2011, conveying the land of an extent of 36 cents in Survey Nos.364/14, 364/15A and 364/15B, Arasarkulam, West Village, Aranthangi Taluk, Pudukkottai. The Sale Deed was presented for registration by the petitioner herein before the third respondent. But the third respondent returned the Sale Deed along with a memo dated 7.7.2011, calling upon the petitioner to produce (i) the revenue records standing in the name of the vendors and (ii) the order of the Tahsildar for the transfer of 10(1) chitta in favour of the petitioner herein. Challenging the demand so made by the third respondent, the petitioner has come up with the above writ petition.

4. The primary contention of the petitioner is that the demand made by the third respondent is without jurisdiction and in excess of the powers conferred by the Registration Act and the Rules. The learned counsel for the petitioner relies upon a few decisions of this Court as well as the stand taken by the Inspector General of Registration in an earlier case before this Court, where he conceded that the Registering Authority has no power to probe into the validity of title of the executant of a document.

5. The third respondent has filed a counter contending that the first respondent viz., the Inspector General of Registration had already issued a circular bearing No.20564/C1/2007 dated 17.5.2007, directing the Registering Authorities to ensure that the details regarding previous transactions and patta find a place in Sale Deeds. The circular, according to the respondents, was issued to prevent fraudulent transactions. The first respondent has also relied upon the provisions of Sections 5,9 and 15 of the Tamil Nadu Patta Pass Book Act, to sustain the demand made in the impugned order. Therefore, it is necessary to have a look at the provisions of the Registration Act, 1908, the Registration Rules, Tamil Nadu Registration Rules 1983 and the Tamil nadu Patta Pass Book Act.

THE ROLE OF THE REGISTERING OFFICER UNDER THE ACT:

6. Section 34 (1) of the Registration Act, 1908 stipulates that a document shall not be registered unless the persons executing such document or their representatives appear before the Registering Officer within the time allowed for presentation. If the document so presented is for the sale of a property, the person claiming under the document should also appear before the Registering Officer, along with the executants. The appearance of all the executants and the person claiming under the document need not be simultaneous. They may appear at different times as it is permitted by sub-section (2) of Section 34.

7. Sub-section (3) of Section 34 requires the Registering Officer to do two things viz., (i) to enquire whether or not such document was executed by the persons who claim to have executed the same and (ii) to satisfy himself as to the identity of those persons or to the right of the representatives to appear, if the document is presented by a representative.

8. Section 35 deals with the procedure to be followed when all persons executing the document appear before him and they either admit or deny the execution of the document. The enquiry to be conducted under Section 35 is also limited only to the question of finding out the identity of the parties and the admission or denial of execution of the document. The Registering Officer may also conduct an enquiry if a person executing the document appears to be a minor or an idiot or a lunatic. Under Section 35(3)(a), the Registering Officer is obliged to refuse to register a document, if the executant of the document denies its registration.

9. Section 36 empowers the Registering Officer to request a Court to summon a person whose presence or testimony is necessary for registration of a document. The role assigned under the Registration Act, to the Registering Officer, at the stage of presentation of a document for registration, is thus limited only to a few things such as (i) satisfying himself about the identity of the persons (ii) satisfying himself that they have actually executed the document (iii) satisfying himself that the parties (executants in all cases and the executants and claimants in some cases) have signed such document and (iv) satisfying himself that persons who presented documents as the authorised representatives of the executants were in fact so authorised validly.

10. Part XI of the Act lists out the duties and powers of the Registering Officers. But this Part relates to Registers and Books to be maintained, the entries to be made therein and the indexes to be entered and the endorsements to be made by the Registering Officers.

11. Part XII of the Act, prescribes the procedure for refusal to register a document and the remedies available against such refusal. The refusal of a Sub Registrar to register a document on the ground of denial of execution, is appealable under Section 73. The refusal to register on any other ground is appealable under Section 72. The order passed by the Registrar, refusing to register the document can be challenged in a Civil Court under Section 77(1). 

THE ROLE OF THE REGISTERING OFFICER UNDER THE REGISTRATION RULES:

12. The erstwhile State Government appears to have approved a set of Rules known as the Registration Rules under Section 69 (former) of the Act and they were published on page 611 of Part II of the Fort St. George Gazette dated 28.6.1949. Chapter VII of those Rules deals with "presentation and examination of documents". Rule 22 prescribes the procedure to be followed by the Registering Officer, before accepting a document for registration. The said Rule reads as follows:-

"Every document shall before acceptance for registration be examined by the registering officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with. If there is any informality in presentation of a nature which can be remedied, the registering officer shall give the party such information as may be necessary and return the fees and the document in accordance with rule 27 with a view to the document being presented again in due form. For instance, in cases such as those mentioned below, he should explain the defect to the presentant, if the document is presented in the wrong office; if an agent has come without a power of attorney or without such a power as the Act requires; if the description of the property is either insufficient for purposes of identification or does not fulfil the requirements of Rules 16 to 18; if the document is not accompanied by a translation or by copy of a map when such translation or copy is necessary; if there are unattested interlineations, alterations erasures or blanks, which the Registering Officer considers should be attested by the initials or signatures of the executants; if the date of execution is not given in the document, or if it is anterior to the date of purchase of the stamp paper on which the document is written, or if the date is given according to both the British and the Indian calendars and these dates do not tally."

13. In simple terms, the enquiry required to be conducted by the registering officer under Rule 22, should be in relation to the following:- (i) if the document is presented in the wrong office; (ii) if an agent has come without a power of attorney or without such a power as the Act requires;

(iii) if the description of the property is either insufficient for purposes of identification or does not fulfil the requirements of Rules 16 to 18;

(iv) if the document is not accompanied by a translation or by copy of a map when such translation or copy is necessary;

(v) if there are unattested interlineations, alterations, erasures or blanks, which the Registering Officer considers should be attested by the initials or signatures of the executants; and

(vi) if the date of execution is not given in the document, or if it is anterior to the date of purchase of the stamp paper on which the document is written, or if the date is given according to both the British and the Indian calendars and these dates do not tally."

14. In other words, the scope of the enquiry to be conducted by the Registering Officer, under the aforesaid rules, is restricted to (i) the identity of the persons (ii) the identity of the property (iii) the attestation of any interlineations or alterations (iv) the date of purchase of the stamp paper vis-a-vis the date of execution.

15. The duty of the Registering Officer to satisfy himself about the identity of the property arises out of Sections 21 and 22 read with Rules 16 to 18. Under Section 21 (1), a non-testamentary document relating to immovable property cannot be accepted for registration unless it contains a description of the property sufficient to identify the same. The other sub-sections of Section 21 as well as Section 22 deal with description of houses in towns. Rules 16 to 18 present in detail, the manner in which the description of the property should be made in a document.

16. Rule 26(i) stipulates that if a document relates to land in respect of which the State Government had framed Rules under Section 22(1), the Registering Officer should check the survey numbers and sub-divisions in the indexes maintained under Rule 125. If necessary, he should also check up the Settlement Registers to ensure that no incorrect or fictitious numbers is entered in the document. Under Rule 26(ii), the Registering Officer is also entitled to make a reference to the Revenue Department, if the survey number of a sub-division is not found in the subsidiary indexes or Settlement Registers.

17. Chapter XI of the Rules deals with the examination of parties and the enquiries before registration. The provisions of Rule 55 make an interesting reading. It is extracted as follows:-

"55. 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 the document; but he is bound to consider objections raised on any of the grounds stated below:- (a) that the parties appearing or about to appear before him are not the persons they profess to be;

(b) that the document is forged;

(c) that the person appearing as a representative, assign or agent, has not right to appear in that capacity;

(d) that the executing party is not really dead, as alleged by the party applying for registration; or

(e) that the executing party is a minor or an idiot or a lunatic."

18. In other words, rule 22 gives a list of "dos", while rule 55 gives a list of "dos" and "donts". Rule 57 states that even if the executant of a document appears to be a minor, lunatic or idiot, the Registering Officer is not expected to hold an elaborate enquiry. But this rule appears to be contrary to the prescription contained in section 35 (3) (b) of the Act. Any way I am not concerned in this case with the validity of rule 57.

19. Rule 162 makes it obligatory for the Registering Officer to record in Book 2, the reasons for refusal to register a document. Interestingly this Rule 162 lists out the various heads under which the refusal to register may fall. They are as follows:-

"162. When registration is refused the reasons for refusal shall be at once recorded in Book 2. They will usually come under one or more of the heads mentioned below---

I. Section 19.---That the document is written in a language which the Registering Officer does not understand and which is not commonly used in the District, and that it is unaccompanied by a true translation and a true copy. 

II. Section 20.---That it contains unattested interlineations, blanks, erasures or alterations which in the opinion of the Registering Officer require to be attested.

III. Section 21.---(1) to (3) and Section 22.-- That the description of the property is insufficient to identify it or does not contain the information required by Rule 18.

IV. Section 21(4).---That the document is unaccompanied by a copy or copies of any map or plan which it contains.

V. Rule 32.---That the date of execution is not stated in the document or that the correct date is not ascertainable.

VI. Sections 23, 24, 25, 26, 72, 75 and 77.---That it is presented after the prescribed time.

VII. Sections 32, 33, 40 and 43.---That it is presented by a person who has no right to present it.

VIII. Section 34.---That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time. 

IX. Sections 34 and 43.---That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document.

X. Sections 34 and 40.---That the Registering Officer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear.

XI. Section 35.---That execution is denied by any person purporting to be an executing party or by his agent.

Note:-When a Registering Officer is satisfied that an executant is purposely keeping out of the day with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused the non-appearance being treated as tantamount to denial of execution.

XII. Section 35.---That the person purporting to have executed the document is a minor, an idiot or a lunatic.

Note:-When the executant of a document who is examined under a commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic registration may be refused and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification.

XIII. Section 35.---That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed. Note:-When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being left to apply to the Registrar for an enquiry into the fact of execution.

XIV. Sections 35 and 41.---That the alleged death of a person by whom the document purports to have been executed has not been proved. XV. Section 41.---That the Registering Officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.

XVI. Sections 25, 34 and 80.---That prescribed fee or fine has not been paid.

{XVII. Section 230(A) of the Income Tax Act, 1961 (Act 43 of 1961).--That the prescribed certificates from the Income Tax Officer has not been produced. XVIII. Section 10 of the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961 (Act 58 of 1961).---That the declaration has not been filed by the transfer.

XIX. Section 27 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Act 24 of 1978).---That the statement has not been filed by the transferror and transferee.}

{Note:-Items XVII, XVIII and XIX added by G.O.Ms.No.1392, CT&RE, dated 21.12.1987 w.e.f. 1.1.1988}

{162-A. No Registration Officer shall accept for registration any document or service agreement evidencing bonded labour or transaction constituting an offence under any law or opposed to public policy or morality} {Note:-Rule 162-A added by G.O.Ms.No.691, CT&RE, dated 16.7.1980}"

20. Rule 162-A prohibits the registration of any document or service agreement, evidencing bonded labour or a transaction constituting an offence under any law or opposed to public policy or morality.

21. Apart from the above rules issued in 1949, The State of Tamilnadu also issued a set of rules known as Tamilnadu Registration Rules, 1983, but those rules relate to section 80-A of the Act and hence we are not concerned with the same in this case.

ROLE OF REGISTERING OFFICER AS PER JUDICIAL PRONOUNCEMENTS

22. In State of Rajasthan vs. Basant Nahata {2005 (12) SCC 77}, the Supreme Court confirmed the decision of the Division Bench of the Rajasthan High Court that struck down Section 22-A of the Registration Act on the ground that it conferred arbitrary powers upon the State Government to determine whether a particular document is opposed to public policy or not.

23. In S.Arunachalam vs. State of Tamil Nadu {1997 (1) CTC 129}, a Government Order in G.O.Ms.No.542, Municipal Administration and Water Supply Department, dated 29.4.1986 was set aside by a Division Bench . The Government Order in question in that case contained a direction to the Registration Department not to register documents relating to sale of house-sites for 45 days from the date on which a notice is served on the executive authority of the local body, to see if there are any objections from the local body for the registration of the document on the ground that the land conveyed was in an unapproved layout or not. The Division Bench set aside the Government Order on the ground that by executive orders, issued in terms of Article 162 of the Constitution, they cannot override a subject occupied by law passed by a competent legislature.

24. In Ramaswamy vs. The Inspector General of Registration {2003 (4) LW 319}, a learned Judge of this Court held that the registering authority cannot retain a document without registration, on the ground that the Executive Officer of a temple had requested him not to release it.

25. Following the decision of the Supreme Court in State of Rajasthan vs. Basant Nahata, a Division Bench of this Court struck down the amended Section 22-A of the Registration Act in Captain Dr.R.Bellie vs. Sub Registrar {2007 (3) LW 217} and declared the Government order G.O.Ms.No.150, dated 22.9.2000 as null and void .

26. In R.Sreedher vs. Registering Officer {2008 (1) MLJ 342}, a document presented for registration was retained on the ground that even admittedly, there was no patta for a part of the land, which was classified in the 'A' Register as a pond. While allowing the writ petition, a learned Judge of this Court pointed out that it is for the Revenue Authority and not the Registering Authority to decide whether patta can be granted for a property or not. But unfortunately, Section 5 of the Tamil Nadu Patta Pass Book Act, 1987 was not brought to the notice of the learned Judge. Under Section 5(1), it is stipulated that no document relating to transfer of any land by way of sale, gift, mortgage, exchange, settlement or otherwise shall be registered by the registering authority, unless the patta pass book relating to the land is produced. Section 5(2) of the Act, obliges every person seeking the registration of the document to pay along with the registration fees, the fees for effecting mutation in the revenue records also. These provisions were not taken note of in the said decision.

27. In Thiyagavalli Panchayathai Serntha Nochikkadu Grama Vivasayigal Sangam vs. The Chairman, TNEB {2008 (3) LW 766}, the Government issued an order prohibiting the registration of any document relating to about 910 hectares of land in two villages by name Thiyagavalli and Kudikkadu, on the ground that all the lands in those villages were likely to be transferred to a company by name Cuddalore Power Company Ltd. The said order was set aside by the Division Bench of this Court on the ground that the State Government has no power to issue such directions. But this decision stands on a different footing since, it arose out of a case where the Government prevented the original owners of all the properties from transacting on their properties, which offended their Constitutional rights.

28. In R.G.Rathinam vs. Sub Registrar {2009 (3) LW 890}, a learned Judge of this Court held that the Inspector of Police has no power to instruct the Sub Registrar not to register a document which was involved in a criminal case. It was held by the learned Judge in that case that the Sub Registrar cannot conduct a roving enquiry regarding title and ownership.

29. In T.Sundar vs. The Sub Registrar {2010 (2) CWC 159}, another learned Judge of this Court held that the registering authority cannot verify the title of the vendor.

30. In K.Palanisamy vs. Joint Sub Registrar {2010 (2) CWC 478}, a learned Judge held that under the Indian Registration Act, 1908, the Registrar need not inquire into the title of the property while registering a document.

31. In V.K.Amalraj vs. Inspector General {2011 (1) CWC 283}, a Division Bench of this Court was concerned with a public interest litigation, seeking a direction to the Inspector General of the Registration to take necessary preventive measures to stop forthwith, all unlawful registrations. The Inspector General of Registration filed a counter in the said public interest litigation contending as follows:-

"2. I submit that with regard to the averments made in the affidavit, the Registrars and Sub Registrars are appointed by the State Government by virtue of the provisions contained in Section 6 of the Registration Act, 1908 (hereinafter referred to as the "Act"). The powers and duties of the Registrars and Sub Registrars are enumerated under Sections 34, 35, 36, 37, 38, 52, 55, 57, 58, 59, 60, 61, 63, 64, 65, 66, 68, 70, 72, 73, 74, 75, 75 and 83 of the Act. The scope of the power of the Registrar/Sub Registrar while examining a document presented for Registration is spelt out under Sections 34 and 52 of the Act. The Registering Officer can examine a document presented for Registration Act, 1908 and the Rules issued thereunder. The Sub Registrar has no authority to verify the right and title of the executant.

(3) I submit that the respondent is not empowered under the Registration Act, 1908 to verify whether the person conveying the property has good and marketable title over the same.

(5) I submit that it is unfortunate that some transactions alleged to have been fraudulently and forged registered. But the Registering Officers are helpless as they can initiate action under Section 83 of the Act (Registering Officer may commence prosecution) only where Section 82 is applicable. Section 82 can be invoked for offences like false personation alone. It is beyond the authority and competence of the Registering Officer to attend to issues arising on the ground of title."

32. In the light of the above stand taken by the Inspector General of Registration the Division Bench held that Rule 55 does not provide for an enquiry by the Registering Officer with regard to the right and ownership of the seller. But even in this case, the provisions of Tamilnadu Patta Pass Book Act were not considered.

33. After taking such a stand in the counter filed in December 2009, in the above public interest litigation, the Inspector general of Registration has now issued a Circular bearing No.67 dated 3-11-2011 in C.No.52338/C1/2011). Though the Circular runs to 4 pages, it requires reproduction, since there is a discussion on the legal aspects. Therefore, it is extracted as follows:- "Circular No.67 Dated 3.11.2011 (C.No.52338/C1/2011)

Sub: Procedure - complaints relating to fraudulent registrations through impersonation or production of false documents and evidences-reg.
- - -

The large number of petitions being received in this department reveal that number of fraudulent registrations are increasing day by day. However, normal response of the department to such petitions is to direct the aggrieved parties to approach Civil Court. But, this reply to the petitioner is like committing double jeopardy against him. Hence, such a reply by the department cannot be treated as appropriate in the light of the statutory powers conferred upon the Registering Officers under Section 83 of Registration Act, 1908 to file criminal case against the persons who are involved in fraudulent registration through impersonation or other means. Hence, filing of FIR is one of the statutory duties of the Registering Officer when such complaint is received. However, no such complaints are being entertained by the Sub-Registrars and no enquiries are being conducted by them and consequently no action is being taken on such complaints by the Registering Officers.

Similarly, Section 82 of Registration Act provides for the grounds for action under Section 83 of the Registration Act and the quantum of punishment for the offences. The whole purpose of inserting Section 82 and 83 in the Registration Act, 1908 by the law makers was to punish the persons involved in registration of documents through impersonation or giving false admissions or statements or by presenting false copies or translations of any document/map/plan etc. However, mere punitive action will not suffice and serve the objective of the registration act which aims at arresting fraud. Therefore, the curative remedy is necessary not only to provide relief to the aggrieved party but also to arrest further fraud and cheating of innocent future purchasers. Only such a course of action can serve the principles of natural justice. A Bench of the Andhra Pradesh High Court (A/P.2007) has observed in Yanala Malleswari vs. Ananthalu Sayamma case that Court did not see any prohibition for the registering authority to cancel sale deed earlier registered, which is likely to cause prejudice to the rightful owners as well as entire public at lage.

In the same judgment, the Hon'ble High Court has observed that "It is thus law of the land that even administrative authorities have inherent powers to recall or revoke their own order if such order was obtained by playing fraud on such public authority". The judgment also refers to the observation of the Hon'ble Supreme Court in the case of Indian Bank vs. Satyam Fibres India Pvt. Ltd which is as follows:-

"Inherent powers (to recall or revoke their own orders by the administrative authorities if the same was obtained by playing fraud on such public authority) spring not from registration but from the nature and conservation of the authorities, to enable them to maintain their dignity, secure obedience to process and ensure transparency". In a nut shell, they have observed the following:-

It is therefore axiomatic that in India, the quasi judicial and administrative authorities have inherent powers to recall their orders or proceedings at a later point of time if it is shown that such order was obtained by playing fraud and misrepresentation. The question of applicability of law of limitation to exercise such inherent power by the administrative authorities does not arise because fraud unravels every thing rendering a fraudulent order void and non-existent. This principle in a different manner is also adumbrated in Section 21 of General Clauses Act, 1897 (Central Act No.X of 1897). Under the said provision, an authority who has power to issue, inter alia orders has also power to rescind such order.

Finally, they have opined as follows:-

"In the considered opinion of this Court if a person sells away the property belonging to other, it would certainly be fraud on the statute. It would be adding insult to injury, if such person is asked to go to Civil Court and get the subsequent sale deed cancelled or seek a declaration". In this regard, attention is further drawn to Sections 34(3) and 35 read with Rule 55 of the Registration Act, wherein duty has cast on the Sub- Registrars to consider objection raised on the grounds that the parties appearing before them are not the persons they profess to be or that the document is forged or that the representative/agent/assignee has no right to appear in that capacity or that the existing party is not really dead as alleged.

In the light of the above discussion, following mandatory procedure is prescribed to deal with the complaints, relating to fraudulent registrations through impersonation or production of false documents and evidences. 

(a) All such complaints of fraudulent registration received by the department have to be forwarded to the respective District Registrar (Admin) who shall register the same in a register of complaints relating to fraudulent registration in the following format:

Sl.No.

Date

Name and address of the applicant

Document No., and SR Office Name

Name and address of the executants, claimants and witnesses

(b) After entering the complaint, he shall issue notice to the executants of the document and witnesses to appear for enquiry along with the complainant and he should also take witness of the Registering Officer and if needed, call for the records from the revenue department and also summon the respective Village Administrative Officer (VAO) to appear before him with the village accounts.

(c) Once the enquiry is completed following summary procedure and it is proved that the registration has taken place through impersonation and through production of false documents and statements/admissions, he shall pass orders to this effect, recording his findings and issue direction to the concerned Registering Officers to file FIR against the concerned persons and also to make a note in the Index-II of the document which was fraudulently registered to the effect that the "registration is annulled as per the proceedings of the District Registrar (proceeding No., to be noted) and is shall have same effect as prescribed under Section 49 of the Registration Act". 

(d) After receiving the order of the District Registrar, the Registering Office shall immediately file FIR and make entries as stated above in Index-II without any loss of time. The Registering Officer shall maintain a separate register in this regard in his office to register all such orders of the District Registrar in following format.

Sl.No.

Date of receipt of order of DR

Proceeding No.

Doc.No. Of the Document to be annulled

Date of filing FIR

Date of making note in Inex-II

Signature of the Registering Officer.

(e) The District Registrar should complete the enquiry maximum in two months in each case and if the parties are not appearing for more than 2 summons, ex-parte order should be passed based upon the documents, evidences and witnesses available. While issuing summons, mode of RPAD should be accepted. However, these instructions will not apply to the cases where the complainant has admitted execution by himself due to whatever reasons. It is further emphasized that the procedure prescribed above is only to deal with fraudulent registrations done and it should in no way be construed to mean that the Registering Authority shall go into the issues of deciding title in case of rival claims on certain basis.

Any failure in registering complaints relating to fraudulent registration through impersonation or production of false documents/statements etc., and initiation of enquiry following by filing of FIR and making of annulment entries in Index-II shall be viewed seriously and necessary disciplinary action, will be initiated against the concerned District Registrar (Admin.) and the Registering Officer.

This order comes into immediate effect.

Any party aggrieved by the orders of the District Registrar may prefer an appeal with Inspector General of Registration.

Sd. Xxxxx IGR

Dated 3.11.2011

For Inspector General of Registration"

The question as to how far the above circular is in tune with the provisions of the Act and the Rules, is yet to be tested judicially, since the circular is just less than 2 months old. But the fact remains that the above circular is not in tune with the stand earlier taken by the Inspector General of Registration before this Court.

34. In K.S.Vijayendran vs. Inspector General of Registration {2011 (2) LW 648}, another learned Judge of this Court held that the Sub Registrar cannot demand the production of proof of title from a person who presents a document for registration.

35. In G.Narasaiah vs. State of Andhra Pradesh {AIR 2011 AP 101}, a Division Bench of the Andhra Pradesh High Court held that the Revenue Divisional Officer has no right to request the registering authority not to register any document on the ground that there is a title dispute between the inamdhars and the purchaser. But it is not known whether in Andhra Pradesh, there is any enactment corresponding to Tamilnadu Patta Pass Book Act.

36. In Pandurangan vs. Sub Registrar {2006 (4) MLJ 1440}, I had an occasion to consider a communication sent by the Collector cum Additional Secretary (Revenue) Pondicherry, directing the District Registrar of Pondicherry to withhold the registration of any sale transaction in respect of certain lands. After taking note of the provisions of the Act and the Pondicherry Registration Rules, I held that the Inspector General of Registration does not have the power to enlarge the scope of the power conferred upon the Registering Officer under the Act. It was brought to my notice in the said case that Rule 54 of the Pondicherry Registration Rules, 1969, empowered the Registering Officer to enquire about the linkage of the executants with the registered holder in the revenue records or Court order, if any. But I held that this Rule 54 cannot enlarge the powers conferred upon the Registering Officer under Sections 34 and 35 of the Act. However, the said decision was set aside by the Division Bench in Writ Appeal No.13 of 2007. I do not know if the decision rendered by the Division Bench in the writ appeal is reported or not. But, a review was filed later and the decision rendered by the Division Bench in the Review Application is reported in Pandurangan vs. Sub Registrar {AIR 2010 Madras 135}. In the said decision, the Division Bench referred to the supervisory powers of the Inspector General of Registration under Section 69(1)(g) of the Act and held that the enquiry contemplated by Rule 54 of the Pondicherry Rules is in tune with the objectives of the Registration Act for preventing malpractices in the matter of execution and registration of documents.

37. In S.Rangarajan vs. The District Registrar {2008 (4) LW 411}, K.Chandru, J., held that despite Section 22-A of the Registration Act, having been held to be unconstitutional, it is open to the real owner of the property to come up before Court and oppose the registration of any document relating to a property. The learned Judge also held that since the sale of a temple land without the sanction of the Commissioner, HR&CE is null and void, the affected party cannot seek a Mandamus, directing the Sub Registrar to register the document. This decision was not taken on appeal. However, the same learned Judge decided a similar issue in M.Muthaiya vs. The State of Tamil Nadu {W.P.(MD) No.860 of 2005 dated 18.8.2008}, in which the prayer was for a Mandamus to direct the Sub Registrar to register the document without insisting upon a No Objection Certificate from the Srirangam Temple. While dismissing the writ petition, the learned Judge held that since the idol of Ranganathaswamy is the true owner, the Executive Officer had to protect the property and that therefore, he was right in requesting the Sub Registrar not to register any document. This order was challenged on appeal in W.A.(MD) No.295 of 2009 and it came up before a Division Bench to which I was a party. But we dismissed the writ appeal by an order dated 20.7.2009, on the sole ground that the appellant therein did not come to Court with clean hands. Therefore, the main issue as to whether the Executive Officer of a temple is entitled to request the Sub Registrar and whether the Sub Registrar is obliged to accept the request not to register a document, was not decided by us.

38. Thus, in a majority of decisions, the courts have held that the role of the Registering Officer is limited. It is only in Pandurangan vs. Sub Registrar (DB judgment) and in S.Ranagarajan Vs. The District Registrar (K.Chandru,J), that a different tune was played by this court.

39. Therefore, it appears that in Tamil Nadu Wakf Board vs. K.V.Jeyan {2011 (1) CTC 455}, another Division Bench of this Court has referred to the Full Bench, the question as to whether the registering authority is empowered to withhold registration in the absence of any specific provision in the Registration Act, when the ownership of the party presenting the document is disputed by an objector. The Full Bench is yet to be constituted.

40. But be that as it may, the question that I am confronted with in the present case, is as to whether the Registering authority can demand the production of patta and revenue records, in terms of the provisions of the Tamilnadu Patta Pass Book Act, 1983 for accepting a document for registration or not.

ROLE OF THE REGISTERING OFFICER IN VIEW OF TAMIL NADU PATTA PASS BOOK ACT, 1983:

41. The State of Tamil Nadu notified on 30.1.1986 in the Tamil Nadu Government Gazette, the Tamil Nadu Patta Pass Book Act, 1983, with the object of providing for the issue of patta pass book to holders of agricultural lands. Section 5 of the Act reads as follows:-

"5. Making of entries of registration of alienation or transfer in the patta pass book.--(1) No document relating to transfer of any land by sale, gift, mortgage, exchange, settlement or otherwise shall be registered by the registering authority, unless the patta pass book relating to such land is produced before such registering authority.

(2) No document referred to in sub-section (1) shall be registered by the registering authority, unless the person liable to pay the registration fee also pays to the registering authority such fee as may be prescribed for making necessary entries relating to such transfer in the patta pass book. On the registration of such document and after making necessary entries in the patta pass book, the registering authority shall make a report of such registration and also send a certified extract of the said entries to the Tahsildar. 

(3) On receipt of the certified extracts of the entries relating to such transfer, the Tahsildar shall cause necessary changes to be carried out in the Register of Patta Pass Book maintained by him and shall also cause necessary changes to be carried out in the patta pass book already issued under Section 3, or as the case may be, issue a new patta pass book, after sub division if necessary, within such time and on collection of such fee, as may be prescribed."

42. Therefore, the State Enactment viz., the Tamil Nadu Patta Pass Book Act, imposes an obligation upon the registering authority, to call for the production of the patta pass book, before registering the transfer of any land by way of sale, gift, mortgage, exchange, settlement or otherwise. Incidentally, Section 5(1) of the State enactment which imposes such an obligation, is restricted only to the "transfer of any land". The expression "land" is defined in Section 2(4) of the Act to mean "agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and is either assessed to land revenue in the State or is subject to a local rate assessed and collected by the Officers of the Government as such and includes horticultural land, forest land, garden land and plantations, but does not include house site".

43. Therefore, the restriction imposed by Section 5(1) of the Act, appears to be confined only to "agricultural land, horticultural land, forest land, garden land and plantations" but is not extended to house sites. But the indication given in Section 5(1) read with the definition of the expression "land" under Section 2(4), does not appear to be final and conclusive. Section 23(2) of the Act, states that the provisions of the Act and the Rules, so far as may be, shall apply in relation to the issue of patta pass book for house sites under Section 23(1), as they apply in relation to the issue of patta pass book for land under the Act. But sub-section (2) of Section 23 begins with the rider "save as otherwise provided in this Act". Therefore, it is not clear as to whether the restriction contained in Section 5(1), would apply to a house site also or not. But for the present, let me reserve this question for another case.

44. Apart from imposing a restriction under Section 5(1), on the registration of a document relating to the transfer of any land, the Act also contains other interesting provisions. For instance, Section 6 of the Act states that the entries in the patta pass book issued by the Tahsildar under Section 3 shall be prima facie evidence of title of the person in whose name the patta pass book has been issued and that too, free of any prior encumbrances. I do not know how far this provision will stand judicial scrutiny in view of the law consistently laid down by courts. In Suraj Bhan vs. Financial Commissioner {2007 (6) SCC 186}, the Supreme Court pointed out that an Entry in revenue records does not confer title on a person whose name appears in the record of rights. The Entries in the revenue records was held to have only fiscal purpose i.e., payment of land revenue and no ownership is conferred on the basis of such Entries. In so far as the title to the property is concerned, it should be decided only by a competent Civil Court. The Supreme Court quoted with approval the previous decision in Jattu Ram vs. Hakam Singh {AIR 1994 SC 1653}. Anyway I am not concerned here, with the validity of Section 6.

45. Section 15 of the Act, obliges every plaintiff in a suit and every applicant in an application to annex to the plaint or application as the case may be, a certified copy of an entry in the Register of patta pass book, if the suit or application relates to any land situate in any area to which this Act applies. If the plaint is not accompanied by such a certified copy of an entry in the Register of patta pass book, the plaint is liable to be rejected under Section 15(2), as we would do under Order VII, Rule 11, CPC. Fortunately or unfortunately, the members of the Bar are yet to catch up with this provision viz., Section 15(2), as otherwise there would have been any number of applications for rejection of plaint.

46. Keeping in mind the provisions of the Tamil Nadu Patta Pass Book Act, 1983, let me again come back to the issue on hand. As we have seen in the above discussion, the Registration Act, 1908 which is a Central enactment and the rules issued thereunder, give a list of dos and don'ts. The production of the patta pass book, is not prescribed as a condition either in the Registration Act or in the Registration Rules, for the registration of a document. But Section 5(1) of the Tamil Nadu Patta Pass Book Act, 1983, mandates it and Section 21 of the Act states that the provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith, contained in any other law, custom or usage or contract. In other words, the State Act is given an overriding effect upon other laws. Therefore, the next question that falls for consideration is as to whether there is any repugnancy between the Central and the State enactments and if so, what is the method of resolving the same.

47. Under Article 246(2) of the Constitution, the Legislature of a State has the power to make laws with respect to any of the matters enumerated in List III (concurrent list) in the Seventh Schedule, subject to Article 246(1). Under Clause (3), the Legislature of a State has the exclusive power to make laws for such States with respect to any of the matters enumerated in List II (State List), subject to Clauses (1) and (2). Article 254 prescribes the method of resolution of any inconsistency between the laws made by Parliament and the laws made by the Legislature of States.

48. Entry 6 of List III of the Seventh Schedule of the Constitution relates to "transfer of property other than agricultural land, registration of deeds and documents". Entry 18 of List II relates to "land that is to say, rights in or over land, land tenures including the relation of landlord and tenant and the collection of rents; transfer and alienation of agricultural land improvement and agricultural loans, colonisation".

49. While the transfer of property other than agricultural land and the registration of documents are in the concurrent list, the transfer and alienation of agricultural land and the rights in or over such land, is in the State List. Therefore, it is clear that the State Legislature had the competence to enact the Tamil Nadu Patta Pass Book Act. This is on account of two facts viz., (i) that the transfer of agricultural land can be regulated by a law enacted in terms of Entry 18 of List II of Seventh Schedule of the Constitution and (ii) that the registration of documents relating to agricultural lands, can also be regulated by a law enacted in terms of Entry 6 of List III, so long as such law does not encroach into the field occupied by the Central enactment.

50. The provisions of Section 5 of the Tamil Nadu Patta Pass Book Act, 1983 does not appear to encroach into a field occupied by the Registration Act and the Registration Rules. This is clear from a reading of Rule 26 of The Registration Rules. Under Rule 26(i), the Sub Registrar is entitled to check up the survey numbers and sub divisions and also check up the Settlement Registers in order to find out if any fictitious numbers are entered. Rule 26(i) refers to the Rules framed by the Government under Section 22(1). Section 22(1) deals only with State Government. Under Rule 26(ii), the Registering Officer is also entitled to make a reference to the Revenue Department in certain circumstances. It may be useful to extract Rule 26 which reads as follows:- "26. (i) A document which relates to land situated in a District or portion of a District to which the rule framed by the Government under Section 22(1) of the Act has been made applicable shall, before it is accepted for registration, be checked with the survey numbers and sub-divisions in the subsidiary indexes maintained under rule 125 and also, when necessary, with the settlement registers in order that the Registering Officer may cause incorrect or fictitious numbers entered in the document to be rectified. (ii) If a survey number of a sub-division entered in a document is not found in the subsidiary indexes or settlement registers, the Registering Officer shall, if necessary, make a reference to the Revenue Department. (iii) If the sub-divisions of a field are found in the subsidiary indexes or settlement registers and the field is described in the document without any reference to any sub divisions, the document may be returned for rectification."

51. Therefore, it appears that the requirement under Section 5(1) of the Tamil Nadu Patta Pass Book Act, 1983, is not an encroachment into the field occupied by the Registration Act and the Registration Rules. It is only an additional requirement, that does not run contrary to any specific prescription contained in the Registration Act, 1908.

52. Since the competence of the State Legislature to enact the Tamil Nadu Patta Pass Book Act, is beyond doubt, in view of the relevant Entries in Lists II and III of the Seventh Schedule to the Constitution, which I have indicated above and also since Section 5(1) of the State Act, is not repugnant to any provision contained in the Registration Act, at least in so far as agricultural land is concerned, I am of the view that the third respondent was entitled to make the demand that he did in the case on hand. A look at the Sale Deed document dated 23.6.2011 presented by the petitioner for registration shows that the property conveyed was an agricultural punja land. Therefore, the property covered by the document falls within the definition of the word "land" under Section 2(4) of the Tamil Nadu Patta Pass Book Act, 1983. Consequently, the demand made by the third respondent in terms of Section 5(1) of the Act, cannot be taken exception to. Therefore, the writ petition is liable to be dismissed. Accordingly, it is dismissed. There will be no order as to costs. Consequently connected miscellaneous petition is also dismissed. However, if the petitioner produces the document indicated in Section 5(1) of the Act, the third respondent shall register the document. 53. Before parting, I also wish to make one thing very clear. Section 1(3) of the Tamil Nadu Patta Pass Book Act, 1983, states that it shall come into force on such date as the Government may by notification, appoint. It also states that different dates may be appointed for different areas and for different provisions of this Act. It is not clear whether all the provisions of the Act have been notified for all the areas within the entire State of Tamil Nadu or not. The case on hand is in respect of an area to which the provisions of the Act have been notified. Therefore, the entitlement of the Registering Authorities of different areas, to act in terms of Section 5(1) of the Act, would depend upon the question whether the provisions of the Act have been notified in the area concerned or not.

To

1.The Inspector General (Registration), Government of Tamil Nadu, 120 Santhome High Road, Chennai.

2.The District Registrar, Karaikkudy, Sivagangai District.

3.The Sub Registrar, Subramaniyapuram and Post, Aranthangi Taluk, Pudukkottai District.

Sources: http://indiankanoon.org/doc/154849770/

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