P.Gowriammal vs The Sub-Registrar, Karaikal

S. Vaidyanathan, J.—The petitioner has come forward with the above writ petition challenging the impugned order, as the document produced by her was refused to be registered and the authority concerned has affixed the rubber stamp ''Document Returned'' in the challan, but has not assigned any reason.

The case of the petitioner is that the petitioner''s husband died on 19.05.2009 leaving behind the petitioner, two daughter and three sons and they are the legal heirs and they are in joint possession and enjoyment of the property in question. The petitioner, in order to settle 1/6th of the share due to her in the name of her younger son viz., Sivakumar, executed a settlement deed and presented the same to the respondent vide Document No. 1/2013/B2, dated 28.06.2013, for registration. But, without assigning any reason, the aforesaid endorsement mentioned supra has been made by the respondent in the challan, which, according to the petitioner, is illegal and contrary to Rule 55 of the Tamil Nadu Registration Rules.

Per contra, the learned Government Advocate appearing for the respondent submitted that as the property in question is situated in Puducherry and as per the norms and guidelines in Puducherry, the Sub-Registrar is empowered to demand any document to ascertain the details as to how the document has devolved upon the petitioner and others and upon satisfying the same, he can register the document. According to the learned Government Advocate, the authority concerned has got enormous power to register or not to register a document. He further submitted that in terms of Section 71 of the Registration Act, which is extract below, the authority concerned has got power to make an endorsement of refusal to register the document and if the petitioner has got any grievance, he can make an application and ask for the reasons, which would be recorded by the authority concerned.

Section 71 of the Act reads as follows:-

Reasons for refusal to register to be recorded

(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

In reply, the learned counsel for the petitioner submitted that as there was no registration as per the Registration Act, the petitioner made an application under Right to Information Act and collected the details. In the reply, dated 11.07.2013, on the application dated 08.07.2013 filed by the petitioner under Right to Information Act, the following documents have been demanded for the purpose of registering the said settlement deed -

(i)Original Parent Document No. 224/2003/B-1, dated 28.04.2003 (Partition Deed)

(ii)Death Certificate of Late Pazhaniya Pillai

(iii)Legal Heir Certificate in respect of late Pazhaniya Pillai.

The learned counsel for the petitioner submitted that the petitioner has produced the xerox copies of the first two documents mentioned supra and legal heir certificate was not available with her, as such she did not produce the same. Further, the learned counsel for the petitioner contended that the reply dated 11.07.2013 does not show that Sub-Registrar has demanded original documents.

The learned Government Advocate appearing for the respondent submitted that in order to avoid the appeal ready provided u/s 72 of the Act and to overcome the family dispute between the petitioner and her children, the present writ petition has been filed by the petitioner by-passing the alternative remedy.

The learned counsel for the petitioner relied upon the decision reported in 2007(3) CTC 243 [Mathews, M.L. Vs. The Inspector General of Registration] wherein it has been held as follows:-

8.It is seen that the impugned orders have been passed without adverting to the powers vested in the Registering Authorities under the Registration Act, 1908. The learned Government Advocate appearing on behalf of the respondents is not in a position to show that the powers have been exercised by the Registering Authorities only in accordance with the Registration Act, 1980, and the Registration Rules framed thereunder. Further, it has also not been shown as to how or for what reasons the Registering Authority has refused to register the documents submitted on behalf of the petitioners. It is for the respondents to show that such registration would be contrary to public policy and would be in violation of the provisions of law applicable to the case. In the absence of such violation, the respondents cannot refuse to register the documents submitted on behalf of the petitioners. Therefore, the Writ Petition is allowed, setting aside the impugned order, dated 05.08.2004, passed by the third respondent in Na.Ka.A4 4068/2002 and the memorandum No. 433/2004, dated 8.9.2004, issued by the second respondent.

But, in the above referred to decision, Section 71 of the Registration Act was not considered. That part, it is a case pertaining to selling of land to persons other than schedule castes and that registering authorities refused to permit the registration of the land, conveying that the land was divided into plots. In that case, no where it has been stated that the authorities demanded original document or any document for the purpose of registration and this Court had directed the authorities to register the document accepting the xerox copies and taking note of the family dispute. Hence, the said case quoted by the learned counsel for the petitioner is not applicable to the facts of the case on hand, as the issue in the case on hand is as to whether the petitioner has availed of the remedy u/s 71 of the Act and thereafter, whether she has exhausted the remedy u/s 72 of the Act.

Relying upon Rule 55 of the Registration Rules, the learned counsel for the petitioner has relied upon another decision rendered by the Madurai Bench of this Court reported in S.M. Senthil Kumar Vs. Sub Registrar and Others, and submitted that the document has to be registered by the authorities without insisting upon any document. According to the petitioner, in the above quoted case also there is a dispute between the family members and the Court has directed the authorities to register the document and release the same within a period of four weeks.

Rule 54 and 55 of the Pondicherry Registration Rules, 1969 which have been amended by the Notification dated 02.08.2004 in the Gazette of Pondicherry, read as under:

As a general rule, registration shall take place in public, but the registering officer may on the application of a party and if he considers such a course to be called for, exclude the public during the course of any enquiry. The Registering Officer shall also enquire about the linkage of the executants with reference to the registered holder in the revenue records or court order, if any.

The Registering Officer shall 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 no right to appear in that capacity;

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

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

But, in the above referred to case also, Section 71 of the Act has not been considered by the Court. That apart, as rightly contended by the learned Government Advocate, the Puducherry Government has got different guidelines and powers are given to the registering authorities to call for the documents to ascertain the veracity of the same before registering the same.

As the decisions quoted by the learned counsel for the petitioner are not applicable to the facts of the case on hand and moreover, Sections 71 & 72 of the Registration Act have not been considered in those two referred to cases, this Court is unable to accept the contentions of the learned counsel for the petitioner.

It is open to the Registering Authority to accept the Xerox copies of the documents produced by the parties and the same should be taken into consideration after ascertaining the veracity of the documents available in the Office of the Sub-Registrar or any other Sub Registrar Offices, if the documents are said to be available more than one Sub Registrar Office. As a matter of right, the petitioner cannot demand that the Xerox copies of the documents should be accepted for scrutinising the records. Nowadays more than one document, are said to be finding place in respect of a particular property since fabricated/forged or created. It is necessary/mandatory that the documents produced either original or Xerox copy need to be cross-checked with the documents available in the Sub Registrar Offices by the person, who is going to register the documents.

In the result, the writ petition fails and the same is dismissed accordingly. However, there is no order as to costs.