High court ruling on sale deed registration

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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 ? 


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Advocate

An informative article especially for the civil practice lawyers, thank you sir for your painstaking efforts, I shall ask my friends and other senior counsels their opinion on this and will back with their views.

 
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nice thought provoking article.

but if the registrar is given the power to probe into the genuiness of the title, he would refuse to to register even genuine transfers, unless his hand are greased. If the encumbrance certificate reflects correct entries the innocent buyer can be protected from such fraudulent sellers. Unfortunately at present the encumbrace certifice are manupulated in such a way giving scope for fraudulent transfers.

 
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+919444448455

Dear Mr. Patrick Sir,

     The Registrar need not be given the power to probe into the genuiness of the title.  If the Registrar finds the owner of the property as per the document held in his office and the person coming forward to sell the property are different and the seller could not establish his relationship to the property, how can the Registrar allow the registration ? Since the documents registered are given legal importance, is it not the duty of the Registrar to enter and Register valid and genuine transactions ? Can he be allowed to register blindly without verifying the ownership atleast ?

 You are right in saying that encumbrance certificates are manipulated. I applied for encumbrance certificate on my property. The one issued contained NIL encumbrances. Since I applied for the encumbrance knowing well that some encumbrances were created on my property, I approached again and this time I was given on with five encumbrances. When I questioned them how come two different encumbrance certificated, they very coolly replied passing the bug saying that the computer data was not updated and the one I got with NIL encumbrance was obtained thus. How cleverful they are cheating the innocent public !

Thanks & Regards

Balaji

 
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Dear Sir,

I am an academic person and I have been reading with interest the various judgments on this issue of fraudulent registration using forged papers, impersonation of the seller, abetting witnesses and of course the now famous "EC for the moment" that is readily available from the SRO Office.  

Unlike Andhra Pradesh (now Telengana+Seemaandhra) our assembly has not introduced additional provisions to minimize fraudulent registration.  

Based on the above, I have two specific questions:

1.  Has the circular from the IGR, Tamil Nadu with respect to fraudulent registrations been stayed?  If so, can we know the case number and what is its present status?

2. Is there any other remedy other than legal remedy for the encumbrance that has been created by miscreants (most importantly costs time and money for no fault of the buyer)?

3.  Can you please inform if there is any law that is being contemplated to fix these situations?  

Thanks for your time.

R. Dhamodharan

 
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+919444448455

Dear Mr.Dhamodharan,

        To be frank, I am not an advocate but a victim affected by land grabbing by a group of fraudulent persons. While fighting my case, I came across several facts & struggled a lot to overcome the problem which I wanted to share with others. Well, regarding the queries you have asked for let me clarify the things from my experience.

1.  Has the circular from the IGR, Tamil Nadu with respect to fraudulent registrations been stayed?  If so, can we know the case number and what is its present status?

 

     The Circular issued by the IG has not been stayed and a suit is pending in the High Court Bench at Madurai challenging the IG's circular. I am also searching for the suit No. and other details but could not collect the details due to paucity of time. I will let you know once I get the details. It is contended that the IG has no power to issue directions and it can be implemented only when the Govt. publishes G.O. in this regard. Unfortunately, the Govt. is keeping silent on this issue.

 

2. Is there any other remedy other than legal remedy for the encumbrance that has been created by miscreants (most importantly costs time and money for no fault of the buyer)?

 

When it is said that even the IG Registrar has got no power to prevent such fraudulent registrations, what other remedy we can expect. Of course, there are Kangaroo courts, political power and the police to seek the remedy other than the legal remedy through court. But you have to shell down more money or at times even you might have to forget your property if you approach any of the sources.

 

3.  Can you please inform if there is any law that is being contemplated to fix these situations?  

 

To fix the situations, the only solution is bring necessary amendment to the Registration but nobody is bothered. The Registration Act was framed way back in the year 1908 during the British Period and the same good old act is still being followed.  I can quote innumerable cases where the court has condemned the Registering officials for registering the property transactions blindly without verifying the documents. And at the same time I can quote a number of cases where the court has upheld the cases saying that the Registering officials have no power to verify the documents. It is a pity to say that some judges are blindly following the words stated in the act without understanding the basic fact that laws are framed to protect the comman man's interest. The only way is to file a PIL demanding the government to make necessary changes in the Registration Act and as far as the immovable property transaction registration is concerned, only the genuine owner or any person duly authorized by the genuine owner through Power of Attorney or the legal heir of the genuine owner should only be allowed to register the transactions. This is my humble view and of course, there are legal experts who might have better options than this.

 

Thanks & Regards

Balaji

 
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Telecommn Services

Dear sir

You have insisted for a G.O from Government pertaining to false registration.What is the difference bet ween the Government circular issued in the interest of public and G.O.If the circular has no validity in the registration Dept then how the government can expect the citizen to follow other circulars issued then and there? I am also one of the Victim affected by false registration.Though the option as remedy you have mentioned may be acceptable or not .But the SCI is not encouraging such act but there is no other go as you said.Getting justice in our system is a time consuming process and we may not alive also to enjoy our immovable properties.

 
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DISTRICT REGISTRAR KORAPUT

Dear Sir,

I am working as a  District Sub-Registrar, in the state of Odisha.  The ruling of the Chennai High Court has been absolutely correct based on the provisions of the Registration Act as it stands now. Unless the Act is amended suitable to empower the Registering officers appointed under this Act to enquire into the ownership of the Seller, then what has been said in the High Court Ruling shall be followed.

Section 82 deals with anything recited in the document which is primafacie wrong and can be instantly determined on the face of the document. It is not at all possible for a Registering Officer whether X has been dead and some persons claiming as his legal heir are selling away his property. 

Another thing you say is that  Registering officer should rely on the document earlier registered in his office to determine the owner. At the time of registration of the document how can the Officer know about any previous registered document unless it becomes mandatory to produce E.C. by suitable amendment. And further more how can the officer ensure that the purchaser of the previous document has purchased from a genuine seller having proper right over the property.

To decide the right title over a property has been the purview of a Civil Court. But your concern is genuine. Unless our land records are corrected promptly and valid legal title certificates are granted and necessary amendments are made in the Registration Act to produce such legal title records at the time of selling lands such fraudulent documents shall continue to be registered and the action of the registering officers shall be vitiated by the Courts.

If u can get to know about any recent Supreme Court of India Judgement regarding this please let me know as I personally share your concern and sincerely desire that such fraudulent registration document to be stopped.

 
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Telecommn Services

Hello

As per the High court and SCI direction Tamilnadu Goverment issued a circular to all SRO/DRO to conduct

an enquiry on fraudulent registration and file complaint for registering FIR if found true.That order has been stayed now by High court. I don't know How it was admitted for Stay in spite of SCI reference in the order.

Regards

Ravindran

 
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+919444448455

Dear Mr.  LALATENDU SATAPATHY Sir,

     I standup and salute you for your sincere reply to my concern.  My questions are :

1)   Why an innocent victim should be made to suffer because of the fraudulent action of a person who attempt to grab the property not belonging to him/her ? Why should the original / true legal owner or his/her heir be made to run to Police station to lodge a complaint, Revenue officials to get the details, Municipal authorities, Judicial department etc. etc for no fault of him/her ?

2)   When legal stature is given to the document that is registered with the registration department, is it not the duty of the registering officials to check the correctness before giving legal stature ? Shouldn’t they be given the power to verify the documents before registering ?

3)   When a complaint is given, why the registering officials are NOT empowered to nullify the fraudulent registration after an in depth enquiry ? After all, if the other party is not satisfied, he can approach the court with the enquiry report, if he finds any fault in it.

4)   Why should the court be burdened with all such matters when there are lakhs and lakhs of very very important cases are pending ?

 When I complained to IG Registrar, he simply said “yes, yes, it is happening quite commonly”. Then I asked him a very simple question, “Do we require an officer of IAS cadre to give such a reply ? Why not you take up the matter to the notice of the Government and demand a permanent solution for this. It is for this purpose Government is appointing officer of IAS cadre to guide the government”. The officer got annoyed with my question and retorted   saying that if the property is yours then why did not you lodge a complaint with the police. I replied to him saying that the Police refuse to take up the complaint saying that this is Civil Dispute and to this, the IG replied saying that for this even I do not have power to revert the fraudulent registration. Only the court has got power to revert it. And the court takes its own time to finalize it. In my case, though I filed a suit with all the documentary evidences to prove that I am the legal owner and proved that the opponent is a fraudulent person, despite the fact that the opponents failed to turn up the court and have become the ex-parte to the suit, the case has not yet reached its final stage and it is pending for 4 (four) long years killing my time, money and mental peace.

 Verifying the documents held at the Registration department before registration will certainly reduce the fraudulent sale to maximum extent if not 100 %, if the Registrar smells something fishy in the transaction. For example, in my case, the property is registered in the name of my father and it is in the name of my father since the year 1959. Now, all in a sudden in the year 2007, a fraudulent person who is no way related to the family or property simply makes a Sale Deed with the help of freak/fake document. Now please tell me could it be prevented ?  Another example which was brought to my notice is that the property belonging to a person “X” was sold by X himself to another person “Y”. After a very short period or time gap, the very same “X” sells the very same property to another person “Z”. Could n’t this be stopped by the Registrar ? Please tell me.

 Thanks & Regards

 

Balaji


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