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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA & THE HONOURABLE MS. JUSTICE K.B.K. VASUKI
Tamil Nadu Wakf Board, rep. by its Chief Executive Officer, Chennai
Versus
K.V. Jeyaraj & Others
M.P. (MD) No.3 of 2010 in W.A.(MD) No.176 of 2010
Decided On :15-03-2010
Registration Act - Objection to Registration - Wakf Board - Wakfs Act, 1995, Section 51(1); Hindu Religious and Charitable Endowments Act, 1959, Section 34(1); Patta Pass Book Act, 1983, Section 5(1)
Fact of the Case:
The Tamil Nadu Wakf Board appealed the order of the learned Single Judge, which held that the Wakf Board has no right to object to the registration of a document presented before the Registering Officer.
Finding of the Court:
The court found an interesting question of law regarding the power of the Registering Officer to withhold registration when the ownership of the property is disputed by an objector.
Issues: The main issue was whether the Registering Officer is empowered to withhold registration and release of a document when the ownership of the property is disputed by an objector.
Ratio Decidendi: The court decided to refer the question to a Larger Bench for an authoritative pronouncement due to the divergent opinions of two learned Judges and the importance of the question of law involved.
Final Decision: The court directed the Registry to place the papers before the Chief Justice for making a necessary reference to a Full Bench and ordered an interim stay pending further orders.
F.M. IBRAHIM KALIFULLA, J.
1. Admit Mr. T. Lajapathi Roy, learned Counsel, takes notice for Respondent No.1 and the learned Special Government Pleader takes notice for Respondents 2 to 4.
2. This Writ Appeal has been preferred by the Tamil Nadu Wakf Board seeking to challenged the order of the learned Single Judge, dated 7.1.2010, passed in W.P. (MD) No.12278 of 2009. In the order passed in the Writ Petition, which was preferred by the 1st Respondent herein, the learned Single Judge took the view that the Appellant therein has no right to object to the registration of a document presented before the 4th Respondent, that as and when a document is presented for registration, it is the duty of the 4th Respondent to register the same and he has no power to withhold that document, except issues regarding violations of payment of stamp duty in which case the document will have to be referred to the Collector for determination of proper stamp duty payable thereon and that the objection of the Wakf Board cannot be decided by the 4th Respondent since they have to work out their remedy by challenging the document if they have any valid objections.
3. This order of the learned Single Judge raises an interesting question of law inasmuch under provisions of the Registration Act there is no specific provision providing for any objection being raised at the instance of third parties to the documents as regards the registration of the document. Though there is an amendment to the Registration Act by way of Section 22-A by the State of Tamil Nadu under Act 2 of 2009, which inter alia empowers the Registering Officer to refuses registration in respect of certain types of transfer of immovable properties by way of sale, gift, mortgage, exchange or lease belonging to the State Government, local authority, etc., including the properties belonging to Wakfs which are under the superintendence of the Tamil Nadu Wakfs Board established under the Wakfs Act, 1995, it is state that the said amendment has not yet been notified for implementation.
4. Be that as it may a learned Judge of this Court in the decision in S. Rangarajan v. The District Registrar, Tiruchirapalli and another, 2008 (4) LW 411, has taken a diametrically opposite view than one taken by the learned Judge in the order impugned in this Write Appeal. In the said reported decision, the learned Judge has held as under:
“14. The arguments of Mr. R. Subramaniam, the learned Counsel for the Petitioner that whatever document is dumped on the Regiatrur should be registered without any questioning cannot be accepted. The Petitioner is seeking for a Writ in the nature of Mandamus to the authorities for registering his document. Such a Writ Petitioner is an equitable remedy and the Court’s power to issue such Writs are discretionary. When a person comes before this Court seeking for a direction to register his property, he must be able to prove to this Court that he has a clear title. Even otherwise, if the real owner of the property also appears, before the Court and objects to the registration by the Registrar, then the parties must be relegated to appropriate Civil Court for determining the question of title. Otherwise, the office of the Registrar will become mere a Post Office the only duty being collecting stamp duty to fill the Government coffers.
15. So long as the Third Respondents temple is able to satisfy this Court that they are the real owners and eligible to get patta for the land in question, this Court cannot give any direction to a statutory authority to perform a duty which will be violating provisions of law. In such circumstances, the court can decline to grant relief to the Petitioner.
5. Under Section 51(1) of the Wakfs Act, 1995, it is specifically provided as under:
51. Alienation of Wakf property without sanction of Board to be void.-(1) Notwithstanding anything contained in the wakf deed, any gift, sale or exchange, mortgage of any immovable property which
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