Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Mad) 3354

High Court of Judicature at Madras
V. RAMASUBRAMANIAN
Appourva J. Patel
Versus
The Inspector General of Registration, Santhome & Others
Writ Petition No.11631 of 2011 & M.P. Nos.1 & 2 of 2011
Decided on : 31-07-2012

Advocates appeared:
For the Petitioner:P. Vasanthkumar Visveswaran, Advocate.
For the Respondents:R1 & R2 - M.C. Swamy, Special Government Pleader, R3 - N.R. Chandran, Senior Counsel for S. Thiruvengadam, Advocate.

Ratios
a. A person, on his putting his mark in a document would be treated as signed that document.
b. In an enquiry under Sec.36 of the Registration Act, the Registrar could decide the genuineness of signature in the document and he could not go further to decide the validity of the transaction.
c. Proceeding before the Registrar under Sec.73 or 74 of the Registration Act is original in nature and not an appellate one.
d. The non-attachment of a statement in terms of Rule 3(1) and (1-A) of the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968 does not make the document or the transaction invalid. It only makes the document unregisterable until a statement is furnished.
e. Rule requiring the signature of the executant of the document in the 1A statement is not mandatory but only directory and it would be enough if one of the party to the document signs it.

Headnote:(A) Indian Stamp Act, 1899(2 of 1899)-Sec.2(12)-Registration Act, 1908(16 of 1908)-Sec.36, 73, 74-Document-Sale deed-Registration-Execution-Refusal-Validity-1A Statement-Registrar-Jurisdiction-Appeal-On the refusal of the petitioner/seller to be present before the Registrar for admitting the execution of the sale deed and getting it registered, the buyer had approached the Registrar who had issued notice to him and took the evidence of the witnesses-While the petitioner admitted his signature available in the document but denied its execution-Thereafter, the Registrar directed its registration which was challenged by the petitioner-Petitioner contended that when he had denied the execution of the sale deed and there were many suspicious circumstances, the buyer should have approached the civil Court, statement under 1-A was not annexed when it was originally presented and on such failure, the registration of such document at a later stage was bad in law and the Registrar who had ordered to proceed with the enquiry for compulsory registration should not have entertained the further enquiry-Respondents resisted it by contending that the Registrar could decide only about the signature of the executants as available in the sale deed and he could not decide the validity of the transaction and the after holding that the executants had refused to come forward to get the document registered, he could himself proceed to conduct enquiry in that regard-Held, enquiry by the Registrar under Sec.36 of the Registration Act was only to ascertain the signing of the document by its executant and not to decide the validity of the transaction-Non filing of the 1A statement alongwith the sale deed at the time of initial presentation for registration was a curable mistake which could be rectified later and such mistake would not render the document or registration invalid-In 1A statement, it was enough for one of the party to the document to sign-The Registrar who received the document for registration, on the refusal of the executants to come forward to complete the registration, could proceed to conduct enquiry himself regarding the genuineness of execution and pass orders thereon for compulsory registration-Such registration would not disentitle the executant to raise his defences before the civil Court in a properly instituted suit and challenge the validity of the document or transaction-Writ petition was dismissed.
       (B) Indian Stamp Act, 1899(2 of 1899)-Sec.2(12)-Registration Act, 1908(16 of 1908)-Sec.36-Document-Execution-Sign-A person, on his putting his mark in a document would be treated as signed that document.
       The expression "signed" though not defined in the Registration Act, 1908 or in the Stamp Act, 1899, is defined in Section 3(56) of the General Clauses Act, 1897 to include even a "mark", if the person with reference to whom the expression is used is unable to write his name. In other words, affixing a mark is treated akin to signing a document. Signing as per Section 2(12) of the Stamp Act, is treated as execution. Para 8
       (C) Indian Stamp Act, 1899(2 of 1899)-Sec.2(12)-Registration Act, 1908(16 of 1908)-Sec.36, 73, 74-Document-Sale deed-Registration-Execution-Refusal-Validity-Registrar-Jurisdiction-In an enquiry under Sec.36 of the Registration Act, the Registrar could decide the genuineness of signature in the document and he could not go further to decide the validity of the transaction.
       I should add a word of caution. If the petitioner and the third respondent are before a Civil Court in a dispute relating to the conveyance of title, then the question whether the petitioner executed the document or not, cannot be decided solely on the basis of the admission of his signatures. While deciding a dispute relating to transfer of title, the expression "executed" may have to be assigned a greater meaning. But the Registrar of Assurances cannot be imposed with such an obligation for the limited purpose of deciding whether he could order compulsory registration of a document or not. Therefore, the first contention of the petitioner cannot be accepted. Para 15
       (D) Registration Act, 1908(16 of 1908)-Sec.36, 73, 74-Document-Registration-Execution-Refusal-Validity-Registrar-Jurisdiction-Appeal-Proceeding before the Registrar under Sec.73 or 74 of the Registration Act is original in nature and not an appellate one.
       On the contrary, if the refusal is by the Sub Registrar on the ground of denial of execution, an application and not an appeal would lie under Section 73(1). Therefore, the proceedings before the Registrar under Section 73(1) appear to be original in nature, though they arise out of an order of a subordinate officer. Apart from an application under Section 73(1) against an order of refusal by a Sub Registrar on the ground of denial of execution, the Registrar also has the power to undertake an enquiry under Section 74. This power is available, if the denial of execution is actually made before him. These proceedings are also original in nature. Para 29
       (E) Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968 -Rule 3-Document-Registration-Validity-1A Statement-The non-attachment of a statement in terms of Rule 3(1) and (1-A) of the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968 does not make the document or the transaction invalid. It only makes the document unregisterable until a statement is furnished.
       But if the Registering Officer refuses the registration of a document on the ground that the statement in terms of sub-rule (1) or (1-A), is not attached, it is not the end of the matter. A party can always attach a statement and re-present the document once again for registration. The non-attachment of a statement in terms of sub-rules (1) and (1-A) does not make the document or the transaction invalid. It only makes the document unregisterable until a statement is furnished. This is why sub-rule (2) of Rule 3 uses the expression "the Registering Officer shall before registering an instrument". Para 40
        (F) Indian Stamp Act, 1899(2 of 1899)-Sec.2(12)-Registration Act, 1908(16 of 1908)-Sec.36- Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968-Rule 3-Document-Registration-Execution-1A Statement-Rule requiring the signature of the executant of the document in the 1A statement is not mandatory but only directory and it would be enough if one of the party to the document signs it.
       In other words, the sale deed is required by the Act to be signed by both parties, but the statement in Annexure 1-A can be signed by one of them, namely the executant alone. If that be so, I see nothing wrong in the third respondent himself signing the statement under sub-rule (1) or sub-rule (1-A) of Rule 3. In other words, the expression "duly signed by the party executing the instrument" appears to be only directory and not mandatory, provided it is signed by atleast one of the parties. The provision would be mandatory, to the extent that it should contain the signature of atleast one of them. Therefore, the third ground of attack is also rejected. Para 43

Judgment :-

1. The petitioner has come up with the above writ petition, challenging an order passed by the second respondent viz., the District Registrar, directing the compulsory registration of a Sale Deed dated 21.6.2010 claimed to have been executed by the petitioner in favour of the third respondent herein.

2. I have heard Mr.P.Vasanthakumar Visveswaran, learned counsel for the petitioner, Mr.M.C.Swamy, learned Special Government Pleader for respondents 1 and 2 and Mr.N.R.Chandran, learned Senior Counsel for the third respondent.

3. The facts, on which there are no disputes, are as follows:-

(i) The third respondent herein presented for registration before the District Registrar (second respondent), a document titled as a Sale Deed, stated to have been executed by the petitioner on 21.6.2010, conveying a house, land and premises bearing old Plot No.29-A, new Door No.11, Venugopal Avenue, Spur Tank Road, Chetpet, Chennai-31.

(ii) Since the petitioner who was alleged to have executed the Sale Deed, did not appear before the second respondent, the third respondent appears to have filed an application for compulsory registration of the document. Therefore, the second respondent issued a notice dated 6.9.2010, calling upon the petitioner to appear in person on 27.9.2010. The petitioner appeared before the second respondent and disputed the claim of the third respondent that the petitioner executed the Sale Deed. He also filed an interim reply at that time.

(iii) Thereafter, the second respondent passed an order dated 21.10.2010, holding that in view of the denial of execution by the petitioner, the third respondent should proceed with further action.

(iv) Thereafter, the third respondent filed an appeal purportedly under Section 73 of the Registration Act, 1908, as against the order dated 21.10.2010 passed by the second respondent under Section 36 of the Act. Taking up the same on file, the second respondent issued notices to both parties, calling upon them to appear for an enquiry.

(v) The petitioner submitted preliminary objections to the notice issued by the second respondent on the ground that an appeal to the second respondent as against his own order is not maintainable. However, the said preliminary objection was overruled by the second respondent by an order dated 23.11.2010.

(vi) Thereafter, the petitioner filed a reply to the appeal filed by the third respondent, on 25.11.2010.

(vii) The second respondent then held an enquiry, permitted both parties to lead oral and documentary evidence, heard arguments and passed the impugned order dated 7.4.2011, directing the compulsory registration of the Sale Deed. As a matter of fact, 3 persons were examined as witnesses on the side of the third respondent and two documents were marked in evidence on their side. On the side of the petitioner one document was filed and the petitioner examined himself as the sole witness on his side. On the basis of the oral and documentary evidence, the second respondent passed an order, directing compulsory registration. Aggrieved by the same, the petitioner is before this Court.

4. The petitioner assails the impugned order on the following grounds:-

(i) that when once the petitioner denied execution of the Deed in question, it was not open to the second respondent direct the compulsory registration of the document, after adjudicating upon the question whether the petitioner executed the document or not;

(ii) that the second respondent virtually decided both the original proceedings under Section 36 and the appeal under Section 73, thereby violating the fundamental principles that prohibit the same person who passed the original order from deciding the appeal arising out of his own order;

(iii) that when admittedly, the statement in the form of Annexure-1-A in terms of Rule 3 (1-A) of the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules 1968, was not enclosed to the Sale Deed, the District Registrar was obliged to r

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2012 Supreme(Mad) 3354

High Court of Judicature at Madras V. RAMASUBRAMANIAN Appourva J. Patel Versus The Inspector General of Registration, Santhome & Others Writ Petition No.11631 of 2011 & M.P. Nos.1 & 2 of 2011 Decided on : 31-07-2012

Cases Referred (2)

High Court of Judicature at Madras
V. RAMASUBRAMANIAN
Appourva J. Patel
Versus
The Inspector General of Registration, Santhome & Others
Writ Petition No.11631 of 2011 & M.P. Nos.1 & 2 of 2011
Decided on : 31-07-2012