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IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
Varadharajapillai Arumugam & Another – Petitioners
Versus
The Sub Registrar, Sub Registrar Office, Sankarapuram Taluk – Respondent
W.P. No. 29130 of 2018 & W.M.P. No. 34064 of 2018
Decided On : 13-11-2018
Registration Refusal - Memorandum of Agreement - Section 71 of the Registration Act, 1908 - Summary: The court discussed the refusal to register a Memorandum of Agreement Evidencing Deposit of Title Deeds based on transactions in specific survey numbers. It referenced Section 71 of the Registration Act, 1908 and emphasized that registration is an administrative act to legally record the existence of a contract between parties. The court allowed the writ petition and directed the respondent to accept and register the Memorandum of Agreement.
Fact of the Case:
The petitioners sought to challenge the refusal to register a Memorandum of Agreement Evidencing Deposit of Title Deeds by the respondent, based on transactions in specific survey numbers.
Finding of the Court:
The court found that the refusal to register the Memorandum of Agreement was not justified, as the petitioners had provided evidence of the transactions and the lender had already satisfied itself about the transactions.
Issues: The main issue was the refusal to register the Memorandum of Agreement based on specific survey numbers and subsequent transactions.
Ratio Decidendi: The court emphasized that registration is an administrative act to legally record the existence of a contract between parties and that the refusal was not justified under Section 71 of the Registration Act, 1908.
Final Decision: The writ petition was allowed, and the respondent was directed to accept and register the Memorandum of Agreement within a specified period.
1. This Writ Petition has been filed challenging the order of the respondent dated 23.10.2018 in Registration Refusal Serial No.RFL/Rishivindhiam/2/2018 and to quash the same and consequently direct the respondent to register the Memorandum of Agreement Evidencing Deposit of Title Deeds in favour of Axis Bank, dated 25.09.2018 in TP/42112202/2018.
2. The case of the petitioners is that the petitioners claim to be the owners of the lands situated at Rishivandiam Village and the father of the first petitioner executed a settlement deed, dated 04.10.1991, in favour of the first petitioner, in respect of some lands. The petitioners being agriculturists had approached Axis Bank to avail cash credit facility for agricultural purpose. Accordingly, Axis Bank sanctioned a loan of Rs.17,30,000/- (Rupees Seventeen Lakhs Thirty Thousand only). The Bank had stipulated a creation of Equitable Mortgage of the agricultural lands. Accordingly, a Memorandum of Agreement evidencing deposit of Title Deeds was executed on 25.09.2018 in favour of the Axis Bank, Kallakurichi and the mortgage deed was also presented for registration. After verification of the title deed by the bank, when the petitioners approached the respondent for registration of the Memorandum, the respondent had refused to register the same vide order dated 23.10.2018, stating that two survey numbers in 219/6 and 238/4 must be deleted from the Memorandum, as there are subsequent transactions in those survey numbers. Hence, the petitioners have come forward with this Writ Petition seeking for the aforesaid relief.
3. It is submitted by the learned counsel for the petitioners that the Bank only after scrutinizing all the documents and considering the legal position, had sanctioned the loan and directed the Registration of the Memorandum of Agreement. But, the respondent/Sub-Registrar has refused to register the same and therefore prays to allow this Writ Petition.
4. Heard the learned counsel for the petitioners as well as learned Special Government Pleader appearing for the respondents.
5. In similar circumstances, this Court has passed an order in W.P(MD) No.14388 of 2014 dated 01.09.2014. The relevant portion of the same is extracted hereunder:
“4. Section 71 of the Registration Act, 1908 deals with reasons for refusal to register which has to be recorded. In terms of Sub-Section (1) of Section 71, 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. In terms of Sub-Section (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.
5. In such circumstances, merely because there is an order of attachment passed by a Civil Court, the same cannot be a ground to refuse to register the Memorandum of Deposit of Title Deeds. If any deposit of title deeds is created in respect of the said property pursuant to the right acquired by the petitioner, vide settlement deed, dated 04.07.2011, it is always subject to further orders to be passed by the Civil Court. The petitioner's case is that she acquired title by way of settlement deed dated 04.07.2011, much prior to the order of attachment. Further, the learned counsel appearing for the petitioner placed reliance on Order 38, Rule 10 C.P.C. stating that attachment before Judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in executi
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