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2023 Supreme(Mad) 3388
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN, THE HONOURABLE MRS. JUSTICE L. VICTORIA GOWRI, JJ.
M. Ariyanatchi & Ors. - Appellants
Versus
The Inspector General of Registration, Santhome High Road, Santhome, Chennai & Ors. - Respondents
W.A.(MD) No. 856 of 2023
Decided On : 27-06-2023
For the Appellants : Mr. C. Jeyaprakash.
For the Respondents: Mr. M. Prakash, Additional Government Pleader.
IMPORTANT POINT
Subordinate legislation cannot conflict with substantive law, and existing legal provisions sufficiently safeguard against fraudulent transactions without the need for original documents in all cases.
Headnote:
REGISTRATION - Writ Appeal against Registration Refusal - Registration Act, 1908; Registration Rules, 1949; Hindu Succession Act, 1956; Article 300A of the Constitution of India - The court analyzed the provisions of the Registration Act, 1908, and the Registration Rules, particularly Rule 55-A, which mandates the production of original documents for registration. The court found that this rule could infringe upon the rights of co-owners, especially daughters, by requiring documents that may be withheld by male heirs. The court emphasized that substantive law should prevail over subordinate legislation and that existing laws already provide sufficient safeguards against fraudulent transactions. The insistence on original documents was deemed unnecessary and potentially corrupting, leading to the conclusion that the refusal to register based on this rule was unjustified.
Fact of the Case:
Shanmugam Ambalam purchased immovable properties, which were later inherited by his children after his death. Two daughters attempted to sell their share but faced registration refusal due to the absence of the original sale deed, which was reportedly with male heirs who were uncooperative.
Finding of the Court:
The court found that the insistence on producing the original document for registration was not only impractical but also discriminatory against the daughters, infringing their rights under Article 300A of the Constitution. The court ruled that the registration could proceed based on a sworn affidavit and certified copies of relevant documents.
Issues: Whether the requirement to produce the original sale deed for registration is valid and whether it infringes upon the rights of co-owners, particularly daughters, under the Registration Act and the Constitution.
Ratio Decidendi: The court held that subordinate legislation (Rule 55-A) cannot override substantive law and that existing legal frameworks adequately protect against fraudulent registrations. The insistence on original documents could lead to corruption and was not a necessary condition for registration.
Final Decision: The writ appeal was allowed, the Writ Court's order was set aside, and the Sub Registrar was directed to register the document based on a sworn affidavit and certified copies, with a completion timeline of fifteen days.
JUDGMENT :
R. Subramanian, J.
This writ appeal is directed against the order of the Writ Court, which came to be passed under the following circumstances :
(i) One Shanmugam Ambalam had purchased certain immovable properties under a registered sale deed dated 27.01.2003. Consequent upon the said purchase, the revenue records were also mutated in his name and a patta was issued to him in Patta No. 467 for an extent of 0.60.00 Hectares in Survey No. 53/2 and 0.26.00 Hectares in Survey No.54/2B.
(ii) The said Shanmugam Ambalam died on 27.05.2008, leaving behind four daughters and three sons.
(iii) One of the sons of Shanmugam Ambalam, namely, Chelladurai predeceased him after having been married.
(iv) Two of the daughters of Shanmugam Ambalam along with their legal heirs had executed a sale deed in respect of their 2/8th undivided share in favour of the appellants on 15.11.2022.
(v) When the said document was presented for registration, the jurisdictional Sub-Registrar refused registration, on the ground that the original deed of sale in favour of Shanmugam Ambalam has not been produced.
(vi) The said order was challenged by the appellants in the writ petition and in the supporting affidavit, it was mainly contended that insistence of production of original document is against the provisions of the Registration Act, 1908. It is also stated that the original document is not available with the vendors of the appellants. It was also claimed that the said document was with the male members of the family and they were reluctant to part with it.
(vii) The Writ Court had worked out a via media by requiring the appellants to produce the document for perusal of the Registrar, since it was claimed that the said document was with the male members of the family and they were reluctant to part with it. Hence, this writ appeal.
2. We have heard Mr. C. Jeyaprakash, learned counsel appearing for the appellants and Mr. M. Prakash, learned Additional Government Pleader, appearing for the respondents.
3. Mr. M. Prakash, learned Additional Government Pleader appearing for the respondents, would contend that based on the recommendations of a Division Bench of this Court in W.A.No.1989 of 2019, dated 30.04.2021, Rule 55-A of the Registration Rules, 1949 (for brevity, “the Registration Rules”) was introduced and the provisions that were contained in a Circular issued by the Inspector General of Registration were made part of the Registration Rules. It is stated that the Rules were introduced based on the recommendations of the very High Level Committee dated 27.12.2022.
4. Whatever be the directions of the Division Bench or the Committee, the same will not preclude us from deciding upon the vires of the Rules that have been incorporated. If the Rules, which are subordinate legislations are in conflict with substantive law, the substantive law alone would prevail and not the Rules.
5. Rule 55-A of the Registration Rules, which was introduced by way of an amendment on 05.09.2022, in our opinion, has been introduced only with an end object of facilitating realisation of illegal gratification. While Rule 55-A(i) provides that the original document should be produced, the third proviso to Rule 55-A(i) requires the presentant of the document to produce a non-traceable certificate, if the original document is lost. We have been made alive to the fact that a non-traceable certificate comes for a particular price. We cannot but ignore the happenings around us.
6. Adverting to the facts of this case, the original owner, namely, Shanmugam Ambalam died leaving behind four daughters and three sons. Another son, by name, Chelladurai, who was married, had predeceased him. Therefore, each one of the sons and daughters would get a eighth share in the estate. Two of the daughters want to sell away their 2/8th share. The sons are not cooperating. The legislature thought it fit to empower the daughters by even removing Section 23 of the Hindu Succession Act, 1956, which prevented the d
