Non-production of original documents cannot justify refusal to register a settlement deed when certified copies are available, affirming the constitutional right to property.

ORDER :

G.K.Ilanthiraiyan, J.

Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the impugned refusal check slip in Refusal No.RFL/No.2 Joint Sub-Registrar Serammahadevi/16/2024, dated 16.12.2024 passed by the respondent and to quash the same and consequently to direct the respondent to register the settlement deed presented by the Petitioner, dated 11.12.2024.

This writ petition has been filed challenging the refusal check slip issued by the respondent, dated 16.12.2024 on the ground that the petitioner failed to produce the original parent deed and also the mortgage is pending.

2. Mr.D.Sadiq Raja, learned Additional Government Pleader takes notice for the respondent. By consent of both parties, the Writ Petition is taken up for final disposal at the admission stage itself.

3. The Petitioner owned property comprised in S.No.2/6, 21/2A, 21/2B, 21/3B1A, 21/3B1B, 21/3B2,21/3B3 and 21/3B4 of Chockalingapuram Village, Seranmahadevi Taluk, Tirunelveli District to an extent of 3 acre and 96 cents and the property comprised in S.No.21/3A to an extent of 3 acre and 96 cents and in S.No.21/3A of the same village to an extent of 38 cents in the same village. Both the properties were purchased by the Petitioner by registered sale deeds dated 31.12.1992 and 17.7.2006 vide document No.1107/1992 and Document No.872 of 2006 respectively. After purchase, entire revenue records were mutated in favour of the Petitioner in respect of the above said property. Now the Petitioner is intended to sell the property in favour of his sister and executed a settlement deed, dated 11.12.2024 and presented the same for registration. However the respondent refused to register the same on the ground that the subject properties were mortgaed with UCO Bank and entered into encumbrance and failed to produce the parent documents. It is settled law that non production of original documents cannot be a ground for refusal of registration of settlement deed.

4. This issue has already been dealt with by the Hon'ble Division Bench of this Court recently in WA.No.1160 of 2024 by judgment dated 27.09.2024. The relevant portion of the judgment is extracted hereunder:-

“7. The law relating to transfer of immovable property is governed by the substantial enactment namely, The Transfer of Property Act, 1882. The right to hold property and the right to be not deprived of property without reasonable compensation is a constitutional right ensured under Article 300A of the Constitution of India. Being a constitutional right, it is one step superior to even the fundamental rights, as there cannot be a reasonable restriction on the said right and no one can be deprived of the property without reasonable compensation. The right to hold the property also takes in its fold the right to deal with the property. No doubt, the second proviso to rule 55-A of the Tamil Nadu Registration Rules mandates that the original of the antecedent document should be produced to enable registration of a subsequent instrument. Of course, a way-out is provided namely, the production of non traceability certificate from the police department. We should also be conscious of the fact that any certificate from any Government department, as of today, comes only at a price for an ordinary citizen. An elaborate procedure has also been fixed for issuance of non traceability certificate. We have come across several instances where, because of the high pricing of and the complicated procedure involved in obtaining a non traceability certificate, instances of people obtaining non traceability certificate from the neighbouring States has increased.

8. The fundamental principle of law relating to transfer of immovable property is caveat emptor. A buyer of the property is required to be careful in not purchasing certain properties which are already encumbered or from person who does not have title. Even if a person sells a prope