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2023 Supreme(Mad) 3408
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R.SUBRAMANIAN, L.VICTORIA GOWRI, JJ.
M.Ariyanatchi - Appellant
Versus
The Inspector General of Registration - Respondent
W.A.(MD) No.856 of 2023
Decided on : 27-06-2023
For the Appellants : Mr.C.Jeyaprakash
For the Respondents: Mr.M.Prakash
Headnote:(A) Registration Act, 1908 - Rule 55-A of Registration Rules, 1949 - Requirement of producing original documents for registration - Controversy surrounding the registration process post-intestate death of property owner and the effect of newer regulations on co-ownership rights - Appellants’ sale deed for 2/8th undivided share was denied registration due to non-production of the original sale deed - Writ Court mandated production for Registrar’s review and gave a conditional response on the legality of such a requirement. (Paras 1-3, 5-10)
(B) Legal Principles - Original documents need not always be produced for registration where co-owners are involved, and the insistence on it may infringe proprietary rights guaranteed under Article 300A of the Constitution of India and the ability of co-owners to engage in transactions regarding their shares. (Paras 10-14)
Facts of the case:
The appellant purchased a share of immovable property through sale deeds executed by two daughters of Shanmugam Ambalam. Upon trying to register the deed, the Sub-Registrar demanded the original document that was not available. A writ petition was filed resulting in the opinion that the necessity for original documents contradicted provisions of the Registration Act.
Findings of Court:
The Court held that insisting on the production of the original document would hinder the rights of co-owners and potentially facilitate corruption rather than prevent fraudulent registrations. The substantive law should take precedence over subordinate regulations.
Issues: The primary issue was whether the requirement to produce an original document for the registration of property transfers was legally enforceable, particularly in cases involving co-owners and inheritance disputes.
Ratio Decidendi: The court reasoned that insisting on the original document was unnecessary given the existing safeguards under substantive property law, and it could violate constitutional rights. The procedure outlined proved ineffective.
Result: Writ appeal allowed; the order of the Writ Court was set aside.
| Table of Content |
|---|
| 1. facts surrounding property purchase and familial relationships. (Para 1) |
| 2. analysis of the implications and conflicts of rule 55-a with substantive law. (Para 3 , 4 , 5 , 10 , 12) |
| 3. criticism of rule 55-a’s impact on registration and co-ownership rights. (Para 6 , 8 , 9 , 13 , 14) |
| 4. subordinate legislation conflicts with substantive law. (Para 11) |
| 5. writ appeal decision and directions for document registration. (Para 15) |
JUDGMENT :
[Judgment of the Court was made by 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
