TaxTMI 
TaxTMI 
2020 (11) TMI 1100
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....a Vs. Sub-Registrar, Hosur and Another, by order dated 02.12.2019, a learned Single Judge of this Court had directed the Petitioner therein who wanted to register a Settlement Deed, notwithstanding the fact that an Agreement of Sale with respect to the same property had been registered, to approach the competent Civil Court and seek a declaration that the Agreement of Sale was null and void and unenforceable. 3. In the instant Writ Petition No. 674 of 2020, the learned Single Judge, faced with two directly contradictory views by two learned Single Judges, had, exercising prudence, placed the matter before the Hon'ble Chief Justice to form a Larger Bench to resolve the conflict of views. 4. The Hon'ble Chief Justice was pleased to constitute this Bench to examine the issues. 5. Naturally, the issues raised would have to be addressed by meandering through the provisions of the Registration Act, 1908, vis-à-vis documents which presented for registration and the circumstances under which a Registering authority can refuse registration. The salient features of the Transfer of Property Act, 1882, will also have to be examined with specific reference to the rights ....
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....tion or encumbrance over the immovable property. When we deal with various provisions of the Registration Act which empower the Registrar to refuse the document for registration, Section 19 of the Registration Act deals with the power of the Registrar to refuse to register the document, when the document presented for registration is in a language which the registering officer does not understand, and it is not a language which is commonly used in the district, he shall refuse to register the document, unless it is accompanied by a true translation into a language commonly used in the district. Section 20 of the Act gives a discretion to the Registrar to refuse to accept any document which contain interlineations, blanks, erasures or alterations, unless those are attested by the persons executing the document with their signatures. 13. A reading of the above section and Sub-Clause 2 together makes it clear that even there are errors, interlineations, blanks, erasures or alterations, there is no bar for registration of the document. Similarly Section 21 of the Act deals with the power of the Registrar not to accept a document which does not contain the description of the property....
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....ry which reads as follows: 34. Enquiry before registration by registering officer:- (1) Subject to the provision contained in this part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26 : Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any payable under Section 25, the document may be registered. 21 (2) Appearances under sub-section (1) may be simultaneous or at different times. (3) The registering officer shall thereupon - (a) enquire whether or not such document was executed by the persons by the whom it purports to have been executed; (b) satisfy himself as to the identity of the person appearing before him and alleging that they have ex....
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....ficer is a Registrar, he shall follow the procedure prescribed in Part XII: 19. On such refusal an appeal also provided under Section 72 of the Act. Thereafter, the procedure contemplated for filing a suit as against such order under Section 77 of the Act. 20. The learned Senior counsel for the Petitioner relied upon the judgment in Latif Estate Line India Ltd. v. Hadeeja Animal [2011-1-L.W. 673 : 2011 (2) CTC 1] wherein it has been held that there is no provision in the Transfer of Property Act or in the Registration Act, which deals with the Cancellation of Deed of sale. The reason is that the execution of a Deed of Cancellation by Vendor does not create, assign, limit or extinguish any right, title or interest in the immovable property and the same has no effect in the eye of law. 21. In Satya Pal Anand v. State of M.P. [2016-2-L.W. (Crl.) 57 : (2016) 10 SCC 767] the Honourable Apex Court has held that the role of Sub-Registrar (Registration) stands discharged, once the document is registered. Power to cancel the registration is a substantive matter. 22. In K.S. Vijayendran vs. The Inspector General of Regulation & Another [2011(2) LW 648] this court has held as foll....
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....attested interlineations, blanks, erasures or alterations which in the opinion of the Registering Officer require to be attested. III. Section 21.-(1) to (3) and Section 22.- That the description of the property is insufficient to identify it or does not contain the information required by Rule 18. IV. Section 21(4).-That the document is unaccompanied by a copy or copies of any map or plan which it contains. V. Rule 32.-That the date of execution is not stated in the document or that the correct date is not ascertainable. VI. Sections 23, 24, 25, 26, 72, 75 and 77.- That it is presented after the prescribed time. VII. Sections 32, 33, 40 and 43.-That it is presented by a person who has no right to present it. VIII. Section 34.-That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time. IX. Sections 34 and 43.-That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document. X. Sections 34 and 40.-That the Registering Officer is not satisfied as to the right of a person app....
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.... it obligatory for the Registering Officer to record in Book No. 2 the reasons for refusal to register a document. Interestingly, rule 162 lists out the various heads under which the refusal to register may fall. [Rajambal v. Inspector General (Registration), Government of Tamil Nadu, 2012-2-L.W. 873 : 2012 (I) CWC 627]. 26. Conspectus of the various provisions referred above make it clear that the Registering Officer cannot go into the title of the property in respect of which document is presented. However, under various provisions he has power to refuse to accept the document for registration unless mistakes found in the document are set right properly. Except Section 22-A of the Tamil Nadu Act, other provisions referred above do not give any power to the registering officer to refuse to register the document presented by the person executing documents. Rule 60 also states that the registering officer can only enquire about the executant and the claimant of the instrument of sale regarding whose identity he has to satisfy himself. But the provisions does not give absolute power to refuse registration. As already indicated above, the purpose and object of the Act is to give a ....
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....immovable property reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee subject to any condition attached to the exercise of the power as a revocation of the former transfer to the extent of the power. 32. Similarly section 43 of Transfer of Property Act deals with transfer by unauthorised person who subsequently acquires interest in the property transferred. The above section makes it very clear that even a person who has no title over the property purports to transfer to another by deed and when he subsequently acquires any interest in the property, sufficient to satisfy the transfer, the title would pass to the transferee without any further act on the part of the transferor, provided the transferee has not rescinded the transfer and opts for such effectuation. The above principle also makes it very clear even a transfer by unauthorised person is not prohibited. Only the validity of the title would be subject to his acquiring subsequent interest in the property. 33. Section 48 of the Transfer of Property Act deals with priority of rights created by transf....
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....ection 57 of the Transfer of Property Act deals with the Provision by Court for encumbrances and sale freed therefrom. The Section also makes it clear that even the properties already encumbered can be brought under court sale and the encumbrance can be freed after issuance of notice to the encumberer. 39. It is also relevant to note that even a mortgage is a transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. Therefore, it cannot be said that once the encumbrance is made by creating a mortgage, the mortgagor is totally prohibited from effecting any further transfer. In fact if any such transfer is made, it is always subject to the mortgage alone. If the analogy is drawn from the judgement of the single judge in W.P. No. 33601 of 2019 [Venkattamma vs. The Sub-Registrar and another] that agreement once registered there cannot be any subsequent settlement deed is accepted, such situation even may lead to the contention that even where a simple mortgage is created, the mortgagor ....
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....t also considered the nature of the right created on the immoveable property by a contract for sale. It has been stated that contract of sale in view of section 24 of T.P. Act does not of itself create any interest in or charge on the property. The personal obligation created by a contract of sale (as recognised in Section 3 of the Specific Relief Act and section 91 of the Trust Act is described in Section 40 of the T.P. Act) as an obligation arising out of contract. An annexure to the ownership of the property, but not amounting to interest or easement therein. 42. Section 19(b) of Specific Relief Act also protects the subsequent transferee for value and for consideration in good faith without notice of the original contract. Even if a person has no title to the property has entered into a contract for sale, the transferee can seek for specific performance under section 13 of the Specific Relief Act. 43. From a combined reading of various provisions of the Transfer of Property Act as referred above, we are of the view that there is no bar for creating subsequent transfer of the immovable property. Effect of the subsequent transfer is always subject to the earlier transfer cr....
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....revent fraud and hence, the Registrar is having powers Under the Registration Act to regulate the registration and the right to refuse the document and that such power is available under Section 71 of the Registration Act. Such contention is not acceptable for the simple reason that the circular bars transfer of property on the ground that when a lease is already executed in respect of the property, without expiry of the lease, transfer cannot be permitted or without consent of lessee no registration is permissible. Further, insisting a no objection from mortgagee before registration is also against the very substantive provision of law. If any property is sold with existing mortgage, the transferee steps into the shoes of mortgagor. He has the right to redeem the property by paying the mortgage money. Therefore in the name of regulating the registration, any circular which is in the nature of violating the substantive provision of law, which deals with the transfer of property, then such circular cannot stand in the eye of law. If the contention of learned Advocate General that without seeking declaration and cancellation of the agreement of sale, subsequent agreement or transacti....