The petitioner has executed a settlement deed in favour of his wife, D. Muthulakshmi, under a settlement deed dated 23.8.2010 and presented it for registration in the office of the second respondent. The second respondent, without registering the deed and without assigning any reason, is keeping it as pending Document No. P1243 of 2010. The petitioner has also paid the entire stamp duty and registration charges in respect of the settlement deed. On enquiry, the second respondent has directed the petitioner to produce the title deeds relating to the property sought to be settled by him in favour of his wife, failing which the registration will be refused. The operative portion of the communication of the second respondent dated 15.11.2010 is as follows:
2. It is now brought to the notice of this Court by the learned Special Government Pleader that subsequent to the filing of the writ petition, the second respondent has passed an order on 28.1.2011 refusing registration by placing reliance on the circular issued by the first respondent dated 15.9.2010
3. A reference to the circular dated 15.9.2010, which has been referred to by the second respondent for passing order refusing to register the settlement deed, is only in the form of a guideline explaining about Rule 55 of the Registration Rules in order to avoid registration of bogus documents, which are either prohibited as per law or issued by way of restraint order by the Court.
4. The order dated 28.1.2011 has been passed by the second respondent by virtue of the power conferred under Section 71 of the Registration Act, 1908, which is as follows:
“Section 71. Reasons for refusal to register to be recorded.—
(1) 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.
(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.”
Even though the second respondent has passed orders by virtue of the powers conferred under Section 71 of the Registration Act, 1908, the fact remains that the reason for passing such order of refusal is one which has been made out by him in his communication dated 15.11.2010, elicited above, namely the petitioner has been directed to substantiate his right over the property before registering the same.
5. Law is well settled that it is not for the registering authority to investigate the title in respect of the property which is the subject matter of the document produced before him.
6. The scope of the registering authority to conduct enquiry before registration is limited to various provisions of the Registration Act, 1908 stipulated under Part-IV. By virtue of the power conferred under Section 34 of the Registration Act, 1908, the registering authority can conduct enquiry before registration. When a document is presented, the registering authority has to enquire as to whether the document presented by the person was executed by him and also satisfy himself about the the identity of the person appearing before him stated to have executed the document or a person who appears as a representative and to satisfy himself as to the right of such person to represent the person on whose behalf the document is sought to be executed. For the purpose of understanding the power of enquiry by the registering authority, it is relevant to extract Section 34 of the Registration Act, 1908, which is as follows:
“Section 34. Enquiry before registration by registering officer.—
(1) Subject to the provisions 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, and in the case of document for sale of property, the persons claiming under that document or their representatives, assigns or agents authorised 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.
(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 whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document or they are claiming under the document; and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.”
7. In addition to that, under Section 35 of the Registration Act, 1908, even on admission of such document, the registration can be refused if the execution is denied by the executant or in cases where the registering authority is satisfied that the person who appears before him for the purpose of execution is a minor, an idiot or a lunatic or if it is proved before him that the executant is dead. Section 35 of the Registration Act, 1908 is as follows:
“Section 35. Procedure on admission and denial of execution respectively.—
(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) if in the case of any person appearing by, a representative, assign or agent, such representative, assign or agent admits the execution, or
(c) if the person executing the document is dead, and his representative or assign appears before the registering officers and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive.
(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(3)(a) If any person by whom the document purports to be executed denies its execution, or
(b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or
(c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution,
the registering officer shall refuse to register the document as to the persons so denying, appearing or dead:
Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII.
Provided further that the State Government may by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purpose of this sub-section and of Part XII.”
8. Even though it is stated that the second respondent on 28.1.2011 has passed order under Section 71 of the Registration Act, 1908 refusing to register the document, it is the case of the petitioner, as submitted by the learned counsel for the petitioner, that such order has not been served on him.
9. Apart from the above provisions under the Registration Act, under the Registration Rules approved by the State Government under Section 69 of the Registration Act, 1908, while explaining about the scope of the enquiry by the Enquiry Officer before registration, Rule 55 of the Registration Rules, which is as follows:
“Rule 55. It forms no part of a registering officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:—
(a) that the parties appearing or about to appear before him are not the persons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d) that the executing party is not really dead, as alleged by the party applying for registration; or
(e) that the executing party is a minor or an idiot or a lunatic.”
mandates that it shall not be the duty of the registering officer to enquire into the validity of the document brought before him, except in cases where an objection has been taken in respect of the nature of the document that it is forged; or the persons who are appearing before him are not the persons they profess to be; or the person appearing as a representative has no right to appear, or the executing party is a minor or an idiot of a lunatic.
10. The power of the registering authority to pass orders under Section 71 of the Registration Act, 1908 to refuse registration and circumstances under which such registration can be refused are incorporated under Rule 162 of the Registration Rules, which is as follows:
“Rule 162. When registration is refused the reasons for refusal shall be at once recorded in Book 2. They will usually come under one or more of the heads mentioned below—
I. Section 19.— That the document is written in a language which the registering officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy.
II. Section 20.— That is contain unattested inter lineations, blanks, erasures, or alterations which in the opinion of the registering officer required 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 identify 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 appearing as a representative, assign, or agent so to appear.
XI. Section 35.— That execution is denied by any person purporting to be an executing party or by his agent.
Note: When a registering officer is satisfied that an executant is purposely keeping out of the day with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused the non-appearance being treated as tantamount to denial of execution.
XII. Section 35.— That the person purporting to have executed the document is a minor, an idiot or a lunatic.
Note: When the executant of a document who is examined under a commission under section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic registration may be refused and it is not necessary that the registering officer should personally examine the executant to satisfy himself as to the existence of the disqualification.
XIII. Section 35.— That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed.
Note: When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being left to apply to the Registrar for an enquiry into the fact of execution.
XIV. Section 35 and 41.— That the alleged death of a person by whom the document purports to have been executed has not been proved.
XV. Section 41.— That the registering officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.
XVI. Sections 25, 34 and 80.— That prescribed fee or fine has not been paid.
XVII. Section 230(A) of the Income Tax Act, 1961 (Act 43 of 1961).— That the prescribed certificates from the Income Tax Officer has not been produced.
XVIII. Section 10 of the Tamil Nadu Land Re forms (Fixation of Ceiling on Land) Act, 1961 (Act 58 of 1961).— That the declaration has not been filed by the transfer.
XIX. Section 27 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Act 24 of 1978).— That the statement has not been filed by the transferor and transferee.”
None of the provisions of the Act or the Rules contemplate the Registrar to require the party appearing before him for presenting document to produce the original title deeds relating to the property so as to satisfy himself about the ownership of the executant in respect of the property sought to be executed.
11. A close reading of the Act as well as the Rules, elicited above, shows that the reason which has been made out by the registering authority for refusing the registration does not find place either under the Act or the Rules. The scope of enquiry by the registering authority is restricted only as per the statutory provisions enunciated under the Act as well as the Rules framed thereunder and the authority cannot do anything which is contrary to the provisions of the statute.
12. On the facts of the present case, when the petitioner, being the husband, seeks to execute settlement deed in favour of his wife, it is not for the registering authority to satisfy himself about the ownership and right of the petitioner over the property to enable him to execute the settlement deed. Such power can never be construed to be vested on the registering authority either under the Act or the Rules or even as per the circular of the first respondent dated 15.9.2010, which only clarifies about the power of enquiry under Rule 55 of the Registration Rules in order to avoid registration of bogus documents. Thus, looking from any angle, I am of the considered view that the reasons given by the second respondent for not registering the document are untenable under any of the provisions of the Act. There is absolutely no reason for not registering the document which has been presented by the petitioner.
For the reasons aforesaid, the writ petition stands allowed with a direction against the second respondent to register the document which is pending before him in Document No. P1243 of 2010, if the necessary requirements relating to stamp duty and registration charges are complied and he is satisfied about the person who has presented the document before him as per the provisions of the Act and Rules, enumerated above. The second respondent is directed to register and release the document within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No 1 of 2011 is closed.
VCJ/VCS
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