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TMI Blog2020 (11) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... Narandas Karsondas vs. S.K. Kamtam another [[ 1976 (12) TMI 186 - SUPREME COURT] ] the Honourable Supreme Court 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. 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. There is no bar for creating subsequent transfer of the immovable property. Effect of the subsequent transfer is always subject to the earlier transfer created by the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Rajagopal, Additional Advocate General for T.M. Pappiah, Special Govt. Pleader for B. Kannan, Government Advocate and S. Suresh Kumar ORDER C.V. Karthikeyan, J. 1. In W.P.(MD) No. 24429 of 2018, N. Raju Vs. District Registrar, Trichy, and Another, by order dated 07.03.2019, a learned Single Judge of this Court had directed the 2nd Respondent, Sub-Registrar, Sub-Registrar's Office, Thiruverumbur, Trichy, to register an Agreement of Sale entered into by the Petitioner, notwithstanding the fact that the Petitioner had earlier registered an Agreement of Sale with respect to the same property. The objections raised by the 2nd Respondent that the earlier agreement was still in force, was brushed aside by the learned Single Judge. 2. In W.P. No. 33601 of 2019, Venkatamma 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 une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the 2nd Respondent. 11. Before dealing with the substantive provision of law as to the registration and also transfer of properties, we feel it necessary to record the object of the Registration Act. The object and purpose of the Registration Act amongst other things is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligation arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance and also to prevent fraud. (Jogi Doss Vs. Fakir Panda AIR 1970 Ori. 22) 12. The object of registering a document is to give public notice to the world that such a document has been executed, to prevent fraud and forgery and to secure a reliable and complete information 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent authority as provided under the relevant Act or in the absence of any such authority, an authority so authorised by the State Government for this purpose, is produced before the registering officer. (2) instrument relating to the transfer of ownership of lands converted as house sites without the permission for development of such land from planning authority concerned: provided that the house sites without such permission may be registered if it is shown that the same house site has been previously registered as house site. 15. Section 23 deals with the time limit within which the document shall be presented for registration. Section 34 of the Act deals with the power of Registrar to make any enquiry 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the document has also to sign such document. Otherwise the document cannot be registered. 18. Section 35 deals with the procedure on admission and denial of execution of document. Section 35(3) reads as under: S. 35(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 person so denying, appearing or dead: Provided that, where such officer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. 25. Rule 162 of the Registration Rules reads as follows: 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 it contains unattested 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, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 Reforms (Fixation of Ceiling of 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. Rule 162 makes 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer of the property with consent, express or implied of the real owner. 31. From the principle underlined in the Section 41 of the Transfer of Property Act is that the ostensible owner of the property, with the consent express or implied and representing himself as owner of the property though he is not having the title, can deal with the property. Similarly, Section 42 of the T.P. Act deals with the transfer by a person having authority to revoke the former transfer. When a person transfers any 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, suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtgage-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties. The above provision also makes it clear that though there were mortgages already created there is no bar for subsequent transfer of the property. But subsequent transfer is subject to the mortgage earlier created. 38. Section 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions specified therein and it is only capable of enforcement in the event of breach of contract by the other side. Even to enforce such agreement for specific performance, the agreement holder has to establish not only the contract but other grounds viz., ready and willingness on his part to get a decree of specific performance provided the suit is filed within time. 41. In Narandas Karsondas vs. S.K. Kamtam another [1977 (90) L.W. 113 S.N. : AIR 1977 SC 774] the Honourable Supreme Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the same property. The Registrar has no right to refuse to register the document, except the documents relating to immovable properties mentioned in Section 22-A of the Tamil Nadu Act and as contemplated under Rule 162 of the Registration Rules. 46. It is also brought to our notice about the new circular in No. 24011/C1/2020 dated 08.10.2020. It is the contention of the learned Additional Advocate General that the Registrar has power to regulate the registration in order to prevent 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 transf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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