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2007 DIGILAW 3381 (MAD)

S. Murugesan rep by power Agent v. The Sub Registrar, Thirupparankundram registration office, Tirunagar, Madurai

2007-10-25

M.JEYAPAUL

body2007
Judgment :- 1. The writ petition is filed seeking a writ of certiorarified mandamus to call for the records pertaining to the registration made by the first respondent in Document No.1175 of 2007 dated 13.04.2007 and quash the same and direct the first respondent to delete the entry in the record maintained by him. 2. The case of the petitioner in brief is as follows: The petitioner is represented by his power agent C.J.M.Arockiaraj. The petitioner is a eminent business man. He purchased 1 acre and 24 cents from P.Alagumoopan and P.Kathan under Document No.1247/83; 32 cents from Veerammal and Piliyammal under Document No.1248/83; one acre and 48 cents from Kumarandi, Kathamoopan, Mayamoopan and Azhagu under Document No.1250/83; 1 acre and 26 cents from Mayan under Document No.479/84; 44 cents from Santhanam under Document No.480/84 and some properties from Periyakaruppa Konar and three others under Document No.781/85, registered in the office of Thirupparangundram Registrar. In all, the petitioner acquired 5.5 acres in Survey Nos.201/2A1, 202/1A, 203/8, 204/2B, 204/3B, 204/2A in Patta Nos.600 and 1142 of Vadapzhanji Village, Madurai District. Having developed the aforesaid lands, he has been managing the same. The second respondent who is working as a staff in the Madurai Kamaraj University, Madurai has been giving disturbance to the petitioner from the very inception due to jealousy, he developed. The petitioner incurred some debt in the Bank and therefore, he decided to sell all his properties. He took out encumbrance certificate from Thirupparangundram Registrar Office. But he found to his surprise that the second respondent has encumbered the property by transferring his alleged cultivating tenancy rights to the third respondent for the total consideration of Rs.91,700/-. The second respondent had not taken any property from the petitioner on lease and he does not also possess any document to claim cultivating tenancy right for the lands of the petitioner. But the first respondent has chosen to register the said documents even without verifying the alleged rights of the second respondent as a cultivating tenant. The first and the second respondents colluded together and registered such a deed against the spirit of law. The Tamil Nadu Cultivating Tenants Protection Act, 1955, does not provide for alienation of right of cultivating tenant to a third party for consideration. Therefore, the petitioner has prayed for the aforesaid relief. 3. The first and the second respondents colluded together and registered such a deed against the spirit of law. The Tamil Nadu Cultivating Tenants Protection Act, 1955, does not provide for alienation of right of cultivating tenant to a third party for consideration. Therefore, the petitioner has prayed for the aforesaid relief. 3. The learned counsel appearing for the petitioner would submit that the first respondent/Sub Registrar had acted illegally in registering alleged cultivating tenancy rights of the second respondent, without even verifying the tenor of the claim of the second respondent. It is his further submission that this Court exercising its writ jurisdiction can very well set right the wrong committed by the sub Registrar. 4. The learned Government Advocate appearing for the first respondent would contend that the Sub Registrar had acted only in accordance with law in registering the deed of madeover executed by the second respondent in favour of the third respondent. Law does not prohibit transfer of cultivating tenancy rights under a deed of madeover. Further, the Sub Registrar is not duty-bound to verify the right acquired by the second respondent as a cultivating tenant. 5. On a careful perusal of the document under challenge, it is found that the second respondent having adverted to the fact that he had been cultivating the subject property in his capacity as cultivating tenant madeover his cultivating tenancy right to the third respondent. The second respondent has not chosen to alienate the property of the petitioner. 6. It is quite relevant to refer to Section 2 (aa) of the Tamil Nadu Cultivating Tenants Protection Act, 1955 to know who are all the persons who can be classified as cultivating tenants. Not only a person who contributes his own physical labour, but any member of his family or after his demise, his legal heir who contributes his own physical labour in the cultivation of the land as well as a sub-tenant who is in possession of the land contributing his physical labour are classified as cultivating tenants. It is to be noted that Tamil Nadu Cultivating Tenants Protection Act, 1955 recognises sub-tenancy. Here in this case, the second respondent claiming to be the cultivating tenant has madeover his cultivating tenancy rights in favour of the third respondent. Under such circumstances, the third respondent who has got madeover of the cultivating tenancy rights becomes a sub-tenant under the landlord. Here in this case, the second respondent claiming to be the cultivating tenant has madeover his cultivating tenancy rights in favour of the third respondent. Under such circumstances, the third respondent who has got madeover of the cultivating tenancy rights becomes a sub-tenant under the landlord. The only rider is that the sub-tenant should contribute his own physical labour in cultivation of the land. 7. The second respondent having contended that he is the cultivating tenant of the subject property, madeover the same in favour of the third respondent. But the petitioner seriously disputes such a status claimed by the second respondent. The serious factual dispute arisen between the petitioner and the first respondent as to whether the second respondent is a cultivating tenant under the petitioner can be decided only by a competent forum and not by the High Court exercising its writ jurisdiction under Article 226 of the Constitution of India. 8. Let me also advert to the provision under Section 6 of the Transfer of Property Act, 1908, which has some impact on the issue arisen in the writ petition. Section 6 (d) and (i), as such deals with the properties which can be transferred. Of course, an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Further no transfer can be effected by a tenant having an untransferable right of occupancy to a third party. The alleged cultivating tenancy right of the second respondent is not restricted to the enjoyment of the second respondent personally. His right also is not an untransferable right. No such custom or local law prevails in the State of Tamil .Nadu making the occupancy rights inalienable. In fact, the Tamil Nadu Cultivating Tenants Protection Act, 1955 recognises sub-tenancy. The general Rule is that leaseholds are transferable, but some occupancy rights are inalienable either by custom or by local laws. 9. Let us now refer to the Registration Act, 1908. Where the Registrar has admittedly no territorial jurisdiction to register a deed, such registration embarked upon by the Registrar is a nullity. Supposing an incompetent person not legally entitled to submit a document for registration, presents the same for the purpose of registration, the Sub Registrar or the Registrar as the case may be has every right to refuse to register the document. Supposing an incompetent person not legally entitled to submit a document for registration, presents the same for the purpose of registration, the Sub Registrar or the Registrar as the case may be has every right to refuse to register the document. There may be cases where a document would have been presented out of time or the executant may deny the very execution of the document. In such cases, the Sub Registrar or the Registrar as the case may be can very well turn down the plea for registration. But the Sub Registrar or the Registrar has no authority to verify the right and title of the executant to deny registration. 10. In the instant case, the Sub Registrar who did not encounter any impediment under the scheme of the Registration Act, 1908, has rightly registered the deed of madeover executed by the second respondent in favour of the third respondent. 11. The petitioner has approached this Court without any legal basis seeking to quash the registration made by the Sub Registrar in Document No.1175/07 dated 13.04.2007. The writ petition fails and therefore, it stands dismissed. No costs. Connected MP is also dismissed.