JUDGMENT : S.S. Sundar, J. (Prayer: Appeal filed under Clause 15 of the Letters Patent, praying to allow this Writ Appeal and set aside the order passed in W.P(MD)No.9185 of 2014, dated 23.07.2014.) 1. This Writ Appeal is directed against the order of the learned Single Judge dismissing the Writ Petition filed by the appellant in W.P.(MD) No.9185 of 2014, dated 23.07.2014. 2. The appellant is the owner of the property measuring 2913 ½ sq. ft. of land in Natham Survey No.243/2C1A along with building bearing Door No.13(C), Ward No.15 and present Door No.39 (Ward No.17) in Sankaralingam Pillai 1st Street, Melur Village, Melur Municipality. It is the case of the appellant that he borrowed a sum of Rs.15,00,000/- from the fourth respondent. It is further stated that the fourth respondent was charging exorbitant interest and was demanding repayment of nearly Rs.70,00,000/- from the appellant. It was the specific case of the appellant that under threat and coercion, the fourth respondent obtained a sale deed in respect of the property above referred to by a sale deed dated 07.03.2011 which was registered in the office of the third respondent. Since the fourth respondent was demanding a sum of Rs.70,00,000/- for reconveyance of the property, it is stated by the appellant that his younger brother came forward to help him and that out of the funds provided by the appellant's younger brother, a sum of Rs.70,00,000/- was paid to the fourth respondent, who acknowledged the receipt of the payments by receipt dated 20.06.2011, 27.08.2011 and 29.08.2011. 3. It is a matter of record and admitted that the fourth respondent in fact executed a sale deed dated 05.09.2011 re-conveying the entire extent of the property to the appellant. The document of sale is registered before the third respondent on 06.09.2011 as Document No.5342 of 2011. It was the case of the appellant that considering the fact that the property could be redeemed from the fourth respondent with the financial assistance of his younger brother and also out of love and affection, it is stated by the appellant that he conveyed the property in favour of his brother by name Chakravarthy by a registered sale deed dated 07.09.2011 by way of gift deed. The document by which the appellant conveyed the property to his brother is registered as Document No.5356 of 2011 dated 07.09.2011. The document by which the appellant conveyed the property to his brother is registered as Document No.5356 of 2011 dated 07.09.2011. However, the fourth respondent presented a document for registration before the third respondent on 18.11.2011. The said document is a sale deed purported to have been executed by the appellant in favour of the fourth respondent on 05.11.2011. This sale deed is in respect of 1223 sq. ft. out of total extent of 2913½ sq. ft. allegedly owned by the appellant. When the fourth respondent presented the sale deed for registration on 18.11.2011, the third respondent issued an enquiry notice on 02.12.2011 and the appellant in response to the enquiry notice submitted a detailed explanation on 15.12.2011. It is stated that the appellant has also submitted another representation on 23.12.2011 not only to the third respondent but also to the respondents 1 and 2. In the representation of the appellant, it is specifically stated that the document of sale deed dated 05.09.2011 alleged to have been executed by the appellant in favour of the fourth respondent was in fact not executed by the appellant and that it is a forged document. Regarding the fact that the executant, namely, the appellant denied the execution of the document and the registering authority, namely, the third respondent refused to register the document, there is no dispute. Thereafter, the second respondent issued a notice to the appellant for attending enquiry on 22.04.2013 in the petition filed by the fourth respondent on 18.02.2013 seeking relief of compulsory registration of the document. The appellant stated that he appeared for the enquiry before the second respondent on 22.04.2013 and gave his written submission with all supporting documents including the earlier representations that were sent to the respondents on 23.12.2011. It is the specific case of the appellant that when the appellant was waiting for further opportunity of hearing from the second respondent in the enquiry to substantiate his case, it is stated that he received the impugned order dated 19.05.2014 passed by the second respondent which was received by him on 06.06.2014. By the order dated 19.05.2014, the second respondent has ordered for compulsory registration of the sale deed dated 05.09.2011. This order of the second respondent was challenged by the appellant before this Court in W.P.(MD)No.9185 of 2014. By the order dated 19.05.2014, the second respondent has ordered for compulsory registration of the sale deed dated 05.09.2011. This order of the second respondent was challenged by the appellant before this Court in W.P.(MD)No.9185 of 2014. In the Writ Petition filed by the appellant, the specific stand taken by the appellant was that no opportunity was provided to the appellant before the second respondent and that the order was in violation of the principles of natural justice. It is his specific case that the order has been passed on the basis of the statement obtained from some of the witnesses examined by the fourth respondent without giving an opportunity to cross examine them or without giving an opportunity to peruse the statement of such witnesses. It is further stated that the second respondent has passed an order without considering the specific objections and stand taken by the appellant before the second respondent. Having regard to the scope of enquiry and the power given to the second respondent under Sections 73 to 75 of the Registration Act, it is specifically contended by the appellant that a fraudulent document cannot be permitted to be compulsorily registered without holding an enquiry giving full opportunity to the appellant to cross examine the witnesses and after furnishing the copies of the statements allegedly given by those witnesses before the second respondent. 4. The unnatural features of the transaction was also highlighted by the appellant before the Writ Court. It is stated that the sale deed executed by the fourth respondent in favour of the appellant on 05.09.2011 is not in dispute. Since a document dated 05.09.2011 has been registered by paying substantial stamp duty, it is not necessary for executing a second document on the same date, namely, on 05.09.2011 to reconvey a substantial portion of the property which was taken by the appellant on 05.09.2011. 5. It was stated that in the said circumstances, the transaction, namely, the sale deed alleged to have been executed by the appellant in favour of the fourth respondent is improbable and unnatural and the transaction itself is fraudulent. Some other circumstances also were pointed out by the learned Counsel appearing for the appellant before the Writ Court in the affidavit filed in support of the Writ Petition. Some other circumstances also were pointed out by the learned Counsel appearing for the appellant before the Writ Court in the affidavit filed in support of the Writ Petition. However, the writ petition was dismissed by a learned Single Judge of this Court after extracting the impugned order and by holding that the appellant was given full opportunity before the second respondent and that the order of second respondent relying upon the statements obtained from the document writer, attesting witnesses and other persons cannot be found fault with and that the submission of the appellant regarding violation of principles of natural justice cannot be countenanced. The learned Single Judge also recorded a finding that the appellant has signed the sale deed dated 05.09.2011 and on the perusal of the document, the learned Single Judge found that the document was executed in fact by the appellant. In the order, some of the judgments relied upon by the appellant was referred to as a passing reference and ultimately, the learned Single Judge has rendered his finding in paragraphs 14 and 19 which read as follows: “14. From the above averments, it is seen that the petitioner was aware of the proceedings before the second respondent, received the notice of enquiry and submitted his objections along with enclosures/annexures. Furthermore, the statements of the petitioner, fourth respondent, document writer as well as the attesting witnesses have also been recorded and after considering all these statements and after conducting due enquiry the second respondent has come to the conclusion that the factum of execution has been established and the circumstance required to be satisfied in terms of Section 32 and 34 of the Act have been fulfilled. Therefore, this Court is not inclined to accept the contention raised by the petitioner stating that the petitioner was not heard in the matter. .... 19. In the instant case, the allegation is that the petitioner ran away from the Sub-Registrar's Office prior to the verification of the process. Therefore, this Court is not inclined to accept the contention raised by the petitioner stating that the petitioner was not heard in the matter. .... 19. In the instant case, the allegation is that the petitioner ran away from the Sub-Registrar's Office prior to the verification of the process. However, the petitioner participated in the proceedings before the second respondent, filed his objections, gave his statement, after considering the statements of the petitioner, fourth respondent, attesting witnesses and scribe, the second respondent recorded a clear finding of fact and in the absence of any error in the said order, this Court is not inclined to interfere with the same and therefore, the same does not warrant interference of this Court.” 6. Aggrieved by the judgment of the learned Single Judge of this Court, the above appeal has been preferred by the Writ Petitioner. 7. The learned Counsel appearing for the appellant first of all submitted that the transaction dated 05.09.2011 is a fraudulent one and suspicious in nature having regard to the admitted facts. The execution of the document and signature in the document are specifically denied. It is not in dispute that the entire property was owned by the writ petitioner. The total extent of 2913½ sq. ft. of land was actually re-conveyed by the fourth respondent in favour of the appellant by a registered sale deed dated 05.09.2011 bearing Document No.5342 of 2011. It is contended that on the same day a substantial portion of the entire extent, namely, 1223 sq. ft. of land was stated to have been re-conveyed by the appellant in favour of the fourth respondent on the same date, namely, 05.09.2011. The original undisputed document namely the sale deed that was executed by the fourth respondent in favour of the appellant was for a substantial consideration of Rs.32,00,000/- and that stamp duty was paid for the market value as indicated in the document. The payment of substantial duty unnecessarily could have been avoided if the parties intended to complete the transaction by executing a single sale deed on 05.09.2011 in respect of a portion of the property that was decided to be retained by the fourth respondent. There is no explanation given by the fourth respondent with regard to the unnaturality in the transaction dated 05.09.2011. There is no explanation given by the fourth respondent with regard to the unnaturality in the transaction dated 05.09.2011. In this case, the case of the appellant is that he never executed the sale deed dated 05.09.2011 in favour of the fourth respondent. It is to be seen that the market value of the property for the purpose of the stamp duty was arrived at Rs.32,00,000/- even for the first document. That no one will unnecessarily split the document. Absolutely, there is no explanation. This unnaturality will also to be considered in the light of other materials that is produced and other allegations that were found in the affidavit filed in support of the Writ Petition. It is to be noted that the learned Single Judge has referred to Section 32 and 34 of the Registration Act and found that the document presented for registration is satisfied the said provisions. It is seen that Section 32 contemplates presentation of a document for proper registration either by some person executing or claiming through the executant. Even a representative or assign of such a person or agent of such person duly authorised by power of attorney executed and authenticated can present a document for registration. Similarly, under Section 34, the persons claiming under the document or their representatives, assigns or agents authorised can appear before the Registering Officer. As per Section 34, no document shall be registered unless the persons executing a document or persons claiming under the document or their representatives, assigns or agents authorised to appear before the Registering Officer appear and present the document. However, Section 34 is subject to the specific provisions contained in the same Part and in Sections 41, 43, 45, 69, 75, 77, etc. The conclusion of the learned Judge in this case is that the factum of execution has been established and the circumstances required to be satisfied in terms of Sections 32 and 34 of the Act, have been fulfilled. Sections 32 and 34 have no relevance for deciding the matter in the enquiry that is contemplated under Sections 73 to 75 of the Registration Act. The enquiry under Sections 73 to 75 of the Registration Act arises in a case where the execution of the document is specifically denied by the executant. Sections 32 and 34 have no relevance for deciding the matter in the enquiry that is contemplated under Sections 73 to 75 of the Registration Act. The enquiry under Sections 73 to 75 of the Registration Act arises in a case where the execution of the document is specifically denied by the executant. The District Registrar while holding an enquiry under Section 73 is entitled to exercise the power of Civil Court for the purpose of summoning and enforcing the attendance of the witnesses, as if the District Registrar is a Civil Court. Having regard to the nature of dispute and the nature of enquiry that is contemplated under the Registration Act, this Court cannot ignore the consequences that by directing compulsory registration a person who deny execution and dispute his signature in a deed of conveyance looses his right to property and in such circumstances, though the District Registrar is exercising a quasi judicial jurisdiction in the enquiry, the enquiry should be in a manner provided under Section 73 to 76 of the Registration Act. When the Registrar exercises the power of Civil Court, examination of witnesses without giving an opportunity to any one of the party who are parties before the second respondent will render the whole enquiry vitiated. The order of the second respondent is not appeal able and the person aggrieved can only resort to Civil Court for further relief under Section 77 of the Registration Act. This also would indicate that the enquiry that is contemplated under Sections 73 to 75 are not summary in nature and that sufficient opportunity should be given to the parties by the Registering Officer while holding enquiry under Section 73 to 75 of the Registration Act. It is in these circumstances, some of the judgments relied upon by the learned Counsel appearing for the appellant has relevance. 8. The learned counsel appearing for the appellant relied upon a judgment of the Constitutional Bench of the Hon'ble Supreme Court in the case of State of Mysore and others v. Shivabasappa Shivappa Makapur reported in AIR 1963 SC 375 wherein the Hon'ble Supreme Court has held that the principles of natural justice required that the evidence of witness in support of the allegations should be recorded in the presence of the Enquiring Officer and of the persons against whom it is sought to be used. It is further held by the Hon'ble Supreme Court that the quasi judicial authority can act on any information or statement which he may receive unless the material is put to the party against whom it is to be used and either side is given a fair opportunity to explain the circumstances or the statements. The position that there must be a fair opportunity in cases like this has been reiterated by the Hon'ble Supreme Court in several judgments. In a quasi judicial enquiry, if examination of witnesses is permitted, the statement of witnesses should be read over to the person against whom they were made and they should be given proper opportunity to cross examine the witnesses. In case, where the enquiry was not conducted after giving sufficient opportunity to the parties, the order of the authority will be vitiated for nonobservance of rules of natural justice. The Hon'ble Supreme Court has held that the purpose of examination in the presence of the party against whom the enquiry has been made can be achieved only when statements uttered by witnesses are made known to the opposite party and the witnesses are also tendered for cross examination by the party. 9. The learned Counsel appearing for the appellant then relied upon a judgment of the Division Bench of Madhya Pradesh High Court in the case of Kailash and others v. Sub Registrar of Assurances, Indore and another reported in AIR 1985 Madhya Pradesh 12 wherein it has been observed as follows: “8. Opportunity of hearing is not an empty formality. It has to be an opportunity in the real sense. But we are constrained to observe that the respondent has not even followed that formality, much less affording a real opportunity of being heard to the petitioners. The averments contained in paragraph 6 of the petition have not been specifically traversed by the respondent with particular reference to the time of presentation and forthwith refusal and returning the application, Annexure-G. The directions of this Court are not in the least followed by the respondent who, as is evident from the record, either acted or was determined to act in a biased manner. The registration or refusal to register is a quasi-judicial function. It is not expected of any public authority to act in the manner the respondent did, more so in face of this Court's directions. 14. The registration or refusal to register is a quasi-judicial function. It is not expected of any public authority to act in the manner the respondent did, more so in face of this Court's directions. 14. As none of these grounds were either present or advanced at the time of earlier refusal, these grounds have been purposefully recapitulated and reproduced for the reason that the respondent may not seek shelter behind any such ground in refusing registration of a document. These grounds are more imaginary than real. We have already held that the respondent had not afforded any opportunity of hearing to the petitioners and had it been so, one would have legitimately expected some discussion about them in the orders passed by the respondent No. 1. The petitioners had sought information about the nature of grounds on which refusal of registration was either intended or based. But the painful truth, which emerges out of the averments and the documents placed on record is that none of the petitioners was apprised or informed of any of these grounds so as to enable him to meet them or to make his submissions in that behalf. An opportunity of hearing presupposes fairness, which is the first essential of any function, or discharge of duty expected of any public servant. We are constrained to note that the respondent No. 1 herein, has shown callous disregard to the directions of this Court (Annexure-E). The fact that such a direction is required, is by itself sufficient to indicate that the respondent has shown a very weak or low level of regard for the mandate of law.” 10. Once again the learned Counsel appearing for the appellant relied upon a judgment of the learned Single Judge of this Court in the case of R.Sourirajan v. The District Registrar, Thanjavur and others reported in (1992) 2 LW 591 wherein the scope of enquiry under Section 41 of the Registration Act was considered. Even while considering the registration of a Will that was presented by a competent person who is authorised to present the document this Court has observed as follows: 6. Learned counsel for the petitioner contends that the registering authority has failed to give an opportunity to the petitioner to cross-examine the witnesses of the 3rd respondent and the registering authority on his own accord, closed the evidence and this vitiates the registration of the document itself. Learned counsel for the petitioner contends that the registering authority has failed to give an opportunity to the petitioner to cross-examine the witnesses of the 3rd respondent and the registering authority on his own accord, closed the evidence and this vitiates the registration of the document itself. According to the learned counsel, even if a suit is filed, the evidence taken before the registering authority will be put against him on the basis of the provisions of the Evidence Act. Learned counsel states that when the petitioner came up earlier before this Court, it was dismissed on the ground of alternative remedy and that when it was invoked, it was dismissed by the Registrar and as such, this Court should set aside the order registering the will. 7. I have considered the arguments of the learned counsel for the petitioner and also the contentions put forth by the learned Government Advocate based on the instruction given to him. In Part VIII of the Indian Registration Act, 1908, S. 41 provides for registration of a will. Sub-S. (1) of S. 41 states that a will presented for registration by the testator or donor may be registered in the same manner as any other document. Sub-S. (2) states as follows: “(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied— (a) That the will or authority was executed by the testa or or donor, as the case may be; (b) That the testator or donor is dead; and (c) That the person presenting the will or authority is, under S. 40, entitled to present the same”. Part VII provides for enforcement of the appearance of executants and witnesses. A procedure is set out under S. 36 of the Registration Act. The effect of registration is set out under Ss. 47 to 50 of the Act, After a document is registered, an entry is given and an index is maintained. S. 69 speaks about the power of the Inspector General to superintend registration offices and make rules. Part XII of the Act provides for a contingency where Sub Registrar refuses to register a document and S. 77 of the Act provides for a suit in case an order of refusal by the Registrar to register. S. 69 speaks about the power of the Inspector General to superintend registration offices and make rules. Part XII of the Act provides for a contingency where Sub Registrar refuses to register a document and S. 77 of the Act provides for a suit in case an order of refusal by the Registrar to register. A reading of the provisions of the Act clearly shows that the power under S. 69 of the Act cannot be exercised by the Registrar where the registering authority has exercised a quasi judicial function of registering a document after an inquiry especially when it is questioned by a person like the petitioner in this case. It is settled law that when an enactment provides for an appeal in a particular contingency or a provision to sort out the grievance and is silent in other respects the general power of superintendence cannot be used in such circumstances. A Full Bench of this Court as early as in Nagarathnammal v. Ibrahim Sai 1955-2-M.L.J. 49=68 L.W. 202, has held so. As such, the power S. 69 cannot be invoked by the petitioner on the facts and circumstances of this case. However, it is open to the petitioner in my view to challenge the will by filing a suit in Civil Court with regard to the genuineness of the will. 9. As such, it is open to the petitioner in my view to challenge the genuineness of the will before a Civil Court and if the Registrar is available and subject to the process of the Court, steps should be taken to call for the Registrar in the witness box. Though the certificate issued by the Registrar who registered the will is to some extent an evidence of the execution of the document and the admission of signature before the Registrar by the executant can form an evidence of the execution of the document, registration simpliciter cannot be regarded as a talisman casting away all suspicions against the evidence of the will. Though presumption with regard to the validity arises, in law if it is registered in the Office of the Sub Registrar it can be repelled by evidence adduced by the petitioner. Though presumption with regard to the validity arises, in law if it is registered in the Office of the Sub Registrar it can be repelled by evidence adduced by the petitioner. The Sub Registrar can be called to the witness box and it can be proved that the registration was made without giving opportunity to the petitioner to cross-examine the witnesses and the registration was made admitting the evidence of the 3rd respondents side alone. In view of the dicta laid down by the Supreme Court in the case cited supra. I am of the view that the petitioner can very well question the genuineness of the will before a Civil Court. Giving liberty to the petitioner to challenge the will in a Civil Court, the writ petition will stand dismissed. However, there shall be no order as to costs.” 11. Though the said decision is in the context of registration of a Will where there is no rival claim or dispute and the decision is purely as per the subjective satisfaction of the authority concerned, the submission of the learned Counsel that the appellant drawing some analogy from the decision of this Court in the present context is appreciable and has some relevance. This Court considering the over all circumstances is of the firm view that the enquiry contemplated under Section 73 require observance of principles of natural justice as the Registrar under the Registration Act exercises a quasi judicial function and his decision has civil consequences. 12. The learned Counsel appearing for the fourth respondent submitted that the appellant though appeared for enquiry pursuant to the notice issued by the second respondent for the enquiry, subsequently, did not appear and that therefore, the enquiry was proceeded ex parte. This submission of the learned Counsel appearing for the fourth respondent is without any basis. It is not the case of the second respondent that the appellant did not participate in the enquiry despite notice that was given by the second respondent. The learned Counsel appearing for the fourth respondent relied upon the representation of the petitioner and pointed out that the appellant himself has referred to the dates on which he received the communication from the respondents. The learned Counsel appearing for the fourth respondent relied upon the representation of the petitioner and pointed out that the appellant himself has referred to the dates on which he received the communication from the respondents. It is seen that from the representation that was submitted by the appellant dated 22.04.2013, the reference is to his last date on which he appeared i.e., on 25.03.2013 the date on which the appellant appeared pursuant to the first notice that was given to the appellant fixing the date of enquiry. It is impossible for this Court to hold that the second respondent is empowered to permit examination of the witnesses without the knowledge of the appellant or without giving him an opportunity to cross examine those witnesses. It is admitted that there was no further notice to the appellant. That itself vitiate the whole proceedings and the impugned order passed by the second respondent. It is unfortunate that the learned Single Judge has failed to advert to the facts and circumstances elaborated by the appellant in the affidavit filed in support of the Writ Petition. There was no consideration of relevant facts and issues and the order of the learned Single Judge confirming the order of the second respondent impugned in the Writ Petition is unsustainable and we have no hesitation to set aside the order of the learned Single Judge. Hence, this Appeal is allowed. The order passed in W.P.(MD)No.9185 of 2014, dated 23.07.2014 is set aside. Consequently, the order of the second respondent impugned in the Writ Petition, namely, the order dated 19.05.2014 in A.P.No.1 of 2013 is also set aside. However, the matter is remitted back to the second respondent District Registrar to hold enquiry afresh. The statement obtained from some of the witnesses were not obtained in the presence of the appellant. Hence, it is open to the fourth respondent to examine any witnesses after due notice to the appellant. However, when a request is made by the fourth respondent to examine any witness, the second respondent is directed to give sufficient opportunity to cross examine those witnesses. The appellant also is directed to cooperate with the enquiry and the second respondent is directed to complete the enquiry and pass order in accordance with law within a period of six months from the date of receipt of a copy of this order. The appellant also is directed to cooperate with the enquiry and the second respondent is directed to complete the enquiry and pass order in accordance with law within a period of six months from the date of receipt of a copy of this order. It is also open to the appellant to let in evidence both oral and documentary and the direction given earlier is also applicable to the witnesses if any examined on the side of the appellant. No costs. Consequently, the connected miscellaneous petition is closed.

P. Sampath v. Inspector General of Registration, Chennai