Gulnar Fakhruddin v. Tamilnadu Chief Controlling Revenue Authority & Inspector General of Registration
2021-09-17
N.SESHASAYEE
body2021
DigiLaw.ai
ORDER : 1.1 The petitioners herein had filed C.S.No.640 of 2019 before the original side of this Court for partition and separate possession. On 06.02.2020, this suit came to be compromised and this Court passed a compromise decree. This Court specifically added that the compromise decree may be communicated by the Registry to the concerned Registering Authority, the second respondent herein. However, the second respondent failed to comply with the order dated 06.02.2020, following which the petitioners issued a legal notice dated 03.08.2020 on the respondents herein. There have been an earlier instance where in C.S.No.193 of 2014, a similar order was passed, by which a compromise decree in that suit was caused to reflect in the encumbrance certificate. In this regard, Sec.17(2)(vi) of the Registration Act as well as Section 89(2) of the Registration Act are significant. On the above pleadings, the petitioners seek a direction to the Registration Authority to enter the compromise decree in the Register intended for recording the encumbrances. 1.2 The petitioners indeed have moved this Court again and on 11-11-2020, the learned Single Judge who passed the compromise decree, had made the following Order: “2. 3. Upon considering the said submission by way of clarification, it is sufficient to state that the judgment and decree were directed to be communicated to the Office of the Joint Registrar so as to ensure compliance with all legal requirements and, in particular, the requirements of the Registration Act and the rules framed thereunder.” The grievance of the petitioners have been that the Registration-authority demanded huge stamp duty and registration charges. 2. In the counter it is principally contended: ? Under Rule 89 of the Civil Rules of Practice, where any registered instrument affecting immovable property is cancelled by the Court, the Order or decree cancelling the same has to be communicated to the concerned Sub-Registry. Except the Orders or decrees falling under this class, in all other cases, decrees can be registered only subject to time-limit provided under Sec.23 of the Registration Act. ? Secondly, any final decree passed in a partition suit have to be engrossed in non-judicial stamp papers. ? Thirdly, Sec.89 of the Registration Act provides for registration of only sale certificates issued by the Court and does not cover decrees passed in partition suits. 3. Heard both sides.
? Secondly, any final decree passed in a partition suit have to be engrossed in non-judicial stamp papers. ? Thirdly, Sec.89 of the Registration Act provides for registration of only sale certificates issued by the Court and does not cover decrees passed in partition suits. 3. Heard both sides. The learned counsel for the petitioners would submit that inasmuch as the Court Vide its Order dated 11-11-2020 has directed registration of the compromise decree that it had passed on 06-02-2020 in Book I, the Registering Authority is left with no choice but to register it in Book I consistent with the direction. He also emphasised that the case would fall under Sec. 89(2) of the Registration Act. 4. Per contra, Thiru.T.M.Pappiah, learned Special Government Pleader would submit that Section 89(2) of the Registration Act pertains to registration of sale certificate granted by the Court, and that it neither includes, nor can it be equated to a compromise decree. For a compromise decree to reflect in the Encumbrance Certificate, it may have to be registered in terms of Section 17(2)(vi) of the Act, upon payment of registration fee. He submitted that only Orders of attachment passed by civil court or statutory tribunals, or sale certificates issued under CPC, or any decree or order by which any registered instrument affecting any immovable property is cancelled, then in terms of relevant provisions of law they will be registered in Book I, but not others. And, the Courts are not empowered to direct the Registering Authority to enter Orders or decrees in Book-I without payment of registration fee. Indeed, the learned Single Judge in his Order dated 11-11-2020 has not directed registration of the compromise decree in C.S.640 of 2019 ignoring the Registration Act or the Rules framed thereunder, but has directed its registration only by adhering to it. This will be evident from the operative portion of the said order, which reads: “….judgment and decree were directed to be communicated to the Office of the Joint Registrar so as to ensure compliance with all legal requirements and, in particular, the requirements of the Registration Act and the rules framed thereunder.” 5. It is true that the learned Single Judge of this Court has directed registration of the compromise decree in C.S.640 of 2019, but only in accordance with the Registration Act and the Rules made thereunder.
It is true that the learned Single Judge of this Court has directed registration of the compromise decree in C.S.640 of 2019, but only in accordance with the Registration Act and the Rules made thereunder. The critical point however stands on a different issue: Whether the compromise decree in question must be registered in terms of Sec.89(2) of the Registration Act, or Sec.17(2)(vi) thereof. 6. The significance of the difference between these two provisions involves financial implications. This can be explained: ? The Registration Act provides for four kinds of books: Book I pertains to registration of documents relating to immovable property; Book II concerns with those documents whose registration is refused; Book III pertains to testamentary documents; and Book IV deals with other category of documents which do not concern with any immovable property. ? Once the document is entered in Book I, the details of such particulars concerning that document has to be entered in a Book of Index of documents maintained in terms Sec.55 of the Registration Act. This is akin to a Suit Register. The foundation for issuing encumbrance certificate is the Index, and not Book I. Sec.57 of the Act empowers the registering authority to issue certified copies of entries in the Index. ? Ordinarily, for a document to reflect in the Book of Index (of Registered document), it must be registered either under Sec.17(1) or (2), and in the context of a decree, it must be under Rule 89 of the Civil Rules of Practice, or under Sec.17(2)(vi) of the Act, or in terms of Sec.89 of the Registration Act. A document is registrable only when necessary stamp duty and registration charges are paid. The exception are where the statute itself provides for its registration, such as in Order 38 Rule 11-B CPC, Rule 89 of the Civil Rules of Practice, or in Sec.89 of the Registration Act. 7.1 The next aspect that requires to be probed is whether a compromise decree passed in a partition suit could be equated to a sale certificate referred to in Sec.89 of the Registration Act, merely because the Court has directed its registration? This Court holds it in the negative. ? The Civil Procedure Code provides for passing a compromise decree under Order XXIII Rule 3 and for issuing a sale certificate under Order XXI Rule 94.
This Court holds it in the negative. ? The Civil Procedure Code provides for passing a compromise decree under Order XXIII Rule 3 and for issuing a sale certificate under Order XXI Rule 94. In the context of Sec.89 of the Registration Act, the legislature opted to limit its relevance only to a sale certificate (which may now include wherever sale certificates are issued under the provisions of any other statutes as well) it did not however, choose to include a compromise decree, or any other class of decrees. ? Secondly, merely because the Court has directed registration of a decree not falling under any of the category of decrees which makes its obligatory for either the Court to have its decrees/Orders registered in terms of any statutory stipulations (refer above for the specific instances), or, mandates that they be so registered, does not ipso facto convert one class of decrees into another. 7.2 It may have to be emphasised that the Courts have no power to direct any statutory authority to do, or omit to do such acts which the statute does not authorise. More so those that affect the State of its revenue, or that may lead to revenue loss to the State. Sec.89 of the Registration Act or Rule 89 of the Civil Rules of Practice statutorily require the Court to direct registration of certain category of its proceedings, whereas registering a compromise decree is optional at the instance of the parties, and not at the instance of the statute. And, it is plainly impermissible for any Court to direct by-passing of any statutory obligation of paying registration charges or need for paying for the stamps, if they are statutorily required. Nor, are the litigants permitted to construe any decree or order of the Court directing registration of documents which are registrable only under Sec.17(2)(vi) of the Act as documents which are exempted from payment of registration charges for no statute can be out-manuevered either by the Court, or by the litigant. 8. Therefore, if the petitioners are so interested, they can resort to Sec.17(2)(vi) route and have the compromise decree passed in C.S.640 of 2019 registered. Since the compromise decree in this case fall under Sec.17(2)(vi), the registration is optional, and limitation provided under Sec.23 of the Registration Act will not have any application. 9.
8. Therefore, if the petitioners are so interested, they can resort to Sec.17(2)(vi) route and have the compromise decree passed in C.S.640 of 2019 registered. Since the compromise decree in this case fall under Sec.17(2)(vi), the registration is optional, and limitation provided under Sec.23 of the Registration Act will not have any application. 9. In conclusion, this Court finds merit in the statement of the learned Special Government Pleader, and holds that the judgment and decree passed by this Court in C.S.640 of 2019 is registrable only under Sec.17(2)(vi) of the Registration Act, and not under Sec.89 thereof, and if the petitioners are keen to register it, then the same is directed to be registered in accordance with the procedure pertaining to optional registration of documents under Sec.17(2). Petition is accordingly disposed of. No costs.