Original parent document not necessary to transfer property, rules Madras High Court

 

Justices R. Subramanian and R. Sakthivel hold that even non traceable certificate from the police need not be submitted if the original document had been lost

Sub Registrars cannot refuse to register a property transfer document merely because of non production of either the original parent document of the property or a non traceable certificate from the police if the parent document had been lost, the Madras High Court has held.

 A Division Bench of Justices R. Subramanian and R. Sakthivel held it would be suffice to submit certified copies of the parent document and that the Sub Registrars could always cross check the genuineness of those copies with the original records available with their office.

 The judges pointed out the right to hold property was a constitutional right under Article 300A. Hence, it was a step superior than the fundamental rights because it could not be subjected to restrictions and no one could be deprived of property without a reasonable compensation.

The right to hold property also encompasses the right to deal with the property by way of sale deed, gift deed, release deed and so on. The law relating to transfer of immovable properties was governed by a substantial enactment named The Transfer of Property Act of 1882.

 The fundamental principle of law relating to transfer of immovable property was caveat emptor (the principle that the buyer, and buyer alone, is responsible for checking the quality and suitability of goods before a purchase is made), the Division Bench highlighted.

 Therefore, the buyers of immovable properties must be careful in not purchasing properties from persons who do not hold a proper title or those which were under encumbrance, Justice Subramaniam wrote while authoring the verdict for the Division Bench.

 “Even if a person sells a property that does not belong to him, there is no provision in the Registration Act of 1908 enabling the Sub Registrar to refuse registration except Sections 22-A and 22-B introduced in 2022 by the State legislature insofar as Tamil Nadu is concerned,” the Bench added.

 

Sections 22-A and 22-B too do not authorise refusal of registration on the ground of non production of the original parent document. However, the Inspector General of Registration (IGR) had given such authorisation to the Sub Registrars through Rule 55-A of the Tamil Nadu Registration Rules.

 “We are unable to resist observing that Rule 55-A has been stealthily introduced as a subordinate legislation only to enable Sub Registrars refuse to register instruments indiscriminately,” the Bench said and pointed out that a statutory rule could not be inconsistent with the provisions of the Act.

 Though Rule 55-A provides an alternative of submitting non traceable certificates issued by the police if the original parent document had been lost, the judges said, they were conscious of the fact that in the present day scenario, hardly any certificate gets issued without paying a hefty price.

 “We should also be conscious of the fact that any certificate from any government department, as of today, comes only at a price for an ordinary citizen. An elaborate procedure has also been fixed for issuance of non traceable certificate. We have come across several instances where, because of the high pricing and the complicated procedure involved in obtaining a non traceable certificate, instances of people obtaining non traceable certificate from the neighbouring States has increased,” the judges wrote.

The judgement was passed while allowing a writ appeal filed by P. Pappu whose release deed, for transferring her rights over ancestral property to her brother, was refused to be registered by the Sub Registrar at Rasipuram in Namakkal district. Her counsel N. Manokaran pointed out the appellant had, however, submitted a certified copy of the parent document issued by the same Sub Registrar’s office.

Finding force in his submissions, the judges said: “When a certified copy has been produced and it is not impossible for the Sub Registrar to have it verified with the original record that is available in his own office, insisting upon a non traceable certificate appears to be rather a wasteful exercise.”

The Bench also wrote: ‘Driving the executant of a document to obtain a non traceable certificate in case of lost document in every case, will only result in encouraging under hand dealings.”

It ultimately set aside the registration rejection order and consequently directed the Sub Registrar to register the release deed executed by the appellant without insisting upon production of the original parent document.