Registrar has no power to refuse registration of ex parte decree - there is no limitation for registration of ex parte decree

 W.P. No.36564 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.01.2024

Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
W.P. No.36564 of 2023

P.Vasantha Kumari ... Petitioner
Vs.
The Joint Sub Registrar-1
Udhagamandalam
The Nilgiris ... Respondent

Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a writ of Certiorarified Mandamus to call for the records of the
respondent in refusal No.RFL/Udhagamandalam-Joint I/47/2023 dated
29.09.2023 and quash the same and direct the respondent to register the
decree in O.S.No.102 of 2004 dated 08.06.2005 in accordance with law.
For Petitioner : Mr.A.C.Mani Bharathi
for K.R.Samratt
For Respondent : Mr.R.U.Dinesh Rajkumar
Additional Government Pleader
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W.P. No.36564 of 2023
ORDER
This Writ Petition is filed seeking a Writ of Certiorarified Mandamus
to call for the records of the respondent in refusal No.RFL/Udhagamandalam-
Joint I/47/2023 dated 29.09.2023 and quash the same and direct the
respondent to register the decree in O.S.No.102 of 2004 dated 08.06.2005 in
accordance with law.
2. The learned counsel for the petitioner submitted that the land
admeasuring 5 cents situated at West Bury Road, Udhagamandalam is
originally belonged to one Nallusamy Naid who is the father of the father-in-
law of the petitioner. The said Nallusamy Naidu bequeathed the said property
in favour of the petitioner's husband under a Will registered as Document
No.24/1979. After the demise of the Nallusamy Naidu, the said Will was
probated. Thereafter, the petitioner's husband P.Prasad died on 09.06.1993
leaving behind the petitioner and her daughter as his legal heirs. While so, the
petitioner's father-in-law namely Panduranga by suppressing the said Will,
sold the said property to one T.G.Bridget and on coming to know about the
same, the petitioner filed a suit in O.S.No.102/2004 before the Sub Court,
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W.P. No.36564 of 2023
Udhagamandalam to declare the said sale as null and void in which, the
petitioner got an ex-parte decree dated 08.06.2005 and subsequently, the
defendant filed an application to set aside the ex-parte decree and the same
was dismissed and therefore, the ex-parte decree got by the petitioner has
become final. Thereafter, the petitioner presented the so called ex-parte
decree before the respondent for registration, whereas the respondent
refused to register the same and passed the refusal check slip stating that as
per the circular e/f/vz;/34930-rp1-2019 ehs; 27/02/2023, there is a bar in
registering the ex- parte decree. Hence, the present writ petition is filed.
3. Heard and perused the materials available on record.
4. The proviso Section 23 of the Registration Act only says about the
period for presenting documents for registration as follows;
23. Time of presenting document.- Subject to
the provisions contained in Sections 24, 25, and 26,
no document other than a Will shall be accepted for
registration unless presented for that purpose to the
proper officer within four months from the date of its
execution
Provided that a copy of a decree or order may
be presented within four months from the date on
which the decree or order was made, or, where it is
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W.P. No.36564 of 2023
appealable, within four months from the date on
which it becomes final.
5. In this case, a perusal of the refusal check slip does not show
anything that the decree was presented for registration beyond the stipulated
period of 4 months and therefore, the same was refused to be registered
whereas, the reason given by the respondent for not registering the decree is
that since it was an ex-parte decree, as per the circular e/f/vz;/34930-rp1-2019
ehs; 27/02/2023, issued by the Inspector General of Registration, Chennai, ex-
parte decree cannot be registered.
6. It is settled proposition of law that no circular will prevail over the
Act or Rules. Therefore, the reason given by the respondent for not
registering the ex-parte decree based on the said circular is against the
provisions of law. Circular is only for internal communication and not to by-
pass or over rule or modify the Act. Therefore, though it is not challenged,
since this Court has come across several writ petitions wherein, the Registrars
by citing the said circular, have refused to register the ex-parte decree, the
specific portion in the Circular e/f/vz;/34930-rp1-2019 ehs; 27/02/2023 directing
the registering authority not to register the ex-parte decree, which is against
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W.P. No.36564 of 2023
Act or Rule, is hereby quashed.
7. Admittedly, in this case, the petitioner has not presented the said ex-
parte decree within the stipulated period of 4 months from the date of ex-
parte decree. However, the proviso Section 23 of the Registration Act is not
mandatory. If the decree/decree holder gives a valid reason for presenting the
decree for registration, the same has to be considered unless the said decree
was subsequently set aside or over ruled or modified. Even otherwise, if any
dispute arises regarding the same, the aggrieved party can work out their
remedy before the civil forum. The Registrar is not the competent authority to
testify as to whether the ex-parte decree presented before him/her is a valid
and executable one or not. Unless the decree presented for registration is
subsequently set aside or over ruled or modified by the competent forum, it is
the duty of the Registrar to register the document if the document is otherwise
in order and within the purview of the Registration Act.
8. Therefore, the refusal check slip passed by the respondent in
No.RFL/Udhagamandalam-Joint I/47/2023 dated 29.09.2023 is quashed and
the respondent is directed to register the decree in O.S.No.102 of 2004 dated
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W.P. No.36564 of 2023
08.06.2005 if the same is otherwise in order.
9. With the above directions, the Writ Petition is allowed. No costs.
05.01.2024
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
To
The Joint Sub Registrar-1
Udhagamandalam
The Nilgiris
Copy to
The Inspector General of Registration
Chennai.
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W.P. No.36564 of 2023
P.VELMURUGAN. J.
Ksa-2
W.P. No.36564 of 2023
05.01.2024
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