ORDER
1. The petitioner has filed the present writ petition seeking issuance of writ of certiorarified mandamus to call for the records of the 2nd respondent in Ni.A.No.1207/2010 dated 27.10.2010, which was received on 03.11.2010, quash the same and consequently, direct the 2nd respondent to register the Deed of Settlement dated 20.10.2010 executed by the petitioner in favor of his wife, Mrs.G.Rasoolbi.
2. During the pendency of the writ petition, the 2nd respondent issued a communication dated 27.10.2010 to the Inspector of Wakf, Thiruvallur, in letter No.Ni.Aa.1207/2010, dated 27.10.2010 seeking certain clarification as to registration of the Deed of Settlement in question, since the survey number dealt with in deed, namely, S.No.97A/1A belongs to Thulukkan Chatram Wakf and a copy of the same also marked to the petitioner. Therefore, the grievance of the petitioner in the present writ petition is that when he has executed the deed of settlement dated 20.10.2010 in favour of his wife, Mrs.G.Rasoolbi, measuring to an extent of 12000 sq.ft. comprised in Survey No.97A/A lying in the back yard of Durai Abdul Wahab Street in Naravarikuppam Village and the same has been in his Late father possession for more than 25 years, which has also supported by the Certificate dated 20th March, 1990, issued by the Village Administrative Officer, Naravaikuppam Village, the 2nd respondent, after seeing the market value of the property at Rs.24,00,000/-, for which the stamp duty and the registered fee were also paid, admitted the above said deed of settlement in question presented for registration and thereupon, after obtaining signature of identifying witnesses, cannot keep the document pending without registration. Now, the 2nd respondent, after seeing the receipt for registration fee, made a note in the right margin of the document as 'Wakf'. Subsequently, on further enquiry, the 2nd respondent informed the petitioner orally that the property in question belongs to Wakf board and the same will not be registered unless the Tamil Nadu Wakf Board issues No Objection Certificate and therefore, the 2nd respondent finally, refused to release the document.
2.1. Mr.S.R.Sundar, learned counsel appearing for the petitioner submitted that there is no provision in the Registration Act, 1908, empowering the registering authority to enquire into the ownership of the title or property sought to be registered. Again, the registering authority cannot look into the fact whether the seller of the property in any sale deed is a rightful and lawful owner. On the other hand, the Registering Authority can initiate action only under Section 83 of the Act and by invoking Section 82 of the Act for offences like false personation alone, examining the ownership of the seller is beyond the jurisdiction and competence of the Registering Officer.
3. In support of his argument, he has relied upon the unreported judgment of this Court in W.P.(MD).No.10543 of 2009, dated 02.02.2011, for a proposition that the Registering Authority is bound to consider the objection only on the ground which is stated in the said Rule. Therefore, the authorities concerned are bound to act only in accordance with the Act and Rules framed thereunder. On that basis, prayed for allowing the present writ petition.
4. Mr.S.Sivashanmugam, learned Government Advocate appearing for the respondents, while opposing the argument advanced by the learned counsel for the petitioner, submitted that it is not a case where the Registering Authority, on presentation of the deed of settlement by the petitioner, has started questioning the ownership and title of the property whether it belongs to the petitioner or someone else, but, it is the own case of the petitioner in para two of the affidavit, which is extracted as under:- "I seized and possessed the vacant land measuring 12000 sq.ft. comprised in Survey No.97A/1A lying in back yard of Durai Abdul Wahab Street in Naravarikuppam Village morefully described in the Schedule within the Sub Registration District of Redhills by inheritance from my father and the same has been in our possession for more than 25 years. The said possession is also supported by the certificate dated 20th March, 1990 issued by the Village Administrative Officer, Naravarikuppam Village." Therefore, when the petitioner himself has averred explicitly in paragrpah 2 of the affidavit that he has seized and possessed the vacant land measuring 12000 sq.ft. comprised in Survey No.97A/1A, which is admittedly a Wakf board property, the 2nd respondent is always right in saying that the property in question belongs to Wakf board and the same will not be registered unless the Tamil Nadu Wakf Board issues No Objection Certificate and on that basis, he sought for dismissal of the present writ petition.
5. Heard the learned counsel appearing on either side and perused the materials available on record.
6. When the petitioner himself has declared in his affidavit filed in support of the writ petition that he has seized and possessed the vacant land in S.No.97A/1A, which is admittedly a Wakf board property, the registering authority is also entitled to refuse to register any document as per Section 71 of the Registration Act, 1908, which is extracted as under:-
"71. Reasons for refusal to register to be recorded
(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his book No.2, and endorse the words 'registration refused' on the document;- and on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered."
A careful reading of Section 71 of the Act, clearly goes to show that the registering authority can refuse to register a document by recording his reasons for refusal in his Book No.2 and he can very well endorse the words 'registration refused' on the document and on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. Therefore, I also do not find any reason in not registering the settlement deed dated 20.10.2010 executed by the petitioner in favour of his wife, Mrs.G.Rassolbi, in the non-judicial stamp papers having the value of Rs.500/-, while the market value of the property is Rs.24,00,000/- and for which, he has also paid the maximum sum of Rs.10,000/- under Article 58(a)(i) of Schedule-I to the Indian Stamp Act, 1899.
7. Further, when the petitioner has presented deed of settlement dated 20.10.2010 before the 2nd respondent for registration, the 2nd respondent has rightly refused to register the document after noting that the petitioner himself declared that the property sought to be registered by way of settlement deed in favour of his wife, is not his own property, as he himself mentioned that he has ceased and possessed the vacant land measuring 12000 sq.ft comprised in Survey No.97A/1A, which is admittedly a Wakf board property. Therefore, it is not open to the petitioner to contend that the 2nd respondent has started conducting the enquiry into the title and ownership of the property.
8. It is settled law that the registering authority
(i) on the factum of execution of the document,
(ii) the identity of the person who claims to have executed the document and
(iii) the right of the person who appears as representative, assignee or agent of the executant, he can make an enquiry. If the Registering Authority is satisfied about the factum of execution and the identity of the person executing the document, he becomes obliged to register the document, by virtue of the provisions of Section 35(1), which reads as follows:-
"35. Procedure on admission and denial of execution respectively -- (1)
(a) If all the persons executing the document appear personally before the Registering Officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) If in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or
(c) If the person executing the document is dead, and his representative or assign appears before the Registering Officer and admits the execution, the Registering Officer shall register the document as directed in Section 58 to 61, inclusion. The obligation of the Registering Officer to register a document presented to him for the purpose, after reaching a subjective satisfaction about the identity of the person and the factum of execution, is made explicitly clear in the last portion of Section 35(1), by the use of the words "the Registering Officer shall register the document".
9. In the present case, the issue raised by the petitioner is interestingly different. The petitioner himself asserted that he has seized and possessed the vacant land measuring 12000 sq.ft. comprised in Survey No.97A/1A, which is lying in the back yard of Durai Abdul Wahab Street in Naravarikuppam Village, which is belonged to Wakf board. His assertion that he seized the property in question, clearly indicates the fact that the property sought to be registered is not his own property, in such circumstances, if a seized property is directed to be registered, then even a stolen property also might be required to be registered, that will not be the object of the Act. Therefore, the respondent as per Section 71 of the Registration Act, 1908, which gives enormous power to refuse by citing sufficient reasons therefor, has rightly written a letter to the Inspector of Wakf Board seeking his consent for the registration, which is a part of power conferred under Section 71 of the Act, therefore, this Court declines to direct the authority not to exercise that power.
10. Accordingly, this Court, for the reasons stated above, by exercising its discretionary jurisdiction under Article 226 of the Constitution of India, cannot direct the authorities under the Registration Act, to act contrary to the Section 71 of Act. Therefore, I do not find any merit in the writ petition and accordingly, the same is dismissed. No Costs.