1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.06.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.5271 of 2011 S.Sheriff ... Petitioner Vs. 1.The Inspector General of Registration, Registration Department, Santhome High Road, Chennai – 600 028. 2.The District Registrar, Karaikudi. 3.The Sub Registrar, Registration Department, Aranthangi, Pudukkottai District. ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order bearing Ba.Ma.No.8190/P1/2007, dated 17.04.2009, issued by the first respondent confirming the order bearing No.5627/A1/2000-3, dated 15.06.2001 issued by the second respondent and quash the same insofar as they treat document No.1316/1998 as a release deed and consequently direct the respondents to treat document No.1316 of 1998 as a partition deed. For Petitioner : Mr.G.R.Swaminathan For Respondents : Mr.T.R.Janarthanam, Additional Government Pleader. O R D E R The petitioner who was a Muslim would only contend that even though he and his family members are professing Islam religion, they are living together as coparcenary as joint family and they are running joint mill as family business. According to them, out of the earnings, they have purchased certain properties. Since the petitioner's father was the kartha of the family, the properties have been purchased in his name. He would contend that since the petitioner's father has become aged, he has executed partition deed dividing the properties among the sharers. When the document was presented for registration, the third respondent refused to do the same on the ground that since they belonged to Muslim religion, the concept of coparcenary of property will not arise and therefore, he has refused to treat the document as partition deed but it is only a release deed. Aggrieved against his order, he preferred the appeal before the first respondent and the first respondent through the impugned order dated 21.06.2010 dismissed the revision. Hence, the petitioner has come forward with this writ petition on the ground that the authority cannot take into consideration merely because they belong https://hcservices.ecourts.gov.in/hcservices/ 2 to a particular community and they have only to look at into the contents of the document and not the religion and he also contend that the respondent authorities cannot treat the document as a release deed. 2.At the time of admission, this Court specifically posed two questions, "i)Whether the father of the petitioner was alive at the time of execution of the document and ii)whether the property was purchased only in the name of the father". 3.Learned counsel for the petitioner fairly submitted that at the time of execution of the document, the petitioner's father was alive, and now he is no more. He also fairly submitted that all the purchases were made only in the name of his father. But nowhere in the original document, it was mentioned that the properties were purchased as kartha of the joint family. Learned counsel for the petitioner now would contend that if they are Muslims by religion, they are jointly enjoying the property and the concept of kartha was accepted by them and the property purchased was only by kartha of the family. Unfortunately, that is not the case in that document, even according to him. The question of coparcenary or kartha does not arise in the case of a Muslim. It is only in Hindu law, it is recognised. Having categorically stated that they profess Muslim religion, it is not open for him to say that he is following Hindu tradition as a coparcenary or a joint family. Furthermore, the property which is sought to be partitioned among the members of the family was purchased only in the individual name. The petitioner's father from and out of his funds, he has purchased the properties. Furthermore, we cannot decide at this juncture whether it is an ancestral property or it is purchased through individual income but the fact remains that the property which is purchased by an individual is now sought to be partitioned. The partition as rightly stated by the authorities below can happen only between the coparcenary. 4.Now, the next question arises that when the document was sought to be registered for the purpose of stamp duty necessarily the authority has to look into the nature of division or bifurcation which has to be taken under the document and if parties are not allowed as per the law in Muslim religion can they bye pass and then say that for the purpose of getting on a document which is otherwise registrable with the heavy stamp duty by coining the word as partition. Therefore, the authority has thought it fit to say that there cannot be a partition it can only be a release deed when it attracts more stamp duty to circumvent then the document is styled as partition deed. Therefore, the authority has got the legal necessity to go into the document at least for fixing the stamp duty purpose. Therefore, there is no impediment in the authority going into this question. Rightly, the document was rejected as partition and directed to be registered as release deed. As against which, the petitioner preferred the appeal before the appellate authority and the appellate authority has also given reasons and rejected it. In fact, the appellate authority has also pointed out that there cannot be even a partition during the life time of his father. Even assuming that they are in joint family when that kind of thing is not allowed where is the question of treating this document as partition deed, it does not arise https://hcservices.ecourts.gov.in/hcservices/ 3 at all. Therefore, the appellate authority has already given sufficient, cogent and correct reasons to come to a conclusion. Therefore, I do not find any reason to interfere with the reasoned order of the appellate authority. Furthermore, now only, the order of the appellate authority order, dated 17.04.2009 has been challenged. Of course, it is pointed out by the learned counsel for the petitioner that he did not receive a copy of the impugned order and therefore, he applied a letter and got the order only on 07.05.2010, even then, it is also belated stage at that time. 5.Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Inspector General of Registration, Registration Department, Santhome High Road, Chennai – 600 028. 2.The District Registrar, Karaikudi. 3.The Sub Registrar, Registration Department, Aranthangi,Pudukkottai District +1cc to M/s.G.R.SWAMINATHAN, ADVOCATE, SR.NO.19833 GH : 05.07.2011 : 3P/5C Writ Petition (MD)No.5271 of 2011 https://hcservices.ecourts.gov.in/hcservices/