IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.12.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.NO.18051 OF 2011 AND M.P.NO.1 OF 2011 S.M.Syed Mohammed Buhari .. Petitioner Versus 1.The Sub Registrar (District Registrar Cadre) Triplicane, Chennai. 2.S.M.M.Mohideen 3.S.M.S.Mohammed Mohideen .. Respondents PRAYER: Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of declaration, declaring the revocation deed registered by first respondent in Document No.781 of 2011 dated 18.07.2011 and consequential settlement deed registered as Document No.802 of 2011 dated 22.07.2011 as illegal, void and against the provisions of Transfer of Property Act and Registration Act. For Petitioner : Shri.K.M.Vijayan Senior Counsel for M/s. K. M. Vijayan Associates For Respondent-1 : Shri.I.Arokiasamy Government Advocate For Respondents-2 & 3 : Shri.V.Lakshminarayanan O R D E R Even though, the interim application is listed before me, by consent, the Writ Petition itself is taken up for final hearing. 2.The following questions of law arise for consideration https://hcservices.ecourts.gov.in/hcservices/ in this Writ Petition: (i) Whether a registered Settlement Deed executed by a Mahomedan father in favour of his son can be permitted to be revoked by a subsequent registration of a Cancellation Deed under the Registration Act, 1908. (ii) Is the registering authority bound to register the Cancellation Deed or can go into the validity of the said document vis-a-vis the Settlement Deed and the applicability of the Muslim Personal Law (Shariat). (iii) When the registering authority registers such a Deed of Cancellation, can this Court go into the same and declare the registration as null and void by considering the provisions of the Registration Act, 1908; Mahomedan Law; Transfer of Property Act, 1882; Indian Evidence Act, 1872 as well as the averments contained in the deeds while exercising the discretionary and extraordinary power under Article 226 of the Constitution of India. 3.Heard Shri.K.M.Vijayan, learned senior counsel appearing for the petitioner and Shri.I.Arokiasamy, learned Government Advocate appearing for first respondent as well as Shri.V.Lakshminarayanan, learned counsel appearing for the respondents 2 and 3 and perused the entire materials available on record. Facts in brief: 4.The petitioner and the second respondent are son and father being Mahomedans governed by the Muslim Personal Law (Shariat). A registered Settlement Deed was executed by the second respondent in favour of the petitioner by way of a gift of a portion of the property, in which, the second respondent is living. The Settlement Deed was executed on 11.08.2004 by the second respondent. Thereafter, the second respondent unilaterally revoked the Settlement Deed on 18.07.2011 by way of a Cancellation Deed and consequentially conveyed the very same property in favour of his grandson, namely, the third respondent on 22.07.2011. Aggrieved by the registration of the Cancellation Deed and seeking to set aside the same, the present Writ Petition has been filed. Submissions of the learned counsel for the petitioner: 5.Shri.K.M.Vijayan, learned senior counsel appearing for the petitioner submitted that what has been registered is a Settlement Deed and such a deed requires a registration under Section 17 of the Registration Act, 1908. Section 48 of the Registration Act, 1908, imposes fetters on any oral agreement or declaration contrary to the registered document. When a Settlement Deed has been registered, the title passes on to the settlee. Therefore, in the absence of any title, the settlor cannot https://hcservices.ecourts.gov.in/hcservices/ unilaterally cancel such a document which is impermissible in law. When once the parties come under the purview of the Registration Act, 1908, the provisions of the said Act alone would govern. In other words, the Personal Law, namely, Muslim Personal Law (Shariat) will not have any bearing on such a transaction as against the provisions of the Registration Act, 1908. Even assuming the Mahomedan Law is applicable, under Section 167(4) once possession is delivered, a settlement cannot be revoked except by a decree of the Court. In view of the specific averment in the deed of settlement regarding possession, the first respondent ought not to have registered the document. A document reduced in writing requires compulsory registration notwithstanding the Personal Law. The learned senior counsel has also made reliance upon Section 2(24) of the Indian Stamp Act, 1899 and submitted that when once a deed of settlement is executed then the provision of the said Act alone would be made applicable. Therefore, the learned senior counsel submitted that the Writ Petition will have to be allowed. In support of his contentions, the learned senior counsel has made reliance upon the following judgments: "S.GANESAN vs. BHARATHIRAJAN [2009 (5) CTC 558] ISMAIL GANI vs. MAIM PONN PATTU BEEVI [1998 (I) CTC 735] ASOKAN vs. LAKSHMIKUTTY AND OTHERS [(2007) 13 SCC 210] LATIF ESTATE LINE INDIA LTD. vs. HADEEJA AMMAL & OTHERS [2011 (2) C.L.T.658]" Submissions of the learned counsel for the respondents: 6.Shri.V.Lakshminarayanan, learned counsel appearing for the respondents 2 and 3 submitted that Section 2 of the Transfer of Property Act, 1882 clearly mandates that Chapter-II would not affect any rule of Mahomedan Law. The provisions of the Registration Act, 1908 are procedural in nature. Therefore, they cannot be pitted against the Personal Law. While it can be said that a document reduced in writing requires registration, the law governing the Mahomedans will have to be applied in all force. The provisions of the Transfer of Property Act, 1882 particularly with reference to Chapter-VII would not apply to the Mahomedan Law as stipulated under Section 129. The mere fact that the document makes a mention about the possession would raise a mere presumption which can be rebutted before the Court of law. 7.The petitioner seeks to convert the jurisdiction of the High Court under Article 226 of the Constitution of India into that of a Civil Court. The ratio laid down by the Honourable Full Bench of this Court does not apply to the case on hand dealing with a settlement under the Mahomedan Law. In order to make a gift valid, the three essentials of a gift as stipulated under Section 149 of the Mahomedan Law will have to be satisfied. The provisions contained under the Registration Act, 1908, particularly Section 48 is subject to the Personal Law governing the petitioner and the https://hcservices.ecourts.gov.in/hcservices/ respondents 2 and 3. In support of his contentions, the learned counsel has relied upon the following judgments: "IFTIKHAR WALI KHAN AND OTHERS vs. SIKANDAR BEGAM AND ANOTHER [AIR 1934 ALLAHABAD 179] SOMESHWAR vs. BARKAT ULLAH AND OTHERS [AIR 1963 ALLAHABAD 469] MT. BIBI MANIRAN vs. MOHAMMAD ISHAQUE [AIR 1963 PATNA 229] MAKKU RAWTHER'S CHILDREN: ASSAN RAVTHER AND OTHERS vs. MANAHAPARA CHARAYIL [AIR 1972 KERALA 27] NASIB ALI vs. WAJED ALI [AIR 1927 CAL 197]" Analysis: 8.In order to appreciate the submissions made by the learned counsels on both sides, it is imperative that this Court will have to make a visit to the various provisions of the enactments, more particularly the Mahomedan Law; the Transfer of Property Act, 1882; Registration Act, 1908; and Indian Evidence Act, 1872. Mahomedan Law: 9.The Muslim Personal Law (Shariat) Application Act (26 of 1937) came into existence on 07.10.1937. The clear prescription of the said Act is that in a case of gift involving a donor and donee being Muslims, the law applicable to them shall be the Muslim Personal Law (Shariat). Section 2 of the said Act is extracted herein for better appreciation: "2.Application of Personal Law to Muslims.- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." 10.Chapter-XI of the Mahomedan Law deals with a hiba or a gift. Section 147 of the Mahomedan Law stipulates that writing is not essential to the validity of a gift either of a movable or immovable property. Under Section 149 of the Mahomedan Law, the prescription of a valid gift are as follows: "149...... (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of https://hcservices.ecourts.gov.in/hcservices/ the subject of the gift by the donor to the donee as mentioned in Section 150." 11.Section 150 of the Mahomedan Law deals with the delivery of possession. Section 150(2) specifically states that a registration of a deed of gift does not cure the want of delivery of possession. Therefore, the mandate of Section 150 of the Mahomedan Law is very clear that in order to make a gift valid the factum of delivery of possession is a sine qua non which cannot be dispensed with notwithstanding its registration. Section 152 of the Mahomedan Law stipulates that the donor has to physically depart from the premises and the donee will have to formally enter into possession. Section 167 of the Mahomedan Law speaks about the revocation of gifts before the delivery of possession meaning thereby the gift would not be completed without possession. It is pertinent to note that Section 167(4) of the Mahomedan Law mandates that once possession is delivered, the gift would become final and therefore, it cannot be revoked except by a decree of Court. 12.The above said provisions governing the Muslim Personal Law dealing with gift would in clear terms exemplify the position that for a valid gift the three essentials contained under Section 149 of the Mahomedan Law will have to be complied with. A mere registration by itself would not be a substitute for a delivery of possession. Therefore, emphasis has been made in those provisions dealing with gift coming under Chapter-XI of the Mahomedan Law to the factum of evidencing actual and physical position. Now this assumes utmost significance. The question as to whether the possession has been given or not is a question of fact to be proved before a Civil Court having the territorial jurisdiction. When Section 167(4) of the Mahomedan Law specifically mandates that once possession is delivered a gift cannot be revoked except by a decree of Court, the delivery of possession assumes greater importance. Section 152(1) of the Mahomedan Law, as discussed above also reimposes the said possession to the effect that the donor will have to physically depart from the premises. Therefore, until the possession is handed over and proved by facts, a gift under the Mahomedan Law has no existence, giving any right to the donee. On the contrary if the factum of possession is admitted then the donee has no other option except to approach the Civil Court and get a decree to revoke the gift. 13.Hence in the light of the analysis of the provisions of the Mahomedan Law, this Court is of the view that the factum of possession being a disputed question of fact to be established before a competent Civil Court, this Court cannot embark upon the said exercise merely based upon a recital contained in the document which at the most would give a presumption against the donor which https://hcservices.ecourts.gov.in/hcservices/ can be rebutted by other forms of evidence. Provisions of the Registration Act, 1908: 14.The Registration Act, 1908 substantially deals with the procedural law. The object of the Registration Act, 1908, has been succinctly putforth by the Honourable Apex Court in SURAJ LAMP & INDUSTRIES (P) LTD. vs. STATE OF HARAYANA [(2009) 7 SCC 363]. The following passage is apposite: "18.Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified." 15.Now let us have a relook at various provisions of the Act. Section 17 of the Registration Act, 1908 speaks about the documents of which registration is compulsory. Section 48 of the Registration Act, 1908 deals with the effect of registration, according to which a registered document shall take effect against any oral agreement or declaration. Section 49 of the Registration Act, 1908 deals with the effect of non-registration of documents which is compulsorily registrable under Section 17 of the Act. 16.Under Part-XII of the Registration Act, 1908, a registering authority can refuse to register. However, while https://hcservices.ecourts.gov.in/hcservices/ refusing to register a registering authority will have to assign reasons. Rules have been framed by the State of Tamil Nadu in exercise of the rule making power conferred under Section 16 of the Registration Act, 1908. A perusal of Rule 55 of the Registration Rules, would show that a registering authority can make an enquiry before registration. The said rule also prescribes the powers of the registering authority to enquire into the matters. The said rule is extracted herein for better appreciation of the issues involved: "55.It forms no part of a registering officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:- (a) that the parties appearing or about to appear before him are not the persons they profess to be; (b) that the document is forged; (c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity; (d) that the executing party is not really dead, as alleged by the party applying for registration; or (e) that the executing party is a minor or an idiot or a lunatic." 17.Therefore, under Rule 55 of the Registration Rules, a registering authority will have the power to enquire and consider the objections mentioned therein alone. A combined reading of Part- XII of the Registration Act, 1908 and Rule 55 of the Registration Rules would lead to the irresistible conclusion that the powers of the registering authority are circumscribed by the provisions. 18.Rule 162(A) of the Registration Rules, deals with the duty of the registering authority in accepting the document for registration. According to the said rule, a registering authority shall not accept for registration any document or service agreement evidencing bonded labour or transaction constituting an offence under any law or opposed to public policy or morality. Therefore, except the above mentioned contingencies, the registering authority has got no other power but to accept the document for registration. 19.The above said provisions contained under the Registration Act, 1908 and the Registration Rules would make clear the role of the registering authority. The Act and Rules put fetters on the powers of the registering authority. In other words, it is not open to the registering authority who is supposed to act under the provisions of the law to go into the question as to whether a https://hcservices.ecourts.gov.in/hcservices/ deed of cancellation is correct or not. Such an authority also cannot go into the averments made in a document as against the other materials evidence and the applicability of the Muslim Personal Law. The provisions narrated above would make this position rather clear. Provisions of the Transfer of Property Act, 1882: 20.Section 2 of the Transfer of Property Act, 1882 states that Chapter-II which deals with the act of parties would not affect any rule of Mahomedan Law. Therefore, when Section 147 of the Mahomedan Law validates a oral gift, the same would not come into the purview of the transfer of a immovable property in the Transfer of Property Act, 1882 under which a transfer without registration is not valid apart from being inadmissible in law. Section 9 under Chapter-II deals with an oral transfer. Accordingly, a transfer of property may be made without writing in a case where the same is not expressly required by law. Chapter-VII deals with gifts. Section 129 of the Act prescribes that the Chapter dealing with gifts would not affect any rule of Mahomedan Law. 21.Reading together Sections 2, 9 and 129 of the Transfer of Property Act, 1882 along with the provisions of the Mahomedan Law, the emerging legal position would be that the provisions the Transfer of Property Act, 1882 have no application to the conditions of a valid gift governed by the Mahomedan Law. While it can be said that a document reduced in writing requires registration under Section 17 of the Registration Act, 1908, the question as to whether a gift is valid or not can only be tested on the touch stone of the provisions of the Mahomedan Law alone. In other words, a document reduced in writing concerned with the donor and donee being Mahomedans can be stated to be compulsorily registrable, nonetheless the validity of a valid gift would be governed only by the Mahomedan Law and not the Transfer of Property Act, 1882. Combined effect of the enactments: 22.As a constitutional Court dealing with the interpretation, application and validity of the various provisions of different enactments, this Court will have to adopt a harmonious construction permitting the said enactments to travel in their own streams. When a conflict has not been contemplated and the enactments are operating in their own respective fields, a Court of law cannot create any. As discussed above, the Registration Act, 1908 deals with a registration based upon public policy and the Mahomedan Law deals with Personal Law governing Mahomedans. The Transfer of Property Act, 1882 excludes the provisions of the Mahomedan Law. Therefore, when the very enactment itself makes it very clear about avoiding any possible conflict, this Court cannot adopt an interpretation that would result in an artificial conflict which has never been the intention of the legislation. https://hcservices.ecourts.gov.in/hcservices/ Role of the registering authority: 23.Now, we are primarily concerned with the role of the registering authority. The question whether any public duty is imposed on the said authority while registering the cancellation documents. As discussed above, under the provisions of the Registration Act, 1908 and the Registration Rules, there is nothing that mandates the registering authority to go into the other aspects. It is to be seen that we are not dealing with the case of a sale which by itself transfers title in pursuance to the execution. It is not as if the case on hand comes under the provisions of Sections 71 to 76 of the Registration Act, 1908 read with Rule 55 and 162(A) of the Registration Rules. When once the registering authority cannot go into the other aspects, he cannot object to the registration of the Cancellation Deed. The registration is an act of an Officer appointed by law and a cancellation of a settlement is under the Mahomedan Law. In the case of a settlement deed it does not depend upon consent. The registering officer is not duty bound to see the recitals of a document. It is also not incumbent upon the said authority to look into the attending circumstances. 24.It is to be seen that a oral gift by a Mahomedan is valid in law subject to the satisfaction of the other provisions contained in the Mahomedan Law. Therefore while an oral gift will have to be tested under the Muslim Personal Law, merely because the registration is done as the document has been reduced in writing, can it be said that the Muslim Personal Law would not be applicable to such a case? The answer has to be in the negative. A registration places a document in the public domine, therefore it does not efface the rights and liabilities governed under the Personal Law of a Muslim. In other words, a registered gift deed under the Mahomedan Law is nothing but a piece of evidence subject to the satisfaction of the other provisions contained therein. Hence, this Court is of the view that there is no obligation in the nature of a public duty cast upon the first respondent to refuse the registration. Power under Article 226 of the Constitution of India: 25.As discussed above, when the registering authority does not have a statutory duty in refusing registration of a Settlement Deed governed by the Muslim Personal Law, this Court cannot exercise its power under Article 226 of the Constitution of India. It is trite law that a Writ of Declaration can only be issued, when a statutory duty has been wrongly exercised or done without authority. The issue can be looked into from a different angle as well. As discussed above, the question of admissibility or relevancy of the recital in a document and the factum of possession resulting in the consequential conclusion of a valid gift is under the realm of a https://hcservices.ecourts.gov.in/hcservices/ Civil Court having competent jurisdiction. Hence, this Court cannot arrogate itself to the position of a Civil Court. The question as to whether the presumption has been dispelled, possession has been handed over and the gift is accepted or not cannot be gone into by this Court as well as the registering authority. In other words, what the petitioner seeks before this Court is a declaration that the Cancellation Deed is null and void which cannot be granted. This Court also does not find the action of the first respondent as one without jurisdiction, power or authority. Therefore, the only remedy open to the petitioner is to approach the Civil Court or he can ignore the Cancellation Deed, if in his opinion the earlier deed has been given effect to under the Muslim Personal Law. Analysis of the decisions: 26.Now coming to the decisions relied upon by the learned counsels appearing on both sides. Much reliance has been made on the judgment of the Honourable Full Bench of this Court in LATIF ESTATE LINE INDIA LTD. vs. HADEEJA AMMAL & OTHERS [2011 (2) C.L.T.658]. The issue involved in the said decision is totally different. The Honourable Full Bench of this Court was dealing with a sale. A sale simplicitor once effected by the parties would transfer the title automatically. Such a sale deed is executed by both sides. Therefore considering the said position, it was held by the Honourable Full Bench of this Court that inasmuch as the title of the property is vested to the transferee, the same cannot be divested by the unilateral act of the transferor. Admittedly, the Honourable Full Bench of this Court has not taken into consideration of the case of a Settlement Deed even though the observation of the learned Single Judge of this Court was quoted, in which, it has been stated that a settlement being unilateral stands on a different footing. As discussed above, in the present case on hand, the question whether the gift has been effected or not is a question of fact and there is no transfer of title by the operation of law as