The Madurai Bench of the Madras High Court on Tuesday struck down Section 34-C of the Registration Act and held it to be ultra vires of the Constitution.

A Division Bench of Justices N. Sathish Kumar and M. Jothiraman held that by permitting the Sub-Registrar to exercise powers to ascertain as to whether the person executing the document possess a title over the immovable property, the impugned provision authorises an authority exercising ministerial and administrative functions to probe questions of title which are within the exclusive province of the courts.

“The impugned provision is, on the face of it, unconstitutional and violative of Article 14 of the Constitution as it clearly breaches the principle of separation of powers as held by the Supreme Court,” the court said.

Section 34-C of the Registration Act commences with a non-obstante clause. The Registration Act is concerned primarily with documents and their registration, and not with the underlying transactions affecting property. The rights and liabilities of parties arising out of such transactions are governed by the substantive provisions of the Transfer of Property Act, the court said.

The Registration Act merely provides the procedural framework for registration and public notice of documents, whereas the validity, effect, and legal consequences of transactions relating to immovable property are governed by the Transfer of Property Act. Therefore, any provision in the Registration Act that seeks to regulate or determine substantive rights in immovable property must be examined in the light of the scheme and provisions of the Transfer of Property Act, the court said.

“As declared by the Supreme Court, the Registration Act mandates registration of documents, not the title and mere registration of document recording purchase of immovable property does not confer guaranteed title of ownership, instead it only serves as a public record of the transaction having presumptive evidentiary value, but it is never a conclusive proof of ownership. The presumption is rebuttable and can always be challenged in a court of law,” the judges said.

The court held the impugned amendment effectively empowers the Registering Authority to enquire into and determine questions of title, a function that falls exclusively within the jurisdiction of competent civil courts. The adjudication of title disputes is a judicial function and cannot be entrusted to an authority whose role under the Registration Act is purely ministerial and administrative in nature. Questions relating to title can be adjudicated only by a competent civil court upon appreciation of pleadings, evidence, and the applicable law. “On the face of it, this Court is of the view that the impugned provision is unconstitutional.”

Section 34-C of the Registration Act authorises the Sub-Registrar to refuse registration where the subject property is ancestral in nature and the original prior document is not available, unless the patta issued by the Revenue Department in respect of the property is produced. On a careful scrutiny of the proviso, it is clear that it also empowers the Sub-Registrar to decide questions of title, namely whether the property is ancestral in nature or not. Whether the property is ancestral property or joint family property is a matter to be decided on facts. How can the Sub-Registrar, hitherto performing a ministerial function, assume the role of determining and safeguarding the character of the property so as to decide whether it is ancestral property or not, the court said.

Since the amendment is nothing but a resurrection of the earlier Rules, which has already been struck down by the Constitutional Court, it not only infringes constitutional rights but also overrides the provisions of substantive laws, namely the Transfer of Property Act and the Contract Act. Furthermore, it violates the doctrine of separation of powers and is manifestly arbitrary.

The amendments take away the constitutional right and impose unreasonable restrictions on the right to deal with one’s property, which is a constitutional right under Article 300 A. The right to property is not only a constitutional right but is also recognised as a human right.

The court directed the Inspector General of Registration to prepare and publish a comprehensive list of encumbrances in Book I, indexed survey number-wise and door number-wise. The exercise should be undertaken forthwith in all Sub-Registrar Offices across Tamil Nadu and should be completed in a phased manner. The Inspector General of Registration should ensure that all transactions in respect of all the survey numbers are reflected in the encumbrance register without fail.

The court also directed the Inspector General of Registration to undertake the exercise of verifying the integrity of encumbrance entries in Book I, indexed survey number-wise and door number-wise, and to ensure that the same are properly reflected in the encumbrance certificates.