Madras High Court
P. Jayanthi vs The Sub Registrar on 8 September, 2022
Author: M.Dhandapani
Bench: M. Dhandapani
W.P. No. 23802 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P. No.23802 of 2022
P. Jayanthi .. Petitioner
Versus
1. The Sub Registrar
Dharapuram Sub-Registrar Office
Dharapuram, Tiruppur District.
2. The District Registrar
District Registrar Office
Nerupperichal Village
Pooluvapatti Post
Tiruppur-641 602.
3. The Inspector General of Registration
Santhome High Road
Santhome, Chennai-600 028. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorarified mandamus calling for
the records of the first respondent relating to the registration of the
Settlement Cancellation Deed, dated 09.07.2008, quash the registration of
1/12
https://www.mhc.tn.gov.in/judis
W.P. No. 23802 of 2022
the said Settlement Cancellation Deed, dated 09.07.2008 as Document
No.678 of 2018 in his file and to direct the first respondent to remove and
delete the entries relating to the registration of the said Settlement
Cancellation Deed dated 09.07.2008 in the records maintained by him.
For Petitioner : Mr.R.Ashokan
For Respondents : Mr. Yogesh Kannadasan,
Special Government Pleader
---
ORDER
The present writ petition has questioned the legality of the registration of the settlement cancellation deed executed by the Settlor, viz., the 2nd respondent and its registration by the 1st respondent, which has resulted in the filing of the present petition.
2. According to the petitioner, the property measuring to an extent of 12.09 acres comprised in Survey No.546 (Old S.F.Nos. 2257 and 2258) at Kolathuppalayam Village, Dharapuram, originally belonged to her grandfather and he executed a registered settlement deed, dated 21.04.2008 in Doc.No.2684/2008 in favour of the petitioner herein and 2/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 she has been in possession and enjoyment of the property. Subsequently, the petitioner's grandfather executed a Cancellation Deed, dated 09.07.2008 by cancelling the settlement deed, dated 21.04.2008 executed by him in her favour and presented the same for registration before the first respondent/Sub Registrar and the same is pending. In the meanwhile, the petitioner filed a suit in O.S.No.242 of 2008 before the District Munsif Court, Dharapuram, for declaration and permanent injunction against her grandfather and the same was decreed on 13.06.2012 in her favour. After the demise of her grandfather, the settlement cancellation deed has been registered as Doc.No.678 of 2018, dated 09.07.2008 nearly after six years by the first respondent. Thereafter, the petitioner made a representation, dated 24.01.2020 before the respondents to cancel the registration of the settlement cancellation deed, dated 09.07.2008, but, no steps have been taken by the respondents. Hence, the petitioner has come forward with the present writ petition under Article 226 of the Constitution of India.
3. However, pending finalization of orders, on 02.09.2022, a Full Bench constituted for considering identical issue, viz., the legality of the cancellation deed unilaterally executed, had rendered a decision in the 3/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 case of Sasikala – Vs – The Revenue Divisional Officer & Anr. (W.P. (MD) Nos.6889/2020, etc. Batch – Dated 2.9.2022), by answering a reference made by a learned single Judge with regard to conflicting decisions in the matter of legality of registration of cancellation deed, by holding as under :-
“41. Regarding gift or settlement: With regard to unilateral cancellation of gift deed, which is not revokable and does not come under the purview of Section 126 of the Transfer of Property Act, the Registrar has no power to accept the deed of cancellation to nullify the registered settlement deed. Section 126 of the Transfer of Property Act, reads as follows:
“126. When gift may be suspended or revoked.— The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be 4/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
42. Section 126 of the Transfer of Property Act recognizes the power of revocation where the donor reserves a right to suspend or revoke the gift on happening of any specified event. However, the illustrations clarifies that the revocation should be with the assent of the donee and it shall not be at the will of donor as a gift revocable at the mere Will of the donor is void. The Sub Registrar cannot decide whether there was consent for revocation outside the document. If the donor by himself reserves a right to revoke the gift at his Will without the assent by donee, the gift itself is void. Since we are dealing with unilateral cancellation, the power of registration of cancellation or revocation of gift deed cannot be left to the discretion or wisdom of registering authority on facts which are not available or discernible from the deed of gift. When the power of revocation is reserved under the document, it is permissible to the registering officer to accept the document revoking the gift for registration only in cases where the following conditions are satisfied;
(a)There must be an agreement between the 5/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 donor and donee that on the happening of a specified event which does not depend on the Will of the donor the gift shall be suspended or revoked by the donor.
(b)Such agreement shall be mutual and expressive and seen from the document of gift.
(c)Cases which do not fall under Section 126 of Transfer of Property Act, unless the cancellation of Gift or Settlement is mutual, the registering authority shall not rely upon the self serving statements or recitals in the cancellation deed. For example questioning whether the gift deed was accepted or acted upon cannot be decided by the registering authority for the purpose of cancelling the registration of gift or settlement deed.
43. The donor must specifically reserves such right to suspend or revoke the gift deed with the consent of donee to attract Section 126 of the Transfer of Property Act. Unless the agreement is mutual, expressed in the recitals, the Registering Authority cannot accept the document for registration. However, the factual allegations with regard to the acceptance of gift or the issue where the gift was acted upon or not do not come under the purview of the Registering 6/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 Officer. Hence, the Registering Officer is not excepted to accept the document unilaterally cancelling the gift deed, merely on the basis of the statement of the donor or the recitals in the document for cancellation.
44. From the discussions and conclusions we have reached above with reference to various provisions of Statutes and precedents, we reiterate the dictum of Hon'ble Supreme Court in Thota Ganga Laxmi and Ors. -vs- Government of Andhra Pradesh & Ors., reported in (2010) 15 SCC 207 and the Full Bench of this Court in Latif Estate Line India Ltd., case, reported in AIR 2011(Mad) 66 and inclined to follow the judgment of three member Bench of Hon'ble Supreme Court in Veena Singh's case reported in (2022) 7 SCC 1 and the judgment of two member Bench of Hon'ble Supreme Court in Asset Reconstruction Company (India) Ltd., case, reported in 2022 SCC On-line SC 544 for the following propositions:
(a) A sale deed or a deed of conveyance other than testamentary dispositions which is executed and registered cannot be unilaterally cancelled.
(b) Such unilateral cancellation of sale deed or a deed of conveyance is wholly void and non est and does not operate to execute, assign, limit 7/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 or extinguish any right, title or interest in the property.
(c) Such unilateral cancellation of sale deed or deed of conveyance cannot be accepted for registration.
(d) The transferee or any one claiming under him or her need not approach the civil Court and a Writ Petition is maintainable to challenge or nullify the registration.
(e) However, an absolute deed of sale or deed of conveyance which is duly executed by the transferor may be cancelled by the Civil Court at the instance of transferor as contemplated under Section 31 of Specific Relief Act.
(f) As regards gift or settlement deed, a deed of revocation or cancellation is permissible only in a case which fall under Section 126 of Transfer of Property Act, and the Registering Authority can accept the deed of cancellation of gift for registration subject to the conditions specified in para 42 of this judgment.
(g) The legal principles above stated by us cannot be applied to cancellation of Wills or power of Attorney deed which are revocable and 8/12 https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 not coupled with interest.
45. As a result of our forgoing conclusions, we answer the reference by holding that the Registrar has no power to accept the deed of cancellation to nullify the deed of conveyance made earlier, when the deed of conveyance has already been acted upon by the transferee. Since anyone may try to mislead or misinterpret our judgment by referring to the question of reference we insist that our answer to the reference should be understood in the light of our conclusions summarised in the previous paragraph.”
4. In view of the fact that the reference has been answered by holding that the Registrar has no power to accept the deed of cancellation to nullify the deed of conveyance made earlier, when the deed of conveyance has already been acted upon by the transferee, the present case falls squarely within the four corners of the said decision, as the settlor, viz., the 2nd respondent herein, had unilaterally cancelled the settlement deed in the year 2014, which was entered into in the year 2003.
9/12https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022
5. Following the dictum laid down by the Full Bench in Sasikala’s case (supra), this writ petition is allowed and the registration of Settlement Cancellation Deed, dated 09.07.2008 registered as Document No.678 of 2018 on the file of the 1st respondent/Sub Registrar is hereby quashed and the 1st respondent is directed to restore the settlement deed, dated 21.04.2008 registered as document No.2684/2008 on his file and carry out the necessary entries in the registers accordingly.
6. This writ petition is allowed with the aforesaid directions.
However, there shall be no order as to costs.
08.09.2022
Index : Yes / No
Internet : Yes / No
msm
10/12
https://www.mhc.tn.gov.in/judis
W.P. No. 23802 of 2022
To
1. The Sub Registrar
Dharapuram Sub-Registrar Office
Dharapuram, Tiruppur District.
2. The District Registrar
District Registrar Office
Nerupperichal Village
Pooluvapatti Post
Tiruppur-641 602.
3. The Inspector General of Registration Santhome High Road Santhome, Chennai-600 028.
11/12https://www.mhc.tn.gov.in/judis W.P. No. 23802 of 2022 M.DHANDAPANI, J.
msm W.P. No. 23802 of 2022 08.09.2022 12/12 https://www.mhc.tn.gov.in/judis