Madras High Court
C.R.Gandhi vs The Inspector General Of Registration on 4 July, 2014
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.07.2014 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD)No.121 of 2013 1.C.R.Gandhi 2.Puhazh Gandhi.P 3.Malar G.P. 4.Priya G.P. ... Petitioners Vs. 1.The Inspector General of Registration, Santhome, Chennai -4. 2.The Joint Sub Registrar I, Nagercoil, Kanyakumari District. 3.The District Registrar, Nagercoil, Kanyakumari District. 4.R.Gomathy Ammal ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the unilaterally executed cancellation deed in Doc. No.4921/2011, dated 15.12.2011, on the file of the 2nd respondent and the consequent dismissal of the appeal in No.2794/Aa1/2012, on the file of the third respondent , dated 23.07.2012 and quash the same and consequently, direct the respondents 1 to 3 to remove the unilateral cancellation of settlement deed executed by the fourth respondent in Doc.4921/2011 in the encumbrance certificate of properties in Re.Survey No.P-22/12 at Nagercoil Village and Re Survey No.P-24/145, at Vadiweeswaram Village. !For Petitioners : Mr.C.K.M.Appaji 1, 3 & 4 For 2nd respondent : Mr.Puhazh Gandhi, Party-in-person For Respondents : Mr.K.P.Krishnadoss, 1 to 3 Government Advocate For 4th respondent : Mr.K.P.Narayanakumar :ORDER
The present writ petition has been filed by the petitioners questioning the registration of unilateral cancellation deed, dated 15.12.2011, executed by the fourth respondent in Document No.4921/2011 and also against the dismissal of appeal by the third respondent, dated 23.07.2012.
2.It is averred in the affidavit filed in support of the writ petition that the first petitioner is the father of the petitioners 2 to 4. The fourth respondent in this writ petition is a maternal aunt of the first petitioner. She is a spinster and a retired Government employee. After retirement, she had been living with the petitioners family for the last 10 years. She was owning seven items of immovable properties. The fourth respondent, being satisfied with the care and affection rendered by the petitioners family, has gifted three items of properties, comprising of two houses and one Thoppu, situated in (i)R.S.No.P22/12, at Nagercoil Village,
(ii) R.S.No.P24/145 at Vadiweeswaram Village and (iii) R.S.No.387/3B & 387/2A at Thovalai Village, by a registered gift settlement deed, in Document No.3128/2011, dated 22.07.2011, in favour of the first petitioner. She has reserved remaining four items of properties. The fourth respondent has also handed over the possession of the properties and permitted to effect mutations in revenue records in the first petitioners name. Subsequently, the first petitioner has executed a settlement deed dated 29.09.2011 in favour of the petitioners 2 to 4 and mutations of revenue records are also effected in their name. Since then, the petitioners 2 to 4 have been in peaceful possession and enjoyment of the same.
3.It is further averred in the affidavit that while so, the fourth respondent under the instigation of first petitioners cousin brother viz., one A.Shankar, unilaterally cancelled the deed of settlement, dated 22.07.2011, by way of a unilateral cancellation deed, dated 15.12.2011. In the said cancellation deed, the fourth respondent cited a reason that the cancellation is necessitated as she felt that the gift is unnecessary at this moment. After executing the unilateral cancellation deed, the fourth respondent preferred a complaint to the Superintendent of Police at Nagercoil on 23.01.2012 alleging that the gift deed was obtained forcefully by fraudulent means. After investigation, the Police has closed the case as not true. After her efforts proved futile with the Police, the fourth respondent, along with the said A.Sankar, filed a suit in O.S.No.26 of 2012, for declaration that the settlement deed is null and void, before the District Court at Nagercoil, reiterating the allegation in the criminal complaint. The petitioners have filed an application in I.A.No.151 of 2012 under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint in O.S.No.26 of 2012 on the ground that the plaint averments does not disclose any cause of action and it is barred by law. On 31.01.2012, the said application was allowed and the plaint was rejected. In the meantime, the petitioners preferred an appeal under Section 83 of the Registration Act, 1908, before the third respondent herein to set aside the unilateral cancellation deed from the encumbrance certificate of the property. But, the third respondent has erroneously dismissed the appeal by order dated 23.07.2012. The said order reads that under the provisions of the registration Act, the executants of the document can at any time cancel the document and while cancelling such document, the concerned Registrar has to look only into the antecedent document or their certified copy and need not verify the encumbrance of the property as Ms.Gomathyammal has cancelled her own settlement deed, the veracity of the cancellation deed can be decided by a competent court of law. Under the circular of the Inspector General of Registration in No.67, dated 03.11.2011 Ms.Gomatyammal while registering the document never involved in impersonation and fabrication of document. Thus, the District Registrar cannot take any action against the said Gomathy Ammal or the concerned Sub Registrar. Hence, aggrieved by the same, the present writ petition has been filed by the petitioners.
4.The fourth respondent has filed a counter stating that she had retired from the Education Department as District Educational Officer and she is residing with one Shankar S/o.Aanchaperumal Pillai, who is none other than her sisters son. The first petitioner is also another sisters son of the fourth respondent. Due to old age, the fourth respondent is suffering from various ailments. By noticing about the temporary non-availability of the fourth respondents adopted son Shankar, the first petitioner has taken the fourth respondent to his house with a promise that she will be duly cared by the family members of the first petitioner. After some time, the attitude of the petitioner was completely changed. The petitioner was compelled to sign in some blank papers. When the fourth respondent questioned the act of the petitioner, she was threatened by them. While so, on verification, it was found that the first petitioner has fabricated a gift deed in document No.3128/2011 and subsequently, the first petitioner has executed a settlement deed in favour of the other petitioners in Document No.3731/2011. Based on the alleged gift deed, the fourth respondent and her adopted son Shankar have been compelled by the petitioners to vacate the house. But, as per the gift deed, no possession was handed over and the said document never came into existence. Therefore, the fourth respondent has executed a cancellation deed to cancel the said gift deed on 15.12.2011. Though the fourth respondent has cancelled the alleged gift deed, she was advised to approach the civil Court for the appropriate relief against the fraudulent document. Therefore, the fourth respondent and her adopted son viz., Shankar has filed a suit in O.S.No.25 of 2012 before the District Court, Kanyakumari District to declare the gift deed as null and void and sham and nominal. While so, the petitioners herein filed a petition under Order 7 Rule 11 of the Code of Civil Procedure. The trial Court, without properly appreciating the facts, allowed the petition filed by the writ petitioners under Order 7 Rule 11 and rejected the plaint. Aggrieved over the same, an appeal has been preferred. Thus, they sought for dismissal of this writ petition.
5.Heard the submissions made on both sides and perused the materials available on record.
6.It is the submission of the learned counsel for the petitioners that the fourth respondent is the maternal aunt of the first petitioner. The petitioners 2 to 4 are the children of the first petitioner. The fourth respondent was owning seven items of properties. She is a retired Government Employee. After retirement, she was residing along with the petitioners family. The fourth respondent being satisfied with the care and affection rendered by the petitioners gifted three items of properties by a gift deed dated 22.07.2011. Subsequently, the first petitioner settled the property in favour of his children, viz., the petitioners 2 to 4 in Document No.3731 dated 29.09.2011. While so, the fourth respondent, at the instigation of the first petitioners cousin brother viz., Shankar, has unilaterally cancelled the settlement deed, dated 22.07.2011. Thus, according to the petitioners, the second respondent has no authority to register the unilateral cancellation deed. As the deed of gift has already been accepted by the settlee and mutations were also effected in the revenue records, the second respondent ought to have verified, before the registering the document, whether the fourth respondent is the competent person to unilaterally cancel the document, particularly when the gift deed is accepted. But, without doing so, the second respondent has cancelled the gift deed. Further the learned counsel for the petitioners submitted that in the unilateral cancellation deed, the fourth respondent has cited the reason that the cancellation was necessitated as the gift is unnecessary at this moment. Absolutely there is no serious allegations in the cancellation deed. The words that the gift is unnecessary at this moment, would go to show that the cancellation of gift deed is made only at the instigation of the said Shankar.
7.In support of the above contentions, the learned counsel for the petitioners has relied upon the judgment reported in 2004 (1) SCC 581 (K.Balakirshnan and K.Kamalam and others) and 2014 (3) CTC 113 (D.V.Loganathan Vs. the Sub Registrar, Chennai and another).
8.Per contra, the learned counsel for the respondents submitted that the gift deed was obtained by coercion and fraud, and the fourth respondent was not even taken inside the Sub Registrar Office. Further, the learned counsel for the respondents submitted that as per Section 126 of the Transfer of Property Act, which deals with the revocation of the settlement deed, merely because a document has been registered, it would not amount to a valid gift unless and until the condition and parameters stipulated under Sections 122 and 123 of the Transfer of Property Act are complied with. Further learned counsel for the respondents submitted that no possession was effected as per the gift deed and under such circumstances, it cannot be said that the gift was acted upon.
9.At this juncture, the learned counsel for the petitioners submitted that in the very gift deed itself, it has been stated that the possession was handed over. More over, by relying on the same, necessary mutations were also carried out in all the revenue records. Therefore, it can be stated that the gift deed has been acted upon. In support of his contention, the learned counsel for the petitioners relied upon judgment reported in 2012 (1)MLJ 216 (K.A.Shanmugam and another Vs. Tamilarasi and others) wherein it has been held that mentioning of handing over of possession in the deed itself would be a proof that the gift deed was acted upon.
10.Though very many contentions have been raised with regard to the validity of the gift deed executed by the fourth respondent, the crux of the issue involved in this writ petition is whether the second respondent is right in registering the unilateral cancellation of gift deed. Hence, I am not dealing with the rival submissions made on both sides with regard to the allegations, because that is not necessary to decide the issue involved in this writ petition.
11.Here, in this case, it is seen that the unilateral cancellation deed was registered without notice to the petitioners. Further, in the settlement deed itself, it has been stated that the possession is handed over to the donee viz., first petitioner. Based on the same, mutations were also effected in the revenue records. In this regard, this Court is the view that it would be appropriate to look into the following decisions;
12.This Court in the judgment reported in 2012 (5) MLJ 169 (D.Mohan and another Vs. Sub Registrar, Chennai and others) has held that in the case of gift, the donor after executing the gift deed when it is accepted by the donee, is left with no interest in the property, therefore, it was not open to the respondent to get the cancellation deed registered, as she could have challenged it by filing civil suit and proving the allegations of fraud. Further, a gift deed could not be revoked by way of cancellation deed, once the case did not fall within the exceptions, under Section 126 of the Transfer of Property Act and a person having no right in the property cannot get it cancelled by getting it registered.
13.Further, in the judgment reported in 2014 (3) CTC 113 (D.V.Loganathan Vs. The Sub Registrar, Chennai and another) has held that the registration of cancellation of the settlement deed is against the public policy as it was not open to the Sub Registrar to register the cancellation of the deed, when the settlement deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the settlement deed he could have very well approached the Civil Court to set it aside, but certainly not unilaterally cancel it by getting the deed of cancellation registered with the Sub Registrar. The cancellation deed and its registration, therefore, being without jurisdiction is liable to be set aside.
14.In yet another judgment reported in (2012) 1 MLJ 216 (K.A.Shanmugam and another Vs. Tamilarasi and others), this Court has held that mentioning of handing over of possession in settlement deed itself is sufficient to come to a conclusion that the settlement deed has been acted upon.
15.The dictum laid down in the above judgments are squarely applicable to the facts of this case. Though the learned counsel for the respondents submitted that as per Section 127 of the Transfer of Property Act, a gift deed can be revoked by way of a cancellation deed, if it falls within the exception under Section 126 of the Transfer Property Act, in my considered opinion, whether it falls within the exception under Section 126 of the Transfer of the Property Act or not is purely a matter of evidence. The same has to be adjudicated only before the Civil Court. The Registrar is not a competent person to register the unilateral cancellation deed by deciding the question whether it falls within the exception under Section 126 of the Transfer of Property Act, since he is not the competent authority to decide the disputed question of facts. Further, in my considered opinion, by executing a registered settlement deed in favour of 1st petitioner / settlee, the settlor/4th respondent herein had lost her right in the property. Unless the said right is restored by setting aside the settlement deed executed by the settlor in favour of the settlee by a competent Court, the Sub-Registrar is not competent to register the unilateral cancellation of settlement deed.
16.In view of the above, the deed of cancellation is ordered to be quashed and the subsequent order in the appeal dated 23.07.2012 is also quashed.
17.This writ petition is accordingly allowed. No costs.
To
1.The Inspector General of Registration, Santhome, Chennai -4.
2.The Joint Sub Registrar I, Nagercoil, Kanyakumari District.
3.The District Registrar, Nagercoil, Kanyakumari District.