Andhra Pradesh High Court - Amravati
K Rajesh vs The State Of Ap on 7 March, 2019
IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) THURSDAY . THE SEVENTH DAY OF MARCH TWO THOUSAND AND NINETEEN PRESENT WRIT PETITION NO: 977 OF 2075 Between: Kollt Rajesh Chowdary, S/o Butchayya Choawdary, Age 31 years, Occ Private Employment, Rio MIG 1-145, Phase - H, VUDA Golony Cotonment, Vizianagaram Vizianagaram District PETITIONER AND 1. The State of AP, Rep. by its Principal Secretary, Revenue (Stamps and Registration) Department, Secretariat Buildings, Velagapudi, Guntur District. 2. The Joint Sub-Registrar, Nandigama, Krishna District. 3. The Tahasildar, Chandarlapadu Mandal, Krishna District 4. Kolli Anasuyamma @,Anasuya,, W/o late Seshagiri Rao, aye 79 years o. Koll Kanchana Vimala, W/o Kolli Basavapurnaiah age 47 years (Respondent Nos. 4 and 5 are residing at R/o D. No. 18-47 , LIG - 114,.P_M. Palem Visakhapatnam, Visakhapatnam District} ..~RESPONDENTS Petition under Article 226 of the Canstitution of india praying that im the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction, more particularly one in the nature of writ of Mandamus declaring the action of the 2nd respondent in registering the Deed of Revocation/cancellation, dt.29.09.2017 vide document No.4581/ 20177, dt. 03.10.2017 executed by the respondent No. 4, where under she cancelled the gift deed dt.20.09.2014 vide document No.3876/2014 executed by her-in favour of the petitioner herein as iilegal, arbitrary, violative of principles of natural justice and contrary to ihe provisions of The Registration Act, 1908 and the Rules made there under including Rule 26(i)(k) and also declare the subsequent registered sale deed document No.5136/2017, dt 06-11-2017 executed by the respondent No.4 in favour of respondent No.5 as same and nominal and that those documents are null and void and not enforceable. IA NO: 1 OF 2019 Petition under Section 161 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the registration of Revocation deed as well as sale deed vide document Nas. 4581/2017, dt.03.10.2017 and 9196/2017 dL.06.11.2017 executed by the respondent No.4 and registered by the 2° respondent, pending disposal of this writ petition Counsel for the Petitioner:SRI. V. SUDHAKAR REDDY Counsel! for the Respondent Nos. 1 to 3: GP FOR REGISTRATION AND STAMPS Counsel for the Respondent Nos. 4 & 5: NONE APPEARED The Court made the following: ORDER THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Writ Petition No.977 of 2019 ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking verbatim the following relief:
"lG issue a writ, order-or direction, more particularly one in the nature of writ af Mandamus declaring the action of the 2" respondent in registering the Deed of Revocation/cancellation, dt.29.09.2017 vide document No.4581/2017, dt.O3.10.2017 executed by the respondent No.4, where :
under she cancelled the gift deed at.20.09.2014 vide document No.3876/2014 executed by her in favaur of the petitioner herein as illegal, arbitrary, violative of principles of riatural fustice and contrary to the provisians of The Registration Act, 1908 and the Rules made there under tacluding Rule 26(]}(k} and also dectlare.the subsequent registered sale deed document No.5136/2017, dt.06.11.2017 executed. by respondent No.4 in favaur- of respondent No.5 as sham and sominal and that those documents are riull and void and not. enforceable and pass such other order or arders in the interests of justice."
2. | have heard the submissions of the learned counsel appearing for the petitioner; and, of the learned Government Pleader for Stamps & Registration appearing for the respondents 1 to 3...
2.1 In view of the legal position relied upon by the learned counsel appearing for the petitioner and the learned Government Pleader, this Court is of the considered view that no notice is necessary to the non- official respondents 4 & 5; and, that the writ petition can be disposed of having regard to the submissions of the learned counsel appearing for the petitioner and of the learned Government Pleader.
2.2 |have perused the material record.
3. The case of the petitioner, in brief, is this: 'The 4 respondent is the paternal grandmather of the petitioner. The 5" respondent is his aunt, being wife of his paternal uncle. The 4" respondent possessed certain movable and immovahle properties of her awn. She had settled Sortie MSRMJ WP 977_2019 ° on the petitioner her immovable property viz., Ac.3.24 cents of dry land in Sy.No.255/1 of Muppalla Village, Chanderlapadu Mandal, Krishna District, by executing a registered gift settlement deed, dated 20.09.2014, bearing document no.3876 of 2014. The said gift settlement deed was executed out of lave and affection she had for the petitioner, who is the son of her elder son, and with a view to provide the said property for his livelihood. The gift was accepted and the possession of the property was delivered to the petitioner on the same day. Thereafter, the petitioner made an online application, on 09.05.2015, before the 3° respondent and paid the requisite fee and requested for mutation of the said property in his name in the revenue records and for issuance of pattadar passbook. The same was acknowledged vide a receipt no.3310848. Since the date of the gift settlement deed, the petitioner is in continuous possession and enjoyment of the above said property covered by the said deed. In the absence of assured irrigation sources to the said land, the petitioner used to raise only one crop per year depending upon the monsoon. On the suggestion of the neighbouring ryots, he got established a bore-well in the land to enable him to raise two crops per year. In order to meet the expenses for establishing the bore-well and the submersible motor etcetera, he had applied for an Encumbrance Certificate. The same was received, on 25.01.2019. He was surprised to notice that the 4 respondent, having executed a deed of cancellation, dated 29.09.2017, registered the same, on 03.10.2017, and revoked the gift settlement deed, dated 20.09.2014, executed by her in favour of the petitioner, The petitioner alsa noticed that, after execution of such cancellation deed, she had further executed a sale deed, dated 28.10.2017, in favour of the 5 respondent and registered it, on 06.11.2017. Since the property in question was MSRM,J WP_977_ 2019 3 transferred in favour of the petitioner with absolute rights by the 4"
respondent by executing the registered gift settlement deed, she has no right to execute the deed of cancellation either cancelling or revoking the gift settlement deed executed by her in favour of the petitioner, The reasons stated by the 4°" respondent in the revocation deed/deed of cancellation to the effect that possession of the above said property was not given to the petitioner and that he had got the gift settlement deed registered in his name by deceiving her and that he did not fulfil the word given to her are all false. The gift under the gift settlement deed is not a conditional gift. Hence, the gift settlement deed executed by the 4"" respondent in favour of the petitioner cannot be cancelled on the alleged grounds mentioned in the deed of revocation or deed of cancellation. However, the 4" respondent cancelled the gift settlement deed executed in favour of the petitioner with a mala fide intention, Under the sift settlement deed, valuable rights in respect of the property cavered by the said deed had accrued to the petitioner. The donor has no right to revoke the gift, once the property is gifted under a registered deed. As per settled legal positian, unilateral cancellation of sale deeds and other documents transferring or alienating the property fs impermissible. Unless the parties to the earlier deed consent for cancellation of the deed and the beneficiary under the deed joins as a party to the deed of cancellation, the deed of cancellation cannot be registered. The relevant procedure is prescribed under Rule 24(}(kK)G@) of the Rules framed under the Registration Act, 1908. The said procedure is not followed by the 2 respondent before registering the deed of cancellation executed by the 4" respondent. For all the reasons stated, the deed of cancellation cancelling the gift settlement deed MSRM, J WP _977_2019 4 executed by the 4" respondent in favour of the petitioner is null and void. Hence, the present writ petition is filed.' 4, Learned counsel for the petitioner reiterated the pleaded case of the petitioner, which is already stated supra, in detail. His main contention is that the deed of cancellation/revacation, dated 29.09.2017, executed by the 4% respondent cancelling/revoking the gift settlement deed, dated 20.09.2014, executed by her in favour of the petitioner was one executed unilaterally and the same cannot be registered by the District Registray /Sub-Registrar concerned and, therefore, the registration of the cancellation deed by the 24 respondent is not valid in law and that the cancellation deed or revocation deed is null and void.
4.1 Learned counsel placed reliance on the decision of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Ediga Chandrasekhar Gowd and another v State of Andhra Pradesh and others' wherein the entire law on the point was analysed having regard to the provisions of law and the precedents,
5. Before proceeding further, it is necessary to note the legal position obtaining. A Full Bench of the then High Court of Andhra Pradesh in Yanala Maileshwari and others v. Ananthula Sayamima and others*® had held that linilateral cancellation of sale deeds can be done and they can be registered without notice to the executant by the District Registrar/Sub-Registrar. Since the State perceived that this judgment would create lot of complications to the holders of the land and that they could be exposed ta problems created by their transferars by unilateral cancellation of the sale deeds and other documents "2017 ALO 12 * 2006(6) ALD 623 (FR) MSRM,J WP_977_2019 5 transferring or alienating property executed by them, it introduced Rule 26(1){k}(i) by way of notification, dated 29.11.2006. The relevant portion of the said rule reads as under:
"26.()) Every docurnent shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules snall have been complied with, for instance..
{k)(i} The registrating officer shall ensure at the time of presentation for registration of cancellation deeds af previously registered deed of conyeyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties ta the previously registered conveyance on sale and that such cancellation deed is accormpanied by a declaration showing mutual consent or orders of 2 competent Civil ar High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that 'the registering officer shall dispense with the execution of cancellation deeds by executarit and claimant parties to the previously registered deeds of conveyances. on sale before him if the cancellation deed jis executed by a Civil Judge or a Government Officer competent to execute Government Orders dectaring the properties contained in the previously registered conveyance oan sale te be Government or Assigned or Endowment lands or properties not registerable by any provisions of law."
A challenge was made to the validity of the said rule on the ground that it is ultra vires the provisions of the Registration Act, 1908. However, the said challenge was rejected by a Division Bench of the said Court in Kaitha Narasimha v. the State of Government of AP rep., by its Principal Secretary, Revenue Department*. The Division Bench held that the Rule merely incorporates one of the facets of the rules of natural justice in the procedure taid down for registration of cancellation deed of previously registered document and is intended to ensure that a duly registered sale deed is not cancelled without the executant and claimant getting an opportunity te contest the registration of cancel ltation deed and that the said Rule does not have the effect of taking away the right of the executant of cancellation deed and only seeks to put the executant and claimants of the original 3 2015¢8) MLJ 769 Weerierreree MSRM,J WP_977_ 2019 5 document to notice that somebody is seeking cancellation thereof, [t is not in dispute that the said Rule applies to the gift settlernent deed in question. Be that as it may. The judgment in Yanala Malleshwari and others [2™ supra] was set aside by the Supreme Court in Thota Ganga lakshmi v. Government of Andhra Pradesh' wherein the Supreme Court opined that there cannot be any unilateral cancellation of a sale deed and that a party, who wants to cancel a sale deed executed, has te necessarily file a civil suit for its cancellation or seek reconveyance from the vendee, and that executing a cancellation deed, or getting it registered, is unheard of jn law. The Supreme Court also referred to the above said Rule and stated that the said Rute is consistent with the view of the Court that a cancellation deed! can be registered only after a sale deed is cancelled by a competent civil Court after notice to the concerned parties and that jin the absence of any declaration by a competent Court or notice to Parties, the cancellation deed as weil as registration thereof were whally void & non est and that such transactions are meaningless transactions.
6. From the precedential guidance in the decision of the Supreme Court, it is manifest that there cannot be an unilateral cancellation of registered sale deeds and that a cancellation deed cancelling a sale deed can be registered only after the same jis cancelled by a competent civil Court, after notice to the parties concerned, and that in the absence of any declaration by a competent Court or notice to parties, the execution of deed of cancellation as well as its registration are wholly void and non est and such transactions are meaningless transactions. In my opinion, the analogy which the Supreme Court applied to cancellation Of sale deed equally applies to the present deed of cancellation by which the 4% * 201201) ALD 90 SC ry é respondent cancelled unilaterally, the sift settlement deed executed by her in favour of the petitioner. in the present case, the procedure prescribed in the Rule afore-stated has admittedly not been followed and the petitioner was not put on notice by the 2" respondent before registering the revocation deed/deed of cancellation executed, on 29.09.2017, and registered, on 03.10.2017.
7. Accordingly, the said deed of cancellation/deed of revocation is declared as null and void and that it is of no effect. As a sequel to the said finding that the cancellation deed or revocation deed is null and void and further, in view of the settled legal position that no one can canvey a better title than what he/she has, it is to be further held that the subsequent sale deed executed by 4" respondent in favour of the 5% respondent is also not valid.
8. Before parting, it is to be noted that the learned Government Pleader, while not disputing the settled legal position, had contended that if the petitioner is aggrieved of the cancellation or revocation deed he has to approach a civil Court and seek the common law remedy for setting aside the same but he cannot approach the writ Court. In the considered view of this Court such a contention needs a mention only to be rejected for the reason that when the cancellation deed or revocation deed unilaterally executed is null and void and that when such transaction is meaningless, it is just and fair to allow the writ petition leaving it open to the executant of the cancellation deed or revocation deed to seek the common law remedy by approaching the Civil Court. Hence, liberty is reserved accordingly to the non official respondents. |
9. In the result, the Writ Petition is accordingly, allowed as prayed for. Since this Court did not go inta the correctness or otherwise of the MSRM,J WP_977_2019 8 .
contents of the subject cancellation of revocation deed and has set it aside and/or declared it as null and void, having regard to the legal position obtaining, this order shall not preclude the executant of the said cancellation or revocation deed to seek the common law remedy, which the law permits.
There shall be no order as to casts.
Miscellaneous petitions pending, if any, shall stand closed, eestor socerva sua saunuunnunnsrmuien cistsesivareeeteesee EEE EE. kK. VENKAIAH ASSISTANT REGISTRAR WTRUE COPY) Lois SECTION OFFICER One Fair Copy to the Hon'ble Sri, Justice M. SEETHARAMA MURTI (For His Lordhips Kind Perusal) To,
1. The Principal Secretary, Revenue (Stamps and Registration) Department, State OF AP, Secretariat Buildings, Velagapudi, Guntur District. The Joint Sub-Registrar. Nandigama, Krishna District. the Tahasildar, Chandarlapadu Mandal, Krishna District "GLR Capijes The Under Secretary, Union of India Ministry of Law, Justice and Company Affairs, New Dethi.
6. The Secretary, Advocate Association Library, High Court of Andhra Pradesh. f One CC to Sri. V. Sudhakar Reddy, Advocate (OPUC)
3. Two CCs to the GP for Registration & Stamps, High Court of Andhra Pradesh.
9Or capo (OUT) . Twotd Copies, PM \,.
HIGH COURT MSRM,J DATED:07/03/2019 ORDER WP.No.977 of 2019 Allowing the WP Without casts.
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