Madras High Court
S.Ramasamy vs The Sub Registrar on 16 May, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.P.(MD)NO.17630 OF 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 16.02.2024
DATED : 16.05.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.17630 of 2020
S.Ramasamy ... Petitioner
Vs.
1. The Sub Registrar,
Mukoodal Sub Registrar Office,
Cheranmadevi Registration District,
Tirunelveli District.
2. R.K.Sundari
3. R.Senthilkumar ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the
records pertaining to the registration of the document No.1777/2020
dated 19.10.2020 on the file of the 1st respondent and quash the same
and consequently direct the 1st respondent to delete the entries pertaining
to the registration of Document No.1777/2020 dated 19.10.2020 from the
encumbrance certificate.
For Petitioner : Mr.G.Prabhu Rajadurai
For R-1 : Mr.D.S.Nedunchezhiyan,
Government Advocate.
For R-2 & R-3 : Mr.S.Srinivasa Raghavan
***
https://www.mhc.tn.gov.in/judis
1/9
2 W.P.(MD)NO.17630 OF 2020
ORDER
Heard both sides.
2. The petitioner is none other than the husband of the second respondent and the father of the third respondent.
3. The case of the petitioner is as follows:-
The petition mentioned properties were purchased by the petitioner in the name of his wife. His wife had executed a power deed in his favour. Document No.2131 of 2010 was executed and registered on 17.05.2010 settling the properties in favour of the petitioner. After the execution of the said settlement deed, the petitioner created a layout and also sold the plots in favour of third parties and purchasers have obtained pattas in their respective names. After a lapse of almost ten years, at the instance of the third respondent, two other documents were created. The petitioner's wife executed a document dated 19.10.2020 cancelling the earlier gift deed dated 17.05.2010. To quash the registration of document No.1777 of 2020, this writ petition has been filed.
4. The private respondents have filed counter affidavit. The https://www.mhc.tn.gov.in/judis 2/9 3 W.P.(MD)NO.17630 OF 2020 stand set out therein is as follows:-
The petitioner is living separately. The second respondent had executed a power deed dated 23.04.1991. This document did not authorise the petitioner to execute any gift deed. The power deed was also cancelled on 10.08.2010. On account of difference of opinion, the second respondent left the matrimonial home along with her son. Only in the year 2020, she became aware of the execution of the settlement deed dated 17.05.2010. That was cancelled. Thereafter, the second respondent executed settlement deed dated 19.10.2020 in favour of the third respondent. The registration of the cancellation deed dated 19.10.2020 is not illegal and it does not warrant interference.
5. The learned counsel on either side projected the stand set out in the respective pleadings.
6. I carefully considered the rival contentions and went through the materials on record.
7. The Hon'ble Full Bench of Madras High Court on more than https://www.mhc.tn.gov.in/judis 3/9 4 W.P.(MD)NO.17630 OF 2020 one occasion had held that the registration of deeds of unilateral cancellation is legally impermissible. The Hon'ble Full Bench in the decision reported in AIR 2011 Mad 66 (Latif Estate Line India Ltd. and Ors. Vs. Hadeeja Ammal and Ors) has held as follows:-
“ 59. After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion:
(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration.
(ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferrer by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favor of the transferor.
(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is https://www.mhc.tn.gov.in/judis 4/9 5 W.P.(MD)NO.17630 OF 2020 that in such a sale deed, admittedly, the title remained with the transferor.
(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons.” The aforesaid decision has been relied on by another Full Bench of Madras High Court in the decision reported in 2022 (5) CTC 257 (Sasikala Vs. The Revenue Divisional Officer). The Hon'ble Full Bench has held as follows:-
“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 MANU/SC/1267/2010 : (2010) 15 SCC 207 and the Full Bench of this Court in Latif Estate Line India Ltd., case, reported in MANU/TN/0310/2011 : 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 MANU/SC/0615/2022 : (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 MANU/SC/0579/2022 for the following propositions:
https://www.mhc.tn.gov.in/judis 5/9 6 W.P.(MD)NO.17630 OF 2020
(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 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 transferrer 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 not coupled with interest.”
8. If the second respondent had executed a settlement deed in https://www.mhc.tn.gov.in/judis 6/9 7 W.P.(MD)NO.17630 OF 2020 favour of the petitioner on 17.05.2010, obviously, she could not have unilaterally cancelled the same on 19.10.2020. But the settlement deed dated 17.05.2010 was executed not by the second respondent, but by the petitioner himself in his capacity as power agent of the second respondent. The petitioner admittedly claimed authority on the strength of the power deed dated 23.04.1991. A copy of the same has not been enclosed in the typed set of papers. It was passed on during the hearing. I went through the contents of the said power document. It has authorised the petitioner to manage the properties and to create deeds of mortgage, sale, exchange and lease. There is no specific clause empowering the power agent to settle the property on himself. In these circumstances, I am not in a position to grant relief in favour of the petitioner by applying the aforesaid Hon'ble Full Bench decisions. It is also seen that the third respondent had filed O.S.No.48 of 2021 before the learned Additional District Munsif, Thoothukudi. The parties can very well work out their rights before jurisdictional civil Court. If any subsequent purchaser / third party raises the issue, it shall be considered independently without reference to the outcome of this writ petition.
9. With these observations and liberty, this writ petition stands https://www.mhc.tn.gov.in/judis 7/9 8 W.P.(MD)NO.17630 OF 2020 dismissed. No costs.
16.05.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
To:
The Sub Registrar,
Mukoodal Sub Registrar Office,
Cheranmadevi Registration District,
Tirunelveli District.
https://www.mhc.tn.gov.in/judis
8/9
9 W.P.(MD)NO.17630 OF 2020
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.17630 of 2020
16.05.2024
https://www.mhc.tn.gov.in/judis
9/9