Andhra Pradesh High Court - Amravati
Smt. Tummidi Bala Nagamani vs The State Of Andhra Pradesh, on 29 September, 2022
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO.17394 OF 2021
ORDER:
The present writ petition is filed aggrieved by the action of the 3rd respondent in registering the Cancellation Deed dated 23.04.2021 bearing document No.1858 of 2021 executed by the 4th respondent whereunder she cancelled the Gift Settlement Deed dated 31.03.2021 bearing Document No.1166 of 2021 executed by her in favour of the petitioner as illegal, arbitrary, without jurisdiction, contrary to the provisions of the Registration Act, 1908 and the Rules made there under specifically Rule 26(i)(k)(i) ratio laid down by the Hon'ble Apex Court in Thota Ganga Lakshmi and Anr. vs. Government of Andhra Pradesh and another reported in 2010 (15) SCC 207 besides being violative of Articles 14, 21 and 300A of the Constitution of India and consequently set aside the same.
2. As per the averments made in the Writ Petition, the case of the petitioner in brief is as follows:
The petitioner is the absolute owner of land admeasuring Ac.6.10 cents in R.S.No.241 situated at Annadevarapeta Village & Panchayat, Tallapudi Mandal, West Godavari District. Said property has been conveyed to petitioner by the 4th respondent, who is a co-sister, through a registered Gift Settlement Deed dated 31.03.2021 bearing Document No.1166 of 2021 registered before the office of Joint Sub-Registrar, Vegeswarapuram, West-
Godavari District. The said gift deed was acted upon and the 4th respondent 2 handed over the possession of the said property on the same day, i.e., on 31.03.2021. Since then, the petitioner has been in absolute peaceful possession and enjoyment of the said property. Subsequently, the petitioner submitted applications by enclosing the said gift deed before the revenue authorities for mutating the petitioner's name in the relevant records and upon verification of records as well as his possession, petitioner's name has been mutated /updated in revenue records.
3. Later, the petitioner has reliably learnt that the 4th respondent, with the assistance and connivance of her husband Mr. Tummidi Bulli Govinda Raju and in active collusion and conspiracy with 3rd respondent brought into existence a document styled as Cancellation Deed of Document No.1166 of 2021 and presented it before the 3rd respondent unilaterally to cancel the gift deed without the knowledge or notice to the petitioner and the same was registered on 23.04.2021 vide document No.1858/2021 by the 3rd respondent in respect of the said property. Having come to know the same, the petitioner has got issued legal notice to the respondents 2 to 4 stating that the unilateral cancellation of a registered gift deed is illegal besides being contrary to the Act and Rules made there under, but the respondents did not respond to the notice. Though the 4th respondent issued reply to the legal notice, with baseless allegations which are irrelevant. Thus assailing the action of the 3rd respondent in entertaining the cancellation deed and registering the same, the present Writ Petition is filed.
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4. Learned counsel appearing for the petitioner referred to Rule 26(i) (k) of the Rules framed by the Government of Andhra Pradesh in terms of the powers vested in it under the Registration Act, which prohibits registration of cancellation deeds unilaterally. The rule is extracted hereunder for better appreciation:
"Rule 26 (i) (k)(i) :
The Registration Officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of convevances on sale before him that such cancellation deeds are executed by all the executants and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or 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 executants and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government Assigned or Endowment lands or properties not registerable by any provision of law.
(ii) Save in the manner provided for above no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration."
5. Relying on the said rule learned counsel for the petitioner contended that the Rule 26(i)(k)(i) lays down that when at the time of presentation of cancellation deeds of previously registered deed of conveyance on sale, the registering Officer shall ensure that such cancellation deeds are executed by all the executants and claimant parties to the previously registered 4 conveyance on sale. He shall also ensure that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale.
6. Learned counsel for the petitioner further submitted that the petitioner has also acted upon the gift executed by the 4th respondent by taking possession over the said property and getting the same mutated in his favour. Therefore, the rights in the said property were crystallized in petitioner's favour, therefore, the donor, i.e., the 4th respondent has no right over the property and cannot in any manner revoke the gift and further cannot execute the cancellation deed unilaterally.
7. It is submitted that the 3rd respondent has no authority or jurisdiction to receive and register the cancellation deed presented solely by the 4th respondent in the absence of mutual consent between the petitioner and the 4th respondent or the order of any competent court. Therefore, the execution of deed of cancellation as well as its registration is wholly void and non-est.
8. Further it is contended by the learned counsel or the petitioner that 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 3rd respondent before registering the deed of cancellation executed by the 4th respondent. The Hon'ble Apex Court and this Hon'ble Court have consistently held that previously registered conveyances transferring right over immovable property cannot be unilaterally cancelled and reprimanded the actions of the 5 registering authorities in entertaining and registering such documents. The Honourable Supreme Court in Thota Ganga Laxmi v. Govt. Of A.P.1 held that if any sale deed is required to be cancelled, the only remedy is by way of a civil suit for cancellation, but no cancellation deed can be unilaterally executed or registered. The Supreme Court, after referring to Rule 26(i)(k) of the Registration Rules held that it is only when the earlier sale deed is cancelled by a competent court, a cancellation deed can be registered that too after notice to the concerned parties; and unilateral cancellation of the sale deed, as well as registration thereof, are wholly void, non-est and meaningless transactions. Therefore, prayed to set aside the registration of the Cancellation Deed dated 23.04.2021 bearing document No.1858 of 2021 executed by the 4th respondent.
9. The 4th respondent has filed her counter stating that the petitioner along with her husband had filed suit in O.S.No.75 of 2020 before the VI Additional District Judge, Visakhapatnam for partition of properties specified in the plaint schedule. The present property covered under the impugned document is also one of the properties proposed for partition. The suit is pending adjudication and the petitioner claimed the property as a joint family property in the suit.
10. It is further submitted in the counter that the said Rule 26(i)(k)(i) would not have any application to the facts of the present case. The said Rule applies specifically to "registered deed of conveyances on sale" and other kind 1 2010 (15) SCC 207 6 of documents where there is element of sale. It is submitted that in a Gift deed, there is no element of sale and as such, said Rule cannot be having any applicability to the impugned document. Section 54 of the Transfer of Property Act, 1881 [for short T.P. Act] defines the term "Sale" and the same reads as under;-
"54: "Sale" is a transfer of ownership in exchange for price paid or promised or part paid and part promised."
11. Hence, it is submitted that on a combined reading of the Rule 26 (i)(k)(i) and Section 54 of the T.P. Act, it would be apparent that the prohibition of unilateral registration of cancellation deed would be applicable only to the registered sale deeds conveyed for a price to the vendee. Furthermore, Rule 26 (i)(k)(i) was introduced by the State of A.P vide Gazette notification d. 29.11.2006 after the full bench decision dt.24.10.2006 which was reported in 2006 (6) ALD 623. The substantive issue for consideration before the Hon'ble full bench of this court was only with regard to unilateral cancellation of sale deeds and the intent of the State in introducing Rule 26 (i)(k) (i) is only to protect the purchasers of the property under a sale deed for consideration/price.
12. Further it is submitted in their counter that the judgment of the Honourable Supreme Court cited by the petitioner 2010(15) SCC 207 also deals with unilateral cancellation of Sale Deed, as such, the judgment is not applicable to the facts of the case. It is well settled principle of law that the 7 courts would not substitute the words in the statute/rule. The Hon'ble Supreme Court in State of Jharkhand v. Govind Singh2, at para 20 held as under:
"20. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST v. Popular Trading Co. 17) The legislative casus missus cannot be supplied by judicial interpretative process."
13. Another facet of Rule 26(i)(k)(i) is that the Rule mandates the registering officer to ensure that at the time of presentation for registration of cancellation deeds, all the executants and claimants to previously registered sale deed shall have executed the same. In the present case, the registered gift deed was executed unilaterally by the 4th respondent and the petitioner was not signatory to the said document and the registering officer is therefore not under any obligation of law to ensure that the petitioner also signed the cancellation deed. The third facet of the case is that the Registered gift deed was executed by the 4th Respondent alone in favour of the petitioner on 31.03.2021. The writ petitioner is not a signatory to the gift document and this document dt.31.03.2021 is not in consonance with the provisions of the Registration Act, 1908 as amended by the State of AP. Further relied on Section 32A of the Registration Act, 1908, which reads as under:-
"32A. Compulsory affixing of photograph, etc.:- (1) Every person presenting any document at the proper registration office under Section 32 shall affix his passport size photograph and fingerprints to the document:
Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and 2 (2005) 10 SCC 437 8 seller of such property mentioned in the document shall also be affixed to the document."
14. It is submitted that the proviso to the Section 32A mandates that where there is transfer of ownership of immovable property, the passport size photograph and finger of buyer and seller shall be affixed to the document. The emphasis of the above proviso is on "transfer of ownership of immovable property" and whenever there is transfer of ownership, the executants and beneficiary have to affix their photograph and fingerprints and in the absence of the same, there cannot be a valid transfer/ Registration of the Gift deed. Section 32A makes it explicit that the same is mandatory and an absolute requirement. Therefore, there is no valid registration of the gift deed dt.31.03.2021, hence, the writ petitioner cannot complain of cancellation of the said document.
15. The 3rd respondent filed counter and submitted that a deed of Gift Settlement in respect of an extent of Ac.6.10 cents situated in R.S.No. 241 of Annadevarapeta Village, Tallapudi Mandal, East Godavari District was executed on 31.3.2021 by the 4th respondent in favour of the petitioner and presented the same before the Sub-Registrar, Vegeswarapuram, East Godavari District for registration and the Sub-Registrar, Vegeswsarapuram registered the gift settlement deed vide document No. 1166/2021 dt.31.3.2021. Thereafter, the 4th respondent executed a Revocation of Gift Settlement Deed on 23.4.2021 revoking the Registered Gift Settlement Deed previously executed by her bearing document No.1166/2021 in favour of the 9 petitioner and presented the same before the then Sub-Registrar, Samarlakota for registration under anywhere registration mode and got the said Revocation Deed registered as document No.1858/2021 at Sub Registrar's Office, Samarlakota. The then Sub-Registrar, Samarlakota has registered the Revocation of Gift Settlement Deed as there is no prohibition against its registration if executed unilaterally without the consent of the other parties to the said Gift Settlement Deed. Hence, the contention of the petitioner that the action of the 3rd respondent in entertaining the cancellation of Registered Gift Deed is illegal is not correct.
16. It is submitted that in Memo. Rc.No.G1/10547/2008 dt. 18.7.2008 the Commissioner and Inspector General Registration and Stamps, A.P., Hyderabad clarified that Rule 26(i) (k) of Registration Rules is applicable for the previously registered Deeds of conveyance on sale only but not for the deeds or Agreement of Sale cum GPA, Development of Agreement cum GPA, Partition Releases and Mortgages etc. Therefore, any document other than Deed of Conveyance on Sale can be cancelled and registered if they were executed unilaterally since amendment for Registration Rule 26 (i)(K) was not made applicable to those documents.
17. It is further submitted that subsequently the Director and Inspector General of Registration and Stamps, A.P. in a similar case issued a Memo. No. G4/4597/2016 dt.6.6.2016 informing the District Registrar, Vijayawada (East) that as per the Registration Act, 1908 and Registration Rules, there is 10 no bar for Registration of Revocation of Gift Deed which is executed by the Donor.
18. It is submitted that keeping in view of the Memo.Rc.No.G1/10547/2008 dt.18.7.2008 and Memo.No.G4/4597/2016 dt.6.6.2016 issued by the Director and Inspector General of Registration and Stamps, A.P., the deed of Revocation of Gift settlement deed dated 23.4.2021 presented by the 4th respondent was registered by the 3rd respondent and the same is in accordance with the prevailing instructions issued by the department from time to time. Thus, there is no violation of rule 26 (i)(k) (i) and Section 69 of the Registration Act. Also the decision of the Honourable Supreme Court, relied by the petitioner, in Civil Appeal No.317/07 between Thota Ganga Lakshmi Vs. Government of Andhra Pradesh dealt with the Revocation of a Sale Deed only. Therefore, the said judgment relied upon by the petitioner is not applicable to the facts of the case.
19. On the other hand, learned counsel for petitioner relied upon Garagaboyina Radhakrishna vs. District Registrar3, wherein it is held that -
th "7. The 4 respondent does not dispute the fact that he executed gift deeds in favour of the petitioners and that they are in possession of the property that was gifted to them. Whether such possession was delivered prior or subsequent to the execution of the gift deeds, it became absolute with the acceptance of the gifts. The gift deeds could have been cancelled, only with the consent or participation of the donees i.e., th the petitioners. In case, the 4 respondent felt that there exist circumstances warranting cancellation of the documents, he could have filed suits for cancellation of the gift deeds, in a Court of law.
3 (2012) 5 ALD 228 11
20. Relying on the above citation, learned counsel for the petitioner contended that unless the gift is accepted it ceases to exist, but once the gift deed is executed and acted upon by the donee, the donor cannot unilaterally cancel the gift deed without the consent of the petitioner or without filing suit for cancellation. Hence, the registration of cancellation deed by 3rd respondent is void and non-est.
21. He further contended that this Court in Kolli Rajesh Chowdary v. State of A.P. observed in para 5 which reads as follows:-
"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 Malleshwari and others v. Ananthula Sayamma and others (2) - 2006 (6) ALD 623 (FB), had held that unilateral 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 to problems created by their transferor's by unilateral cancellation of the sale deeds and other documents transferring or alienating property executed by them, it introduced Rule 26(i)(k)(i) by way of notification, dated 29.11.2006. The relevant portion of the said rule reads as under:
"26. (i) Every document 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 shall have been complied with, for instance...
(k)(i) The registrating officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or 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 executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands of properties not register able by any provisions of law."
..
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 12 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 New of this Court such a contention needs a mention only to be vies of "for the reason that when thin and vold and ided 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 the non official respondents.
22. Relying on the above judgment, learned counsel for the petitioner contended that the 4th respondent ought to have approached the civil court for cancellation of the subject gift deed and the 3rd respondent should not unilaterally cancel the gift deed without a civil court order.
23. Learned counsel further referred Sections 122 and 123 of the T.P. Act, 1882, which extracted as under :-
122. "Gift" defined.-"Gift" is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
123. Transfer how effected. For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
24. Learned counsel for the petitioner contended that from the reading of Section 122 and 123 of Transfer of Property Act, gift deed is said to be executed when it is signed by or on behalf of the donor and attested by two witnesses. As such for the registration of Gift deed signature of donor is enough and donee need not sign for the effect of gift deed. 13
25. Also referred to the case of Pinnama Raju Ranga Raju vs. The State of Andhra Pradesh4, wherein this Court referred at para (g) in Gaddam Laxmaiah v. The Commissioner and Inspector General, Registration and Stamps, the Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh was dealing with the question whether unilateral cancellation of Development Agreement- cum- General Power of Attorney (GPA) and registration thereof under the Registration Act is permissible in law. The Division Bench observed thus:
"27. xxxx .... A deed of cancellation, in our opinion, amounts to rescission of contract and if the issue in question is viewed from that angle, in the light of the provisions of Section 62 of the Indian Contract Act, 1872, any rescission must be only bilateral. We agree with the view expressed by the Madras High Court in E.K. Kalyan v. Inspector General of Registration AIR 2010 Madras 18 (DB). Having regard to the above provisions, in our opinion, a registered sale deed or any other document such as Development Agreement-cum-GPA, which creates right in favour of the party in the subject-matter of document, if sought to be cancelled, registration of such deed must be at the instance of both the parties. In other words, even execution of a deed of cancellation of the registered document which created rights in favour of the other party in the subject-matter of the document, cannot be registered unilaterally but it should be bilateral. In any case, the document, which is compulsorily registrable, some restrictions, in our opinion, must be applied even for cancellation of such document as well. The Commissioner has, therefore, rightly issued the circular, restricting registration of a deed of cancellation of any document, such as Development Agreement-cum-GPA, at the instance of only one/first party to such document. We are of the considered opinion that in the absence of any provision specifically empowering registering authority to entertain a document of cancellation for registration, without signatures of both the parties, a deed of cancellation cannot be entertained and registered and that the impugned circular issued by the Inspector General is binding on all parties. Having so observed, we find no infirmity in the impugned circular issued by the Commissioner /Inspector General, in exercise of the powers of general superintendence contemplated by Section 69(1) of the Registration Act. By issuing the impugned circular, in exercise of the powers under sub-section (1) of Section 69 of the Registration Act, this very objective, in our opinion, sought to be achieved.
28. Thus, having regard to the law laid down by the Supreme Court and provisions of the Act, in our opinion, whenever registered documents such as Development Agreement-cum-GPA, is sought to be cancelled, execution and registration of such a document/deed must be at the instance of both the parties i.e., bilaterally and not unilaterally. If a deed of cancellation is allowed to be registered without the knowledge and consent of other party to the deed/document, sought to be cancelled, such registration would cause violation to the principles of natural justice and lead to 4 2020 LAWSuit(AP) 223 14 unnecessary litigation, emanating therefrom. In any case, as stated earlier, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration without the signatures of both the parties to the document, the deed cannot be entertained. Moreover, if the Registrars are allowed to entertain a deed of cancellation for registration without signatures of both the parties to the document sought to be cancelled, such power would tantamount to conferring the power to decide disputed questions between the parties. No party to the document would ever approach for cancellation of registered document unilaterally unless there is a dispute with the other party in respect of the subject matter of the document. In the result, we answer the question in the negative. In other words, we hold that registration and unilateral cancellation of documents such as Development Agreement-cum- General of Power of Attorney under the Registration Act is not permissible in law."
(h) In Ediga Chandrasekar Gowd's case (2 supra), a learned Single Judge of the High Court of Judicature at Hyderabad was considering the question whether a deed cancelling an Agreement of Sale-cum-Irrevocable GPA (with possession) unilaterally by its executants be registered by the District Registrar and whether such registration by him is valid in law. Learned Judge referring to several decisions expressed his opinion as follows:
45. Thus, the term "conveyance" has a wider connotation and it would certainly include deeds of "sale" /"gift" /"exchange" by which property is transferred from one person to another.
46. If the rule making authority, which framed Rule 26(i)(k)(i), intended that the said rule should apply only to "sale" /"gift" /"exchange" deeds, it would have mentioned these category of documents specifically. There was no necessity to use the words "conveyance on sale".
47. The obvious intention of the rule making authority appears to be to cover transactions which are not merely in the nature of deeds of sale. It thus, in my opinion, intended to cover not only "gift" /"exchange" deeds but also "agreements for sale"
/executory contracts or "agreements for sale-cum-General Power of Attorney" or "agreements for sale-cum-Irrevocable General Power of Attorney."
26. Learned counsel for the 4th respondent mainly relying on Section 32A of the Registration Act, 1908 contended that for registration of any document, the passport size photograph and fingerprints of each buyer and seller of such property shall be affixed to the document. But in the instant case the donee did not affix his photograph nor his thumb impression to the gift deed. Thus, the procedure under Section 32-A of the Act was not followed while registering the document in favour of the petitioner. Hence, the very registration of gift deed is void and the same is nonest in the eye of law. Further contended that the procedure of Registration Act will prevail over T.P. Act with regard to 15 registration. Since registration is not made as per Section 32-A of the Registration Act, the cancellation of the said gift deed would not come under the purview of the Rule 26 (i)(k). By virtue of Sections 54 and 122 of T.P. Act sale involves consideration and the gift does not involve any consideration. By the definitions of Sale and Gift, the term "conveyance" can be interpreted differently from "conveyance on Sale" and whereas the rule 26(i) (k) (i) deals only with conveyance on sale. Hence it does not apply to the present case.
27. He further argued that in Rule 26(i)(k), the word used in the said rule is 'conveyance on sale' and in the judgment in Ediga Chandrasekhar Gowd's case (cited supra) in W.P.No.24073 of 2009, this court interpreted the word only 'conveyance' but not the term of 'conveyance on sale'. Therefore, the judgment relied by the counsel for the petitioner is not applicable in the instant case. Thereby, prayed to dismiss the Writ Petition.
28. Per contra, learned counsel for the petitioner also placed reliance on the decision passed by the Full Bench of High Court of Madras (Madurai Bench), in Sasikala Vs. the Revenue Divisional Officer- cum Sub-Collector, Devakottai and Ors.5 - wherein the Court held that -
"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 5 Manu/TN/6694/2022 16 registering authority on facts which are not available or descernible 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 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 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."
29. Considering the above rival contentions, whatever contentions raised by the learned counsel for the 4th respondent were already appraised by this Court in catena of judgments. As interpreted by this court with regard to the word 'conveyance on sale' in Ediga Chandrasekhar Gowd's case, also in view of the language used under Section 126 of T.P. Act, the impugned cancellation of registration unilaterally is nothing but violative of Rule 26 (i) (k). Hence, the same is liable to be set aside.
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30. In view of the above discussion, the Writ Petition is allowed, setting aside the registration of Cancellation Deed dated 23.04.2021 bearing document No.1858 of 2021 executed by the 4th respondent. The 3rd respondent is hereby directed to cancel the execution of Cancellation Deed on 23.04.2021 vide document No.1858 of 2021 expeditiously not later than four (04) weeks from the date of receipt of copy of the order. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
_____________________ JUSTICE D. RAMESH Date: 29.09.2022 Pnr 18 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION No.17394 OF 2021 Date: 29.09.2022 Pnr