Madras High Court
Dr.D.Kamaleshwari … vs Joint Registrar on 18 October, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P.No.2432 of 2015
and W.M.P.No.1 of 2015
Dr.D.Kamaleshwari … Petitioner
vs.
1.Joint Registrar,
Office of District Registrar,
Gobichettypalayam,
Erode District.
2.G.D.Andadurai … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorari, calling for the records pertaining to
registration of cancellation of settlement deed executed by the 2 nd respondent
dated 08.08.2013 as being registered in Doc.No.2503 of 2013 in Vol.1 on the
file of the 1st respondent dated 08.08.2013 and to quash the same.
For Petitioner : Ms.Sivapriya
for Mr.V.Ayyadurai
For Respondents : Mr.G.Krishna Raja for R1
Additional Government Pleader
: Mr.K.P.Chandrasekaran for R2
Page No.1 of 11
https://www.mhc.tn.gov.in/judis
ORDER
This Writ Petition has been filed challenging the records pertaining to
registration of cancellation of settlement deed executed by the 2 nd respondent
dated 08.08.2013 as being registered in Doc.No.2503 of 2013 in Vol.1 on the
file of the 1st respondent dated 08.08.2013.
2.The case of the petitioner is that, 2nd respondent is the brother of the
petitioner, who executed a irrevocable Settlement Deed dated 15.02.2008
with respect of the house site comprised in Door No.12 and 12A in Old Ward
No.50 (New Ward No.24), Modachur Road, Gobichettypalayam measuring to
an extent of 624 Sq. ft., along with right of passage and registered as
Doc.No.427 of 2008 on the file of the 1st respondent. The petitioner thus
having the absolute title and ownership of the property constructed
superstructure over the same after obtaining planning permission from the
local authorities. While so, the son of the 2nd respondent developed ill will
against the petitioner and in view of the existing misunderstanding, the 2nd
respondent issued a notice dated 12.04.2011, under threat of revocation of
the Settlement Deed and the petitioner submitted a protest petition on
Page No.2 of 11
https://www.mhc.tn.gov.in/judis
23.06.2011 to the 1st respondent. Even then the 2nd respondent cancelled the
Settlement Deed vide Doc.No.2503 of 2013 dated 08.08.2013 in violation of
the mandatory provisions contained in the Registration Act. Challenging the
cancellation of the said Settlement Deed, the present Writ Petition has been
filed.
3.Ms.Shivapriya, learned counsel appearing for the petitioner
submitted that the issue in the present case is no longer res integra. The
Hon'ble Full Bench of Madurai Bench of Madras High Court in W.P. (MD)
Nos.6889/2020, etc. Batch, dated 2.9.2022 had categorically held that the
irrevocable settlement deed cannot be cancelled unilaterally. Accordingly,
she prayed for allowing the Writ Petition.
4.Heard the learned counsel appearing for the petitioner and the
learned Additional Government Pleader appearing for the 1st respondent and
the learned counsel appearing for the 2nd respondent.
5.The issue arises in the petition is that, admittedly, the petitioner's
brother is 2nd respondent. Earlier the 2nd respondent executed a irrevocable
Page No.3 of 11
https://www.mhc.tn.gov.in/judis
Settlement Deed in favour of the petitioner vide Doc.No.427 of 2008 dated
15.02.2008. While so, due to the ill will against the petitioner, the 2nd
respondent issued a notice dated 12.04.2011 and the petitioner submitted a
protest petition on 23.06.2011 to the 1st respondent. Even then the 2nd
respondent cancelled the Settlement Deed vide Doc.No.2503 of 2013 dated
08.08.2013 in violation of the mandatory provisions contained in the
Registration Act.
6.As rightly submitted by the learned counsel for the petitioner, the
issue in the present Writ Petition is already settled by the Full Bench
constituted for considering identical issue, viz., the legality of the
cancellation deed unilaterally executed, had rendered a decision in the 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.
Page No.4 of 11
https://www.mhc.tn.gov.in/judis
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 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
Page No.5 of 11
https://www.mhc.tn.gov.in/judis
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
Page No.6 of 11
https://www.mhc.tn.gov.in/judis
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 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
Page No.7 of 11
https://www.mhc.tn.gov.in/judis
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 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.”
7.In view of the fact that the reference has been answered by holding
Page No.8 of 11
https://www.mhc.tn.gov.in/judis
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
2013, which was entered into in the year 2008.
8.In view of the above decision, this Writ Petition is allowed,
impugned order with regard to the registration of cancellation of settlement
deed executed by the 2nd respondent dated 08.08.2013, being registered as
Doc.No.2503 of 2013 in Vol.1 on the file of the 1st respondent is set aside.
However, liberty is granted to the 2nd respondent to workout his remedy
before the Competent Civil Court in respect of the earlier Settlement Deed.
9.Accordingly, this Writ Petition is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
18.10.2022
Index : Yes/No
Speaking Order : Yes/No
gba
Page No.9 of 11
https://www.mhc.tn.gov.in/judis
To
Joint Registrar,
Office of District Registrar,
Gobichettypalayam,
Erode District.
M.DHANDAPANI,J.
gba W.P.No.2432 of 2015 and W.M.P.No.1 of 2015 Page No.10 of 11 https://www.mhc.tn.gov.in/judis 18.10.2022 Page No.11 of 11 https://www.mhc.tn.gov.in/judis