Madras High Court
B.Velthiyagarajan vs The Joint Sub-Registrar on 9 March, 2015
Author: B.Rajendran
Bench: B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.03.2015 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P (MD) No.11216 of 2014 and M.P (MD) No.1 of 2014 B.Velthiyagarajan .. Petitioner Vs 1.The Joint Sub-Registrar Madurai South Office of the Sub-Registrar Madurai 2 M.Balakrishnan .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records relating to the impugned deed of cancellation deed dated 19.6.2014 executed by the second respondent accepting the settlement deed dated 3.7.2012 and presented to and registered by the first respondent as document No.4178 of 2014 and to quash the same. !For Petitioner : Mr.V.S.Kumaraguru for M/s.GK.Law Firm For Respondent-1 : Mr. S.Chandrasekar Govt.Advocate For Respondent-2 : Mr. N. Murugesan :ORDER
This Writ Petition is filed praying this Court to issue a Writ of Certiorari to quash the deed of cancellation dated 19.06.2014 executed by the second respondent on the strength of the settlement deed, dated 03.07.2012 registered by the first respondent as document No.4178 of 2014.
2. According to the Petitioner, by way of a settlement deed executed by his father/second respondent in his favour on 03.07.2012, he became the owner of the property in question. However, to the shock and surprise of the petitioner, such settlement deed came to be unilaterally cancelled by the second respondent by executing a cancellation deed dated 19.06.2014 and it was registered as document No. 41270 of 2014 on the file of the first respondent. According to the petitioner, by virtue of the settlement deed dated 03.07.2012, he derived title to the property and is enjoying the property covered under the settlement deed as an absolute owner thereof. While so, the unilateral cancellation of the settlement deed dated 03.07.2012 on 19.06.2014 by the second respondent, without even issuing a notice to him is bad in law. According to him, the first respondent has no jurisdiction to register the cancellation deed dated 19.06.2014 especially when it was cancelled unilaterally.
3. In this connection, the learned counsel for the petitioner relied upon the decision of this Court in the case of (D.V.Loganathan Vs Sub- Registrar, Office of the sub-Registrar, Chennai-44 and another) reported in (2014) 3 MLJ 666 wherein this Court has held that only a Civil Court can cancel the settlement deed. Without going to the Civil Court, it is not open to the Sub-Registrar to entertain and register the cancellation of settlement deed. The learned counsel for the petitioner also relied on the decision reported of the Apex Court reported in (2010) 15 Supreme Court Cases 207 (Thota Ganga Laxmi and Another vs Government of Andhra Pradesh and Others). The Honourable Supreme Court, while referring to Section 69 of the Registration Act, 1908, in paragraph No.5, has held as follows:
?5.In this connection, we may also refer to Rule 26 (k) (i) relating to Andhra Pradesh under Section 69 of the Registration Act, 1908, which states:
?i)The registering officer shall ensure at the time of preparation 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 natural 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 or properties not registerable by any provision of law.?
6. A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent court that the cancellation deed can be registered and that too after notice to the parties concerned. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.?
4. The learned counsel for the second respondent, relying on the counter affidavit, would contend that the Honourable Supreme Court, in the decision relied on by the counsel for the petitioner, only dealt with cancellation of a sale deed and it will not apply to the present case where the second respondent had cancelled a settlement deed executed in favour of the petitioner. The settlement deed dated 03.07.2012 was executed by the second respondent out of love and affection towards the petitioner. However, after the execution of the settlement deed, the second respondent, being the father and his wife, being the mother of the petitioner were treated very badly and the petitioner had utterly ignored them. In fact, during December 2012, the petitioner and his wife have driven the second respondent and his wife out of their house and now the second respondent and his wife are being taken care of by their other son. The learned counsel for the second respondent would further submits that for cancelling the settlement deed, it is not mandatory to issue a notice to the donee (petitioner) and it is well within the desire of the second respondent to cancel the settlement deed during his life time. Further, the petitioner is not residing in the property settled in his favour. By virtue of the settlement deed, no right had been created in favour of the petitioner. Therefore, the learned counsel for the second respondent prayed for dismissal of the writ petition.
5. I heard the learned counsel for both sides and perused the materials placed on record. The issue that arises for consideration in this writ petition is whether the unilateral cancellation of the settlement deed by the second respondent is valid in the eye of law.
6. The issue as to whether an unilateral cancellation of an instrument is valid or not was dealt with by a single judge of this Court in the case of (D.V.Loganathan Vs Sub-Registrar, Office of the sub-Registrar, Chennai-44) reported in (2014) 3 MLJ 666 wherein in paragraph Nos. 5 to 7 it was held as follows:
5. At the outset the learned counsel appearing for the petitioner would submit that the unilateral cancellation of the settlement deeds without notice to the petitioner by the first respondent Sub-Registrar is contrary to the provisions of the Transfer of Property Act and also the Judgment rendered by this Court in W.P.No.17983 of 2011 on 01.03.2012, wherein this Court held that when a deed is irrevocable, unilaterally cancelling the said deed without notice to the parties concerned is contrary to law and cannot be sustained.
6. In fact 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 could 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. In fact in the above unreported judgment dated 01.03.2012 made in W.P.No.17983 of 2011(cited supra), the learned Single Judge of this Court has held as follows:
"10. On consideration, I find that this Writ Petition deserves to succeed, as per Section 156 of Transfer of Property Act, except for the condition stipulated therein, the Gift deed is irrevocable. It is not disputed that the none of the condition entitled revoking of Gift Deed exists in this case, as the Gift Deed was irrevocable and unconditional, it was not open to respondent No.2 to register the cancellation deed being opposed to the public policy. The impugned order of registration, therefore, cannot be sustained in law, in view of the decision of the Hon'ble Full Bench of this Court and decision of the Hon'ble Kerala High Court in Latif Estate Line India Limited V. Hadeeja Ammal."
For the reasons stated above the registration of impugned deed of cancellation on therefore cannot be sustained in law being against public policy.
7.The Writ Petition is accordingly allowed and the deed of cancellation is ordered to be quashed. However, it is made clear that it is open to the respondents to challenge the settlement deed in accordance with law in the Civil Court, if so advised. No costs. Consequently, connected miscellaneous petitions are closed.?
7. Further, in an identical case, this Court passed an order in WP No. 34452 of 2012 dated 03.07.2014 holding that an unilateral cancellation is not valid in law. As against the same, an appeal was preferred before the Division Bench of this Court in W.A. No. 1395 of 2014. The Division Bench of this Court, while dismissing the writ appeal, held in para No. 5 as follows:-
"5. In the case on hand, there is no dispute that the gift was executed by way of a settlement deed not out of love and affection but on payment of consideration and value. It is also not in dispute that after execution of the settlement deed dated 12.12.2000, the ownership of the land in question was transferred in favour of the writ petitioner, which, she has been enjoying continuously. The relationship between the parties is not relevant when the father and the son transferred the ownership of the land in favour of the daughter or sister for consideration and value. Thus, the learned single Judge has rightly held that the settlement deed so executed and acted upon cannot be set at naught unilaterally by one party. The only course open to a party is to approach the Civil Court for appropriate relief. We do not find any inconsistency or irregularity or illegality in the order dated 03.07.2014 passed by the learned single Judge in WP No. 34452 of 2012, which is sought to be impugned in this intra Court appeal."
8. In fact, a Full Bench of this Court also dealt with the matter and have categorically stated that unilateral cancellation is void and that is reported in 2011 (2) CTC 1 (Latif Estate Line India Limited, rep by its Managing Director, Mr.Habib Abdul Latif, Kilpauk, Chennai-10 Vs Hadeeja Ammal and two others), The Full Bench also held as follows:
?54.There is no provision in the Transfer of Property Act or in the Registration Act, which deals with the cancellation of Deed of Sale. The reason according to us is that the execution of a Deed of Cancellation by the vendor does not create, assign, limit or extinguish any right, title or interest in the immovable property and the same has no effect in the eye of law. A provision relating to the cancellation of a document is provided in Section 31 of the Specific Relief Act, 1963. (Old Section 39). Section 31 reads as under:
?31.When cancellation may be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered;
and such officer shall note on the copy of the instrument contained in his books the facts of its cancellation.?
56. A Full Bench of the Madras High Court in the case of Muppudathi Pillai Vs. Krishnaswami Pillai, 1959 (2) MLJ 225: AIR 1960 Madras 1, elaborately discussed the provision of Section 39 (New Section 31) and held:
?12.The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.?
57.There is no dispute that a third party can claim title to the property against the purchaser who purchased the property for valuable consideration and came into possession of the same. But it is the Civil Court of competent jurisdiction to give such declaration in favour of the third party or a stranger.?
9. It is evident from the above decision that an unilateral cancellation of registered sale deed or settlement deed is not valid in the eyes of law. In the present case, if the second respondent, for any reasons, intends to cancel the settlement deed executed in favour of the petitioner, he has to approach the civil Court to annul the settlement deed. Without resort to the Civil Court or without issuing any notice, the cancellation of the settlement deed is void. The impugned deed of cancellation deed dated 19.6.2014 executed by the second respondent is set aside and the Writ Petition stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
To The Joint Sub-Registrar, Madurai South, Office of the Sub-Registrar, Madurai.