Madras High Court
K.Sudha vs The Sub Registrar
Author: M.Dhandapani
Bench: M.Dhandapani
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W.P. No.24234/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
24.08.2022 06.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.24234 OF 2015
1. K.Sudha
2. Harshithaa Shree
3. Madhumitha .. Petitioners
- Vs -
1. The Sub Registrar
Anna Nagar, Chennai 600 040.
2. R.Saraswathi Ammal (Died)
3. Nandamathi
4. R.Kosalram Pandian
5. Karthikeyan (Died)
6. Manjula Devi
7. Rathnapandian
8. Sai Sriram
9. Anna Latha .. Respondents
(RR-6 to 9 substituted as LRs of
Deceased RR-2 & 5 vide order dated
19.7.22 made in WMP 17924/22)
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W.P. No.24234/2015
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorarified mandamus calling for the records
relating to the registration of cancellation deed dated 06.11.2014 registered as
Document No.4713/2014 on the file of the 1st respondent and settlement deed
dated 10.11.2014 registered as Document No.4750/2014 on the file of the 1st
respondent by the 2nd respondent in favour of respondents 3 and 4 and quash the
same and consequently direct the 1st respondent to restore the settlement deed
dated 13.10.2003 registered as document No.3603/2003 on the file of the 1st
respondent.
For Petitioners : Mr.Bhagavathi Krishnan
For Respondents : Mr. Yogesh Kannadasan, Spl. GP for R-1
Mr. S.N.Ravikumar for RR-2 & 5
Mr. A.R. Balaji for R-3
Mr. D.Teackraj for R-4
ORDER
The present writ petition has questioned the legality of the registration of the cancellation deed executed by the settlor, viz., the 2nd respondent and its registration by the 1st respondent, which has resulted in the filing of the present petition.
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2. The matter was reserved for orders on 24.08.2022. However, pending finalization of orders, on 2.9.2022, a 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. 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) 3 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24234/2015 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 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.
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(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.
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 5 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24234/2015 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 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, 6 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24234/2015 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.”
3. In view of the fact that the reference has been answered 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, 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 2014, which was entered into in the year 2003.
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4. Following the dictum laid down by the Full Bench in Sasikala’s case (supra), this writ petition is allowed and the registration of cancellation deed dated 06.11.2014 registered as Document No.4713/2014 on the file of the 1st respondent and settlement deed dated 10.11.2014 registered as Document No.4750/2014 on the file of the 1st respondent by the 2nd respondent in favour of respondents 3 and 4 are hereby quashed and 1 st respondent is directed to restore the settlement deed dated 13.10.2003 registered as document No.3603/2003 on his file and carry out the necessary entries in the registers accordingly.
5. This writ petition is allowed with the aforesaid directions. However, there shall be no order as to costs.
06.09.2022
Index : Yes / No
Internet : Yes / No
GLN
To
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W.P. No.24234/2015
The Sub Registrar
Anna Nagar
Chennai 600 040.
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W.P. No.24234/2015
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO.24234 OF 2015
Pronounced on
06.09.2022
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