Madras High Court
D.Joseph Jayaraman vs The Inspector General Of Registration on 2 September, 2014
Author: S. Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02-09-2014 CORAM THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.Nos.6230 and 6231 of 2011 and M.P.Nos.1, 1, 2 and 2 of 2011 D.Joseph Jayaraman .. Petitioner in both WPs vs. The Inspector General of Registration, No.100, Santhome High Road, Chennai-600 028. .. R-1 in both WPs The Sub-Registrar-Konnur, 5/5,4th Main Road, SIDCO Nagar, Villivakkam, Chennai-600 079. .. R-2 in both WPs Mrs.D.Sivagami .. R-3 in both WPs K.Chitra .. R-4 in WP 6230/2011 R.Jayalakshmi .. R-5 in WP 6230/2011 (R-4 and R-5 impleaded as per order of Court dated 18.6.2012 in M.P.No.3 of 2011 in WP 6230/2011) WP No.6230 of 2011 is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminated in the Cancellation Deed dated 21.2.2011 registered as document No.780/2011 (Book 1) in the Office of the Sub-Registrar, Konnur, Chennai in respect of the Schedule mentioned property and quash the same and consequentially direct the second respondent to remove the entry made as document No.780 of 2011 in Book 1 in the Office of the Sub-Registrar, Konnur, Chennai. WP No.6231 of 2011 is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminated in the Cancellation Deed dated 21.2.2011 registered as document No.781/2011 (Book 1) in the Office of the Sub-Registrar, Konnur, Chennai in respect of the Schedule mentioned property and quash the same and consequentially direct the second respondent to remove the entry made as document No.781 of 2011 in Book 1 in the Office of the Sub-Registrar, Konnur, Chennai. For Petitioner in both WPs : Mr.P.V.Balasubramaniam For Respondents-1&2 : Mr.RM.Muthukumar, Government Advocate. For Respondents-3to5 : Mr.B.Divakaran C O M M O N O R D E R
The petitioner has filed these two writ petitions, for the issuance of Writs of Certiorarified Mandamus, calling for the records of the second respondent culminated in the Cancellation Deed dated 21.2.2011 registered as document Nos.780 and 781/2011 (Book 1) in the Office of the Sub-Registrar, Konnur, Chennai in respect of the Schedule mentioned property and quash the same and consequentially direct the second respondent to remove the entry made as document Nos.780 and 781 of 2011 in Book 1 in the Office of the Sub-Registrar, Konnur, Chennai.
2. The petitioner has come forward to quash the Deed of Cancellation that was registered as document Nos.780 and 781 of 2011 in the Office of the Sub-Registrar, Konnur,Chennai (the second respondent herein) in respect of the property which has been conveyed to the petitioner by means of a Settlement Deed dated 2.12.2009.
3. It is not in dispute that the third respondent is the owner of the property and she had 3 children and in the property she has constructed ground floor, first floor and second floor, dividing into 3 portions and a portion of the property has been settled in favour of the writ petitioner. The issue is not with regard to division of property among the three brothers. The issue is on a settlement of the property in favour of the petitioner by the third respondent whether the petitioner is entitled to deprive the third respondent, the right of enjoyment and collection of rent. She has received her right in the Settlement Deed as could be seen from the following extract of the Settlement Deed dated 2.12.2009, as per document No.4039 of 2010, which reads as under:-
WHEREAS the Settlor, who is none other than the mother of the Settlee herein, out of natural love and affection for the Settlee, being her son is now desirous of conveying the entire Ground Floor portion of the building admeasuring a total built up area of 1000 sq. ft., together with 1/3rd undivided share in the land, which is more fully set out in the Schedule hereunder, by way of SETTLEMENT to and in favour of the Settlee herein with an intention of making provision for his future, reserving 'life interest' for herself, that is to say, retaining the right to enjoy the said property by herself to say, retaining the right to enjoy the said property by herself during her life time, but without having any right whatsoever to alienate the said property in any manner whatsoever and therefore in furtherance of such intention the Settlor has decided to convey the Schedule mentioned property in favour of the Settlee by way of settlement, subject to reservation of life interest for the Settlor as stated above.
4. The petitioner contended that once a Settlement Deed is executed, he becomes absolute owner of the property and the third respondent cannot cancel the settlement by means of Deed of cancellation, which was registered, as stated supra.
5. Per contra, the third respondent contended that the petitioner herein prevented the third respondent from collecting the rent and since the petitioner has acted in contravention of the Settlement Deed, the Settlement Deed was cancelled by means of Cancellation Deed Nos.780 and 781 of 2011. According to the third respondent, there was an earlier settlement and cancellation and the earlier cancellation was not questioned and the second cancellation is questioned by the writ petitioner.
6. The third respondent drew the attention of this Court in the judgment reported in K.Vimal Chand Bora vs. The Inspector General of Registration {CDJ 2012 MHC 4350} and referred to paragraph 27 of the decision which reads as under:-
27. Furthermore, when a dispute arose between the mother and daughter relating to cancellation of deed, this Court in para-12 of the order dated 12.07.2012 made in W.P.Nos.4180 and 4181 of 2011 and 13062 of 2012, has held as follows:
"12.) In this case, the additional fact is that the parties are close relatives, i.e., mother and daughter. Therefore, what transpires between them is within their exclusive knowledge and at a later point of time,due to family differences they accused one another cannot be taken note of that too in a writ petition under Article 226 of the Constitution. The course open to the petitioners is also well set out in paragraph 59(iv) of the full bench judgment. Therefore, the remedy to the petitioners is to institute an appropriate civil suit and claim title over the property which was given by way of sale deed or by way of settlement. Even in those proceedings, they can challenge the subsequent transfer of property made by her mother in favour of the brother of the first petitioner. Under these circumstances, the petitioners filing these three writ petitions based upon the ruling of the Full Bench is misconceived. This Court is not willing to go into the disputed question of facts especially in the contest of the litigation is between the mother and the daughter. The matter will have to be tested by evidence of parties both oral and documentary."
7. The third respondent contended that the cancellation of Settlement Deed cannot be treated as opposed to public policy and believing the petitioner that he would permit her to stay in the property and enjoy the rent, the settlement so effected and the property was given to the petitioner by the third respondent out of love and affection. But the petitioner has acted not only against the settlement, but also against the moral values which prompted her to effect the Deed of Cancellation.
8. In reply, the writ petitioner relied upon the recent decision of the Apex Court in Renikuntla Rajamma (D) by LRs vs. K.Sarwanamma {2014 (4) CTC 572} wherein a donor executed a registered gift deed retaining the possession of the property for enjoyment by donor during her lifetime, the issue that was decided by the Supreme Court whether the retention of possession of property by the donor would invalidate the gift. The Supreme Court held that the retention of right to use property during the lifetime of the donor does not in any way affect the transfer of ownership in favour of the Donee and there is no need for actual delivery of possession to the Donee by the Donor. Though the decision referred to by the petitioner arose from a civil suit, the principles laid down therein squarely applies to the facts of the present case on hand.
9. The writ petitioner has also relied upon the Full Bench decision of this Court in Latif Estate Line India Ltd vs. Hadeeja Ammal {2011 (2) CTC 1} wherein this Court has also laid down certain conditions in paragraphs 55 to 59 which reads as under:-
55. From the reading of the aforesaid provision, it is manifest that three conditions are requisite for the exercise of jurisdiction to cancel an instrument i.e., --
(1) An instrument is avoidable against the plaintiff;
(2) The plaintiff may reasonably apprehend serious injury by the instrument being left or outstanding; and (3) In the circumstances of the case, the Court considers it proper to grant this relief of preventive justice.
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.
58. It can also not be overlooked or ignored that a unilateral cancellation of a sale deed by registered instrument at the instance of the vendor only encourages fraud and is against public policy. But there are circumstances where a Deed of Cancellation presented by both the vendor and the purchaser for registration has to be accepted by the Registrar if other mandatory requirements are complied with. Hence, the vendor by the unilateral execution of the cancellation deed cannot annul a registered document duly executed by him as such an act of the vendor is opposed to public policy.
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 transferor 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 favour 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 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.
10. The writ petitioner has filed a civil suit in O.S.No.3671 of 2011, wherein the writ petitioner is the plaintiff therein and that the same is pending before the IV Assistant City Civil Court, Chennai, with the following relief:-
(i) Directing the first defendant to pay the monthly rentals to the plaintiff with effect from September 2010; and
(ii) To direct the defendants to pay the costs of the suit to the plaintiff.
11. As regards O.S.No.4352 of 2011 filed by the respondents 4 and 5 herein who were the plaintiffs therein and the writ petitioner, who was the defendant in the suit and the same is pending before the XII Assistant City Civil Court, Chennai, with the following relief:
(i) Granting a permanent injunction restraining the defendant, his men, servant, agent or anyone claiming through him from illegally interfering or dispossessing the plaintiffs peaceful possession and enjoyment of the Schedule 'B' mentioned property; and
(ii) Directing the defendants to pay the cost of the suit.
12. Heard Mr.P.V.Balasubramaniam, learned counsel appearing for the petitioner, Mr.RM.Muthukumar, learned Government Advocate, appearing for the respondents 1 and 2 and Mr.B.Divakaran, learned counsel appearing for the respondents 3 to 5.
13. It is not in dispute that a portion of the property was settled in favour of the writ petitioner by the third respondent by means of a Settlement Deed dated 2.12.2009, which was subsequently cancelled by Deed of Cancellation vide document Nos.780 and 781 of 2011. Whether the third respondent can cancel the Deed of Settlement after it has come into effect on the ground that the petitioner has prevented the third respondent from enjoying the property/collecting the rent, is the point to be decided in the Civil Court. But, prima facie, as far as the present case is concerned, I am of the view that the principles laid down by the Apex Court in Renikuntla Rajamma (D) by LRs vs. K.Sarwanamma {2014 (4) CTC 572} and by the Full Bench judgment of this Court in Latif Estate Line India Ltd vs. Hadeeja Ammal {2011 (2) CTC 1}, are squarely applicable to the facts of this case. The Deed of Cancellation, in the light of the observation made by the Apex Court Renikuntla Rajamma (D) by Lrs., (cited supra), is not proper and it is open to the parties to agitate their rights before the Civil Court where the matters are pending. The observation made in this judgment is only for the disposal of this writ petition and it is open to the parties to raise all the points/facts of law available to them before the Civil Court where the suits are pending. Till the civil suits are decided, the petitioner shall not prevent the third respondent from collecting the rent, as the third respondent submitted that the property has been alienated by her daughter-in-laws and it is needless to state that since this Court held that the Deed of Cancellation is bad, consequences thereof shall follow.
14. The writ petitions are disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
02-09-2014 Index : Yes/No. Internet: Yes/No. Svn To
1.The Inspector General of Registration, No.100, Santhome High Road, Chennai-600 028.
2.The Sub-Registrar-Konnur, 5/5,4th Main Road, SIDCO Nagar, Villivakkam, Chennai-600 079. alienate S. VAIDYANATHAN, J.
Svn WPs 6230 and 6231 of 2011 02-09-2014