Madras High Court
Palanisamy vs The Chief Educational Officer on 2 November, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.17148 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :02.11.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.17148 of 2015
Palanisamy ... Petitioner
Vs
1. The Chief Educational Officer,
Chief Educational Office, Tiruppur.
2. The Sub Registrar,
Kaniyur Sub Registrar Office,
Kaniyur, Udumalpet, Tiruppur District.
..Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
issuance of Writ of Mandamus directing the second respondent namely sub
Registrar Kaniyur, Udumalpet, Tiruppur District to cancel the Gift deed
dated 15.02.2012 in document No.583/2012 on the file of the second
respondent as per cancellation deed of the petitioner dated 08.06.2015
within a stipulated time. .
For Petitioner : Mr.S. Gunalan
For Respondents : Mr. E. Vijay Anand
Additional Government Pleader
1
https://www.mhc.tn.gov.in/judis
W.P.No.17148 of 2015
ORDER
This writ petition is filed seeking for a direction to the second respondent namely sub Registrar Kaniyur, Udumalpet, Tiruppur District to cancel the Gift deed dated 15.02.2012 in document No.583/2012 on the file of first respondent as per the cancellation deed of the petitioner dated 05.06.2015.
2. The case of the petitioner is that the petitioner is the owner of the subject property and he has gifted the same for construction of Higher Secondary School vide document No.383 of 2012 registered on the file of Sub Registrar Udumalpet. However till date the school has not been constructed. Hence the petitioner wants to cancel the gift deed and presented a cancellation of gift deed before the second respondent, who refused to received the same. Hence this petition.
3. The learned counsel for the petitioner submits that the petitioner had gifted a property for construction of a school and the same was not utilised by the first respondent even after 10 years. Hence he wants to cancel 2 https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015 the gift deed and when presented the cancellation deed the same was not entertained by the second respondent. Hence he prays this Court for appropriate orders.
4. Today when the matter is taken up for hearing the second respondent filed a counter affidavit wherein it has been stated that if the petitioner wants to cancel the gift deed “ No Objection Certificate” should be produced and the relevant portion of the counter affidavit is extracted hereunder:
5. I submit that the cancellation deed was refused by me due to the following reasons:
(i) after executing the gift deed 583/2012, the property becomes “Government property”
(ii) I do not know whether the education department is constructing a school or not in that property. If the Education Department is not willing to construct a school “ NO OBJECTION CERTIFICATE” from the respective department is necessary to register the cancellation deed.
(iii) At the time of presentation of the cancellation deed the petitioner does not present any NOC or letter received from the education department.3
https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015
5. Admittedly the facts of the case is not in dispute. The petitioner has gifted a property for construction of school and the same was not utilised for construction the school .Hence the petitioner wants to cancel the deed.
6. 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 4 https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015 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 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.
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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 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.” 6 https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015
7. In view of the fact that the reference has been answered by holding that the Registrar has no power to unilaterally cancel the gift deed or any deed of conveyance to nullify the deed of conveyance made earlier, the present case falls squarely within the four corners of the said decision, and the settlor, viz., the petitioner herein cannot unilaterally present the deed for cancellation. If at all, as required by the 2nd respondent, the petitioner ought to obtain a No Objection Certificate and present the same along with the deed for cancellation.
8. In view of the above the petitioner not having obtained “No Objection Certificate” from the concerned authorities, the prayer sought for by the petitioner cannot be granted. Accordingly this writ petition stands dismissed. No order as to costs.
02.11.2022 smn 7 https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015 Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No To
1. The Chief Educational Officer, Chief Educational Office, Tiruppur.
2. The Sub Registrar, Kaniyur Sub Registrar Office, Kaniyur, Udumalpet, Tiruppur District.
| 8 https://www.mhc.tn.gov.in/judis W.P.No.17148 of 2015 M.DHANDAPANI,J.
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