HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.17801 of 2015
O R D E R:
This writ petition is filed for the following relief: "..to issue an appropriate Writ order or direction mostly one which is in the nature of a Writ of Mandamus declaring the action of the respondents in not cancelling the Gift Settlement Deed bearing Document No.4833/2003 dated 11.06.2003 and Registered Sale Deed bearing Document No.5698/2003 dated 8.7.2003 as illegal, irregular, irrational, unreasonable, arbitrary, unconstitutional, contrary to the Judgment and Decree dated 31.10.2007 in O.S.No.103/2003 on the file of the Court of the Principal Senior Civil Judge, Kurnool and consequently direct the Respondents to forthwith cancel the said document and to make appropriate changes in the Register of Encumbrances.."
Respondent Nos.3 and 4 were impleaded, but they did not choose to appear. Learned Government Pleader did not file his counter despite opportunities, but an opportunity was given to the Government Pleader to make his submissions since the issue inter se the petitioner and the Government is essentially one of law.
2This Court has heard Sri P.Veera Reddy, learned senior counsel for the petitioner. He points out that the petitioner, who was a senior citizen filed this writ petition for the relief mentioned above. It is his contention that the petitioner‟s eldest son, who is added as respondent No.3, created two gift deeds dated 11.06.2003 and 24.06.2003. With the said gift deed dated 24.06.2003 the said K.Niranjan Babu-respondent No.3, executed a sale deed in favour of one P.V.Madhava Swamy. The said purchaser filed a suit for declaration of his title and other relief in O.S.No.103 of 2003. The said suit was dismissed. It was held in the said suit that the gift deed dated 11.06.2003 is not proved to be a genuine and valid document. Thereafter, it was further held that on the basis of 11.06.2003 gift deed, title could not have been conveyed under the sale deed dated 08.07.2003.
The contention of the learned counsel is that in view of this judgment, which is also confirmed by the higher Courts, the title of the petitioner was upheld. He wanted revocation of the documents and submitted a representation. The Registrar cancelled only one deed bearing number 5266/2003 dated 24.06.2003, but did not cancel the second gift deed dated 3 11.06.2003 with document number 4833/2003 and the sale deed 08.07.2003 bearing Document No.5698/2003. Therefore, learned counsel argues that the action of the respondents in failing to cancel the sale deed is incorrect more so in view of the judgment and decree in O.S.No.103 of 2003 he is entitled to the relief.
The Government Pleader for Stamps and Assignments argues and submits that only mode of cancellation is permissible under Rule 26 (k) (i) of the Andhra Pradesh Rules under the Registration Act. It is his contention that as the conditions in the said Rule is not fulfilled, Registrar was right in refusing the cancellation.
After examining the matter in detail, this Court notices that it is a fact that the Court declared that Ex.A3 in the said suit O.S.No.103 of 2003 is not proved to be a genuine or a valid document. This is the finding with relation to the registered gift deed dated 11.06.2003. The Court came to this conclusion because of the various reasons mentioned in the gift deed, including the doubt about the signature, failure to examine the attesting witnesses etc. Thereafter, the Court held that by virtue of this, the further transfer of title to the 4 plaintiff by the registered sale deed dated 08.07.2003 was also negatived. Learned senior counsel for the petitioner placed heavy emphasis upon this issue and sought for a Mandamus.
The law on the subject is very well settled. In the case of Thota Ganga Laxmi and Ors. v. Government of Andhra Pradesh1, the Hon‟ble Supreme Court had an occasion to deal with Rule 26 (k) (i) of the Andhra Pradesh Registration Rules (for short „the Rules‟). The Hon‟ble Supreme Court clearly held that when a sale deed is cancelled by a competent Court, the cancellation deed can be registered and that too after notice to the parties.
The said rule 26(k)(i) is as follows:
"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 1 (2010) 15 SCC 207 5 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 register able by any provision of law."
A plain language reading of Rule 26 (k) (i) of the Rules makes it very clear that there should be a cancellation deed executed by the executant and claimants of the previous deed and that such cancellation deed should be accompanied by a declaration showing mutual consent or by an order of competent Court/State or Central Government annulling the transaction. The proviso to this Rule says that Registering Officer can dispense with the execution of the cancellation deed, if the cancellation deed is executed by a civil Judge or a competent Government Officer.
These are the conditions which are necessary to be present before a deed of cancellation can be accepted for 6 registration. The duly executed the cancellation deed must be accompanied by a declaration of mutual consent. The conjunction „and‟ makes this clear. The proviso carves out an exception. Only if these conditions are present, the action of the Sub-Registrar in this case can be upheld. These conditions are not at all present in this case. The law is also well settled. Once the statute/rules prescribes the manner in which an act is to be done; it must be done in that manner alone or not at all.
The writ petitioner does not have an order in his favour „annulling‟ the transaction contained in the previously registered deeds. The writ petitioner did not in fact seek such a declaration as a counter claim in his written statement in the suit. The Court did not also give a direction for cancellation of the deed.
In that view of the matter, despite the findings of the Court in O.S.No.103 of 2003, this Court is of the opinion that no relief can be granted to the writ petitioner in the present writ petition.
The writ petition is therefore dismissed. No order as to costs.
7As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date: 28.10.2022 KLP