THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.418 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Akkam Eshwar, learned counsel for the
appellant and Ms. S.Roja Ramani, learned counsel for
respondent No.1.
2. This appeal is directed against the final order dated 17.02.2023 passed by the learned Single Judge allowing W.P.No.34783 of 2013 filed by respondent No.1 as the writ petitioner.
3. Respondent No.1 had filed the related writ petition assailing the order dated 05.03.2011 of the Sub Registrar, Saroornagar, Ranga Reddy District, registering the instrument of cancellation of gift deed dated 21.12.2009. 2
4. We may mention that the gift was initially made by appellant in favour of respondent No.1 who incidentally are husband and wife. It appears that because of strained relationship, the husband got the gift settlement deed cancelled vide the impugned order which came to be challenged by the wife before the learned Single Judge.
5. From a perusal of the order of the learned Single Judge dated 17.02.2023, it is seen that that the writ petition was adjourned on a number of occasions because of non appearance of learned counsel on behalf of respondent No.4 in the writ petition (appellant herein). Finally, the writ petition was directed to be listed under the caption "for orders/for judgment". Even then also there was no representation on behalf of the appellant. Learned Single Judge noted that the impugned cancellation deed was executed and registered by the appellant unilaterally without the consent of respondent No.1/writ petitioner. Adverting to Rule 26(i)(k) of the Telangana Rules framed under the Registration Act, 1908, learned Single Judge 3 held that cancellation of gift deed cannot be done unilaterally. Both the parties must be present before the Sub Registrar. Therefore, learned Single Judge set aside the impugned cancellation deed as being contrary to the relevant provisions of law.
6. Learned counsel for the appellant submits that a writ petition assailing cancellation of gift deed is not maintainable. This court has held that the proper course of action would be to file a civil suit. In this connection, he has placed before us a copy of order dated 28.07.2022 passed in W.A.No.1472 of 2017 (Sri Govindram Agarwal v. State of Telangana).
7. Each case has to be decided on the facts and circumstances of that case. While it is true that ordinarily a challenge to cancellation of a gift deed should be before the competent civil court because such a challenge would require appreciation of facts and evidence, the writ court may not be the appropriate forum in such a case. 4
8. However, in this case learned Single Judge has found a clear infraction of the statutory provision and therefore has interfered with the same. That apart, the impugned order is dated 05.03.2011. At this distant point of time, relegating respondent No.1 to the forum of civil court would be causing injustice to her inasmuch as the limitation period for filing such a suit has expired in the meanwhile. Moreover, the conduct of the parties is an important factor to be considered by the writ court while moulding the relief.
9. As noted by the learned Single Judge appellant was consistent in his default in the proceedings before the learned Single Judge.
10. In the circumstances, we are not inclined to entertain the appeal.
11. Writ appeal is accordingly dismissed. 5
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 21.04.2023 vs