Komanapalli Rajendar Singh vs The State Of Andhra Pradesh
2021 Latest Caselaw 2479 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION NO.31077 OF 2018

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, seeking the following relief:

"To issue Writ Of Mandamus declare the action of the Respondent No.4 registering the cancellation deeds vide documents Nos.

(i) 5771/2002 dated 29.11.2002 (ii) 5681/2002 dated 09.12.2002

(iii) 2454/2002 dated 05.06.2006 (iv) 5449/2002 dated 27.11.2002 and (v) 5770/2002 dated 29.11.2002 submitted by Miss Rebha Jones Paul cancelled the Registered sale deeds vide Doc Nos. (i) 149/1997 dated 29.01.1997 (ii) 205/1997 dated 04.02.1997 (iii) 211/1997 dated 06.02.1997 (iv) 3064/1997 dated 26.03.1997 and (v) 3065/1997 dated 29.03.1997 is illegal arbitrary in violation of Principal of Natural Justice and violation Articles 14 and 300-A of Constitution of India and consequently direct the Respondents 3 and 4 to restore the Registered Sale deeds vide Doc Nos. (i) 149/1997 dated 29.01.1997 (ii) 205/1997 dated 04.02.1997 (iii) 211/1997 dated 06.02.1997 (iv) 3064/1997 dated 26.03.1997 and (v) 3065/1997 dated 29.03.1997"

The second petitioner is representing first petitioner as

General Power of Attorney Holder.

The case of the petitioner in nut-shell is that the first

petitioner purchased property to an extent of Ac.20-25 cents in

Sy.No.179/2 part, Ghinnamasirivada Village, Visakhapatnam,

through four registered sale deeds from Miss Rebha Jones Paul.

The details of registered sale deeds are tabulated as follows:

   (i)        Doc.No.149/1997 dated 29.01.1997
   (ii)       Doc.No.205/1997 dated 04.02.1997
   (iii)      Doc.No.211/1997 dated 06.02.1997                   Hereinafter referred
   (iv)       Doc.No.3064/1997 dated 26.03.1997                  as "Registered Sale
   (v)        Doc.No.3065/1997 dated 29.03.1997                  Deeds‟
                                                                              MSM,J
                                                                      WP_31077_2018

The second petitioner purchased property of an extent of

Ac.4-70 cents from the same vendor in same survey number

through registered document No.3065/1997 dated 29.03.1997 for

valuable sale consideration. Thus, the petitioners became the

owner of their respective property in view of transfer of title to the

property for consideration.

It is contended that, the vendor of the petitioners got title

over the property through Registered Gift Deed document bearing

No.368/1963 dated 22.02.1963, executed by Mrs. Roothpal. As the

petitioners are in need of money, they proposed to sell the subject

lands, obtained Encumbrance Certificates as well as valuation

certificate. At that time, it came to light that the vendor of the

petitioners i.e. Ms.Reba John Paul d/o late John Charles Paul,

unilaterally cancelled the Registered Sale Deeds. The details of

Cancellation Deeds are as follows:

   (i)        Doc.No.5771/2002   dated   29.11.2002
   (ii)       Doc.No.5681/2002   dated   09.12.2002
   (iii)      Doc.No.2454/2002   dated   05.06.2006   Hereinafter   referred    as
   (iv)       Doc.No.5449/2002   dated   27.11.2002   „Registered     Cancellation
   (v)        Doc.No.5770/2002   dated   29.11.2002   Deeds‟

It is contended that, the vendor of the petitioners i.e.

Ms.Reba John Paul did not issue any prior notice to the petitioners

before cancelling the documents. On enquiry, the petitioners came

to know that Ms.Reba John Paul died on 22.07.2017 issueless,

leaving no legal heirs. Thereafter, the petitioner could not serve any

notice on the executant Ms. Reba John Paul, questioning the

unilateral cancellation of Registered Sale Deeds by Ms. Reba John

Paul and registration of such Cancellation Deeds by the fourth MSM,J WP_31077_2018

respondent is in contravention to Rule 26 of the Andhra Pradesh

Rules under the Registration Act, 1980 (for short „the Rules‟).

Thereupon, the petitioners issued notices to the fourth respondent

questioning the unilateral cancellation. On 03.02.2017, the fourth

respondent/Sub-Registrar addressed a letter vide Lr.No.G1/1754/

2016 informing the second petitioner that, vendor can cancel the

registered sale deeds without any intimation to the vendee and

before or after cancellation and the aggrieved party can always

approach the competent Civil Court.

The second petitioner made a representation to the third

respondent/District Registrar, Visakhapatnam on 03.10.2016,

requesting to restore the sale deeds executed in favour of the

petitioners, but till date, no order has been passed on the

representation. Thus, the sale deeds executed by Ms. Rebha Jones

Paul insofar as the petitioners discloses passing of sale

consideration and contrary to that, the vendor of these petitioners

cancelled the Registered Sale Deeds without any reason.

Obviously, the fourth respondent registered the Cancellation Deeds

without notice to the petitioners as mandated under Rule 26 of the

Rules and requested to declare the registration of Cancellation

Deeds by the fourth respondent as contrary to Rule 26 of the Rules

and violative of Articles 14 & 300-A of the Constitution of India and

consequently direct Respondent Nos. 3 & 4 to restore the

Registered Sale Deeds.

Respondent No.4/Sub-Registrar filed counter affidavit

denying material allegations, made against the fourth respondent,

while admitting about execution of Registered Sale Deeds in favour MSM,J WP_31077_2018

of these petitioners and its cancellation by executing Cancellation

Deeds by Ms. Reba John Paul.

It is specifically contended that, the reason for cancellation

of Registered Sale Deeds is that, consideration was not paid by the

petitioners to their vendor Ms. Rebha Jones Paul and on account

of non-payment of consideration, the Registered Sale Deeds were

cancelled and Cancellation Deeds were registered by the fourth

respondent/Sub-Registrar.

The respondents denied registration of documents in

contravention of Rule 26 of the Rules, and request to cancel the

same is not tenable, since Rule 26 came into force after four years

of the incident under Section 69 of the Registration Act, after sub-

rule (j) added sub-rule (k) namely vide C&IG

Endt.No.G1/10866/06 dated 11.12.2006. Therefore, the alleged

contravention of Rule 26 is imaginary and on that ground, the

cancellation deeds cannot be set-aside and requested to dismiss

the writ petition.

During hearing, Smt. Pranathi, learned counsel for the

petitioners reiterated the contentions urged in the affidavit, mainly

contending about violation of Rule 26 of the Rules, while placing

reliance on judgment of Apex Court and High Court in Thota

Ganga Laxmi and another v. Government of Andhra Pradesh1,

Ediga Chandrasekhar Gowd v. State of Andhra Pradesh2 and

Kolli Rajesh Chowdary v. State of Andhra Pradesh3 and on the

strength of the principles laid down in the above judgments,

(2010) 15 Supreme Court Cases 207

(2017) 3 ALT 420

AIR 2019 AP 40 MSM,J WP_31077_2018

learned counsel for the petitioners requested to grant the relief as

stated supra.

Whereas, learned Assistant Government Pleader for Stamps

and Registration would specifically contended that, Rule 26(k) of

the Rules has no application to the present facts of the case, as it

came into force, four years after execution of Cancellation Deeds,

as such, Rule 26(k) cannot be given retrospective effect, as the

transaction was not completed four years prior to amendment

came into force and requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the point that arises for consideration is as

follows:

"Whether registration of Cancellation Deeds executed by Ms. Rebha Jones Paul in favour of these petitioners is in violation of Rule 26(k) of the Rules, giving retrospective effect?"

P O I N T:

The issue involved in this writ petition is limited.

The main contention of the petitioners is that, the petitioners

purchased the subject properties on payment of valuable

consideration from Ms. Rebha Jones Paul and obtained registered

Sale Deeds. Whereas, Cancellation Deeds were executed by

Ms. Rebha Jones Paul unilaterally without issuing notice to these

petitioners on the ground that, no consideration was paid to her

under the sale deeds and the fourth respondent/Sub-Registrar,

Gopalapatnam, registered those documents without issuing any

notice, as mandated under Rule 26(k) of the Rules.

MSM,J WP_31077_2018

In view of the limited dispute regarding non-compliance of

Rule 26(k) of the Rules, it is necessary to extract Rule 26(k) and it

reads as follows:

"(k)(i) The registrating officer shall ensure at the time of presentation 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 mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale;"

Admittedly, Cancellation Deeds were executed, cancelling the

Registered Sale Deed executed by Ms. Rebha Jones Paul in the

year 1997. Rule 26 of the Rules is inserted by Notification

No.R.R.I/2006 published in Andhra Pradesh Gazette R.S. to Pt.II,

Ext.No.18 dated 29.11.2006. Thus, the Rule came into force on

29.11.2006, but, whereas, the Cancellation Deeds were executed

long prior to commencement of Rule 26-K. Therefore, the amended

provision has no application to the transactions already completed

prior to commencement of Andhra Pradesh Registration Act, 1908.

Section 8 of Andhra Pradesh General Clauses Act, 1891,

deals with the effect of repealing Acts, it reads as follows:

8. Effect of repealing an Act:.- Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not:

(a) affect anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of the repealing Act; or

(b) revive anything not in force or existing at the time at which the repeal takes effect; or

(c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or

(d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or MSM,J WP_31077_2018

(e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.

In view of Section 8 of Andhra Pradesh General Clauses Act,

1891, affect any investigation, legal proceeding or remedy in

respect of any such right, privilege, obligation, liability, fine,

penalty, forfeiture or punishment as aforesaid; and any such

investigation, legal proceeding or remedy may be instituted,

continued or enforced, and any such fine, penalty, forfeiture or

punishment may be imposed as if the repealing Act had not been

passed, it will not alter on account of the amendment which came

into effect. Such transactions are not hit by the amendment.

In any view of the matter, the law is well settled that, non-

payment of sale consideration is not a ground to cancel the Sale

Deeds. However, the contention of the learned counsel for the

petitioners is that, a notice under Rule 26(k)(i) of the Rules is

mandatory, but no notice was issued on the petitioners before

registration of cancellation deeds, as such registration of

cancellation deeds is violative of Rule 26(k)(i) of the Rules and in

support of her contention, placed reliance on Thota Ganga Laxmi

and another v. Government of Andhra Pradesh (referred supra),

the Apex Court held as follows:

"3. In our opinion, there was no need for the Appellants to approach the civil Court as the said cancellation deed dated 4.8.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if 'A' transfers a piece of land to 'B' by a registered sale deed, then, if it is not disputed that 'A' MSM,J WP_31077_2018

had -the title to the land, that title passes to 'B' on the registration of the sale deed (retrospectively from the date of the execution of the same) and 'B' then becomes the owner of the land. If 'A' wants to subsequently get the sale deed cancelled, he has to file a civil suit for cancellation or else he can request 'B' to sell the land back to 'A' but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.

4. In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states:

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 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."

The basis for the Apex Court to come to this conclusion is

Rule 26(k)(i) of the Rules. But, here, Rule 26(k)(i) was not on

statute book as on date of execution of Cancellation Deeds.

Therefore, the judgment of the Apex Court in Thota Ganga Laxmi

and another v. Government of Andhra Pradesh (referred supra)

has no direct application to the present facts of the case.

Similarly, the judgment of the learned Single judge in Ediga

Chandrasekhar Gowd v. State of Andhra Pradesh (referred

supra) also will have no application, as the judgment is based on

Rule 26(k)(i) of the Rules. Similar view is expressed in Kolli Rajesh

Chowdary v. State of Andhra Pradesh (referred supra) based on

Rule 26(k)(i) of the Rules. Therefore, the law relied on by the MSM,J WP_31077_2018

learned counsel for the petitioners has no application to the

present facts of the case, for the reason that, Rule 26(k)(i) came

into force on 29.11.2006, whereas, the documents were executed

much prior to amendment to Rule 26(k)(i) came into force.

It is settled law that, Section 31 of Specific Relief Act permits

cancellation of documents and Section 34 of the Specific Relief Act

deals with annulment of documents or instruments. The difference

between Section 31 and Section 34 is that, when a document is

sought to be cancelled, such relief can be claimed only by a party

to the document. But, where a third party wanted to anull the

document, the third party has to take recourse to Section 34 of

Specific Relief Act for declaration before a competent civil Court. At

the same time, non-payment of sale consideration is not a ground

to cancel the sale deed, as un-paid purchased money creates a

charge over the property in terms of Section 55(5)(b) of Transfer of

Property Act, 1982.

In Suhrid Singh @ Sardool Singh Vs. Randhir Singh and

others4, the Apex Court while deciding the Court fee payable

under Sections 6 and 7 of the Court Fee Act, 1870, incidentally

held in para 6 as follows:

"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks

2010 SAR (Civil), page 402 MSM,J WP_31077_2018

cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a non- executant, is in possession and sues of a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non-executant, is not in possession and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided U/s.7(iv)(c) of the Act. Sec.7(vi)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The provision thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of section 7."

Even if the judgment of Apex Court is obitar without

considering the Section 31 of the Specific Relief Act, the judgment

of High Court of Andhra Pradesh in Yanala Malleshwari and

others Vs. Ananthula Sayamma and others5, is the binding

precedent on this Court. The Division Bench while distinguishing

Sections 31 and 34 of the Specific Relief Act, held in para 26 as

follows:

"It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written statement. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are: the written instrument is void or voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury. Insofar as Section 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again, the person who claims the right to property can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff. The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration."

In view of the law referred above and in view of my foregoing

discussion, the contention of the fourth respondent is to be

upheld, while rejecting the contention of the petitioner,

consequently granting liberty to the petitioners to approach

2006 (6) ALT page 523 (F.B.) MSM,J WP_31077_2018

appropriate civil court for appropriate relief. Accordingly, the point

is answered in favour of the respondents and against the

petitioners.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous applications, pending if any,

shall stand dismissed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:20.07.2021

SP