HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.36483 of 2015
ORDER:
This writ petition is filed under Article 226 of the
Constitution of India seeking the following relief:-
"....to issue Writ Order or Direction more particularly in the nature of writ of Mandamus, declaring the Proceedings issued by the second respondent in Rc E5/489/2013 Dated 19.08.2013 which the Petitioners came to know recently in which the Second respondent Directed to Cancel the Gift deed Registered in favor of the Petitioners Vide Doc Number.1558/2012 Dated 14.05.2012 before the SRO Nandigama Krishna District, without any Notice to the Petitioners is illegal, contrary to Articles 14 16 and 21 of the Constitution of India and against the principals of natural justice contrary to the Indian Registration Act and consequently to Set aside the same...."
The case of the petitioners is that their grandfather had
executed a Will in favour of their father on 27.02.2002,
bequeathing the subject property. Thereafter, while their father
underwent Heart surgery, he transferred the subject property in
the name of the petitioners by obtaining permission from
Revenue Divisional officer, vide D.Dis.No.A10/436/2012 dated
05.05.2012 and the father of the petitioners has also executed a
registered Gift Deed in favour of the petitioners vide document
No.1588/2012 before the SRO., Nandigama. While so, on the 2
objection raised by the 6th respondent impugned proceedings
were issued, which were as follows:
'As per the report submitted in Rc.E5/489/2013 addressed to the Registrar, I/o.AP Lokayukta, Hyderabad, dated 31.07.2013, and in view of the conflicting positions made by Sri.Nandivada Rama Krishna in O.S.No.62/2009 and in the purported orders, which are self-
negatory and in view of the competing claims made by the complainant i.e., which are self nugatory and in view of competing claims made by the complainant i.e., 6 th respondent and also considering the possibility of further registrations in the schedule land, which is non-permissible in the given circumstances and the dispute being civil in nature and in view of the fact that all the family members were not enquired the Sub-Collector, Vijayawada is directed to get the gift deed No.1558/2012, dated 14.05.2012 of Sub-Registrar, Nandigama cancelled as per the provisions of Rule 26(k) of Registration Rules and to furnish action taken report in the matter.'
The main grievance of the petitioners is that the
above proceedings were issued without any authority
and in the absence of any prior notice to them. It is
stated that they came to know about the above
proceedings only after filing of the said proceedings by
the 6th respondent in the Appeal suit, which is pending
before the learned District Judge, Nandigama.
When the Registered Gift Deed was executed on
14.05.2012 vide document No.1588/2012 unilaterally,
the same cannot be cancelled by the District Registrar/
Sub-Registrar concerned.
3
Before proceeding further, it is necessary to note the
legal position. A Full Bench of the then High Court of
Andhra Pradesh in Yanala Malleshwari and others v.
Ananthula· Sayamma and others 1 had held that unilateral
cancellation of sale deeds can be done and they can be
registered without notice to the executant by the District
Registrar/Sub-Registrar. Since the State perceived that this
judgment would create lot of complications to the holders
of the land and that they could be exposed to problems
created by their transferors by unilateral cancellation of
the sale deeds and other documents transferring or
alienating property executed by them, it introduced
Rule 26(i)(k)(i) by way of notification, dated
29.11.2006. The relevant portion of the said rule
reads as under:
"26.(i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules shall have been complied with, for instance...
(k)(i) The registering 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
1 2006(6) ALO 623 (F£3) 4
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 registerable by any provisions of law."
A challenge was made to the validity of the said rule on the
ground -that it is ultra vires the provisions of the
Registration Act, 1908. However, the said challenge was
rejected by a Division Bench of the said Court in Kaitha
Narasimha v. the State of Government of AP rep., by
its Principal Secretary, Revenue Department2. The
Division Bench held that the Rule merely incorporates
one of the facets of the rules of natural justice in the
procedure laid down for registration of cancellation
deed of previously registered document and is intended
to ensure that a duly registered sale deed is not
cancelled without the executant and claimant
getting an opportunity to contest the registration
of cancellation deed and that the said Rule does not
have the effect of taking away the right of the
executant of cancellation deed and only seeks to put
2 2015(8) MLJ 769 5
the executant and claimants of the original document
to notice that somebody is seeking cancellation thereof.
It is not in dispute that the said Rule applies to the
gift settlement deed in question. Be that as it may.
The judgment in Yanala Malleshwari and others [2nd
supra] was set aside by the Supreme Court in Thota
Ganga lakshmi v. Government of Andhra Pradesh3
wherein the Supreme Court opined that there cannot
be any unilateral cancellation of a sale deed and that
a party, who wants to cancel a sale deed executed,
has to necessarily file a civil suit for its cancellation or
seek reconveyance from the vendee, and that
executing a cancellation deed, or getting it
registered, is unheard of in law. The Supreme Court
also referred to the above said Rule and stated that the
said Rule is consistent with the view of the Court that a
cancellation deed can be registered only after a sale
deed is cancelled by a competent civil Court after
notice to the concerned parties and that in the
absence of any declaration by a competent Court or
notice to parties, the cancellation deed as well as
3 2012(1) ALO 90 SC 6
registration thereof were wholly void & non-est and
that such transactions are meaningless transactions.
From the precedential guidance in the decision of the
Supreme Court, it is manifest that there cannot be an
unilateral cancellation of registered sale deeds and that a
-
cancellation deed cancelling a sale deed can be registered
only after the same is cancelled by a competent civil Court,
after notice to the parties concerned, and that in the
absence of any declaration by a competent Court or notice
to parties, the execution of deed of cancellation as well as
its registration are wholly void and non est and such
transactions are meaningless transactions. In my opinion,
the analogy which the -Supreme Court applied to
cancellation of sale deed equally applies to the present case
wherein impugned proceedings were issued by the 2 nd
respondent directing the Sub-Registrar, Nandigama/6th
respondent to cancel the registered gift deed. In the present
case, the procedure prescribed in the Rule afore-stated has
admittedly not been followed and the petitioners were not
put on notice by the 2nd respondent before issuing
impugned proceedings vide Rc.E5/489/2013 dated 19-08-
2013.
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In view of the same, this Writ Petition is allowed
by setting aside the impugned proceedings issued by
the 2nd respondent vide Rc.E/5/489/2013 dated
19-08-2013. However, this Order will not preclude the
unofficial respondent from invoking the jurisdiction of
the competent Civil Court for cancellation of the deed
vide document No.1558 of 2012 dated 14.05.2012,
before the SRO., Nandigama, Krishna District. There
shall be no order as to costs. There shall be no order as to
costs.
As a sequel, Interlocutory Applications pending, if any, in
this Writ Petition, shall stand closed.
_______________________ JUSTICE V.SUJATHA Date : 01.12.2022 AVTP 8
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HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.36483 of 2015
Date : 01.12.2022
AVTP
