HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.8894 of 2019
O R D E R:
This writ petition is filed by the petitioner questioning
the unilateral cancellation of a gift deed dated 30.09.2018
(document No.5538/2008).
This Court has heard Ms.Sireesha Rani for Sri Sunkara
Rajendra Prasad, Smt. Santhi Sree Vallabhaneni, Sri
Chalasani Ajay Kumar and Government Pleader for
Registration and Stamps.
Learned counsel argues that the petitioner and the
unofficial respondents are siblings. A gift deed was executed
in favour of the petitioner by the 3rd respondent on
30.09.2008. The same was cancelled by the unilateral
registered gift of cancellation by document No.4335/2019.
Learned counsel points out that such unilateral power of
cancellation is not vested in the Sub-Registrar and it is wholly
contrary to law. He also points out that the cancellation is
nearly 10 years after the original deed. It is argued that the
same is totally contrary to section 26 (k)(i) of the Registration
Act and is also opposed to law on the subject. Learned
counsel for the petitioner relies upon Thota Ganga Laxmi 2
and another v. Government of Andhra Pradesh and
others1 to argue that a deed of unilateral cancellation is void
in law and a separate declaration need not also be sought.
She relies upon the judgment reported in Kolli Rajesh
Chowdary v. State of A.P., rep. by its Principal Secretary,
Revenue (Stamps and Registration) Department., and
others2 and also the judgment of Pinnama Raju Ranga
Raju v. The State of Andhra Pradesh to argue that
unilateral cancellation of any deed of conveyance including a
gift deed is bad in law.
Learned Government Pleader for Registration and
Stamps however justifies the action of the Sub-Registrar. In
the alternative, he submits that in view of the seriousness of
the allegations made parties should be relegated to a civil
Court and this Court should not come to the aid of the
petitioner. He also adopts the arguments of learned counsel
for the other respondents.
Learned counsel for the unofficial respondents also
submits that the position in Thota Ganga Laxmi's case (1
1 2010 15 SCC 207 2 2019 (2) ALT 290 3
supra) is dealing with a case of a sale deed being unilaterally
cancelled. Relying upon language of Rule 26, she argues that
it is only applicable to the "conveyances of sale" and not to a
gift deed. She argues that when there are serious issues of
fact and law including the mental capacity of the donor of the
first deed, this Court should not interfere in the matter.
This Court after considering all the submissions notices
that the law is no longer res integra. In the case of Thota
Ganga Laxmi's case (1 supra), the Hon'ble Supreme Court
had an occasion to consider the Rule 26 k (i). It is relied upon
in this case also.
In para 4, the following was held:
4. 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. ....."
Similarly in para 5, after considering rule 26 K(i) the
following is held:
5. (d) A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent court that the 4
cancellation deed can be registered and that too after notice to the parties concerned. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.
The other argument of the learned counsel for the
respondents that the Rule quoted above will not apply to
cancellation of a gift deed etc., is also not supported by law.
A learned single Judge of this Court in the case of Kolli
Rajesh Chowdary (2 supra) after considering Thota Ganga
Laxmi's case (1 supra), clearly held that the analogy which
the Hon'ble Supreme Court had applied to cancellation of a
sale deed also applies to the cancellation of gift deed in that
case. Similarly, in the case of Kolli Rajesh Chowdary (2
supra) also, learned single Judge considered all the leading
cases on the subject held that Rule 26 (k) (i) also refers to and
is applicable to conveyances like a gift deed, agreement of sale
cum GPA etc. In that case before the learned single Judge
also, a gift deed was registered in January, 2005 and
cancelled in October, 2013. The learned single Judge held 5
that the rectification of the gift settlement deed is incorrect
procedurally.
In view of this clear and authoritative pronouncement
on the law of subject, this Court is of the opinion that the writ
petition is to be allowed.
Accordingly, the writ petition is allowed. No order as to
costs.
This Court also notices that very serious allegations are
made about the conduct of the parties and mental capacity of
the donar of the first gift deed (respondent No.3) and all
procedural violations etc. These are all disputed questions of
fact and law which cannot be decided in this writ jurisdiction.
The rights of the neither party are authoritatively pronounced
in this judgment. The observations made in this order are for
the purpose of the disposal of the writ petition only. As a
sequel, the miscellaneous petitions if any shall stand
dismissed.
________________________ D.V.S.S.SOMAYAJULU,J
Date: 11.10.2022 KLP
