Kerala High Court
A.Basheerkutty vs Registration Inspector General on 10 August, 2022
W.P.(C)No.3809/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 3809 OF 2021
PETITIONER:
A.BASHEERKUTTY
AGED 73 YEARS
S/O. ABDUL KHADER KUNJU, THUNDIL VEEDU, KOTTIYAM,
KOTTIAYAM P.O.,PIN-691 571, KOLLAM DISTRICT
BY ADVS.
SRI G.SUDHEER (KARAKONAM)
SRI.R.HARIKRISHNAN (H-308)
RESPONDENTS:
1 REGISTRATION INSPECTOR GENERAL
OFFICE OF THE INSPECTOR GENERAL, VANCHIYOOR,
THIRUVANANTHAPURAM-695 035
2 DISTRICT REGISTRAR (GENERAL),
OFFICE OF THE DISTRICT REGISTRAR (GENERAL),
NEAR COLLECTORATE, KOLLAM,PIN-691 013
3 THE SUB REGISTRAR,
ADDITIONAL SUB REGISTRARS OFFICE,
KOTTIAYAM.P.O.,KOTTIYAM, KOLLAM DISTRICT-691 571
4 A.RAHUMATH
AGED 68 YEARS
THAYYILVEEDU, BEHIND USHAS AUDITORIUM,
VADAKKEVILA P.O., PALLIMUKKU, KOLLAM-691 010
5 A.SUHURBAN BEEVI,
AGED 66 YEARS
N.V.NAGAR, HOUSE NO.20, PEROORKADA P.O.,
THIRUVANANTHAPURAM-695 005
6 A.SUBAITHA BEEVI,
AGED 62 YEARS
SUBAH, MEKKONE, TKMC P.O.,
KOLLAM-691 005
7 A.HUMAYOON KABEER,
THUNDATHIL VEEDU, KOTTIAYAM.P.O.,
KOLLAM-691 571
W.P.(C)No.3809/2021
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8 THAHIRA BEEVI
AGED 53 YEARS
THUNDEL VEEDU, KOTTAYAM P.O., KOLLAM-691 571
BY ADVS.
SR.GOVERNMENT PLEADER SMT.C.S.SHEEJA
SRI.K.MOHANAKANNAN
SRI.H.PRAVEEN (KOTTARAKARA)
SMT.D.S.THUSHARA
SMT.A.R.PRAVITHA
SMT.T.V.NEEMA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.06.2022, THE COURT ON 10.08.2022
DELIVERED THE FOLLOWING:
W.P.(C)No.3809/2021
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T.R. RAVI, J.
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W.P.(C)No.3809 of 2021
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Dated this the 10th day of August, 2022
JUDGMENT
The petitioner's father had executed Ext.P1 settlement deed
in favour of the petitioner on 21.4.2007. Mutation was effected in
favour of the petitioner and the petitioner was paying land tax as
is evident from Ext.P2 dated 24.11.2007. It appears that on
3.3.2012, the petitioner's father executed Ext.P3 cancellation deed
cancelling Ext.P1 settlement deed. Subsequently, on 11.12.2012,
a power of attorney was executed by the petitioner's father in
favour of the 7th respondent with regard to the properties covered
by Ext.P1. On 25.10.2013, the petitioner's father expired. The
petitioner contends that he was not aware of the cancellation
deed. 0.0229 Ares of the property covered by Ext.P1 was acquired
for the development of National Highway 66 under the National
Highways Act. Ext.P5 is the notice issued in July, 2020 to the
petitioner directing him to produce the relevant records regarding
the property along with an encumbrance certificate for the purpose
of claiming the compensation. The petitioner obtained an
encumbrance certificate on 5.8.2020, copy of which is marked as
Ext.P6, which showed the existence of Ext.P3 cancellation deed. It
W.P.(C)No.3809/2021
is in the above circumstances that the petitioner has approached
this Court praying to quash Ext.P11 issued by the 2 nd respondent
to the petitioner stating that there is no power available to cancel
the cancellation deed and that the petitioner has to approach the
civil court under Section 31 of the Specific Relief Act. The
petitioner has also sought direction to respondents 1 to 3 to
revoke Ext.P3 cancellation deed and make necessary entries
regarding the same in their records and issue a fresh encumbrance
certificate without showing the details of the cancellation deed.
The petitioner relies on the judgment of the Hon'ble Supreme
Court in Thotta Ganga Laxmi v. Government of Andra
Pradesh [2011 (3) KLT 345 (SC)] and that of a Division Bench
of this Court in Hamsa P.A. v. District Registrar General,
Kozhikode & Ors. [2011 (3) KHC 342] to submit that Ext.P3
cancellation deed, which has been executed unilaterally by the
vendor of the property is not valid.
2. Heard Sri G.Sudheer, on behalf of the petitioner, Sri
K.Mohanakannan on behalf of the 7th respondent and
Smt.C.S.Sheeja, on behalf of the official respondents.
3. The law regarding cancellation deeds executed
unilaterally is no longer res integra. A learned Single Judge of this
Court considered the issue in the judgment in Pavakkal Noble
W.P.(C)No.3809/2021
John v. State of Kerala & Ors. reported in [2010 3 KLT 941]
and held that such unilateral cancellation is impermissible. The
judgment in Noble John (supra) was carried in appeal before a
Division Bench. While the appeal was pending, the issue again
came up before another Division Bench of this Court and in the
decision in Hamsa P.A. v. District Registrar General,
Kozhikode & Ors. [2011 (3) KHC 342], the Division Bench
categorically held that the cancellation deed executed in such a
manner is a meaningless transaction and void and non est. The
Division Bench had relied on the judgment of the Apex Court in
Thotta Ganga Laxmi v. Government of Andra Pradesh [2011
(3) KLT 345 (SC)]. At the time when the Division Bench
rendered the judgment in Hamsa (supra), apparently, the
decision of the Hon'ble Supreme Court had not been reported. The
judgment of the Supreme Court in Thotta Ganga Laxmi (supra)
was rendered in a case that arose from the State of Andhra
Pradesh and was challenging a Full Bench judgment of the High
Court of Andhra Pradesh. The Supreme Court categorically held
that after having executed a registered document transferring
property in favour of another person, the same cannot be
cancelled unilaterally and such transaction is a meaningless
transaction and void and non est. The appeal filed against the
W.P.(C)No.3809/2021
judgment in Noble John (supra) came up for consideration much
later, before a Division Bench of this Court, and in the judgment in
Santhosh Antonio S.Netto v. Joshy Thomas & Ors. reported in
[2020 (3) KLT 408], this Court upheld the decision of the
learned Single Judge.
4. In view of the above judgments of the Apex Court and
the Division Bench of this Court, Ext.P3 cancellation deed must be
held to be non est and void and a meaningless transaction, since it
is without the junction of the person in whose favour the property
was transferred as per Ext.P2. The petitioner is entitled to the
relief prayed for. Ext.P11 is set aside. Ext.P3 cancellation deed is
declared to be void and non est in law and not liable to be acted
upon. Respondents 1 to 3 are directed to revoke the registration
of Ext.P3 cancellation deed and make necessary entries in the
records and issue a fresh encumbrance certificate to the petitioner
without showing the details of the registration of Ext.P3
cancellation deed. Necessary orders shall be issued within one
month from the date of receipt of a copy of this judgment.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.3809/2021
APPENDIX OF WP(C) 3809/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF SETTLEMENT DEED NO.1283/2007
DATED 21.4.2007 OF KOLLAM SUB REGISTRY
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED
24.11.2007
EXHIBIT P2A TRUE COPY OF THE TAX RECEIPT DATED
12.02.2016
EXHIBIT P2B TRUE COPY OF THE TAX RECEIPT DATED
21.07.2020
EXHIBIT P3 TRUE COPY OF THE CANCELLATION DEED NO.941/12
OF KOLLAM SUB REGISTRY EXECUTED BY LATE
ABDUL KHADER KUNJU
EXHIBIT P4 TRUE COPY OF THE DEATH CERTIFICATE OF LATE
ABDUL KHADER KUNJU
EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE
NATIONAL HIGHWAY, SPECIAL DEPUTY COLLECTOR,
KOLLAM DATED NIL
EXHIBIT P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO
4303/20 ISSUED ON 5.8.2020 BY THE
REGISTRATION DEPARTMENT KOTTAYAM
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC
NO.1902/2019 DATED 18.6.2020 OF THIS
HONOURABLE COURT
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO.22743 OF
2020 DATED 5.11.2020 OF THIS HON'BLE COURT
EXHIBIT P9 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P10 TRUE COPY OF THE DIRECTION ISSUED BY 1ST
RESPONDENT TO 2ND RESPONDENT DATED 14.9.2020
EXHIBIT P11 TRUE COPY OF THE ORDER NOM-3-2585/20 DATED
01.01.2021 ISSUED BY 2ND RESPONDENT
RESPONDENT EXHIBITS
Exhibit R7 (A) TRUE COPY OF THE POWER OF ATTORNEY EXECUTED
BY LATE ABDUL KHADAR KUNJ IN FAVOUR OF THE
7TH RESPONDENT DATED 11/12/2012
