Madras High Court

Mandothari Prasad @ Russia vs The Sub Registrar on 26 August, 2021

                                                                              W.P.No.36218 of 2016


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 26.08.2021

                                                     CORAM

                                   THE HON'BLE Mr. JUSTICE G.K. ILANTHIRAIYAN

                                               W.P.No.36218 of 2016

                     Mandothari Prasad @ Russia              ....       Petitioner
                                                        Vs
                     1. The Sub Registrar,
                     Office of the Sub Registrar,
                     (District Registrar Cadre),
                     Mylapore,
                     Chennai – 600 004.

                     2. Kantha @ K.T. Kanthasoroobi          ....       Respondents

                     PRAYER: Writ Petition filed under Article 226 of the Constitution of
                     India praying to issue a Writ of declaration, declaring that the deed of
                     cancellation of settlement deed executed by the second respondent on
                     07.02.2014 registered as document No.368/2014 on the file of the first
                     respondent by cancelling the settlement deed dated 27.05.2013 executed
                     by the second respondent in favour of the petitioner registered as
                     document No.1647/2013 on the file of the first respondent is null and void
                     and not binding on the petitioner over the property situate in old door
                     No.36 later No.7 and now New No.13, 3rd Main Road, Raja
                     Annamalaipuram, Chennai 600 028 with RS.No.3968/80 part Block
                     No.88, Mylapore Division, more fully described in the B Schedule in the


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                                                                                 W.P.No.36218 of 2016


                     settlement deed to an extent of 2613 sq.ft. along with built up house.
                                     For Petitioner    :     Mr.S.Balasubramanian
                                     For R1            :     Mr.Richardson Wilson
                                                             Government Advocate
                                     For R2            :     Mr.S.Kumara Devan

                                                      ORDER

This Writ Petition has been filed to issue a Writ of declaration,

declaring that the deed of cancellation of settlement deed executed by the

second respondent on 07.02.2014 registered as document No.368/2014 on

the file of the first respondent by cancelling the settlement deed dated

27.05.2013 executed by the second respondent in favour of the petitioner

registered as document No.1647/2013 on the file of the first respondent is

null and void and not binding on the petitioner over the property situated in

old door No.36 later No.7 and now New No.13, 3rd Main Road, Raja

Annamalaipuram, Chennai 600 028 with RS.No.3968/80 part Block

No.88, Mylapore Division, more fully described in the B Schedule in the

settlement deed to an extent of 2613 sq.ft. along with built up house.

2. Heard, Mr.S.Balasubramanian, the learned counsel appearing for

the petitioner and Mr.Richardson Wilson, Government Advocate appearing

for the first respondent and Mr.S.Kumara Devan, learned counsel

appearing for the second respondent.

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3. The petitioner's mother and the second respondent herein

purchased the property comprised in RS.No.3968/80 to an extent of 4408

sq.ft. from Raja Annamalai Housing Co-operative Society. Thereafter, the

second respondent has constructed a superstructure in the said plot with

the help of the petitioner. The petitioner was living with them. Therefore,

her mother executed a settlement deed dated 27.05.2013 settling a portion

of the property in favour of the petitioner vide document No.1647/2013.

In fact, her father was one of the witnesses in the settlement deed, which

was executed by her mother in favour of the petitioner.

4. After the demise of the petitioner's father on 05.01.2014, there

was a dispute between the family members and her mother executed a

cancellation deed dated 07.02.2014 registered vide document

No.368/2014 with the office of the first respondent unilaterally. The

unilateral cancellation of the settlement deed has been deprecated in

various several judgments. It is relevant to extract the relevant portion of

the order of this Court in W.P.No.19483 of 2018 dated 11.01.2019

hereunder:

“5. It is relevant to note that a Full Bench of this

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Court in Latif Estate Line India Ltd., Vs. Hadeeja Ammal, 2011 (2) CTC 1, held that the unilateral cancellation of a deed cannot be done. The Inspector General of Registration, Chennai, has also issued a circular very recently in proceedings No.52666/C1/2018, dated 29.11.2018, wherein, considering all the judicial pronouncements on these aspects instructed that unilateral cancellation of such settlement deed without consent of Settlee is against the public policy declared in Section 126 of the Transfer of Property Act, 1882. This circular further states that in view of the legal position, it was classified that any settlement deed, which is sought to be unilaterally cancelled by the settlor is presented for registration, registering officers shall not accept such unilateral cancellation deeds for registration and check slip shall be issued in this regard.

6. When the Settlement Deed is unconditional and irrevocable, the unilateral cancellation is being opposed to the public policy. In the event, the executant of the Settlement Deed is aggrieved by the same for having executed under coercion or undue influence, it is for him or her to approach the Civil Court to set aside the same and cannot unilaterally cancel it by way of deed of cancellation.

7. A Deed of cancellation of a Settlement Deed unilaterally executed by the transferor does not create assign, limit or extinguish any right, title or interest in the

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property, which has already been transferred. Therefore, the second respondent also ought not to have entertained the registration of the Cancellation Deed. Immediately after the Settlement Deed is executed, the settlee/transferee becomes the absolute owner, as the property vests with the settlee and the same cannot be divested by the Cancellation Deed, even with the consent of the parties. Perhaps, the proper way to re-convey the property is by way of a deed of conveyance by the transferee in favour of the transferor. Any such transfer by way of sale or settlement deed can be cancelled at the instance of the transferor only taking re-course to the Civil Court.

8. Learned Special Government Pleader appearing for the respondents also conceded that if it is an unilateral cancellation of the Settlement Deed, the registration of the same should be deprecated.”

5. In view of the above discussion, the deed of cancellation of

settlement deed executed by the second respondent on 07.02.2014

registered as document No.368/2014 on the file of the first respondent by

cancelling the settlement deed dated 27.05.2013 executed by the second

respondent in favour of the petitioner registered as document

No.1647/2013 on the file of the first respondent is declared as null and

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void and not binding on the petitioner over the property situated in old

door No.36 later No.7 and now New No.13, 3rd Main Road, Raja

Annamalaipuram, Chennai 600 028 with RS.No.3968/80 part Block

No.88, Mylapore Division, more fully described in the B Schedule in the

settlement deed to an extent of 2613 sq.ft. along with built up house.