Madras High Court
A.Purushothaman vs The Sub-Registrar on 30 March, 2022
WP NO.29050 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2022
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
WP NO.29050 OF 2014
AND MP NO.2 OF 2014
A.Purushothaman ... Petitioner
Vs.
1.The Sub-Registrar
O/o. The Sub-Registrar
Parangipettai - 608 502.
2.A.Arumugam ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari, to call for the records relating to
Deed of Cancellation of Settlement Deed with regard to an extent of 3 acres
33 cents in Re-survey Nos.121/1A, 121/2 and 144/4 in Document No.2548 of
2013 dated 11.10.2013 executed by the second respondent on the file of the
first respondent, to quash the same.
For Petitioner : Mr.L.Chandrakumar
For Respondent-1 : Ms.Senthil Selvi
Government Advocate
1/12
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
ORDER
Aggrieved over the cancellation of Settlement Deed dated
11.10.2013 registered as Document No.2548/2013, on the file of the first
respondent, the petitioner has preferred the present writ petition.
2.The second respondent executed a Settlement Deed dated
02.03.1994 vide Document No.161/1994 in favour of the petitioner, who is
his son and put him possession of the property in the schedule. Later, he
cancelled the Settlement Deed by way of Cancellation of Settlement Deed
dated 11.10.2013, vide Document No.2548 of 2013, which was registered at
the office of the first respondent. The only reason given by the second
respondent for cancellation of Settlement Deed reads as under:
"..... me;j jhdbrl;oy;bkz;L gj;jpu
brhj;Jk; vdJ trnk cs;sJ. gl;lht[k; vdJ
bgahpnyna cs;sJ. nkYk; ,jdoapy; fz;l
brhj;ij vdJ Fkhuh; vdf;F jw;fhyk;
rtur;ridfy; bra;atpy;iy Mifahy; ,dp
nkw;fz;l jhdbrl;oy;bkz;L gj;jpuk; njit
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
,y;iy vd;W ehd; fUjp nkw;go Mtzj;ij
,jd; \yk; uj;J bra;Jtpl;nld;. ,d;W Kjy;
nkw;fz;l jhdbrl;oy;bkz;L gj;jpuk;
bry;yj;jf;fjy;y. ,e;jgo ehd; rk;kjpj;J
vGjpitj;j jhdbrl;oy;bkz;L uj;J gj;jpuk;"
3.According to the petitioner, registered Settlement Deed cannot
be cancelled in view of the requirements that there must be execution of a
registered settlement deed; acceptance of settlement deed and delivery of the
property. Further, as per Section 126 of the Transfer of Property Act, 1882,
the settlor and settlee must have agreed that the settlement shall be suspended
or revoked on the happening of a specified event, such event must be one
which does not depend upon the settlor's will, the settlor and settlee must
have agreed to the condition at the time accepting the gift and the condition
should not be illegal or immoral and should not be repugnant to the estate
created under the gift. Further, registration of the Cancellation of Settlement
Deed is per se illegal and void ab initio.
4.The learned counsel for the petitioner relied on a judgment of
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
the Kerala High Court in SUBHASHINI VS. DISTRICT COLLECTOR
AND OTHERS [2020 (5) KLT 533] wherein it is observed as under:
"52.We also notice from the facts of the present case
that the property settled on the son is the share of the
mother which lies contiguous to the share obtained by that
son. The residential building was constructed therein by
availing loans from Banks as revealed from the records and
admitted by the mother in her complaint. In the above
circumstances, the mother can only claim for a right to reside
in the building which has been reserved in her favour, in the
settlement deed. The ownership of the residential building
would not be transferred to her even if the deed is declared
void. We refer to Bishan Das v. State of Punjab [AIR 1961
SC 1570], a Constitution Bench of the Hon'ble Supreme
Court, and refer to an extract from paragraph 11:
"It is by now well settled that the
maxim, what is annexed to the soil goes with
the soil, has not been accepted as an absolute
rule of law of this country; see Thakoor
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
Chunder Parmanick v. Ramdhone
Bhuttacharjee, 6 South WR 228, Beni Ram v.
Kundan Lall, 26 Ind App 58, and Narayan
Das v. Jatindranath, 54 Ind App 218 (AIR
1927 PC 135). These decisions show that a
person who bona fide puts up constructions on
land belonging to others with their permission
would not be a trespasser, nor would the
buildings so constructed vest in the owner of
the land by the application of the maxim
quicquid plantatur solo, solo cedit".
53.These are instances, where a Court of law and also
of equity would exercise its jurisdiction to bring out a
resolution of the disputes raised; which, however, the
Tribunal constituted under Section 7 of the Act of 2007
cannot do. The Tribunal constituted under the Act of 2007,
under Section 23(1) can only declare void the transfer, at the
option of the transferor. As we noticed earlier, it cannot
even order recovery of possession of the subject property, for
which again the transferor will have to approach the Civil
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
Court. On the aspect of option, a disturbing issue arises from
sub-section (3) of Section 23, which we extracted herein
above. Any organisation referred to in the Explanation to
sub-section (1) of Section 5 is entitled to approach the
Tribunal under sub-section (1) of Section 23. Section 5 has
been made specifically for the purposes of maintenance.
When it stands extended to Section 23(1), there arises the
question as to who would exercise the option for
cancellation especially if the senior citizen is not in a
position to express such will by reason of old age or
otherwise.
54.One other aspect is that the option if exercised,
cannot be withdrawn and if the senior citizen expires
immediately after the declaration by the Tribunal, the
property would revert as the estate of the deceased and every
legal heir acquires a right to inherit. We specifically notice
the Division Bench judgment of this court in Antony Scaria
& Anr. v. District Collector & Ors. [2020 (3) KLT 183],
wherein before the death of the transferor there was no
declaration made by the Tribunal. The writ petition was
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
filed by the transferor against the refusal of the Tribunal
and the appellate authority to invoke its jurisdiction
under Section 23(1). Pending writ petition, the transferor
died when the other legal heirs sought to continue the
proceedings. It was held that the right to approach the
Maintenance Tribunal is in the personal capacity of the
senior citizen and not a heritable right under common law.
The situation would be quite different if in the life time of
the senior citizen the declaration is made by the Tribunal.
On his death the property devolves on the legal heirs.
55.Sunny Paul a decision of the Delhi High Court
was also placed before us by the learned Counsel
appearing for the appellant. In Sunny Paul, the Tribunal is
seen to have issued direction to the sons to vacate the
household and handover the household articles back to the
petitioner/parents and the SHO of the jurisdictional police
station was directed to enforce, enforcement/compliance of
the directions. There the said directions were issued in view
of the specific provisions available under the rules framed
under the Act of 2007. For eviction of a son or a daughter or
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
legal heir from a self acquired property, there is no such
provision available in the Rules framed for the State of
Kerala."
5.It is well settled that in order to cancel the Settlement Deed,
the parties have to approach the competent Civil Court. The Sub Registrar
has no power or authority to register the Cancellation of Settlement Deed
which is unconditional and irrevocable.
6.Further, the instructions given by the Inspector General of
Registration to the Sub Registrars, makes it very clear that the Sub Registrar
has no power to set aside or venture into the validity of the title unless fraud
is proved. This position has already been explained by the Full Bench of this
Court in LATIF ESTATE LINE INDIA LIMITED VS. HADEEJA
AMMAL [2011 (2) CTC 1].
7.Relying on a Full Bench judgment of this Court in Latif
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
Estate's case (cited supra) this Court in NAMBIKKAI MARY VS. THE
SUB-REGISTRAR-II, SUB-REGISTRAR OFFICE, PATTUKOTTAI
[2015 (7) MLJ 10] has observed as under:
"......11. In the light of the dictum laid down by the
Full Bench of this Court, I am of the considered view that
the deed of cancellation of settlement dated 01.02.2013,
which has been alleged to have unilaterally executed by the
second respondent, does not create, assign, limit or
extinguish any right, title or interest in the property and is
of no effect and accordingly, it does not create any
encumbrance in the property already transferred and
therefore, it could not be accepted for registration. However,
in the case on hand, the first respondent has registered the
said cancellation deed, on the ground that there is no
provisions in the Registration Act to reject or refuse to
register any document. Even then, it has no force in law, in
view of the above said decision of the Full Bench of this
Court.
12.Therefore, this writ petition stands disposed of,
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
holding that the impugned unilateral cancellation of
settlement deed, dated 01.02.2013, in Document
No.137/2013, registered with the first respondent, is bad in
law. However, it is open to the second respondent to work
out his remedy before the competent Civil Court regarding
the cancellation of the settlement deed dated 11.01.2013
and till such a decree is passed by the Civil Court, the second
respondent shall not press into service the alleged deed of
cancellation of settlement dated 01.02.2013, as it has no
force in law....."
8. In view of the above legal position, the Deed of Cancellation
of Settlement Deed dated 11.10.2013 registered as Document No.2548/2013
on the file of the Sub Registrar, Sub Registrar Office, Parangipettai, stands
set aside. However, liberty is granted to the second respondent to work out
his remedy in the manner known to law. The period spent on by the writ
petitioner will stand excluded under Section 14 of the Limitation Act, 1963.
9.The writ petition is disposed of accordingly. No costs.
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
Consequently, connected miscellaneous petition is closed.
30.03.2022
(2/2)
Index : Yes/No
Internet : Yes/No
TK
To
The Sub-Registrar
O/o. The Sub-Registrar
Parangipettai - 608 502.
https://www.mhc.tn.gov.in/judis
WP NO.29050 OF 2014
M.GOVINDARAJ, J.
TK
WP NO.29050 OF 2014
30.03.2022
(2/2)
https://www.mhc.tn.gov.in/judis
