Madras High Court
Mrs.Sarojini Sakuntala vs The Inspector General Of ... on 4 July, 2023
W.P.No.32481 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.32481 of 2017
1.Mrs.Sarojini Sakuntala
2.Mr.Antony Jeba Singh ... Petitioners
Vs.
1.The Inspector General of Registration,
Santhome,
Chennai.
2.The Sub-Registrar,
Periyanayakanpalayam,
Coimbatore – 641 020.
3.Mr.Y.SiluvaiPitchai ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Declaration, declaring that the registration of the deed of
cancellation of the settlement deed dated 27.12.2010 registered as
Document No.15198/2010 on the file of the 2nd respondent in respect of
property bearing Survey No.152/2 measuring about 4098 sq.ft in
Sri Rangammal Colony, B Block, Kurudampalayam Village, Coimbatore
North Taluk, Coimbatore District is illegal and against the provisions of the
Registration Act, 1908.
Page 1 of 10
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W.P.No.32481 of 2017
For Petitioners : Mr.T.N.Rajagopalan
for M/s.K.S.R.Anirudha (in all W.Ps)
For R1 & R2 : Mr.C.Jayaprakash,
Government Advocate
For R3 : Mr.A.Sivaji
ORDER
The writ on hand has been instituted for declaration of the registration
of the deed of cancellation of the settlement deed dated 27.12.2010
registered as Document No.15198/2010 on the file of the 2nd respondent as
null and void.
2. The petitioner states that the 3rd respondent is her husband, who in
turn settled the subject property in her name through settlement deed. On
account of a family dispute, after a lapse of about one year, the writ
petitioner has approached the Court seeking maintenance and in view of the
same, the 3rd respondent had unilaterally cancelled the settlement deed
dated 27.12.2010 registered as Document No.15198/2010 on the file of the
2nd respondent executed in favour of the writ petitioner.
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W.P.No.32481 of 2017
3. Settlement deed cannot be cancelled unilaterally in view of
the principles laid down in the Hon'ble Full Bench of this Court in the
case of Latif Estate Line India Ltd. -vs- Hadeeja Amma reported in
[(2011) 2 CTC 1] as follows:-
“ 48. Section 54 of the Transfer of Property Act defined the
word “Sale”, which means transfer of ownership by one
person to another. In other words, sale is transfer of all
rights, title and interest in the properties which are possessed
by the transferor to another person namely, the purchaser. In
case of transfer by way of sale, the transferor cannot retain
any part of his interest or right in that property. Such transfer
of ownership must be for a price paid or promised or part-
paid and part-promised. Even if the whole price is not paid,
but the document is executed and registered, the sale would
be complete. The transfer is complete and effective upon the
completion of the registration of the Sale Deed. Once the
vendor is divested himself of his ownership of the property,
then he retains no control or right over the said property.
....
54. There is no provision in the Transfer of Property Act or in
the Registration Act, which deals with the cancellation of
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W.P.No.32481 of 2017
Deed of Sale. The reason according to us is that the execution
of a Deed of Cancellation by the vendor does not create,
assign, limit or extinguish any right, title or interest in the
immovable property and the same has no effect in the eye of
law. A provision relating to the cancellation of a document is
provided in Section 31 of the Specific Relief Act, 1963 (Old
Section 39). Section 31 reads as under:
“31. When cancellation may be ordered.—
(1) Any person against whom a written
instrument is void or voidable, and who has
reasonable apprehension that such instrument, if
left outstanding, may cause him serious injury,
may sue to have it adjudged void or voidable,
and the Court may, in its discretion, so adjudge
it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under
the Indian Registration Act, 1908 (16 of 1908),
the Court shall also send a copy of its decree to
the officer in whose office the instrument has
been so registered; and such officer shall note
on the copy of the instrument contained in his
books the fact of its cancellation.”
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W.P.No.32481 of 2017
55. From the reading of the aforesaid provision, it is
manifest that three conditions are requisite for the exercise
of jurisdiction to cancel an instrument i.e.,
(1) An instrument is avoidable against the
Plaintiff;
(2) The Plaintiff may reasonably apprehend
serious injury by the instrument being left or
outstanding; and
(3) In the circumstances of the case, the Court
considers it proper to grant this relief of
preventive justice.
56. A Full Bench of the Madras High Court in the case of
Muppudathi Pillai v. Krishnaswami Pillai, 1959 (2) MLJ
225 : AIR 1960 Madras 1, elaborately discussed the
provision of Section 39 (New Section 31) and held:
“12. The principle is that such document though not
necessary to be set aside may, if left outstanding, be a
source of potential mischief. The jurisdiction under
Section 39 is, therefore, a protective or a preventive
one. It is not confined to a case of fraud, mistake, undue
influence, etc. and as it has been stated it was to prevent
a document to remain as a menace and danger to the
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W.P.No.32481 of 2017
party against whom under different circumstances it
might have operated. A party against whom a claim
under a document might be made is not bound to wait
till the document is used against him. If that were so he
might be in a disadvantageous position if the impugned
document is sought to be used after the evidence
attending its execution has disappeared. Section 39
embodies the principle by which he is allowed to
anticipate the danger and institute a suit to cancel the
document and to deliver it up to him. The principle of
the relief is the same as in quia timet actions.”
57. There is no dispute that a third party can claim title to the
property against the purchaser who purchased the property
for valuable consideration and came into possession of the
same. But it is the Civil Court of competent jurisdiction to
give such declaration in favour of the third party or a
stranger.
58. It can also not be overlooked or ignored that a unilateral
cancellation of a Sale Deed by registered instrument at the
instance of the vendor only encourages fraud and is against
public policy. But there are circumstances where a Deed of
Cancellation presented by both the vendor and the purchaser
for registration has to be accepted by the Registrar if other
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W.P.No.32481 of 2017
mandatory requirements are complied with. Hence, the
vendor by the unilateral execution of the Cancellation Deed
cannot annul a registered document duly executed by him as
such an act of the vendor is opposed to public policy.
8. The said position has been reiterated by another order of the Hon'ble Full
Bench of this Court in Sasikala -vs- Revenue Divisional Officer reported in
[(2022)7 MLJ 1] and the relevant paragraph are extracted hereunder:-
54. The third step namely the act of registration, is
something that the Registering Authority is called upon to
do statutorily. While the executant of the document and the
person claiming under the document (claimant) are the only
actors involved in the first two steps, the Registering Officer
is the actor in the third step. Apart from the third step
which is wholly in the domain of the Registering Authority,
he may also have a role to play in the second step when a
document is presented for registration and the execution
thereof is admitted. The role that is assigned to the
Registrar in the second step is that of verification of the
identity of the person presenting the document for
registration.
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W.P.No.32481 of 2017
55. Thus, the first two steps in the process of registration
are substantial in nature, with the parties to the document
playing the role of the lead actors and the Registering
Authority playing a guest role in the second step. The third
step is procedural in nature where the Registering Authority
is the lead actor.
...
59. Much ado was sought to be made by contending that the
Appellant approached the High Court without disclosing
the previous orders of the High Court and this Court,
relegating them to civil court for the adjudication of their
claim. Reliance was also placed in this regard on the
decision of this Court in Raj Kumar Soni vs. State of U.P.
(2007) 10 SCC 635.
In view of the legal positions settled in the judgments cited supra, the
unilateral cancellation of settlement deed is liable to be set aside.
Consequently, the cancellation of settlement deed dated 27.12.2010
registered as Document No.15198/2010 on the file of the 2nd respondent is
quashed and the 2nd respondent is directed to make necessary consequential
entries in the registries. The said exercise shall be completed within a period
of 6 weeks from the date of receipt of a copy of this order.
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W.P.No.32481 of 2017
Accordingly, the writ petition stands allowed. No costs.
04.07.2023
skr
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The Inspector General of Registration,
Santhome,
Chennai.
2.The Sub-Registrar,
Periyanayakanpalayam,
Coimbatore – 641 020.
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W.P.No.32481 of 2017
S.M.SUBRAMANIAM, J.
skr
W.P.No.32479 of 2017 etc., batch
04.07.2023
https://www.mhc.tn.gov.in/judis
