Madras High Court

T.Sridevi vs The Inspector General Of ... on 4 July, 2023

                                                                                  W.P.No.28092 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.28092 of 2017
                                                        and
                                               W.M.P.No.30182 of 2017

                     T.Sridevi                                                ... Petitioner

                                                          Vs.

                     1.The Inspector General of Registration,
                       100, Santhome High Road,
                       Chennai – 600 004.

                     2.The Sub Registrar,
                       SRO, Joint No. II,
                       Chengalpet.

                     3.Mr.T.Chandrasekar

                     4.T.Karthick Minor (aged 4 years)
                       Represented by Father / Natural Guardian
                       T.Chandrasekar                                         ... Respondents


                     Prayer: Writ Petition filed under Article 226 of the Constitution of India for
                     issuance of a Writ of Mandamus, directing the 2nd respondent to cancel the
                     deeds of cancellation of Settlement Deeds executed by 3rd respondent
                     registered as Document Nos: 1) Deed of Revocation of Settlement Deed in
                     Document No.12204/2016 dated 20.12.2016 2) Deed of Revocation of

                     Page 1 of 12

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                                                                                  W.P.No.28092 of 2017

                     Settlement Deed in Document No.1613/2017 dated 29.12.2016 and
                     subsequent 3) Settlement Deed in Document No.12333/2016 dated
                     23.12.2016 4) Settlement Deed in Document No.3099/2017 dated 08.03.2017
                     and not binding upon the petitioner's possession over the property at Plot No.
                     D-9/2, in CMDA Industrial Complex at Maraimalai Nagar, comprised in
                     Survey No.166, 167, 168/part situated at Kilkaranai Village, Chengelpet
                     Taluk, Kancheepuram District measuring total an extent of 9.6 Grounds on
                     the file of the 2nd respondent viz., SRO. Joint No.II, Chengelpet,
                     consequently, direct the 2nd respondent to incorporate the same in the
                     Encumbrance Certificate.

                                       For Petitioner        : Mr.A.G.Abhishiek
                                                               For Mrs.N.Sri Kaviya

                                       For R1 & R2           : Mr.E.Sundaram
                                                               Government Advocate

                                                        ORDER

The writ of mandamus has been instituted to direct the second

respondent to cancel the deed of cancellation of settlement deed executed by

the third respondent registered as Document Nos: 1) Deed of Revocation of

Settlement Deed in Document No.12204/2016 dated 20.12.2016 2) Deed of

Revocation of Settlement Deed in Document No.1613/2017 dated 29.12.2016

and subsequent 3) Settlement Deed in Document No.12333/2016 dated

23.12.2016 4) Settlement Deed in Document No.3099/2017 dated 08.03.2017

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and not binding upon the petitioner's possession over the property at Plot No.

D-9/2, in CMDA Industrial Complex at Maraimalai Nagar, comprised in

Survey No.166, 167, 168/part situated at Kilkaranai Village, Chengelpet

Taluk, Kancheepuram District measuring total an extent of 9.6 Grounds on

the file of the 2nd respondent viz., SRO. Joint No.II, Chengelpet,

consequently, direct the 2nd respondent to incorporate the same in the

Encumbrance Certificate.

2. The petitioner states that she is the absolute owner of the property

described in the present writ petition. The third respondent is the husband of

the writ petitioner, who deserted the petitioner. The petitioner states that the

third respondent has been living in adultery with one Ganga and there is an

illegitimate child namely Karthik / fourth respondent.

3. The petitioner states that during the matrimonial life the third

respondent her husband looted and cheated her wealths and valuable

properties worth crores of rupees. She filed a Divorce Petition in

H.M.O.P.No.27 of 2016. A Criminal Case was also registered against him in

Crime No.202 of 2016 on the file of the Kelambakkam Police Station and a

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final report was filed in C.C.No.10 of 2017. The third respondent unilaterally

executed two cancellation deeds cancelling the settlement deeds executed in

favour of the writ petitioner. Since the cancellation was made unilateral, the

petitioner has chosen to file the present writ petition.

4. Unilateral cancellation of settlement deed is impermissible and the

issues in this regard are no more res integra and as settled by the Full Bench

of this Court in the case of Latif Estate Line India and Others vs. Hadeeja

Ammal and Others reported in 2011 (2) CTC 1, and the relevant paragraphs

are extracted hereunder:

“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,

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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 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 void able, and who has reasonable apprehension that such instrument, if left out standing, may cause him serious injury, may sue to have it adjudged void or

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void able, 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.

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 ie., (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.

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56. A Full Bench of the Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai MANU/TN/0455/1959 : AIR 1960 Mad 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 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

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inquiatimet 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 favor 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 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.”

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5. The legal position was further confirmed by the subsequent Full

Bench Judgment in the case of Sasikala vs. The Revenue Divisional

Officer, cum Sub Collector, Devakottai and Others reported in (2022) 7

MLJ 1. The relevant paragraphs are extracted here under:

“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.

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

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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.”

6. In view of the judgments (cited supra), the unilateral cancellation of

settlement deed executed in favour of the petitioner is liable to be set aside.

Accordingly, the second respondent is directed to cancel the deed of

cancellation of settlement deed executed by the third respondent registered as

Document Nos: 1) Deed of Revocation of Settlement Deed in Document

No.12204/2016 dated 20.12.2016 2) Deed of Revocation of Settlement Deed

in Document No.1613/2017 dated 29.12.2016 and subsequent 3) Settlement

Deed in Document No.12333/2016 dated 23.12.2016 4) Settlement Deed in

Document No.3099/2017 dated 08.03.2017.

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7. The second respondent is directed to complete the said exercise

within a period of six (6) weeks from the date of receipt of a copy of this