Madras High Court
V.Dhanavendan vs The Inspector General Of ... on 21 July, 2023
W.P.No.31424 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.07.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.31424 of 2022
V.Dhanavendan ... Petitioner
Vs.
1.The Inspector General of Registration,
O/o. Inspector General of Registration,
Chennai.
2.The District Registrar,
O/o. District Registrar,
Salem District.
3.The Sub-Registrar,
O/o. Sub-Registrar,
Mettur.
4.Senbagavalli ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the unilateral cancellation deed 609/2015 dated 09.04.2015 on
the file of the third respondent and quash the same and direct the respondents
to remove all the entries in the encumbrance in the property situated in
S.No.749/2, Konur East Village, Mettur Sub-Registration, Salem District.
Page 1 of 11
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W.P.No.31424 of 2022
For Petitioner : Mr.A.Esakkipandy
For Respondents 1 to 3 : Mr.G.KrishnanRaja
Additional Government Pleader
For Respondent 4 : Not Ready in notice.
ORDER
The writ on hand has been instituted questioning the validity of
unilateral cancellation of settlement deed vide document No.609/2015 dated
09.04.2015.
2. The petitioner states that the grandmother of the petitioner executed
the settlement deed in favour of the writ petitioner and his brother on
10.06.2013. The said settlement Deed was registered as document
No.962/2013 before the third respondent. However, the grandmother of the
petitioner subsequently, cancelled the settlement deed unilaterally. The
petitioner is in possession and enjoyment of the property.
3. The learned counsel appearing on behalf of the writ petitioner states
that the grandmother of the petitioner is also no more.
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W.P.No.31424 of 2022
4. Since the cancellation deed was executed unilaterally, the same is
liable to be set aside, in view of the judgment of the Hon'ble 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,
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.
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W.P.No.31424 of 2022
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
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
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W.P.No.31424 of 2022
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.
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:
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W.P.No.31424 of 2022
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
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
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W.P.No.31424 of 2022
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.”
5. Another Full Bench of this Court in the case of Sasikala vs. The
Revenue Divisional Officer, cum Sub Collector, Devakottai and Others
reiterated the said principles. The said Full Bench judgment is reported in
(2022) 7 MLJ 1. The relevant paragraphs 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
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W.P.No.31424 of 2022
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
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
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W.P.No.31424 of 2022
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 principles laid down by two different Full Benches of
this Court, the impugned unilateral cancellation deed is liable to be set aside.
Accordingly, the cancellation deed registered as document No.609/2015
dated 09.04.2015 is quashed and the respondents are directed to make
necessary entries in the encumbrance by following the procedures
contemplated.
7. Accordingly, the writ petition stands allowed. No costs.
21.07.2023
nl
Index : Yes
Speaking order
Neutral Citation : Yes
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W.P.No.31424 of 2022
To
1.The Inspector General of Registration,
O/o. Inspector General of Registration,
Chennai.
2.The District Registrar,
O/o. District Registrar,
Salem District.
3.The Sub-Registrar,
O/o. Sub-Registrar,
Mettur.
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W.P.No.31424 of 2022
S.M.SUBRAMANIAM, J.
nl
W.P.No.31424 of 2022
21.07.2023
https://www.mhc.tn.gov.in/judis
