Madras High Court
Mrs.Aruna Srikanth vs The Sub-Registrar on 21 September, 2023
W.P.No.21374 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.21374 of 2018
1.Mrs.Aruna Srikanth
2.Mr.Akshay Srikanth
3.Mr.Aakash Srikanth ... Petitioners
Vs.
1.The Sub-Registrar,
Office of the Sub-Registrar,
Adyar.
2.Mr.E.S.Rajabather
3.Mrs.SanthaRajabather ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Declaration to declare that the impugned Deed of
Revocation of Settlement Deed dated 06.07.2015, registered as Document
No.1864 of 2015 and the subsequent Settlement Deed dated 15.07.2015
bearing Document No.1978 of 2015, on the file of the 1 st respondent herein as
null and void and also for a consequential direction to remove the entries in
the Encumbrance register pertaining to the aforesaid transaction.
For Petitioner : M/s.K.F.Manavalan
For R1 : Mr.T.Arunkumar,
Additional Government Pleader
For R2 & R3 : Mr.S.Rajendrakumar
for M/s.Norton & Grant
Page 1 of 10
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W.P.No.21374 of 2018
ORDER
The Writ of declaration has been instituted to declare the deed of
rejection of Settlement Deed dated 06.07.2015 registered as Document
No.1864 of 2015 and the subsequent Settlement Deed dated 15.07.2015
bearing Document No.1978 of 2015, on the file of the 1st respondent and also
to remove the entries in the Encumbrance register pertaining to the aforesaid
transaction.
2. It is not in dispute between the parties that the 2nd respondent had
executed a Settlement Deed in favour of the writ petitioner on 27.11.2009 in
Document No.1944 of 2009 on the file of the SRO, Adayar. The Settlement
Deed executed by the 2nd respondent was unilaterally cancelled by executing
revocation of Settlement Deed on 06.07.2015 in Document No.1864 of 2015.
3. The learned counsel for the petitioner mainly contended that
unilateral cancellation of Settlement Deed is impermissible under the
provisions of the Registration Act and therefore, the registering authority has
erroneously entertained the cancellation of Document and executed the same.
Thus, the Writ Petition is to be considered.
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W.P.No.21374 of 2018
4. The learned counsel appearing on behalf of the respondents 2 and 3
raised an objection by stating that the recitals in the Settlement Deed would
reveal that it is a will and not a settlement.
5. The learned counsel for the petitioner drew the attention of this
Court with reference to the conditions stipulated in the Settlement Deed dated
27.11.2009 so as to form an opinion that the Settlement Deed is to be treated
as a will for all purposes and thus, the power of cancellation remained with
the Executor of the Settlement Deed.
6. May that as it be. Writ Court cannot adjudicate the disputes of civil
nature, more specifically with reference recitals in the Settlement Deed. The
intention of the Executor cannot be gone into writ proceedings, which
requires examination of documents and evidences.
7. This being the basic principles and powers of judicial review under
Article 226 of the Constitution in exercising such nature of complex disputed
facts, there is a possibility of prejudice on the either side of the parties, more
specifically in the matter of civil nature.
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W.P.No.21374 of 2018
8. As far as the cancellation of Settlement Deed is concerned, it is
impermissible under the provisions of the Registration Act. Issues regarding
the unilateral cancellation of settlement deed is no res integra and the Hon'ble
Full Bench of this Court in the case of Latif Estate Line India Ltd. -vs-
HadeejaAmma reported in [(2011) 2 CTC 1] held 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
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
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W.P.No.21374 of 2018
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.”
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
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W.P.No.21374 of 2018
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 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 quiatimet 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
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W.P.No.21374 of 2018
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 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.
9. 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.21374 of 2018
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.
10. In view of judgment cited supra, the impugned order cannot be sustained
and consequently, the deed of revocation of Sale Deed dated 06.07.2015, registered
as Document No.1864 of 2015 and the subsequent Deed dated 15.07.2015 registered
as Document No.1978 of 2015 on the file of the 1st respondent are quashed and the
1st respondent is directed to make necessary entries in the encumbrances within the
period of four (4) weeks from the date of receipt of a copy of this order. If at all any
civil dispute exist between the parties, it is for them to approach the competent Civil
Court of law.
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W.P.No.21374 of 2018
11. Accordingly, the Writ Petition stands allowed. No costs.
21.09.2023
skr
Index : Yes
Speaking order
Neutral Citation : Yes
To
The Sub-Registrar,
Office of the Sub-Registrar,
Adyar.
https://www.mhc.tn.gov.in/judis
W.P.No.21374 of 2018
S.M.SUBRAMANIAM, J.
skr
W.P.No.21374 of 2018
21.09.2023
https://www.mhc.tn.gov.in/judis
