Madras High Court
B.R.Premavani vs The Sub Registrar on 1 August, 2024
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
WP.No.16869 of 2023
IN THE HIG H COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2024
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
W.P.No.16869 of 2023
B.R.Premavani .. Petitioner
Versus
1. The Sub Registrar,
Sub Registrar Office, Kadathu, Dharmapuri District.
2. Raniammal
3. Inbaraja
4. Rajeshwari
5. Ganeshraja .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the
cancellation of Settlement Deed dated 29.03.1994 in Document No. 244 of 1994
on the file of the 1st respondent and quash the same as illegal and incompetent
and ultravires and consequently direct the first respondent to remove the above
mentioned entry from the Encumbrance Certificate.
For Petitioner : Mr.R.Jayaprakash
For Respondent : Mr.B.Vijay
Additional Government Pleader – R1
R2 to R5 – No appearance
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With the consent of both sides, this Writ Petition is taken up for final
disposal at the admission stage itself.
2. Challenging the impugned refusal slip issued by the respondent
dated 05.07.2024 refusing to register the settlement deed presented by the
petitioner for registration, the present Writ Petition has been filed.
3. Heard learned counsel for the petitioner and the learned Additional
Government Pleader appearing for the first respondent and perused the materials
available on record. Despite notice to the respondents 2 to 5, none appeared for
the respondents.
4. The case of the petitioner is that the subject property was originally
owned by her husband's grand father Sithamalai Gounder and he settled the
property in favour of the petitioner's father-in-law. The petitioner's father-in-law
has filed a suit in O.S.No.92 of 2004 against the one Sethuraman and his legal
heirs for declaration and permanent injunction and the suit was decreed exparte
in favour of her father-in-law and the application filed by respondents 2 to 5 for
setting aside the exparte decree has been dismissed for default on 27.04.2022.
After the demise of the petitioner's father-in-law, the husband of the petitioner is
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in absolute possession and enjoyment of the property and patta has also been
issued in his name. The husband of the petitioner subsequently, settled the
property in favour of the petitioner by a registered settlement deed dated
18.09.2013 and the patta and the revenue records have also been mutated in the
name of the petitioner. While so, the said Sithamalai Gounder, without issuing
any notice to the petitioner's father-in-law, unilaterally cancelled the settlement
deed executed in favour of her husband by way of registered cancellation of
settlement deed dated 29.03.1994. Challenging the same the present Writ
Petition.
5. Counter has been filed by the official respondent, wherein his main
contention is that this Writ Petition has been filed with enormous delay and the
petitioner ought to have approached the Civil Court and at this stage the
authorities have no power to cancel the document.
6. Though there is huge delay in coming before this Court, the fact
remains that based on the settlement deed executed by his father, the petitioner's
father-in-law, Subramaniam filed a suit in O.S.No.92 of 20024 before the District
Munsif Court, Harur, against his own brother and the suit has been decreed in
favour of the petitioner and that has also reached finality. Thereafter, the property
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is in continued in possession of the said Subramaniam, who in turn executed a
settlement deed in favour of his son. In the meanwhile, in the year 1994, the
document has been cancelled by the original settlor. Though there is a huge delay
in coming to the Court, the fact remains that the settlement deed indicate that the
absolute right has been settled in favour settlee. The conduct of filing suit for
declaration clearly indicate that he is asserting right only on the basis of the
settlement deed. Now the said settlement deed has been unilaterally cancelled.
7. Once, a settlement deed is executed and transfer of title is immediate
and the title passes. Unless the right of revocation is reserved in the settlement
deed, the settlement deed cannot be unilaterally cancelled. Only exception is
Tamilnadu Welfare and Maintenance of Parents and Senior Citizens Act. Therein
also, when the settlement is executed only for the purpose of maintaining the
senior citizens and the same is not acted upon. Such a document can be
cancelled. In such view of the matter, this Court is of the view that unilateral
cancellation of the settlement by executing a cancellation of settlement deed is not
permissible under law. Further, the Full Bench of this court in a decision in
Sasikala vs. Revenue Divisional Officer cum Sub Collector and another made
in W.P.(MD).Nos.6889 of 2020 etc., batch cases dated 02.09.2022 has held as
follows :
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“44. From the discussions and conclusions we have
reached above with reference to various provisions of Statutes and
precedents, we reiterate the dictum of Hon'ble Supreme Court in
Thota Ganga Laxmi and Ors.-vsGovernment of Andhra Pradesh &
Ors., reported in (2010) 15 SCC 207 and the Full Bench of this Court
in Latif Estate Line India Ltd., case, reported in AIR 2011(Mad) 66
and inclined to follow the judgment of three member Bench of
Hon'ble Supreme Court in Veena Singh's case reported in (2022) 7
SCC 1 and the judgment of two member Bench of Hon'ble Supreme
Court in Asset Reconstruction Company (India) Ltd., case, reported
in 2022 SCC On-line SC 544 for the following propositions:
(a) A sale deed or a deed of conveyance other than
testamentary dispositions which is executed and registered cannot be
unilaterally cancelled.
(b) Such unilateral cancellation of sale deed or a deed of
conveyance is wholly void and non est and does not operate to
execute, assign, limit or extinguish any right, title or interest in the
property.
(c) Such unilateral cancellation of sale deed or deed of
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conveyance cannot be accepted for registration.
(d) The transferee or any one claiming under him or her
need not approach the civil Court and a Writ Petition is maintainable
to challenge or nullify the registration.
(e) However, an absolute deed of sale or deed of
conveyance which is duly executed by the transferor may be
cancelled by the Civil Court at the instance of transferor as
contemplated under Section 31 of Specific Relief Act.
(f) As regards gift or settlement deed, a deed of revocation
or cancellation is permissible only in a case which fall under Section
126 of Transfer of Property Act, and the Registering Authority can
accept the deed of cancellation of gift for registration subject to the
conditions specified in para 42 of this judgment.
(g)The legal principles above stated by us cannot be
applied to cancellation of Wills or power of Attorney deed which are
revocable and not coupled with interest.”
8. As far as the issue of delay in coming to the Court is concerned, the
Division Bench of this Court by an Order dated 24.01.2020 in W.A.No.108 of
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2020 [Kanniyan and another Vs. Mrs.Saranya and 5 others] has held as follows :
“We may clarify that an otherwise void document, as
held by the Full Bench, cannot rejuvenate or survive any lapse of
time and would not improve the situation any further, in as much
as the document is non-est in the eyes of law. The order of the
learned Single Judge dated 10.08.2018 is simply a declaration to
that effect, taking into account the law propounded by the Full
Bench, which in no way defeats the rights of the appellants to
contest the original settlement deed dated 25.02.2008. We say this
for the reason that the learned counsel for the appellants is right in
his submission that the declaration granted by the High Court
cannot extinguish the rights of the appellants to contest their
position before the appropriate forum and even otherwise, the
appellants must have been under the belief that the cancellation
deed had fulfilled the said purpose. This may also be coupled with
the issue of limitation, if any action is proposed by the appellants
and we therefore, make it clear that from that point of view, the
filing of the writ petition and the grant of declaration on
10.08.2018 shall not be a disadvantage in that regard.”
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9. In view of the above settled provision of law, unilateral cancellation
of the settlement deed is not valid in the eye of law. Hence, the unilateral
cancellation of the settlement deed is liable to be set aside.
10. Accordingly, this Writ Petition is allowed and cancellation of
settlement deed dated 27.01.2011 is quashed and the second respondent is
directed to remove all the entires pertaining to the cancellation of settlement deed
dated 27.01.2011. Consequently, connected miscellaneous petition is closed. No
costs.
01.08.2024
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Index :Yes/No
Internet :Yes/No
Neutral Citation : Yes/No
To,
The Sub Registrar,
Sub Registrar Office, Kadathu, Dharmapuri District.
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WP.No.16869 of 2023
N. SATHISH KUMAR, J.
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01.08.2024
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