Madras High Court
Rep. By Her Power Agent vs The Sub-Registrar on 5 June, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.No.19836 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05..06..2024
Coram
THE HON'BLE MR JUSTICE N.SATHISH KUMAR
Writ Petition No.19836 of 2023
Mrs.Lakshmy Suresh,
Post Box No.668,
Postal Code 114, Jibroo,
Sultanate of Oman
Rep. By her Power Agent,
G.Anandan, Son of Gurusamy,
No.3/437, Bazaar Street,
Kanakamma Chatram,
Thiruthani Taluk,
Thiruvellore District.
..... Petitioner
-Versus-
1.The Sub-Registrar,
Thiruvalangadu,
Thiruthani Taluk,
Thiruvellore District.
2.Kanniya Naidu
3.Mrs.Girija
4.I.V.Singam
..... Respondents
Petition filed under Article 226 of The Constitution of India, praying to
issue a Writ of Certiorarified Mandamus calling for the records of the 1 st
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W.P.No.19836 of 2023
respondent relating to the registration of unilateral Cancellation Deed dated
08.01.1999, bearing Registered Document No.24 of 1999 registered on the file
of the 1st respondent – Sub-Registrar, Thiruvalangadu and to quash the same
and to direct the 1st respondent to delete or make necessary endorsement in the
entries relating to the registration of the said cancellation deed dated
08.01.1999 in the records maintained by the 1st respondent.
For Petitioner(s) : Mr.Abdul Saleem,
Senior Counsel for
M/s.T.Fenn Walter Associates
For Respondent (s) : Mr.Yogesh Kannadasan,
Special Government Pleader
for R1
No Appearance for RR2 to 4
ORDER
Challenge is to the Unilateral Cancellation Deed dated 08.01.1999
registered as Doc.No.24 of 1999 on the file of the 1st respondent.
2. It is the case of the petitioner that her parents K.N.Iyer Mahadevan and
Janaki Mahadevan had purchased the landed property measuring an extent of
1.00 Acre comprised in S.No.184/8 (part) at No.46, Kaveri Rajapuram village,
Tirutani Taluk, Thiruvallur District from one Kanniah Naidu and Girija
represented by their Power Agent, the 4th respondent herein by way of
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registered sale deed dated 29.04.1997 registered as Doc.No.929* of 1997 on
the file of the 1st respondent-Sub Registrar, Thiruvalangadu. After the purchase
of the said property, the parents of the petitioner were in possession and
enjoyment of the same. While so the father of the petitioner died on
08.09.2006 and her mother also died on 27.12.2000 leaving behind the
petitioner as their only legal heir. The petitioner has been residing in Oman and
the parents of the petitioner were initially residing at Coimbatore and for some
time at Bangalore, they later on moved their residence in Oman where the
petitioner was residing.
3. While so, taking advantage of the absence of the parents of the
petitioner in the locality where the subject property is situated, the vendors of
her parents, through their Power Agents had unilaterally cancelled the sale
deed dated 29.04.1997 executed in favour of the parents of the petitioner vide
Doc.No.929 of 1997 registered on the file of the Sub Registrar, Thiruvalangadu
through a Deed of Cancellation of Sale Deed dated 08.01.1999 which was
registered as Doc.No.24 of 1999 on the file of the 1st respondent. Hence, this
writ petition.
4. A counter affidavit has been filed by the 1st respondent opposing the
writ petition inter alia contending that it is for the petitioner to work out her
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remedy before the competent civil court.
5. Heard both sides.
6. The learned counsel for the petitioner would strenuously submit that
though the deed of cancellation of sale deed was executed in 1999, as the
petitioner was all along settled in Omen, she only recently came to know about
the execution of deed of cancellation of sale made in favour of her parents by
Kanniah Naidu and Girija (Vendors) through their power of agent-I.V.Singam,
the 4th respondent.
7. Despite notice having been served, the 4th respondent had not chosen
to enter his appearance in person or through a counsel and file counter
affidavit.
8. This court has perused the entire materials placed on record carefully.
9. The Deed of Cancellation of Sale Deed executed unilaterally by the
vendors of the petitioner through their power agent is put to challenge in the
writ petition.
10. The law on the subject is no longer res integra. A Full Bench of this
Court in the case of Latif Estate Line India Limited v. Hadeeja Ammal
reported in 2011 (2) CTC 1 : AIR 2011 Mad 66 has held that a settlement
deed or deed of conveyance cannot be unilaterally cancelled. The relevant
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paragraph of the judgement of the Full Bench of this Court reads as follows:-
“59. After giving our anxious consideration on
the questions raised in the instant case, we come to the
following conclusion:-
(i) A deed of cancellation of a sale unilaterally
executed by the transferor does not create, assign, limit
or extinguish any right, title or interest in the property
and is of no effect. Such a document does not create any
encumbrance in the property already transferred. Hence
such a deed of cancellation cannot be accepted for
registration.
(ii) Once title to the property is vested in the
transferee by the sale of the property, it cannot be
divested unto the transferor by execution and
registration of a deed of cancellation even with the
consent of the parties. The proper course would be to
re-convey the property by a deed of conveyance by the
transferee in favour of the transferor.
(iii) Where a transfer is effected by way of sale
with the condition that title will pass on payment of
consideration, and such intention is clear from the
recital in the deed, then such instrument or sale can be
cancelled by a deed of cancellation with the consent of
both the parties on the ground of non- payment of
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consideration. The reason is that in such a sale deed,
admittedly, the title remained with the transferor.
(iv) In other cases, a complete and absolute sale
can be cancelled at the instance of the transferor only by
taking recourse to the Civil Court by obtaining a decree
of cancellation of sale deed on the ground inter alia of
fraud or any other valid reasons."
11. Subsequently, another Full Bench of this Court in the case of
Sasikala v. Revenue Divisional Officer cum Sub Collector and another
reported in 2022 (5) CTC 257 following the Hon'ble Supreme Court in the case
of Thota Ganga Lakshmi Vs Government of Andhra Pradesh reported in
[(2010)15 SCC 207 ] and the judgement of the Full Bench of this Court in the
case of Latif Estate Line India Limited (cited supra) has held as under:-
“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.-vs- Government 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
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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 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
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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 judgement.
(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."
12. In the light of the settled position of law, unilateral cancellation of
the deed is not valid in the eye of law. The deed of cancellation of sale which is
sought to be set aside has admittedly been executed unilaterally cancelling the
sale made by the vendors viz., Kanniah Naidu & Girija through their power
agent, the 4th respondent in favour of the parents of the petitioner. Thus, the
deed of cancellation of sale deed will not have any significance in respect of
the title of the parents of the petitioner over the subject property and the same
is liable to be set aside. This writ petition succeeds accordingly.
In the result, the writ petition is allowed. The Deed of Cancellation of
Sale Deed dated 08.01.1999 registered as Doc.No.24 of 1999 on the file of the
1st respondent cancelling the sale deed dated 29.04.1997 executed by Kanniah
Naidu and Girija through their power agent-I.V.Singam, the 4th respondent in
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favour of K.N.Iyer Mahadevan and Janaki Mahadevan, the parents of the
petitioner, registered as Doc.No.929 of 1997 on the file of the 1 st respondent is
set aside. The 1st respondent is directed to make necessary entries in the
encumbrance in respect of order of this court setting aside the deed of
cancellation of sale deed dated 08.01.1999 vide Doc.No.24 of 1999. No costs.
Index : yes / no 05..06..2024
Neutral Citation : yes / no
Speaking / Non Speaking Order
kmk
To
1.The Sub-Registrar,
Thiruvalangadu,
Thiruthani Taluk,
Thiruvellore District.
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N.SATHISH KUMAR.J.,
kmk
05..06..2024
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