Madras High Court
S.Ramasamy vs The Sub Registrar on 16 May, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.P.(MD)NO.17630 OF 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 16.02.2024
DATED : 16.05.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.17630 of 2020
S.Ramasamy ... Petitioner
Vs.
1. The Sub Registrar,
Mukoodal Sub Registrar Office,
Cheranmadevi Registration District,
Tirunelveli District.
2. R.K.Sundari
3. R.Senthilkumar ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the
records pertaining to the registration of the document No.1777/2020
dated 19.10.2020 on the file of the 1st respondent and quash the same
and consequently direct the 1st respondent to delete the entries pertaining
to the registration of Document No.1777/2020 dated 19.10.2020 from the
encumbrance certificate.
For Petitioner : Mr.G.Prabhu Rajadurai
For R-1 : Mr.D.S.Nedunchezhiyan,
Government Advocate.
For R-2 & R-3 : Mr.S.Srinivasa Raghavan
***
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1/9
2 W.P.(MD)NO.17630 OF 2020
ORDER
Heard both sides.
2. The petitioner is none other than the husband of the second
respondent and the father of the third respondent.
3. The case of the petitioner is as follows:-
The petition mentioned properties were purchased by the
petitioner in the name of his wife. His wife had executed a power deed in
his favour. Document No.2131 of 2010 was executed and registered on
17.05.2010 settling the properties in favour of the petitioner. After the
execution of the said settlement deed, the petitioner created a layout and
also sold the plots in favour of third parties and purchasers have obtained
pattas in their respective names. After a lapse of almost ten years, at the
instance of the third respondent, two other documents were created. The
petitioner's wife executed a document dated 19.10.2020 cancelling the
earlier gift deed dated 17.05.2010. To quash the registration of document
No.1777 of 2020, this writ petition has been filed.
4. The private respondents have filed counter affidavit. The
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stand set out therein is as follows:-
The petitioner is living separately. The second respondent had
executed a power deed dated 23.04.1991. This document did not
authorise the petitioner to execute any gift deed. The power deed was
also cancelled on 10.08.2010. On account of difference of opinion, the
second respondent left the matrimonial home along with her son. Only in
the year 2020, she became aware of the execution of the settlement deed
dated 17.05.2010. That was cancelled. Thereafter, the second respondent
executed settlement deed dated 19.10.2020 in favour of the third
respondent. The registration of the cancellation deed dated 19.10.2020 is
not illegal and it does not warrant interference.
5. The learned counsel on either side projected the stand set out
in the respective pleadings.
6. I carefully considered the rival contentions and went through
the materials on record.
7. The Hon'ble Full Bench of Madras High Court on more than
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one occasion had held that the registration of deeds of unilateral
cancellation is legally impermissible. The Hon'ble Full Bench in the
decision reported in AIR 2011 Mad 66 (Latif Estate Line India Ltd. and
Ors. Vs. Hadeeja Ammal and Ors) has held 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 transferrer 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 favor 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 consideration. The reason is
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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.”
The aforesaid decision has been relied on by another Full Bench of
Madras High Court in the decision reported in 2022 (5) CTC 257
(Sasikala Vs. The Revenue Divisional Officer). The Hon'ble Full Bench
has held as follows:-
“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
MANU/SC/1267/2010 : (2010) 15 SCC 207 and the Full
Bench of this Court in Latif Estate Line India Ltd., case,
reported in MANU/TN/0310/2011 : 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
MANU/SC/0615/2022 : (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
MANU/SC/0579/2022 for the following propositions:
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(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 transferrer 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. If the second respondent had executed a settlement deed in
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favour of the petitioner on 17.05.2010, obviously, she could not have
unilaterally cancelled the same on 19.10.2020. But the settlement deed
dated 17.05.2010 was executed not by the second respondent, but by the
petitioner himself in his capacity as power agent of the second
respondent. The petitioner admittedly claimed authority on the strength
of the power deed dated 23.04.1991. A copy of the same has not been
enclosed in the typed set of papers. It was passed on during the hearing. I
went through the contents of the said power document. It has authorised
the petitioner to manage the properties and to create deeds of mortgage,
sale, exchange and lease. There is no specific clause empowering the
power agent to settle the property on himself. In these circumstances, I
am not in a position to grant relief in favour of the petitioner by applying
the aforesaid Hon'ble Full Bench decisions. It is also seen that the third
respondent had filed O.S.No.48 of 2021 before the learned Additional
District Munsif, Thoothukudi. The parties can very well work out their
rights before jurisdictional civil Court. If any subsequent purchaser /
third party raises the issue, it shall be considered independently without
reference to the outcome of this writ petition.
9. With these observations and liberty, this writ petition stands
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dismissed. No costs.
16.05.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
To:
The Sub Registrar,
Mukoodal Sub Registrar Office,
Cheranmadevi Registration District,
Tirunelveli District.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
16.05.2024
https://www.mhc.tn.gov.in/judis
