Madras High Court
G.Jothimani vs The District Registrar on 4 February, 2025
W.P(MD)No.31344 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.02.2025
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P(MD)No.31344 of 2024
and
W.M.P(MD)No.26241 of 2024
G.Jothimani ... Petitioner
Vs
1.The District Registrar,
Karaikudi District Registration Office,
Karaikudi, Sivagangai District.
2.The Sub Registrar,
Sub Registrar Office,
Thirupathur,
Sivagangai District.
3.A.Ganesan ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus to call for the records relating
to the impugned unilateral cancellation settlement deed registered as
Document No.2963 of 2014 dated 28.10.2014 on the file of the second
respondent and quash the same as illegal, void, non-est in the eye of law
without jurisdiction and against the public policy and further directing
the second respondent to remove the entries in respect of the said
document concerned and consequential transactions from the concerned
register.
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1/13
W.P(MD)No.31344 of 2024
For Petitioner : M/s.L.Juliet Caroline
For RR 1 & 2 : Mr.R.Suresh Kumar
Additional Government Pleader
For R – 3 : Mr.K.G.Arun Kumar
ORDER
This Writ Petition challenges the unilateral cancellation of a
settlement deed. The cancellation deed had been registered in Document
No.2963 of 2014 dated 28.10.2014.
2.There is no dispute in the relationship between the
petitioner and the third respondent. The third respondent is the father and
the petitioner is his son. The third respondent is the owner of the property
in Survey Nos.50/4 and 50/8 of Magipalanpatti Village, Thirupathur
Taluk, Sivagangai District. He had purchased the same from two persons,
namely, Gugan and Gopalan vide registered sale deed dated 03.10.2008
in Document No.2756 of 2008. The petitioner has other siblings.
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3.The third respondent/father executed a settlement deed in
favour of the petitioner in Document No.3324 of 2009 dated 17.11.2009.
The relevant portions of the document are as follows:
“eP vdJ kfd; Mtha; cd; kPJ ehd;
itj;Js;s md;gpdhYk; gpupaj;jpd; fhuzkhfTk; eP
vd;kPJ nfhz;Ls;s ghrj;jpd; mbg;gilapy;
rkNah[pjkha; eP vd; Njitfis mwpe;J mjd;gb
vdf;F Ntz;ba ey;ygy cjtpfis MtNyhL
epiwNtw;wp tUfpw cdf;F cd;
vjpu;fhyj;NjitfSf;F gpuNah[dg; gLk;gbahd
xU Vw;ghl;bid ehd; vd; tho; ehl;fspNy nra;J
itj;Jtpl Ntz;Lk; vd;w vd; cs;sj;jpy;
vOe;Js;s Nguhtiy epiwNtw;wpf;
nfhs;sf;fUjp ....”
4.After execution of a document, disputes arose between the
parties. Therefore, the third respondent/father cancelled the settlement
deed by way of a registered cancellation deed in Document No.2963 of
2014 dated 28.10.2014. On coming to know of the cancellation, the writ
petitioner presented O.S.No.71 of 2019 on the file of the Principal
District Munsif Court at Thirupathur. This suit was dismissed for default
on 20.11.2019. Subsequently, due to the onset of the pandemic caused by
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Covid-19, the petitioner could not take further steps to prosecute the suit.
Since the document continues to be on the file of the second respondent,
the petitioner has come forward with the present Writ Petition.
5.The simple plea of the learned counsel for the petitioner is
that as the settlement deed had been executed in the year 2009, it cannot
be cancelled unilaterally in the year 2014. He relies upon the Judgment
of a Full Bench of this Court in M/S.Latif Estate Line India Ltd vs
Mrs. Hadeeja Ammal and others, 2011 (2) CTC 1.
6.The learned counsel appearing for the writ petitioner, on
instructions, stated that it was not the intention of the writ petitioner to
abandon the third respondent/father. He states that the writ petitioner will
maintain the third respondent during his lifetime.
7.Per contra, the learned counsel appearing for the
contesting third respondent points out that the Writ Petition is untenable
on the following grounds:
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(i) That the suit had been dismissed for
default in the year 2019 and this Writ Petition has been
filed in the year 2024 and hence, it is hit by laches and
(ii) The suit having been dismissed for
default, it operates as a decree against the writ petitioner
and hence principles of res judicata will apply.
8.The learned Special Government Pleader states being the
State authority it will abide by any orders passed by this Court.
9.I have carefully considered the submission on both sides.
10.The execution of the settlement deed by the third
respondent in favour of the writ petitioner is not in dispute. In fact, it
cannot be disputed either because unless and until the settlement deed is
executed, the question of cancellation of the said document does not
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arise.
11.It is the simple plea of the writ petitioner that having
executed a settlement deed, unilateral cancellation thereof comes within
the teeth of the Judgment of this Court in M/S.Latif Estate Line India
Ltd vs Mrs. Hadeeja Ammal and others, 2011 (2) CTC 1. On that
score, I am entirely with the petitioner. Normally, on the execution of a
settlement deed, there is a transfer of title. Once title has been transferred
then, it cannot be divested from the decree, unless and until, there is
another document of conveyance or a decree of a civil Court or an order
of a competent authority empowered to order its cancellation. One party
cannot unilaterally take the law into his own hands and set the clock
back, without the support of a legally established authority or through the
process of the civil Court.
12.The preliminary objection raised by the third respondent
that there is a delay and laches in preferring this Writ Petition does not
appeal to me. In order for laches or delay to apply, there should be a
voluntary standing by, of actions being taken against the interest of a
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party and the parties so affected should have kept quiet. I cannot accuse
the writ petitioner of having kept quiet, as he has immediately launched a
suit, on coming to know of the document. The suit has been dismissed
for default. The fact that the suit has been dismissed for default, does not
mean that the document gains validity. If there is no power for the third
respondent to cancel a document unilaterally, then, the issue of such a
document continuing to be on the file of the second respondent does not
arise.
13.The plea that the constructive res judicata applies on
account of the suit being dismissed for default does not hold water either.
For res judicata to apply, the suit or proceedings must have been 'heard
and finally decided'. When the suit is dismissed for non-payment of
batta/process fee, the suit is neither heard nor finally decided. Hence, the
plea of res judicata also does not arise.
14.Insofar as the plea that the dismissal of the suit operates
as the decree is concerned, I should immediately refer to Section 2(2) of
the Code of Civil Procedure, 1908. Under Section 2(2), the term “decree”
has been defined. It specifically states under Section 2(2)(b) that “any
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order of dismissal for default" will not come within the definition of a
decree. Therefore, that too does not assist the third respondent.
15.I am bound by the Judgment of the Full Bench and
therefore, I have to hold that the cancellation of the document in
Document No.2963 of 2014 dated 28.10.2014 is illegal, non-est and
liable to be interfered with.
16.Considering the relationship between the parties, I cannot
stop with merely allowing the Writ Petition. The process that had been
adopted by the third respondent can be found fault with, but the right that
has been given to the third respondent to get the document cancelled is
always available under the provisions of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007.
17.Very recently, the Supreme Court dealt with the similar
issue in Urmila Dixit Vs. Sunil Sharan Dixit and others in Civil Appeal
No.10927 of 2024 dated 02.01.2025. The Supreme Court held, in case
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the document of settlement shows that the same had been executed not
only out of natural love and affection but on account of any consideration
of maintenance, then, a senior citizen is certainly entitled to invoke
Section 23 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007.
18.The portion of the document dated 17.11.2009 shows that
the document had been executed not only out of natural love and
affection that the third respondent had for the petitioner, but also on
account of the fact that the writ petitioner was maintaining and had
assured continued maintenance of the third respondent. These are clear
from the following words:
“eP vd; Njitfis mwpe;J mjd;gb
vdf;F Ntz;ba ey;ygy cjtpfis MtNyhL
epiwNtw;wp tUfpw cdf;F cd;
vjpu;fhyj;NjitfSf;F ....."
19.The appropriate remedy for the third respondent is to
move the authorities under the said legislation. The third respondent,
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perhaps on some legal advice, decided to unilaterally cancel the
document, when such a power had not been reserved by him under the
document. This does not prevent him from approaching the authorities
under the Maintenance and Welfare of Parents and Senior Citizens Act,
2007.
20.In the light of the above discussions:
(i) The Writ Petition is allowed. The document
of unilateral cancellation settlement deed No.2963 of 2014
dated 28.10.2014 is set aside.
(ii) The second respondent shall record this
order and make an appropriate entry in his records.
(iii) Liberty is granted to the third respondent
to approach the jurisdictional authority under the
protection of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 or jurisdictional civil Court for a
declaration that the document which had been executed for
maintenance could not be given effect since the writ
petitioner had failed to maintain him. This a matter, which
has to be agitated after tendering evidence, either before
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the authority or before the civil Court.
(iv) The undertaking given by the writ
petitioner to maintain the third respondent during the
latter's lifetime is recorded.
21.Before I bring the curtains down on this case, I should
point out that both sides agreed that the third respondent is in possession
of the property. The third respondent will not be dispossessed by the writ
petitioner, except otherwise in accordance with law. There shall be an
order restraining the second respondent from registering any document
of alienation for a period of six weeks to enable the third respondent to
approach the appropriate authority or the civil Court. In case the third
respondent does not invoke the jurisdiction of the authorities within the
period specified, the embargo placed above will not operate. There shall
be no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
04.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
To
1.The District Registrar,
Karaikudi District Registration Office,
Karaikudi, Sivagangai District.
2.The Sub Registrar,
Sub Registrar Office,
Thirupathur,
Sivagangai District.
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V.LAKSHMINARAYANAN, J.
ps
Order made in
04.02.2025
https://www.mhc.tn.gov.in/judis
