Madras High Court
Selvabhai vs The District Registrar on 7 January, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P(MD)No.30540 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P(MD)No.30540 of 2024
Selvabhai ... Petitioner
Vs.
1.The District Registrar,
O/o. the District Registrar,
Kanyakumari,
Kanyakumari District.
2.The Sub Registrar,
O/o. the Sub Registrar Office,
Bhuthapandy,
Kanyakumari District.
3.Y. Francis
4. Y. Rajammal ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, to declare the
cancellation of Settlement deed dated 29.09.2010 executed by the
Late. Jesili Nadachi in favour of the petitioner's husband and registered
on the file of the 2nd respondent as Document No.4981 of 2010 as null
and void within the period that may be stipulated by this Court.
1/10
https://www.mhc.tn.gov.in/judis
W.P(MD)No.30540 of 2024
For Petitioner : Mr.A.Nawazkhan,
For M/s.Ajmal Associates.
For Respondent : Mr.S.P.Maharajan,
Spl. Government Pleader for R1 & R2.
Mr.Vignesh Shanmugam for R3 & R4.
ORDER
This Writ Petition has been filed to declare the cancellation of
Settlement deed dated 29.09.2010 executed by late.Jesili Nadachi in
favour of the petitioner's husband and registered on the file of the second
respondent as Document No.4981 of 2010 as null and void.
2.The petitioner is the wife of one late.Susai Micheal. The
petitioner's mother-in-law namely, Jesili Nadachi owned property and the
same was settled in favour of the petitioner's husband by way of
registered settlement deed vide Document No.9985/2008 on 26.09.2008
before the second respondent. Thereafter, the petitioner's family members
are in possession and enjoyment of the same. The petitioner's
mother-in-law passed away on 21.08.2012 and the petitioner's husband
passed away on 08.01.2018. Thereafter, the petitioner intended to settle
the property in favour of her legal heirs. On verification of the
https://www.mhc.tn.gov.in/judis
encumbrance register, she came to know that her mother-in-law
unilaterally cancelled the settlement deed executed in favour of her
husband vide Document No.4981/2010 before the second respondent.
The petitioner's husband was not put on notice before cancellation of the
settlement deed executed in favour of her husband. Hence, the petitioner
filed this writ petition.
3.Heard the learned counsel for the petitioner and the learned
Special Government Pleader for the official respondents.
4.The issue raised in this writ petition is squarely covered by the
decision of the Hon'ble Full Bench in W.P.(MD)Nos.6889 of 2020 etc
batch, dated 02.09.2022. The Hon'ble Full Bench held as follows:-
“39.No transfer can be made in so far as it is opposed to
the nature of interest affected thereby or for an unlawful object as
per Section 6 of Transfer of Property Act. Only a person
competent to contract and has a transferable right is competent to
transfer such property. “Sale” is a transfer of ownership in
exchange for a price paid or promised. In case of immovable
property of the value of one hundred rupees and more, it can be
made only by a registered instrument. Once a transfer is made by
https://www.mhc.tn.gov.in/judis
a registered instrument all the interest which the transferor is then
capable of passing in the property is passed on forthwith to the
transferee. After a deed of conveyance, the transferor has no
transferable interest. The Transfer of Property Act does not permit
the transferor to recall an instrument so as to divest the
transferee's title. The Registration Act does not deal with
unilateral cancellation of a sale deed . The Registration Act does
not confer any power to registrar to cancel a document which had
been registered as per the Act. By registration a legal sanctity is
given to the conveyance. When the object of Registration is to
ensure public to rely with confidence upon the statements
contained is the registers maintained in the Registrar's office as a
full and complete account of all transaction affecting title,
permitting registrars to accept unilateral cancellation of sale
deed or any other deed of conveyance (except revocation of gift as
may be permitted in accordance with Section 126 of Transfer of
Property Act or a Will) will be opposed to the object and purpose
of Registration Act itself and contrary to the provision of Transfer
of property Act. A person, after conveying all his right by a deed
of conveyance, has no right to deal with the property again
affecting, limiting or extinguishing the right or title of transfer for
no consideration. When such deed of cancellation is presented,
the deed of conveyance which had been registered earlier is
referred to. It is not as if the registrar needs to prove further to
find out whether the person executing the document has title.
When a deed of cancellation is presented, the incompetency to
transfer is admitted by the executant. The intention of the person
https://www.mhc.tn.gov.in/judis
presenting a document cancelling the registered document is
fraudulent and the fraud is accomplished, when such document is
registered. Registering Officer has power to refuse to register a
document. A person may file an appeal before Registrar against
an order refusing to register, except on the ground of denial of
execution. Similarly, if the Sub-Registrar refuses to register on the
ground of denial of execution, a person claiming under the
document can apply to the Registrar to establish his right to have
the document registered. After accepting the document for
registration and registering the document, the Registrar has no
power under the Registration Act to cancel the Registration. If a
document cancelling the registered deed is accepted for
registration by the registering authority, he intends to do
something which he is not authorised under the Act and it is
beyond his power under the Registration Act.
40.Hence, we have no hesitation to answer the issue by
holding that the Sub-Registrar namely, the Registering Authority
has no power to accept the deed of cancellation to nullify the deed
of conveyance made earlier.
41.Regarding gift or settlement: With regard to unilateral
cancellation of gift deed, which is not revokable and does not
come under the purview of Section 126 of the Transfer of Property
Act, the Registrar has no power to accept the deed of cancellation
to nullify the registered settlement deed. Section 126 of the
Transfer of Property Act, reads as follows:
https://www.mhc.tn.gov.in/judis
“126. When gift may be suspended or revoked.—
The donor and donee may agree that on the happening of
any specified event which does not depend on the will of
the donor a gift shall be suspended or revoked; but a gift
which the parties agree shall be revocable wholly or in
part, at the mere will of the donor, is void wholly or in
part, as the case may be. A gift may also be revoked in any
of the cases (save want or failure of consideration) in
which, if it were a contract, it might be rescinded. Save as
aforesaid, a gift cannot be revoked. Nothing contained in
this section shall be deemed to affect the rights of
transferees for consideration without notice.”
42.Section 126 of the Transfer of Property Act recognizes
the power of revocation where the donor reserves a right to
suspend or revoke the gift on happening of any specified event.
However, the illustrations clarifies that the revocation should be
with the assent of the donee and it shall not be at the will of donor
as a gift revocable at the mere Will of the donor is void. The
Subregistrar cannot decide whether there was consent for
revocation outside the document. If the donor by himself reserves
a right to revoke the gift at his Will without the assent by donee,
the gift itself is void. Since we are dealing with unilateral
cancellation, the power of registration of cancellation or
revocation of gift deed cannot be left to the discretion or wisdom
of registering authority on facts which are not available or
descernible from the deed of gift. When the power of revocation is
reserved under the document, it is permissible to the registering
officer to accept the document revoking the gift for registration
only in cases where the following conditions are satisfied;
https://www.mhc.tn.gov.in/judis
(a)There must be an agreement between the donor and
donee that on the happening of a specified event which does not
depend on the Will of the donor the gift shall be suspended or
revoked by the donor.
(b)Such agreement shall be mutual and expressive and seen
from the document of gift.
(c)Cases which do not fall under Section 126 of Transfer of
Property Act, unless the cancellation of Gift or Settlement is
mutual, the registering authority shall not rely upon the self
serving statements or recitals in the cancellation deed. For
example questioning whether the gift deed was accepted or acted
upon cannot be decided by the registering authority for the
purpose of cancelling the registration of gift or settlement deed.
43.The donor must specifically reserves such right to
suspend or revoke the gift deed with the consent of donee to
attract Section 126 of the Transfer of Property Act. Unless the
agreement is mutual, expressed in the recitals, the Registering
Authority cannot accept the document for registration. However,
the factual allegations with regard to the acceptance of gift or the
issue where the gift was acted upon or not do not come under the
purview of the Registering Officer. Hence, the Registering Officer
is not excepted to accept the document unilaterally cancelling the
gift deed, merely on the basis of the statement of the donor or the
recitals in the document for cancellation.
https://www.mhc.tn.gov.in/judis
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
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
https://www.mhc.tn.gov.in/judis
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.
5.In view of the above, the unilateral cancellation of deed
registered vide Document No.4981/2010 on the file of the second
respondent is declared as null and void. The writ petition is allowed
accordingly. No costs.
07.01.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN, J.
ias
To:-
1.The District Registrar,
O/o. the District Registrar,
Kanyakumari,
Kanyakumari District.
2.The Sub Registrar,
O/o. the Sub Registrar Office,
Bhuthapandy,
Kanyakumari District.
07.01.2025
https://www.mhc.tn.gov.in/judis
