Sri. Macharla Srinivas vs Smt. Macharla Shoba
2023 Latest Caselaw 1731 Tel

         THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                       AND
              THE HON'BLE SRI JUSTICE N. TUKARAMJI


                   WRIT APPEAL No.418 of 2023

JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)


       Heard Mr. Akkam Eshwar, learned counsel for the

appellant and Ms. S.Roja Ramani, learned counsel for

respondent No.1.

2. This appeal is directed against the final order dated

17.02.2023 passed by the learned Single Judge allowing

W.P.No.34783 of 2013 filed by respondent No.1 as the writ

petitioner.

3. Respondent No.1 had filed the related writ petition

assailing the order dated 05.03.2011 of the Sub Registrar,

Saroornagar, Ranga Reddy District, registering the

instrument of cancellation of gift deed dated 21.12.2009.

4. We may mention that the gift was initially made by

appellant in favour of respondent No.1 who incidentally are

husband and wife. It appears that because of strained

relationship, the husband got the gift settlement deed

cancelled vide the impugned order which came to be

challenged by the wife before the learned Single Judge.

5. From a perusal of the order of the learned Single

Judge dated 17.02.2023, it is seen that that the writ

petition was adjourned on a number of occasions because

of non appearance of learned counsel on behalf of

respondent No.4 in the writ petition (appellant herein).

Finally, the writ petition was directed to be listed under the

caption "for orders/for judgment". Even then also there

was no representation on behalf of the appellant. Learned

Single Judge noted that the impugned cancellation deed

was executed and registered by the appellant unilaterally

without the consent of respondent No.1/writ petitioner.

Adverting to Rule 26(i)(k) of the Telangana Rules framed

under the Registration Act, 1908, learned Single Judge

held that cancellation of gift deed cannot be done

unilaterally. Both the parties must be present before the

Sub Registrar. Therefore, learned Single Judge set aside

the impugned cancellation deed as being contrary to the

relevant provisions of law.

6. Learned counsel for the appellant submits that a writ

petition assailing cancellation of gift deed is not

maintainable. This court has held that the proper course

of action would be to file a civil suit. In this connection, he

has placed before us a copy of order dated 28.07.2022

passed in W.A.No.1472 of 2017 (Sri Govindram Agarwal

v. State of Telangana).

7. Each case has to be decided on the facts and

circumstances of that case. While it is true that ordinarily

a challenge to cancellation of a gift deed should be before

the competent civil court because such a challenge would

require appreciation of facts and evidence, the writ court

may not be the appropriate forum in such a case.

8. However, in this case learned Single Judge has found

a clear infraction of the statutory provision and therefore

has interfered with the same. That apart, the impugned

order is dated 05.03.2011. At this distant point of time,

relegating respondent No.1 to the forum of civil court would

be causing injustice to her inasmuch as the limitation

period for filing such a suit has expired in the meanwhile.

Moreover, the conduct of the parties is an important factor

to be considered by the writ court while moulding the

relief.

9. As noted by the learned Single Judge appellant was

consistent in his default in the proceedings before the

learned Single Judge.

10. In the circumstances, we are not inclined to entertain

the appeal.

11. Writ appeal is accordingly dismissed.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ N. TUKARAMJI, J 21.04.2023 vs